DOOLEY, J.
¶ 1. Neighbors of a proposed affordable housing development appeal an Environmental Division decision affirming a decision of the Town of Woodstock Development Review Board (DRB) granting appellee-applicants Woodstock Community Trust and Housing Vermont (hereinafter collectively referred to as WCT) a zoning permit and a decision of the District 3 Environmental Commission, granting an Act 250 land use permit. The Environmental Division had reversed an earlier decision of the DRB granting a permit,
¶ 2. WCT presented its proposed development to the Woodstock DRB in June 2007, and the board approved this initial application. Neighbors of the project appealed the DRB's decision to the Environmental Division, which held that the proposed project failed to meet a number of requirements under the Town of Woodstock Zoning Regulations.
¶ 3. Several months after this decision, WCT did submit a second application to the DRB, along with an Act 250 permit application to the District 3 Environmental Commission, both of which were subsequently approved. The neighbors appealed both these decisions to the Environmental Division, and the appeals were consolidated. During this second appeal, neighbors moved to stay the
¶ 4. Neighbors first argue that the second application should have been barred by the successive-application doctrine. The successive-application doctrine represents an implementation of issue preclusion, as adapted to the specific context of multiple zoning applications. In re Armitage, 2006 VT 113, ¶ 4, 181 Vt. 241, 917 A.2d 437. Issue preclusion serves to prevent the relitigation of issues that have already been settled in a previous action. See State v. Pollander, 167 Vt. 301, 304 n. 2, 706 A.2d 1359, 1360 n. 2 (1997). The successive-application doctrine reflects the necessarily iterative zoning and planning process in that it enforces a more relaxed standard of issue preclusion than is applicable in other contexts.
¶ 5. The basic description of the doctrine is found in In re Carrier: "a zoning board ... `may not entertain a second application concerning the same property after a previous application has been denied, unless a substantial change of conditions had occurred or other considerations materially affecting the merits' of the request have intervened between the first and second application." 155 Vt. 152, 158, 582 A.2d 110, 113 (1990) (quoting Silsby v. Allen's Blueberry Freezer, Inc., 501 A.2d 1290, 1295 (Me.1985)). We went on to say in Carrier that a second application can be granted "when the application has been substantially changed so as to respond to objections raised in the original application or when the applicant is willing to comply with conditions the commission or court is empowered to impose." Id.
¶ 6. Neighbors contend that more recent decisions add an additional element to the successive-application doctrine. See In re McGrew, 2009 VT 44, 186 Vt. 37, 974 A.2d 619; Armitage, 2006 VT 113, 181 Vt. 241, 917 A.2d 437. They argue based on these cases that a second application is not allowed if the applicant could have, and should have, included the corrective elements in the first application. We disagree. Indeed, the absence of this additional element is what distinguishes the successive-application doctrine from the more inclusive standard of issue preclusion.
¶ 7. Armitage and McGrew are examples of cases where there was no change of conditions. In Armitage, the first application was denied, in part, because of a traffic deficiency — left turns from the project onto Route 7 would increase traffic volume on that route. 2006 VT 113, ¶ 10, 181 Vt. 241, 917 A.2d 437. With respect to that deficiency, the revised application had no changes to the development proposal but instead the applicant submitted additional evidence to show that the earlier decision was wrong on this point. In denying the second application, we noted that
¶ 8. We turn now to the application of the successive-application doctrine in this case. The Environmental Division denied the initial application because the development proposal did not comply with the local zoning ordinance in four ways.
¶ 9. The second application had an assortment of changes enumerated in the project narrative submitted to the DRB. The DRB was satisfied with the changes, explicitly rejected the assertion that the second application was impermissible as a successive application, and approved the new plan with a vote of 6-0. Ruling on cross-motions for summary judgment, the Environmental Division, too, found that the changes were substantial enough to overcome the bar of the successive-application doctrine and approved the decision of the review board. We affirm the decision of the Environmental Division.
