Bibby 5-Lot Final Plat subdivision ( 2012 )

STATE OF VERMONT
SUPERIOR COURT - ENVIRONMENTAL DIVISION
In re Bibby 5-Lot Final Plat
Subdivision & Waiver Application
Docket No. 189-11-10 Vtec
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Decision on Cross-Motions for SummarV ludgment and Dismissal
Before us on appeal is a decision by the Town of St. Albans Development Review Board
(”the DRB”) granting Thomas and Yu Bibby (”Applicants") final plat approval to create a five-
lot subdivision from an approximately 29-acre property along French I-Iill Road in the Town of
St. Albans, Vermont. The DRB decision also grants Applicants a waiver from the road frontage
requirement for two of the resulting lots. Susan Roush and Lawrence Bruce (”Neighbors”), who
own property adjacent to Applicants’, have appealed the DRB decision, filing a Statement of
Questions detailing 25 Questions.
Currently pending before the Court is a motion from Applicants requesting either
summary judgment or dismissal of 24 of the 25 Questions. Also pending before the Court is a
competing motion for partial summary judgment filed by Neighbors. Applicants are
represented by Brian P. Hehir, Esq. Neighbors are represented by Annie Dwight, Esq. The
Town of St. Albans, an interested person in this appeal, is represented by Vincent A. Paradis,
Esq., and interested person Eril< Kilburn is self-represented Neither the Town of St. Albans nor
Mr. Kilburn has filed a responsive pleading to the pending motions.
Factual Background
For the sole purpose of putting the pending motions into context, the Court recites the
following facts, which it understands to be undisputed'unless otherwise noted:
1. On ]uly 27, 2010 Applicants submitted an application to the DRB requesting final plat
approval to subdivide, into five lots, their approximately 29-acre property along French Hill
Road in the Town of St. Albans, Vermont. They also sought a waiver from the road frontage
requirement for two of the resulting lots (Lots 3 and 4).
2. On October 20, 2010 the DRB granted Applicants final plat approval for the proposed
five-lot subdivision and also granted Applicants a waiver from the road frontage requirement
for the two identified lots.
3. Applicants' 29-acre property includes portions located in two zoning districts, the
Conservation District and the Rural District, as designated by the Town of St. Albans Zoning
Bylaws and Subdivision Regulations.
4. As part of their application to the DRB, Applicants have proposed a 20-foot-wide right-
of~way that is intended to operate as a shared driveway for three of the resulting lots, as well as
proposed septic systems that will serve the resulting lots, The parties in this appeal debate the
import of the inclusion of these improvements in the pending application
5. The parties also debate whether any wetlands exist on Applicants' property that warrant
protection under the applicable version of the state wetland protection rules.
6. On November 14, 2010, Neighbors appealed the DRB's decision to this Court, raising 25
Questions.
Discussion
Neighbors have appealed the DRB’s grant of final plat approval to Applicants to
subdivide, into five lots, an approximately 29-acre property along French Hill Road in the Town
of St. Albans. Neighbors have also appealed the DRB's grant of a waiver from the road frontage
requirement for two of the resulting lots. Neighbors’ Statement of Questions details 25
Questions to be determined in this appeal. Applicants have filed for either summary judgment
or dismissal of 24 of the 25 Questions,1 and Neighbors have responded with a motion for partial
summary judgment concerning select Questions. Neither of the interested parties in this appeal
has responded to these motions.
Although Applicants’ motion here seeks dismissal of some of the Questions rather than
summary judgment, Neighbors have treated Applicants’ motion as one requesting summary
judgment on all of the Questions addressed in the motion. Thus, we have done the same in this
Decision, and we determine that the parties in this appeal have had reasonable opportunities to
respond to Applicants’_ motion as one for summary judgment By treating the requests for
dismissal as requests for summary judgment, we are able to take into account the information
offered by each party that goes outside of the text of the questions themselves See V.R.C.P.
12(b)(6) (”lf, on a motion . . . to dismiss for failure . . . to state a claim upon which relief can be
1 Although Applicants' motion indicates that they seek summary judgment or dismissal for all of
Neighbors’ Questions, their motion mal2005 VT 53, jj 3, 178 Vt. 570 (stating that the moving
party has the burden of proof). ln considering cross~motions for summary judgment, we give
each party the ”benefit of all reasonable doubts and inferences when the opposing party’s
motion is being judged.” City of Burlington v. Fairpoint Commc’ns, 2009 VT 59, il 5, 186 Vt. 332(citing ToVs, lnc. v. F.M. Burlington Co., 155 Vt. 44, 48 (1990)). lhat is, we ”accept as true the
[factual] allegations made in opposition to [each] motion for summary judgment" when
determining Whether there are disputed material facts, as long as those allegations are also
supported by affidavits or references to other evidentiary material. Robertson v. lean Labs.,
B, 2004 VT 15, 1[ 15, 176 Vt. 356,' V.R.C.P. 56(e).
Before considering whether summary judgment is warranted for individual Questions,
we clarify the scope of our jurisdiction and authority in this de novo appeal. We are limited to
addressing those issues that the DRB had the authority to address when considering the
application before it. See ln re Torres 154 Vt. 233, 235-36 (1990),' V.R.E.C.P. 5(g).
