## Facts

- The Town of Waitsfield adopted a town (comprehensive) plan under Vermont’s Land Use and Development Act (Act 250), which requires certain developments to obtain permits from district environmental commissions, with appeals to the state Environmental Board.
- The town plan included an objective to “maintain the current status” of class-four roads in the Forest Reserve District to support recreational activities and to deter road improvements that could increase automobile access and related development.
- The plan also stated that subdivision of land could threaten recreational access, while describing the subdivision-review process as a means to obtain public recreational easements as conditions of approval.
- Mark and Pauline Kisiel owned a 158-acre tract in Waitsfield located in the Forest Reserve District at the end of Bowen Road, an unmaintained class-four town highway.
- The Kisiels sought approvals for a five-lot residential subdivision and related improvements to Bowen Road needed for access.
- After local review, the Waitsfield Planning Commission approved the subdivision, and the town granted approvals for the road work, subject to multiple conditions, including granting public easements for recreational access.
- The Kisiels then applied for an Act 250 permit from the district environmental commission, which issued the permit.
- The Town of Waitsfield appealed the permit to the Environmental Board.
- The Environmental Board concluded the project failed to comply with the town plan’s “maintain the current status” objective for class-four roads and denied the permit under Act 250 Criterion 10 (conformance with local and regional plans).
- In doing so, the Board read “current status” as requiring the road’s present physical condition be kept, while the Town had treated the plan language as tied to maintaining the road’s legal classification as class four (while allowing improvements subject to conditions).
- The Kisiels appealed the Environmental Board’s denial to the Vermont Supreme Court.

## Issues

1. Whether the Environmental Board erred under Act 250 Criterion 10 by treating general, policy-level town plan language—particularly the directive to “maintain the current status” of class-four roads—as a specific, enforceable basis to deny the permit.
2. Whether the Environmental Board erred by disregarding the Town’s own interpretation and implementation of its plan as shown by the Town’s prior subdivision and road approvals for the same project, issued with conditions including public recreational easements.

## Decision

- The Vermont Supreme Court reversed the Environmental Board’s determination that the project did not conform to the Waitsfield Town Plan and remanded for further proceedings consistent with its opinion.
- The Court held the Board’s approach improperly converted vague, nonregulatory plan statements into zoning-like prohibitions.
- The Court faulted the Board for focusing on ambiguous plan language while ignoring the Town’s prior approvals and conditions, which reflected local understanding of how the plan’s general objectives were to be carried out.

## Legal Principles

- Under Act 250 Criterion 10, local and regional plans may be considered, but a permit denial cannot rest on broad, aspirational, or indefinite plan statements that lack concrete, mandatory standards.
- It is error to give “nonregulatory abstractions” in a town plan the legal force of zoning controls (as reflected in the Court’s Act 250 plan-conformance cases, including its reliance on In re Molgano).
- When plan language is general or ambiguous, its application should be assessed in context, including how the municipality itself has interpreted and applied the plan through formal approvals and conditions for the project at issue.
- An interpretation of a plan provision that effectively creates a categorical bar to development, without clear plan text establishing such a rule, exceeds the proper role of plan language in Criterion 10 review.

## Conclusion

In re Kisiel holds that Act 250 Criterion 10 does not allow the Environmental Board to deny a permit by treating ambiguous, high-level town plan objectives—such as maintaining the “current status” of class-four roads—as binding regulatory standards, particularly where the municipality’s own permitting actions and conditions show a different, practical reading of the plan.


In re Kisiel, 772 A.2d 135 (2000)