Merchant and Anderson Site Plan Amendment ( 2010 )

STATE OF VERMONT
ENVIRONMENTAL COURT
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In re Merchant & Anderson Site Plan } Docket No. 205-10-09 Vtec
Amendment Application1 } (Appeal from Waterbury Plan. Comm.
} Site Plan Application #25-09-V)
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Judgment Order
Amy Anderson and Michael Merchant (“Applicants”) own property at 25 North
Main Street in the Town of Waterbury (“Town”). The Anderson/Merchant property
currently contains the following improvements: a main house with an attached
residential studio apartment and an attached two-car, two-story garage. A third
residential apartment with two bedrooms occupies the second floor above the garage.
The garage and the third apartment above it are the subject of a zoning permit issued
in 2008 (Zoning Permit #45-08-V), which was not appealed and therefore became final.
Once Applicants completed the improvements associated with the 2008 zoning
permit, they sought a permit amendment to authorize certain additional
improvements, including some of which they had already constructed. These
improvements included a realignment of the parking spaces along the southerly
boundary line of their property; screening along that boundary line; and completing a
private stormwater drainage system that ultimately connected to the municipal
drainage system along North Main Street. These additional site plan improvements
are depicted on Applicants’ revised site plan, admitted at trial as Exhibit 2.
When Applicants submitted their pending application for site plan amendment,2
the Town of Waterbury Planning Commission (“Commission”) conducted several public
hearings, the last occurring on October 7, 2009. At the conclusion of its October 7th
public hearing, the Commission voted to approve Applicants’ site plan amendment
application, with three conditions.3 Valerie Zimmerman (“Appellant”), owner of the
property to the south of Applicants’ property, filed a timely appeal and presented
1 The Court has added the term “Amendment” to the caption of this appeal, to more accurately
reflect the procedural history of these proceedings.
2 The Commission assigned #25-09-V to the pending application and the permit it ultimately
issued.
3 To the extent that this Court believes that any of the conditions imposed by the Commission
are supported by the evidence subsequently presented at trial, we have incorporated them into
the Conditions itemized below on page 3.
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three4 legal issues in her October 23, 2009 Statement of Questions: (1) the amended
site plan should be rejected because soil or fill added to the rear (easterly) section of
Applicants’ property caused flooding on Appellant’s property; (2) even if approved, the
amended site plan should be conditioned to require Applicants to install and maintain
a catch basin on Appellant’s property to alleviate such flooding; and (3) if approved,
the amended site plan should be further conditioned to require Applicants to install
and maintain either a six-foot-high barrier fence or row of cedars along the rear
portion of the parties’ joint boundary line.
The Court conducted a site visit with the parties on December 7, 2010; the trial
immediately followed the site visit. Present at the site visit and trial were both
Applicants, together with their attorney, Lauren S. Kolitch. Appellant was not present,
although she was represented at the site visit and trial by her attorney, Paul S. Gillies.
Applicants’ proposals to realign the on-site parking and complete the private
drainage system located on their property conforms to the site plan review criteria
contained in § 301 of the Town and Village of Waterbury Zoning Regulations
(“Regulations”) and is therefore APPROVED, subject to the conditions listed below.
The Court specifically rejects either party’s suggestion for fencing or screening along
their joint boundary line, for two reasons. First, it is likely that any fencing will be
difficult to maintain, given the proximity of Appellant’s house to a portion of that
boundary line and the manner in which snow is shed from Appellant’s roof. Second,
the proposed amendments to the site plan are not so substantial as to require
screening by the cedars that Appellant requests, and the Court finds it equitably
untenable to require Applicants to plant and maintain a row of cedars along the rear
of the joint boundary line, given that it was at Appellant’s urging and enticement that
Applicants allowed Appellant to cut and remove the pre-existing rows of cedars that
once encompassed a portion of Applicants’ south, east, and northerly boundaries. For
these reasons, the Court specifically DECLINES to incorporate a condition into its
approval of Applicants’ amended site plan that mirrors Condition #3 imposed by the
Commission.
4 Appellant presented a fourth Question in her Statement of Questions which was based upon
an assertion that a portion of Applicants’ private stormwater drainage system was located on
her property, but Appellant advised prior to trial that she no longer wished for this Court to
consider that issue.
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Approval of Applicants’ amended site plan is hereby conditioned upon the
following:
1. Applicants shall complete the improvements only as evidenced by their
amended site plan (as shown on trial Exhibit 2).
2. Applicants shall not commence or complete any material revisions or
alterations to their site plan without prior approval of the Commission or
this Court.
3. Any prior approvals or conditions imposed by the Commission upon
Applicants’ site plan, including Zoning Permit #45-08-V, that have not
been the subject of this appeal shall remain in full force and effect.
4. Applicants shall remove the approximately five-to-ten-foot-long portion of
the earthen berm they installed along the boundary line they share with
Appellant that is not depicted on their amended site plan (Exhibit 2).
The portion of the earthen berm to be removed lies beside the storm
drain outlet Appellant installed on their property.
5. The earthen fill Applicants installed in their rear yard is APPROVED, but
only to the extent such fill has been placed on their property or easement
benefitting their property.
6. The catch basin Applicants proposed (identified as a storm drain in
Applicants’ rear yard on their Exhibit 2) is hereby APPROVED, without
the alterations suggested by Appellant’s expert witness at trial.
Applicants shall only be required by this approval to install the 8” HDPE
pipe reflected on Exhibit 2 up to the parties’ common boundary line;
Applicants shall not be obligated by this approval to install any
stormwater drainage improvements on Appellant’s property.
This trial revealed to the Court significant disputes between these parties.
Neither party is completely blame free; each party has some culpability in the genesis
of their disputes. Given that the Court only has jurisdiction over Applicants and their
improvements in this appeal, the Court is limited in its authority to order a sharing of
the expense to alleviate the stormwater pooling issues that arise on each party’s
property. However, the Court encourages the parties, perhaps with the assistance of
their respective expert witnesses, to attempt to reach a voluntary agreement on
alternate or further improvements that would alleviate the problem of stormwater
pooling on both of their properties. If agreement is reached, it should address the
sharing of future additional expenses and whether the agreed-upon improvements
require further amendment to either party’s site plan permits.
These proceedings are remanded to the Town of Waterbury Zoning
Administrator, solely for the purpose of completing the ministerial acts necessary to
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issue the appropriate permit in accordance with this Judgment Order and the
unaltered provisions of the prior Planning Commission approvals.
This completes the current proceedings before this Court in this appeal.
Done at Newfane, Vermont, this 15th day of December, 2010
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Thomas S. Durkin, Judge
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