With their application, Applicants seek both final plat approval to subdivide an
approximately 29-acre property in the Town of St. Albans into five lots as well as a waiver from
the road frontage requirement for two of the resulting lots, (See Appellees’ Mots. for Summ. ].
and to Dismiss Questions, Attachment, filed ]une 9, 2011.) Their application does not seek
approval to complete any physical development on their property. (See i_d.) Following the
direction of _T_Q_rre§, our review of this application is limited by the applicable provisions of the
Town of St. Albans Zoning Bylaws and Subdivision Regulations (”the Bylaws”). See M, 154
Vt. at 235-36. Unless a provision of the Bylaws requires Applicants to seek and obtain approval
2 All of Applicants' requests for dismissal can be characterized as falling Within Rule 12(b)(6) of the
Vermont Rules of Civil Procedure.
3 An updated version of V.R.C.P. 56 took effect on january 23, 2010. However, we analyze the pending
motions under the previous version of the rule because that version Was in effect at the time the motions
Were filed. In any case, the new version of Rule 56 incorporates the familiar standard for granting
summary judgment from former V.R.C.P. 56(€). See Reporter's Notes-2012 Amendment, V.R.C.P. 56.
3
for anticipated physical development in conjunction with their request for final plat approval
and a waiver from the road frontage requirement, we do not have the authority, in this appeal,
to render a decision on whether Applicants need, or can be granted, such approval. 4
When interpreting the provisions of the Bylaws applicable to the pending appeal, we -
will apply the familiar principals of statutory interpretation See ln re Vt. Nat’l Banl< 157 Vt.
306, 312 (1991). That is, we will interpret the Bylaws with the goal of giving effect to the intent
of the municipal legislative body that drafted them. See Town of Killington v. State, 172 Vt. 182,
188 (2001). Our examination of intent begins by considering the ordinary meaning of the plain
language of the Bylaws. l_d. However, we are cautioned not to accept the ordinary meaning if it
would make the Bylaws ineffective or create irrational results M. at 189.
We keep these standards in mind as we review the pending motions on Neighbors’
Questions.
I. gluestions 1 and 16
Neighbors’ Question 1 asks whether Applicants' proposed subdivision complies with
Bylaws § 220(1), and Neighbors’ Question 16 asks if the location of the septic systems that will
serve the resulting lots complies with the objective in the Bylaws for one of the districts in
which Applicants’ property is located. Applicants ask that we dismiss Questions 1 and 16,
arguing that the questions are moot because Applicants obtained a Wastewater System and
Potable Water Supply Permit from the Vermont Agency of Natural Resources (”ANR”), Permit
No. WW-6-2242.
For the Court to determine that a question from a party’s statement of questions is moot,
the Court would need to conclude that our resolution of the question can no longer provide
relief to the party raising it because the controversy the question references no longer exists.
See ln re Moriarty, 156 Vt. 160, 163 (1991) (describing the concept of mootness). Applicants
have failed to show that Questions 1 and 16 no longer reference live controversies
Any subdivision application submitted to the DRB must meet the requirements
referenced in Questions 1 and 16. That is, the application must conform to Bylaws § 220 and, if
the subdivision is to take place in the Conservation District, it must meet the specific
4 The DRB’s review Was also so limited. ln reviewing Applicants’ application, the DRB granted final plat
approval to Applicants for the five-lot subdivision and Waived the road frontage requirement for two of
the lots, based on a proposed 20-foot-Wide right-of-way. The DRB did not grant approval or a permit for
any physical development on Applicants’ property.
development rules for that district that restrict final plat approval for a subdivision See Bylaws
Part ll, Subdivision Regulations; Bylaws §§ 211(3), 220, 221 (1), 315(2); Bylaws Part V, Definitions
(defining development as including subdivision). A pre-trial showing that Applicants’
application meets these requirements would not render Questions 1 and 16 moot; rather, it l
could be grounds for granting summary judgment in Applicants’ favor.
rl'hus, we address whether Applicants are entitled to summary judgment on Questions 1
and 16 based on their receipt of Permit No. WW-6-224. Question 1 asks whether the proposed
subdivision complies with Bylaws § 220(1) in that the property to be subdivided has ”adequate
capacity for on-site sewage disposal.” (Clarified Statement of Questions 1, filed Mar. 15, 2011).
Bylaws § 220(1) requires the following: ”[l]and to be developed shall be physically suitable for
the purpose with particular regard to the adequacy of on-site sewage disposal.” Applicants
argue that their receipt of a state wastewater permit, Permit No. WW-6-224, is conclusive proof
that the subdivision complies with Bylaws § 220(1). Neighbors respond that they have evidence
of wetlands on Applicants’ property and that, therefore, there are disputed material facts
regarding the proposed subdivision's compliance with Bylaws § 220(1).