¶ 10. The applicant bears the burden of showing changed circumstances. See Carrier, 155 Vt. at 158, 582 A.2d at 114. The second application contained various changes that were directed at rectifying the deficiencies identified in the first application by the Environmental Division. In order to rectify the open space buffer between the project and neighboring landowners, the central loop road was tightened, moving the development away from the neighbors and expanding the buffer zone. The central trash and recycling center was also removed as part of the effort to create an adequate buffer. Additionally, the revised application eliminated seven parking spaces to prevent the disturbance of what the Environmental Division determined to be a protected wet
¶ 11. Neighbors particularly focus on the stormwater disposal system, arguing that with respect to this aspect of the plan, WCT submitted only new evidence for an unchanged proposal. WCT changed the stormwater drainage system in the first application just before trial, and many of the elements of the system were incomplete. The Environmental Division rejected the system in the first application for two reasons. First, with respect to stormwater from the surrounding undeveloped hillsides, the project plan proposed to divert this stormwater around the developed area with the use of a steep and wide drainage swale that would require the cutting down of many trees. The court rejected this swale design. With respect to the runoff from the developed area, the application was sketchy and incomplete. The court ruled that "[i]t is not enough at this final approval stage to explain that the drainage proposal has only recently been redesigned and that any problems can be adjusted during construction." In the second application, WCT redesigned the swale to respond to the objections of the court. It also provided a complete and detailed description of all of the elements of the system, along with permits from the Agency of Natural Resources for the redesigned system.
¶ 12. We agree with both the review board and the Environmental Division that these changes were adequate to constitute a substantial change of conditions. They are in line with what we and other courts have often recognized as sufficient to overcome the principle of the successive-application doctrine. See Carrier, 155 Vt. at 159, 582 A.2d at 114 (holding that redesigned interior road network, reconfigured lots, and updated landscaping were substantial changes); Malmstrom v. Zoning Bd. of Appeals, 152 Conn. 385, 207 A.2d 375, 377-78 (1965) (holding that change of location for building and parking area, along with parking area's reduced size were change of conditions); Russell v. Bd. of Adjustment, 31 N.J. 58, 155 A.2d 83, 88 (1959) (holding that five-foot increase in front setback and decrease in lot coverage from eighteen to twelve percent constituted sufficient change); Peterson v. City Council, 32 Or.App. 181, 574 P.2d 326, 331 (1978) (holding that smaller building and modified setbacks were change of conditions).
¶ 13. In their brief, neighbors put a great deal of emphasis on the statements of the project architect who characterized the changes to the project as "subtle." Neighbors argue that WCT is bound by this admission, and the court could not find the changes substantial in light of the admission. In fact, the architect's statement, even if it somehow binds WCT, is not inconsistent with WCT's position. Under the successive-application doctrine, the applicant can change the project to respond to the deficiencies that caused the denial of the permit application however small the changes are in the context of the overall project. Here, the question is not the overall impact of the changes on the project, but instead whether they substantially change individual elements to respond to the deficiencies.
¶ 14. The architect's statements may have some probative value in the evaluation of the changes, but they are far from determinative. They do not preclude WCT's argument and should be given the same weight as any other piece of evidence.
¶ 15. We do acknowledge that part of WCT's presentation on the stormwater
¶ 16. We next address the question of whether the changes in the second application corrected the deficiencies of the first application. We review the Environmental Division's "interpretation of zoning ordinances and findings of fact for clear error." Armitage, 2006 VT 113, ¶ 3, 181 Vt. 241, 917 A.2d 437. We uphold legal conclusions by the Environmental Division that are reasonably supported by the findings. See In re Eastview at Middlebury, Inc., 2009 VT 98, ¶ 10, 187 Vt. 208, 992 A.2d 1014. Neighbors claim that the court's conclusions were clearly erroneous with regard to required parking, the ownership and maintenance documents, and the stormwater disposal system.
¶ 17. In the second application, WCT eliminated seven parking spaces that encroached on what the court determined to be a wet area in its first decision. In order to make up for the lost spaces, applicants created a number of tandem driveways, only wide enough for a single car, but long enough for two cars to park one behind the other. The nature of the tandem driveway requires the back car to move before the front car may exit, but the two spaces in a driveway are both assigned to a single unit. Neighbors claim that the Environmental Division determination that the application satisfied § 520 of the town zoning regulations was clearly erroneous because the tandem driveways could not be counted as two parking spaces.
