By Lisa Loomis

The Vermont Supreme Court affirmed the finality of subdivision conditions imposed by the town of Waitsfield on a parcel of land in the town's scenic and agricultural corridor.

In the January 16 decision, the Vermont Supreme Court denied Joan and James Hildebrands' appeal of an Environmental Court decision over whether they can subdivide their land on the East Warren Road in Waitsfield.


Joan Hildebrand and her son James were denied subdivision of a 15.9-acre parcel of land by the Waitsfield Planning Commission in 2004. At the time, the town cited a pre-existing condition of the subdivision that created the 15.9-acre lot where Joan Hildebrand has a home.

They appealed that denial to Vermont Environmental Court and when they lost in October 2005 they appealed to Vermont Supreme Court. The Environmental Court ruled, and the Supreme Court upheld, the application of the principles of the Stowe Highlands decision. That decision spells out under what conditions subdivision conditions (such as those which prohibited further subdivision of the Hildebrand's lot) may be amended.

At issue for the lower court, and on appeal, was the question of whether a final subdivision permit that was not appealed when issued can be amended. The Supreme Court and lower court acknowledged that it is possible to amend such permits, but only when circumstances surrounding the original permit have changed.

In arguments before both courts, the Hildenbrand's argued that their neighbors' consent and the assertion that 'times have changed' amounted to grounds to amend the permit and allow further subdivision of the land.

The Supreme Court countered each argument put forth by the Hildebrands, concluding:  

"Finally, the Hildebrands argue that when the surrounding landowners do not object to a permit amendment, the planning commission should simply allow the amendment. We disagree. Subdivision permits and amendments are the town's primary tool for effectuating the Town Plan. This is certainly not the first time that a town's long-term goals for preservation of common resources have hindered the short-term gain of a small group of neighbors, nor will it be the last."

"The Stowe Club Highlands test allows sufficient flexibility to relieve landowners from permit conditions that have become unworkable while preventing the permit amendment process from becoming a piecemeal referendum on the Town Plan," the Supreme Court decision concluded.

The land in question was originally subdivided in 1992. It was one of four lots created in the subdivision and conservation of the 182-acre Neill farm. During the 1992 subdivision, the Waitsfield Planning Commission included a condition prohibiting the further subdivision on the Hildenbrand lot, Lot 4. The condition was created to preserve the viewshed and ensure that an open field remained in agricultural use.