Section 1973 of Title 10, Chapter 64 of the Vermont Statutes Annotated requires anyone
who wishes to subdivide property in Vermont to first obtain a permit from ANR for a
wastewater system or systems that will serve each proposed lot. Beginning on ]uly 1, 2007, the
provisions of Chapter 64, which establish ”technical standards and criteria for the design,
construction, operation, and maintenance” of wastewater systems, supersede any municipal
bylaws that were previously operating to do the same. See 10 V.S.A. § 1976(b),' Envtl. Protection
Rules, Chp. 1, Wastewater System & Potable Water Supply Rules (”Wastewater Rules”) § 1-501
(Sept. 29, 2007). While municipalities can continue to impose regulations that address
wastewater systems as development generally, for example by imposing setbacks, the state
regulations were meant to establish a comprehensive review and permitting process for
wastewater systems that would have state-wide uniformity. 10 V.S.A. § 1971 ; Wastewater Rules
§ 1-501. 7
In the context of the proposed subdivision of land, Bylaws § 220(1) requires that the land
to be subdivided is suitable for such subdivision and asks that decision-makers take into
”particular regard the adequacy of on-site sewage disposal.” By issuing Permit No. WW-6-
2242, ANR has concluded that the proposed mound wastewater disposal systems, or septic
systems, that Applicants have depicted in plans and propose for the new lots in a single-family
residence subdivision of their property, meet the state-wide technical standards and criteria for
wastewater systems, provided the systems are constructed in compliance With the conditions
established in Section 3.6 of their wastewater permit, (See Appellees’ Opp. to Appellants’ Mot.
for Entry Upon Land, Attachment, filed May 19, 2011),' Wastewater Rules §§ 1-801 to -808
(establishing the general technical requirements for wastewater systems), 1-913 (establishing the
technical requirements for mound wastewater disposal systems). Essentially, the submission of
Permit No. WW-6-2242 to the Court establishes a rebuttable presumption that, if Applicants
construct their septic systems in compliance with that permit, there Will be adequate on-site
sewage disposal for the proposed subdivision
Here, the central argument Neighbors make in opposition is that there are wetlands on
Applicants’ property. Characteristics of land going to its drainage-including, for instance, the
depth of the soil, the rate at which water placed in the soil percolates, the height of the water
table in relation to the soil, and the slope of the ground-are some of the central pieces of
information ANR must consider when determining whether to grant a wastewater system and
potable water supply permit, See Wastewater Rules §§ 1-805, 1-913. The existence of wetlands
on Applicants’ property, depending on their location and the location of the proposed
wastewater systems, would directly impact the measurement of these characteristics Thus,
whether there are wetlands on Applicants’ property that could affect the proposed wastewater
systems is a consideration Al\lR necessarily took into account when issuing Permit No. WW-6-
2242. Neighbors offer no information that contradicts this conclusion.
Neighbors' argument-and the evidence they reference-does not pose a challenge to
the presumption that if Applicants construct the septic systems for their subdivided property in
compliance with Permit No. WW-6-2242, there will be adequate on-site sewage disposal for the
proposed subdivision Rather, Neighbors' argument appears to challenge ANR’s issuance of
Permit No. WW-6-2242 and the findings ANR relied on in issuing the permit, Such an
argument cannot be raised in this appeal, but must be raised in an appeal from the permit itself.
See 10 V.S.A. §§ 8503(a)(1)(K), 8504(a). Consequently, we conclude that there are no disputed
material facts as to the proposed subdivision's compliance with Bylaws § 220(1). We therefore
GRANT summary judgment to Applicants on Question 1, answering it in the affirmative
Turning to Question 16, Neighbors ask whether the location of the Septic systems that
will serve the lots resulting after the subdivision of Applicants’ property will comply With the
objective stated in the Bylaws for the Conservation District in terms of protecting wetlands The
”Objective and Description” for the Conservation District reads as follows:
Location, topography and soil limitations make lands in this district unsuitable
for intensive development Included are areas of steep slopes and wetlands
Designation of this district is intended to protect the scenic and natural resources
value of the lands which lack direct access to public roads, are important for
wildlife and wildlife habitat, and Which are poorly suited for development Only
low density residential development . . . which [is] compatible with the district
purposes will be permitted
Bylaws § 315(2) (emphasis added).
Both Applicants and Neighbors agree that a portion of Applicants’ property is in the
Conservation District, although Applicants claim that only one of the proposed septic systems is
in that district and that it is within 100 feet of the zoning district boundary. Applicants also
argue that, even if the objective is applicable, their receipt of Permit No. WW-6-224 is conclusive
proof that the subdivision complies with the objective As with Question 1, Neighbors respond
here that they have evidence of wetlands on Applicants’ property and that, therefore, there are
disputed material'facts regarding the proposed subdivision's compliance with this objective of
the Conservation District,
Without determining where the boundary for the Conservation District crosses
Applicants’ property or whether there are wetlands on Applicants’ property, as that term is
defined in the Bylaws, we conclude that summary judgment is warranted in favor of Applicants
on Question 16. We reach this conclusion based on our reading of the objective for the
Conservation District and how it operates in the context of the application before us in this
appeal.
The application before the DRB, and now before the Court, seeks final plat approval for
a subdivision While the parties have not briefed the Court on the following two legal issues,
before we can determine if either party should be granted summary judgment on Question 16
we must address 1) whether the location of septic systems is incorporated into final plat
approval in the Town of St. Albans, and, if so, 2) whether the objective of the Conservation
District includes any enforceable regulatory language restricting the location of septic systems
Bylaws § 211 requires that an applicant seeking final plat approval for the subdivision of
land into three or more lots submit a proposed plat to the DRB that includes the ”location and
design of all required improvements (see section 221 herein)." Because Bylaws § 221 requires
that ”Water and Sewage Disposal Systems shall comply with all Town of Saint Albans
Regulations," it appears that new septic systems are a type of improvement that must be
included in applications for final plat approval However, what: if any, wastewater systems are
”required improvements” for subdivided lots is dictated by the state regulations discussed
above, the Wastewater Rules. The Wastewater Rules establish state-wide uniform technical
standards and criteria for wastewater systems that supersede municipal regulations doing the
same and are triggered when a landowner proposes a subdivision See 10 V.S.A., Chapter 64;
Wastewater Rules § 1-501. Municipalities can regulate the location of wastewater systems in
terms of imposing setbacks or other requirements applicable to the wastewater systems as a
type of development generally, but most of the siting requirements are established through the
state permitting system. See 10 V.S.A. §§ 1971, 1976(b); Wastewater Rules § 1-501.