¶ 18. Neighbors argue that because the driveways are intended to contain two cars, they should properly be characterized as parking lots, which are required by § 520(A)(2) to have at least 250 square feet per car so that the spaces are accessible. Section 520(A)(1) defines a parking space as 9' × 18'. The tandem driveways are designed to be 10' × 36'-40', the size of two parking spaces. This driveway is not large enough to fit the definition of parking lot, but it is not required to. Nothing in the Woodstock zoning ordinance requires a driveway to satisfy the definition of parking lot or otherwise limits it from being counted as several parking spaces for the purposes of site plan review. Because it is not clearly erroneous, we defer to the Environmental Division's interpretation of the ordinance. In re Wesco, Inc., 2006 VT 52, ¶ 7, 180 Vt. 520, 904 A.2d 1145 (mem.) ("We defer to the Environmental Court's interpretation of a zoning ordinance `unless it is clearly erroneous, arbitrary, or capricious.'") (quoting In re Cowan, 2005 VT 126, ¶ 7, 179 Vt. 560, 892 A.2d 207 (mem.)). There
¶ 19. Next, neighbors argue that the ownership and maintenance documents do not comply with § 313(A)(8) of the town regulations or Title 27A of the Vermont statutes. Section 313(A)(8) provides in full:
Town of Woodstock Zoning Regulations § 313(A)(8).
¶ 20. Neighbors contend that this section prohibits ownership of separate portions of the project land by separate owners and that the Environmental Division's decision to the contrary was clear error. Neighbors read the introductory sentence of the section as limiting who may own project lands, arguing that the entire land must be owned by one individual or corporation. This interpretation appears to be inconsistent with the language authorizing ownership by a group of individuals or corporations. Moreover, we cannot see any reason for the limitation neighbors urge that the ordinance requires. It would, for example, prohibit a development with single-family housing because the purchaser of a house would own the land. Indeed, this reading would prohibit all condominiums, which are defined as "a common interest community in which portions of the real estate are designated for separate ownership and the remainder of the real estate is designated for common ownership solely by the owners of those portions." 27A V.S.A. § 1-103(8). The real substance of § 313(A)(8) lies in the requirement for an association "to assure that all properties and common areas are properly maintained." The opening sentence is broadly descriptive of the kind of circumstances in which an association is required. WCT has met that requirement here. Neighbors further contend that the declaration does not satisfy § 313(A)(8)(a)'s requirement that "an association shall be formed to assure that all properties and common areas are properly maintained" because it does not provide a mechanism through which the units themselves will be maintained. Town of Woodstock Zoning Regulations § 313(A)(8)(a). Section 8.1 of the Grange Common Interest Community Declaration provides that the "Association shall at its expense maintain all of the Common Elements ... in a good state of repair." While maintenance of the units is not provided for, the units are not to be commonly owned. Again, we conclude that neighbors are urging an overly-restrictive construction of the ordinance. The requirement is to form an association, not to regulate how the association functions in detail. We conclude that the requirement is aimed at property owned or controlled by the association.
¶ 21. Neighbors additionally argue that the declaration violates Title 27A, the Vermont Common Interest Ownership Act, for a number of reasons. Appellants' Statement of Questions submitted to the Environmental Division did not raise this issue, and it was raised for the first time in their Proposed Findings of Facts and Conclusions of Law. This is insufficient to preserve the issue, so we consider it waived. See Mann v. Levin, 2004 VT 100, ¶ 26, 177 Vt. 261, 861 A.2d 1138 (holding that when a defendant did not raise the affirmative defense of laches during the factual proceeding and raised it for the first time in proposed findings of fact, the issue was waived for appeal).
¶ 22. Even if the issues were preserved, we fail to see how neighbors can raise compliance with the Common Interest Ownership Act in a zoning proceeding. Nothing in the zoning ordinance requires a landowner to show compliance with the Act in order to obtain a zoning permit. Moreover, we doubt that a municipality could adopt such a requirement. See 24 V.S.A. § 4411 (Zoning bylaws may permit, prohibit, restrict, regulate, and determine land development.). The Vermont Common Interest Ownership Act has its own private remedies, and there is no suggestion that public, regulatory remedies were intended.
¶ 23. Next we turn to neighbors' argument that the second application did not sufficiently correct the stormwater disposal system problems which the Environmental Division identified in the first application. As we stated above, WCT both changed the stormwater plan and fully documented its original elements. It was changed sufficiently to meet the deficiencies identified in the first decision.