Therefore, it is reasonable to conclude that Applicants were required to include the
location of the proposed mound wastewater disposal systems in the proposed plat theyl
submitted to the DRB, although the design and siting of the systems is largely a determination
made by ANR. The next preliminary question the Court must answer is whether the objective
of the Conservation District includes enforceable regulatory language restricting the location of
septic systems during final plat approval for a subdivision
Municipal bylaws often contain both purpose provisions and regulatory provisions
Purpose provisions are often non-enforceable but provide assistance when the interpretation of
the regulatory provisions comes into question See ln re Meaker 156 Vt. 182, 185 (1991); lnre
Musty Permit, No. 174-10-10 Vtec, slip op. at 2-3 (Vt. Super. Ct. Envtl. Div. Feb. 24, 2011)
(Durkin, ].), appeal docketed, 2011-290. Purpose provisions can, however, include individual
mandatory requirements that are enforceable See ln re Gerlach Parking Area Permit, No. 31-2-
09 Vtec, slip op. at 8 (Vt. Envtl. Ct. Dec. 21. 2009) (Durkin, ].) (concluding that the requirement
that a parking area ”shall provide for pedestrian circulation" was an enforceable requirement
despite its location within the context of a bylaw provision labeled ”purpose”).
The ”Objective and Description” for the Conservation District quoted above is largely a
purpose provision lt establishes the objective, or purpose, for the district, and provides
guiding principles that are helpful in interpreting the remaining provisions that the Town of St.
Albans has enacted for the district. While it includes general statements that lands in the
district are ”unsuitable for intensive development" and only ”low density residential
development” and certain types of uses ”will be permitted” in the district, these statements do
not establish any specific restrictions for the location of wastewater systems Bylaws § 315(2).
Thus, there is no enforceable regulatory language in the objective provisions for the
Conservation District restricting the location of septic systems in that District. Because such
regulatory language is a necessary premise for the inquiry posed by Question 16, we DISMISS
Neighbors' Question 16.5
II. Questions 15 and 17
Neighbors' Question 15 and 17 raise related issues about possible wetlands on
Applicants’ property. Question 15 is divided into four sub-questions that inquire about the
proposed subdivision's compliance with § 403(1), a provision establishing setbacks for the.
location of ”structures, roadways and parking” from ”classified wetlands,” streams and Lake
Champlain. Question 17 asks whether Applicants must obtain a permit from ANR under the
August 1, 2010 version of the Vermont Wetland Rules.
Applicants make two principal arguments for dismissal of these Questions: 1) the Court
does not have jurisdiction to review their application under the Vermont Wetland Rules
because the State of Vermont has not asserted jurisdiction over any wetlands on their property,
and 2) the version of the Vermont Wetland Rules that applies to their application is the version
in effect when their application was filed and under which the wetlands on their property are
classified as Class III. Neighbors respond that Bylaws § 220(5) requires the application before
the Court in this appeal to comply with the Vermont Wetland Rules, and that the most recent
version of the Vermont Wetland Rules applies retroactively to the pending application because
the rules indicate that they apply to ”commenced” activities Neighbors ask for summary
judgment on these Questions. 7
We first determine that the Vermont Wetland Rules are, indeed, applicable to the
pending application .The pending application must comply with Bylaws § 220(5). See Bylaws
Part II, Subdivision Regulations; Bylaws §§ 211(3), 220; Bylaws Part V, Definitions (defining
5 Because We reach the conclusion that the objective of the Conservation District does not include any
enforceable regulatory language, we need not examine Applicants’ argument that their receipt of Permit
No. WW-6-2242 establishes a presumption of compliance With that objecu``ve.
9
development as including subdivision). Bylaws § 220(5) requires a proposed subdivision to
conform to the criteria found in 10 V.S.A. § 6086, commonly referred to as the Act 250 criteria.
lncluded in the Act 250 criteria is the requirement that a project comply with the Vermont
Wetland Rules. See 10 V.S.A. §§ 6001(1), 6086(a)(1)(G) (requiring demonstration by an applicant
that the proposed ”development or subdivision will not violate the rules of the [Natural
Resources Boardj . . . relating to significant wetlands”); Vermont Wetland Rules (Aug. 1, 2010).
Thus, the Court must determine, in this appeal, whether the proposed subdivision conforms to
the applicable version of the Vermont Wetland Rules 6
We also determine, for the following two reasons that the version of the rules applicable
in this municipal proceeding is that which was in effect when Applicants submitted their
application on july 27, 2010. First, there is a general prohibition against the retrospective
application of statutes and their amendments unless the laws include a clear, affirmative
statement that they apply retrospectively See 1 V.S.A. §§ 212, 214(b) (”The amendment . . . of
an act or statutory provision . . . shall not (1) [a]ffect the operation of the act or provision prior
to the effective date of the amendment . . . jor] (2) [a]ffect any right, privilege, obligation or
liability acquired, accrued or incurred prior to the effective date of the amendment . . . .”); To_wn
of Sandgate v. Colehamer, 156 Vt. 77, 90 (1990). Second, the Vermont Supreme Court has
established that a landowner is entitled to review of a land use proposal under the version of
the land use laws in effect at the time the landowner submits a ”proper application." See ln_re
jolley Assocs, 2006 VT 132, jj 11, 181 Vt. 190 (citing ln re Ross 151 Vt. 54, 57 (1989)). ln other
words the submission of a complete application for a municipal permit vests the landowner's
right to its review under the land use laws existing on that date. l_d_. jjjj 11, 16.
Here, the Vermont Wetland Rules are regulations adopted by the Water Resources Panel
of the Vermont Natural Resources Board under the statutory authority provided by the
Vermont State Legislature in 10 V.S.A. § 6025(d)(5)-(7). The Court cannot find any clear,
affirmative language in the newest version of the rules or the statute authorizing them, that
6 Applicants argue that the Court should not address this issue here because Neighbors did not include a
Question in their Statement of Questions explicitly citing Bylaws § 220(5). We disagree As discussed in
In re jolley Assocs., while the Court is confined to addressing issues raised in an appellant's statement of
questions We are not restricted to the ”literal phrasing” of the questions but rather can consider issues
intrinsic to the questions as phrased 2006 VT 132, jj 9, 181 Vt. 190. Neighbors' Questions 15 and 17
clearly raise the issue of compliance under the Vermont Wetland Rules; we can therefore consider
Neighbors' legal argument that Bylaws § 220(5) requires Applicants to comply With the Vermont Wetland
Rules. ' .
10
indicates they are to apply retrospectiver before their effective date of August 1, 2010. While
1 V.S.A. § 214(b) speaks specifically to statutes Neighbors have not presented us with any
argument as to why the general prohibition against the retrospective application of statutes
does not also extend to duly adopted regulations Neighbors instead argue that a statement
that appears in the rules~that the rules ”apply to . . . land uses occurring within a significant
wetland . . . that are commenced after February 23, 1990"-positively means they are
retroactive Vermont Wetland Rules § 1.1 (Aug. 1, 2010 and jan 1, 2002) (emphasis added). We
assume Neighbors are arguing that this conveys that the current version of the rules applies
retrospectively to projects still in the proposal stage on the date the current version became
effective, that is, August 1, 2010.
We find Neighbors' interpretation unconvincing in the context of this municipal permit
proceeding for two reasons First, the quoted statement refers to the history of the Vermont
Wetland Rules generally: that they were first established, and initially became effective, on
February 23, 1990. Second, explicitly excluded by subsequent portions of § 1.1 are projects for
which ”a complete application for all local, state and federal permits . . . had been submitted as
of February 23, 1990.”7 Vermont Wetland Rules (Aug. 1, 2010 and jan 1, 2002). The question
here is what version of the rules applies in this review of Applicants’ requests before a
municipal panel. Neighbors have not indicated how this statement in the Vermont Wetland
Rules creates an exception to the general principle that Applicants have a vested right to have
their application for a municipal permit reviewed under the version of the rules in effect on the
date they submitted a llproper application ” See jolley Assocs., 2006 VT 132, jj 11.
Moreover, Neighbors have not alleged that the application Applicants submitted to the
DRB was not complete or was otherwise improper, nor does the application appear incomplete
or improper on its face. (See Appellees' Mots. for Summ. j. and to Dismiss Questions
Attachment, filed june 9, 2011). Consequently, we conclude that the version of the Vermont
Wetland Rules applicable in this particular municipal proceeding-review of Applicants’
request for final plat approval and a waiver from the road frontage requirement--is the version
which was in effect when Applicants submitted their application in july 2010.
7 We note that Act 250 also refers to the date that a project ”commence[s]” to describe When jurisdiction
under Act 250 applies to the project 10 V.S.A. § 6081. This language has not prevented the Vermont
Supreme Court from adopting the rule that a landowner’s right to the review of a proposed project vests
under the land use laws in existence at the time the landowner submits a complete Act 250 application
See M§, 151 Vt. at 56-57.
11
We therefore GRANT summary judgment to Applicants on Question 15(a), which asks
whether the August 1, 2010 version of the Vermont Wetland Rules regulates the proposed
subdivision The undisputed material facts and applicable law require that we answer this
question in the negative We also DISMISS Questions 17 and 15(c), which ask about
compliance of the pending application with the August 1, 2010 version-of the Vermont Wetland
n Rules which do not apply here
Thus, Questions 15(b) and 15(d) remain The latter, Question 15(d), asks whether the
proposed subdivision complies with the setbacks established by Bylaws § 403(1), a provision
establishing setbacks for the location of ”structures, roadways and parking” from Class l and ll
wetlands stream banks and the shore of Lake Champlain. 8 Question 15(b) asks in the context
of considering the subdivision's compliance with Bylaws § 403(1), whether the wetlands on
Applicants’ property are Class l or II. Neighbors argue that summary judgment cannot be
granted on these Questions because whether Wetlands exist on Applicants’ property is a
disputed material fact Applicants argue that the Questions should be dismissed because any
wetland on their property in an area potentially impacted by the subdivision is a Class III
wetland and is therefore not regulated by Bylaws § 403(1).