¶ 24. Neighbors argue, however, that the regulations prohibit any increase in discharge into nearby Vondell Brook, and the stormwater system for the developed area will increase the discharge. Section 709(B)(5) of the town zoning regulations requires site plan review to consider "[t]he adequacy of surface drainage facilities." In conducting this review, the Environmental
¶ 25. Neighbors' argument is misdirected. State regulations may contain a requirement of runoff neutrality, but the zoning ordinance does not. Moreover, as stated by the court, the requirement is overall net neutrality, not neutrality at every discharge point. Prior to the project, most of the runoff from the property drained through different properties and reached the main river through a different brook or by overland flow from Route 4. The court conducted a thorough review of the discharge into Vondell Brook and concluded it would adequately handle the surface runoff, even in flooding conditions. Neighbors do not challenge this analysis, and we find no error in it.
¶ 26. We note that, prior to submitting the new permit application, WCT obtained a stormwater discharge permit from the Vermont Agency of Natural Resources, specifically authorizing the discharge into Vondell Brook. WCT also obtained a stormwater construction permit for the period when the project is under construction. Under Act 250 Rule 19, the permits create a rebuttable presumption that the project meets relevant Act 250 criteria. See 10 V.S.A. §§ 6086(d), 8504(i). Relying upon the presumption, the Environmental Division concluded that the project met the relevant Act 250 criteria with respect to stormwater. In doing so, the court noted that neighbors failed to provide expert evidence to rebut the presumption created by the permits.
¶ 27. Neighbors finally contend that the project's density violates the town zoning regulations. The regulations require that "[t]he proposed development must be designed to create a stable and desirable environment that is in harmony with the density and type of adjacent land uses." Town of Woodstock Zoning Regulations § 313(A)(1). The parcel to be developed is zoned as Residential Medium Density, a zone that the Environmental Division pointed out, "not only allows but promotes a density of development consistent with the design of this project." The court found:
¶ 28. Even if the Environmental Division accepted neighbors' assertion that the project could add as many as 140 new residents to West Woodstock, it was not reversible error to find the project harmonious with adjacent land uses. The court's findings are fully supported by the evidence and the conclusions are supported by the findings. The density of the buildings is consistent with the zoning ordinance and "in harmony with the density and type of adjacent land uses" as required by § 313(A)(1).
¶ 29. In conclusion, the second application substantially dealt with all of the identified problems of the first application, and we will not overturn the Environmental Division when there is no clear error.
¶ 30. Having determined that the court did not err in determining that the second application successfully corrected the insufficiencies of the first, we turn to neighbors' argument that the Environmental Division's factual findings with respect to the Act 250 permit constituted error. "[W]e will overturn these findings only where the appellant shows `that there is no credible evidence to support them.'" In re Entergy Nuclear Vt. Yankee Discharge Permit 3-1199, 2009 VT 124, ¶ 15, 187 Vt. 142, 989 A.2d 563 (quoting In re Miller Subdivision Final Plan, 2008 VT 74, ¶ 13, 184 Vt. 188, 955 A.2d 1200). Neighbors first argue that the court's findings with regard to aesthetics and harmony with adjacent land uses were clearly erroneous.
¶ 31. The only issue neighbors have raised on appeal relative to the Act 250 permit is their contention that the project violates Criterion 8 of Act 250. The criterion requires a court to find that a project will not result in "undue adverse effect on the scenic or natural beauty of the area, aesthetics, historic sites or rare and irreplaceable natural areas," before upholding the Act 250 permit. 10 V.S.A. § 6086(a)(8). In In re Times & Seasons, LLC, we described a two-pronged test the court should use when determining if this element of Act 250 is satisfied: "[I]t determines if the proposed project will have an adverse aesthetic impact, and if so, it considers whether the adverse impact would be undue." 2008 VT 7, ¶ 8, 183 Vt. 336, 950 A.2d 1189. The Environmental Division used this so-called "Quechee Test" and determined that the project did not fail under either of the prongs of the test. First, the court found that the project would not result in an adverse impact because the project was designed with buildings that matched local architecture
¶ 32. Second, the court concluded that if there were an adverse impact, it was not undue. It relied upon the standard from Times & Seasons:
Id. Neighbors respond that the planned development violates a clear, written community standard, relying on the 2007 Woodstock Town Plan, which provides, "Of prime importance to the quality of life and character of Woodstock are its open spaces, which include not only open fields and meadows, but also wooded hillsides, forests, stream corridors and other natural vistas." Woodstock, Vt., Town Plan 76 (2007).