Section 403(1) of the Bylaws establishes setbacks for streams and shoreline along Lake
Champlain, as well as for Class l and ll wetlands but Neighbors have not made any allegations
that Applicants’ property includes streams or l_.ake Champlain shoreline Neighborsl Statement
of Undisputed Material Facts and memoranda allege only that wetlands are present (See
Appellants’ Statement of Undisputed Material Facts, jjjj 6-10, filed july 11, 2011). Applicants’
Statement of Undisputed Facts and memoranda also do not reveal any discussion of the
presence of streams or Lake Champlain shoreline on their property. Thus, it appears that the
only setbacks Question 15(d) concerns are those that Bylaws § 403(1) establishes for Class l and
- II wetlands Additionally, since neither party has indicated that a Class l Wetland may existon
Applicants’ property, and because Class l wetlands are extremely uncommon,9 here we are
8 Neighbors do not dispute that the references Bylaws § 403(1) makes to a ”Class 1 Wetland" and ”Class 2
Wetland” are to the classifications established by the Vermont Wetland Rules. The Bylaws do not define
these terms; included in the Bylaws' definition of ”Wetlands” generally are ”[ajreas that are delineated as
Class 1 or 2 wetlands on the wetland map,” again an apparent reference to the Vermont Wetland Rules.
See Bylaws Part V, Definitions.
9 As of August 1, 2010, there were only three Class I Wetlands identified in the entire state See Vermont
Wetland Rules, Appendix A (Aug. 1, 2010). '
12
solely concerned with identifying whether the parties' filings demonstrate a dispute as to the
presence of Class ll wetlands on Applicants’ property.
Before reaching a conclusion as to whether there are facts in dispute as to the presence of
Class ll wetlands we consider whether the setbacks established in Bylaws § 403(1) apply to any
aspect of Applicants’ proposed subdivision As stated above, § 403(1) establishes setbacks for
the location of ”structures, roadways and parking.” Neighbors argue that the setbacks apply to
a right-of-way and septic systems that Applicants propose as part of their subdivision
We agree that the pending application does include the location and design for a
proposed 20-foot-wide right-of-way that will operate as a shared driveway for three of the
subdivided lots as well as the location of proposed septic systems that will serve the resulting
lots See Bylaws §§ 211(1) (requiring applicants to include the ”[l]ocation and design of all
required improvements” in applications for final plat approval), 220, 221, 401 (indicating that
the DRB can grant a waiver from the road frontage requirement for lots that will have access to
public roads through permanent rights-of-way of 20 or more feet). That is, approval of the
location and design of the right-of-way and of the location of the septic systems is necessary for
Applicants to receive final plat approval. Additionally, approval of the location and design of
the right-of-Way is necessary before Applicants can obtain a waiver from the road frontage
requirement
However, we do not agree that the terms ”structure, roadways and parking” include
rights-of-way. The term l’roadways” itself is not defined in the Bylaws but ”road” is Road is
defined as ”[ajn open way for public passage to include streets roads avenues highways
ways circles and the lil2005 VT 53, jj 3, 178 Vt. 580. They have provided a factual allegation
indicating that Bylaws § 403(1) is not triggered by their pending application, and they have
supported that allegation by submitting evidentiary material that provides a factual foundation
for their allegation Neighbors however, have failed to supply evidentiary support for their
allegations opposing Applicants'. The evidence Neighbors have referenced and submitted does
not show that Applicants’ wetland study and surveyor map is insufficient As stated earlier, we
will only accept factual allegations made in opposition to summary judgment motions When the
opposing party has referred to evidentiary material that supports such allegations See
Robertson v. l\/lvlan LabL hch 2004 VT 15, jj 15, 176 Vt. 356; V.R.C.P. 56(e).
Consequently, we GRANT summary judgment to Applicants on Question 15(b),
resolving the query of whether Class ll wetlands exist on Applicants’ property in the negative,
and DISMISS Question 15(d) because there are no wetlands from which the proposed septic
systems would have to be set back under the requirements of Bylaws § 403(1).
16
III. Questions 18 and 20-25
Neighbors' Questions 18 and 20 through 25 concern whether Applicants’ proposed
subdivision requires site plan approval, whether it complies with requirements of the Bylaws
that are triggered when site plan review is required, and whether remand to the DRB is
necessary to make these determinations Applicants argue that site plan approval is not
required for their application and that, therefore, Questions 18 and 20 through 25 should be
dismissed Neighbors respond that the proposed subdivision triggers site plan review under
the provisions of Bylaws § 303 and § 411(2), and they request summary judgment only on
Questions 18 and 20.
As discussed above, the application before the DRB and now before us on appeal is an
application for final plat approval to subdivide a property and for a waiver from the road
frontage requirement for two of the five proposed lots lt does not request site plan approval
Thus we turn to the provisions in Bylaws § 303 and § 411(2) to determine if either provision
requires Applicants’ proposed subdivision to undergo site plan review before it receives final
plat approval and a waiver from the road frontage requirement
We turn first to Bylaws § 303. Section 303 requires the DRB to complete site plan review
of ”uses other than forestry, agriculture or single and two family dwellings on single lots.” The
Bylaws define ”use” as ”[tjhe specific purpose for which land or a building is arranged,
designed, or intended, or for which it is or may be occupied or maintained” Bylaws Part V,
Definitions. Neighbors argue that Applicants have proposed the use of a ”five lot, single-
family residential subdivision” and that the DRB’s grant of a waiver to Applicants from the
road frontage requirement for two of the five proposed lots was based on this proposed use.
(Appellants’ Cross-Mot. for Partial Summ. j. and Opp’n to Appellees’ Mots. for Summ. j. and to
Dismiss Questions 10, filed july 11, 2011.)
We disagree with Neighbors' characterization of Applicants’ proposed subdivision as a
development proposal that incorporates a proposed use for the subdivided lots, The Vermont
Supreme Court has previously spoken to the lllimited role for subdivision review” under the
statutory scheme for the municipal regulation of land development established by 24 V.S.A,
Chapter 117. See ln re Appeal of Taft Corners Assocs, 171 Vt. 135, 137-38, 141 (2000). ln
Appeal of Taft Corners, the Court drew a distinction between what it described as zoning
regulations and subdivision regulations explaining that the latter allow an ”owner to divide the
17
land and create the infrastructure” while the former allow the owner to ” develop the parcels by
placing one or more structures on thern."11 lpl. at 138. The Court Went on to explain that
”subdivision review is not intended to police prospective uses of the subdivided lots” and that
”the act of subdivision does not restrict those uses.” ld. at 141.12 The Court concluded that
”there is no requirement that the subdivider know what uses will be placed on jthe subdividedj
lots” by future owners of the property. E.
Bylaws § 303 requires site plan review for specific usps rather than for specific types of
development As indicated above, the Bylaws define a use as the llpurpose for which land or a
building is arranged, designed, or intended,” while ”development” refers to the subdivision of
land and any physical development of the land, See Bylaws Part V, Definitions (emphasis
added). Bylaws § 300, which introduces Part lll of the``Bylaws, or the ”Zoning Regulations,”
lists five different ”types of land development” that are subject to the zoning regulations in
§§ 300-322, including the ”[cjhange or expansion of the u_se of . . . land." Bylaws §300(3)
(emphasis added). None of the five types of development describes the subdivision of land. M.
Recognizing that Vermont's statutory scheme for the municipal regulation of land
development establishes a distinction between subdivision and zoning regulations we
conclude that Applicants’ request for final plat approval and a waiver from the road frontage
requirement constitutes a proposal for a type of development under the Bylaws but does not
establish a particular property use Therefore, the application does not trigger site plan review
under Bylaws § 303. Even if we were to understand the DRB’s grant of the Waiver from the
road frontage requirement to be conditioned upon a particular future property use, nothing in
§ 303 requires the DRB to conduct site plan review for that use now. Rather, site plan review
under § 303 Would be triggered when a zoning permit is sought for the physical development of
individual lots that falls within the types of development listed in Bylaws § 300 and establishes
a property use that requires site plan review under Bylaws § 303.
n While this Court has encountered at least one municipality that incorporates subdivision review within
its zoning regulations the choice a municipality makes to organize its bylaws in that fashion does not
negate the distinction described in Appeal of Taft Corners, a distinction compelled by the statutory
scheme set forth in Title 24 V.S.A., Chapter 117. See ln re PaVnter 2-Lot Subdivision, No. 160-7-08 Vtec,
slip op. at 2 (Vt. Envtl. Ct. May 1, 2009) (Wright, j.), Ld, 2010 VT 28.
12 However, the Vermont Supreme Court does indicate that municipal panels can deny proposed
subdivisions When the resulting lots would be unable to be lawfully developed See Appeal of Taft
Corners 171 Vt, at 141.
18
We turn next to Bylaws § 411(2). Section 411(2) requires site plan approval for ”[a]ny
land alteration or excavation that would cause a substantial change in the volume, velocity or
direction of drainage.” Neighbors argue that the application before the DRB, and now before
us on appeal, sought approval for the construction of a proposed 20-foot-wide right-of-Way and
septic systems that will serve the subdivided lots Applicants do not directly respond to
Neighbors' contention, but absent from Applicants’ filings is any assertion that they sought
approval for any construction on their property.
Unlil154 Vt. 233, 235-36 (1990); V.R.E.C.P. 5(g). Neither the DRB, nor this
Court, had or has the authority to issue variance approval or conditional use approval based on
Applicants’ submission of the pending application Consequently, We conclude that Question
12 must be DISMISSED because it does not raise an issue over which we have jurisdiction in
this appeal.
The remaining Questions, Questions 2-5, 7, and 10-11, pertain to the proposed
subdivision's compliance With Bylaws § 220(2), § 220(3), § 220(4), § 221(1)(€), and § 221(6),
provisions that the pending application must meet in order for Applicants to obtain final plat
approval, See Bylaws Part ll, Subdivision Regulations; Bylaws § 211(3),' Bylaws Part V,
Definitions (defining development as including subdivision). Applicants request summary
judgment for these seven Questions, including Question 5, which has also been addressed in
Section lll above Applicants argue that the provisions raised by these seven Questions violate
a landowner’s due process rights and are therefore unconstitutional because they provide the
DRB, and this Court, with standardless discretion when reviewing applications for final plat
approval Neighbors respond that the provisions are not standardless but instead provide
specific standards that guide their enforcement by the DRB and this Court ln addition,
Neighbors seek summary judgment on Question 7 specifically, arguing that Applicants’
proposed subdivision clearly violates Bylaws § 221(1)(C).