¶ 33. We will address this argument, although we find no indication that it was raised below. In doing so, we accept that the open space language is intended, in part, to protect the aesthetics of the Town. We do not, however, take the quoted plan language as a clear, written community standard that no currently open space can be developed anywhere in Woodstock. Under such a standard, virtually no housing could be built on land that is undeveloped.
¶ 34. The Environmental Division decision that there was no undue adverse aesthetic impact was not clearly erroneous.
¶ 35. We now address neighbors' claim that the Environmental Division erred in its denial of their motion to stay the proceedings. Neighbors made the motion in March 2010, shortly before WCT filed its motion for summary judgment on the successive-application issue. Neighbors sought a stay of this proceeding until a
¶ 36. A stay in this context is a "suspension of proceedings" until a specified event occurs in another case. See Stone v. Briggs, 112 Vt. 410, 412-13, 26 A.2d 828, 830 (1942). It is in the nature of a continuance. We have held that a ruling on a motion to continue involves trial court discretion and will be overturned only if the discretion is "exercised upon grounds clearly untenable, or to an extent clearly unreasonable." Kokoletsos v. Frank Babcock & Son, Inc., 149 Vt. 33, 35, 538 A.2d 178, 179 (1987) (quotations omitted). As the United States Supreme Court held in the leading case of Landis v. North American Co., 299 U.S. 248, 254, 57 S.Ct. 163, 81 L.Ed. 153 (1936), every court has the power "to control the disposition of the causes on its docket." But, how this best can be done "calls for the exercise of judgment" and the party seeking a stay "must make out a clear case of hardship or inequity in being required to go forward" if there is a possibility that a stay will damage someone else. Id. at 254-55, 57 S.Ct. 163. "Courts disapprove stays ... when a lesser measure is adequate to protect the moving party's interests." In re Application for Water Rights, 101 P.3d 1072, 1082 (Colo.2004).
¶ 37. In this case, the ground for the stay asserted by neighbors related to the expenses of a trial, particularly the employment of expert witnesses. Thus, the court properly concluded that it would allow, and would decide, a motion for summary judgment with respect to the application of the successive-application doctrine. The issue to be decided was one of law, and the record before it was generally sufficient to make that decision. We see no abuse of discretion in allowing the summary judgment process on this issue to go forward.
¶ 38. Beyond resolution of that preliminary issue, the court recognized the circumstances neighbors were in and offered methods to ameliorate any difficulty neighbors would face in trying both cases. At the same time it recognized that neighbors had filed both cases and WCT had a right to efficient consideration of its permit application. Neighbors did nothing to take advantage of the court's offer. In these circumstances, we see no decision to review. Even if there were an adverse decision, we hold that the court acted within its discretion.
¶ 39. We have answered neighbors' argument as it was presented to the trial court. As is common in this appeal, however, neighbors have reframed the issue
¶ 40. Finally, we turn to neighbors' contention that the Environmental Division acted outside its jurisdiction when it required WCT "to add the location of the Smith spring rights to the appropriate existing conditions plan, together with any necessary note regarding the pendency of litigation over the Smith spring rights or easement." The parties agree that the Environmental Division does not have jurisdiction to determine private property rights. See Nordlund v. Van Nostrand, 2011 VT 79, ¶ 17, 190 Vt. 188, 27 A.3d 340. The aforementioned condition, however, does not affect private property rights; rather, it merely requires WCT to map already existing rights pursuant to the Woodstock zoning regulations. Town of Woodstock Zoning Regulations § 313(C)(3).
¶ 41. It is entirely within the jurisdiction of the Environmental Division to impose conditions on permits. See Entergy, 2009 VT 124, ¶ 54, 187 Vt. 142, 989 A.2d 563. The location of certain easements was in dispute when the court imposed this condition, but requiring the easements to be drawn on the existing conditions plan does not constitute a property-rights adjudication. Furthermore, the Environmental Division was sensitive to the concurrent litigation when it imposed the condition, requiring that the pending litigation be noted on the plan. The condition was based on the requirements of the Woodstock zoning ordinance, and it was within the court's jurisdiction and discretion to require it.
Affirmed.