Our Supreme Court has made clear that standardless land use regulations are not
acceptable because they raise both equal protection and due process concerns See, e.g., Q_r_e_
Pierce Subdivision Application, 2008 VT 100, jj 19, 184 Vt. 365 (citing ln re l-landy, 171 Vt. 336,
345-46 (2000)). The principle case identifying a standardless bylaw is ln re Appeal of jAl\/l Golf,
L. 2008 VT 110, 185 Vt. 201. ln Appeal of jAl\/l Golf, the Vermont Supreme Court found two
bylaws unconstitutional because they simply required the design of a planned residential
development to ”protect” natural resources such as ”scenic views” or ”wildlife habitats”17 E.
jjjj 4, 18. The Court concluded that the term l’protect” did not clearly identify the level or kind
17 One of these bylaws was a provision that required compliance with the municipal plan, which itself
included a requirement to protect select natural resources
25
of protection the municipal panel tasked with reviewing applications for planned residential
development should find acceptable See i_d. jjjj 13-14, 18. The Court also concluded that the
bylaws as a Whole and in conjunction with the municipal plan they referenced did not clearly
identify what in the municipality constituted the natural resources identified for protection; the
Court found the ”zoning scheme [to bej confusing" at best E. jj 18. The Court explained that,
without specific standards the bylaws ”provide[j no guidance as to what may be fairly
expected from landowners” whose property appears to contain one of the named natural
resources and who seek to create a planned residential development lpl. jj 14.
Examining the provisions referenced by Questions 2-5, 7, and 10-11, we cannot agree
with Applicants that these provisions provide the DRB or this Court with the same unbridled
discretion as the bylaws discussed in Appeal of jAl\/l Golf. First, most of them make use of the
word ”shall,” alerting a landowner that they are mandatory, rather than discretionary, 7
requirements Bylaws §§ 220(3), 220(4), 221 (1) (C), 221 (6). Second, they all provide a landowner
with specific guidance as to what impacts a proposed subdivision must avoid to be approved
by the DRB or this Court on appeal: the proposal ”should demonstrate due regard for the
protection of existing” natural and cultural features of the area; ”shall be compatible With
adjacent uses”; shall provide sufficient open space for recreation and to safeguard the privacy of
the area inhabitants”; ”shall not cause unreasonable congestion or unsafe conditions on the
affected public or private roads”; shall l’[p]roduce the safest, most healthful and attractive
building sites” based on the natural features on the property; shall retain or require vegetation
”for reasonable screening and aesthetic purposes”; and shall maintain or enhance vegetated
buffers along stream banks ”for filtration, erosion control and aesthetic purposes.” Bylaws
§§ 220(2), 220(3), 220(4), 221(1)(€), 221 (6).
lnstead of requiring the generic protection of natural resources without specifying what
level or kind of protection must be achieved the plain language of the above-quoted provisions
of the Bylaws describe specific objectives Applicants’ proposed subdivision must meet and for
what ends The provisions provide sufficient direction so as to avoid the equal protection and
due process infirmities about which the Pierce Subdivision and jAl\/l Go]f Courts cautioned We
conclude that each of the challenged provisions do not suffer the constitutional infirmity
Applicants allege and therefore DENY summary judgment to Applicants on Questions 2-5, 7,
and 10-11.
26
We also DENY summary judgment to Neighbors on Question 7 because we cannot
conclude, from the factual allegations before us that the proposed subdivision fails to meet the
requirements of Bylaws § 221(1)(€). Our inquiry into whether Applicants meet this and the
other provisions discussed in Questions 2~5 and 10-11 is heavily fact-based and thus can only
occur after the presentation of evidence at a merits hearing.
Conclusion
For the reasons detailed above, we issue the following ruling on the pending cross-
motions which address 24 of the 25 questions in Neighbors' Statement of Questions. We
GRANT summary judgment to Applicants on Questions 1 (answering it in the affirmative),
15(a) (answering it in the negative), and 15(b) (answering it in the negative). We DISMISS
Questions 8, 9, 12, 15(c), 15(d), 16, 17, 18, 20, 21, 22, 23, 24, and 25, We DENY summary
judgment to Applicants on Questions 2, 3, 4, 5, 6, 7, 10, 11, 13, 14, and We also DENY summary
judgment to Neighbors on Questions 7, 13, and 14, n
Therefore, Questions 2-7, 10, 11, 13, 14, and 19 remain for resolution at trial. We direct
all of the parties in this case to submit, by March 16, 2012, a list of unavailable dates in the
months of April and May, 2012, for a trial in the Franklin Country Courthouse in the Town of
St. Albans Vermont The parties should also indicate, in their letters to the Court, whether a
one-day trial will be adequate for a full presentation of the issues remaining in this appeal. lf an
additional day or days will be required, the parties should indicate their estimate on trial
duration in their letters The Court will thereafter notify the parties of the trial date or dates
Done at Newfane, Vermont this 2nd day of March, 2012,