Brisson Subdivision Application ( 2007 )

STATE OF VERMONT
ENVIRONMENTAL COURT
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In re: Brisson Subdivision Application } Docket No. 198-9-05 Vtec
(Appeal of Call) }
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Decision and Order on Pending Motions
Appellant Elizabeth Call appealed from a decision of the Planning Commission of
the Town of Weybridge, granting approval to Appellee-Applicants Armond and Ramona
Brisson of an 8-lot1 subdivision. Appellant is represented by Andrew Jackson, Esq.;
Appellee-Applicants Brisson are represented by Eben Punderson, Esq. The Town of
Weybridge did not enter an appearance in this matter. or ck if it was in through ZA
This appeal was placed on inactive status by agreement of the parties while litigation
proceeded in Addison Superior Court regarding the scope of an easement also at issue in
the present subdivision appeal. The Addison Superior Court case was resolved in favor
of Appellee-Applicants Brisson, and has been appealed to the Supreme Court. On June 1,
2007, trial was scheduled in the above-captioned appeal for Thursday, November 8, 2007,
at the Addison Superior Court, in the Mahady Courthouse in Middlebury. A revised
stipulated discovery and trial preparation schedule was entered as a scheduling order by
the Court.
Appellant had initially filed a Statement of Questions containing four questions cast
in terms of whether the Planning Commission had acted properly or within its authority.
After a telephone conference in early 2007 at which the parties discussed with the Court
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The proposal consists of seven building lots, labeled as Lots 8 through 14 on the
plans, and the remaining land, labeled as Lot 1, which appears to include the project
roadway and utility easements. All of the proposed development is located in the Town
of Weybridge, some of Lot 1 is located in the Town of New Haven.
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the de novo nature of these proceedings, Appellant filed a revised Statement of Questions
reading in full as follows:
1) Does the specific application for subdivision submitted by [Appellee-
Applicants], which proposes a multi-unit residential housing development
without road frontage, meet the requirements of the Weybridge zoning and
planning ordinances or regulations with no direct access to a town highway
and which claims only access over a right of way on the property of
[Appellant].
2) Does the application for subdivision submitted by [Appellee-
Applicants], which proposes a multi-unit residential housing development
without road frontage provide adequate protection for safety, visual and
auditory issues created by approval of the right of way?
Appellee-Applicants moved in limine that the Court’s review of the subdivision
application be limited to the right-of-way and not to the subdivision generally. The Court
ruled orally that Question 2 is limited to the effect of the right-of-way for the subdivision
on the “safety, auditory and visual” issues stated in that question, but that because
Question 1 was cast in terms of whether the application meets the requirements of the
regulations, it potentially went beyond issues related to the right of way. However,
Appellant was required to provide a more definite statement of Question 1, as it was not
possible to tell from that Question what defects Appellant asserted in the application.
V.R.E.C.P. 5(f)
In this de novo proceeding, the Court sits in place of the Planning Commission to
consider this subdivision application, but only on the issues properly raised by the
Appellant in the Statement of Questions. V.R.E.C.P. 5(f) (“a statement of the questions that
the appellant desires to have determined”); 10 V.S.A. § 8504(h) (“on those issues which
have been appealed”). It has been difficult to determine what issues Appellant seeks to
contest in this matter, based on Appellant’s various filings.
Appellant’s April 30, 2007 filing after the Court required a more definite statement
of Question I provided an extensive list of deficiencies in the application asserted by
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Appellant. That is, Appellant’s revised Question I continues to challenge whether the
application materials (including the proposed subdivision plat) are adequate under many
listed sections of the Subdivision Regulations relating to the preliminary application (§ 300)
and final plat (§ 310) for the subdivision, and the planning and design standards applicable
to the subdivision from Article IV.
Appellant’s Question 1 originally related to Appellant’s asserted deficiencies in the
subdivision application; as revised it continues to be stated in terms of asserted lack of
information and asserted deficiencies in the application materials, including in the
proposed subdivision plat itself. Accordingly, Appellee-Applicants’ Motion to Dismiss
those portions of revised Question 1 unrelated to deficiencies in the application is
GRANTED. On or before October 11, 2007, the parties shall file with the Court either an
agreed redacted version of Question 1 or, if they cannot agree, shall each file their own
proposed redacted version of Question 1. Appellee-Applicants’ renewed Motion in Limine
to limit Question 1 only to the right-of-way is DENIED.
Of course, because the application is being considered de novo by the Court, we do
not yet have before us the application materials and the final subdivision plat for which
Appellee-Applicant is seeking approval. If they had been submitted in connection with a
motion for summary judgment, it is possible that many of the subsections of Question I
could have been determined prior to trial.
Therefore, under the circumstances, the trial will commence as usual with Appellee-
Applicant’s presentation of the application to the Court, including any cross-examination
of Appellee-Applicant’s witnesses. At the close of Appellee-Applicant’s case, we will
expect the parties to confer and report to the Court as to whether any of the subsections of
Question I are no longer at issue, based on the application and subdivision plan as
presented at trial, and to make any related motions orally on the record, before proceeding
to hear the remainder of the evidence to be presented by Appellants’ witnesses.
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From the materials provided by the parties in connection with their motions, it
appears that the Planning Commission had before it, during its hearings on the subdivision
application, a “sketch plan,” dated February 11, 2005, and, later, a revised “preliminary
plat,” dated April 11, 2005, and that all it considered was the application for the proposal
as a “major subdivision.” Although Appellee-Applicant referred to the proposal, in the
narrative attached to the subdivision application, as a “PRD-style” subdivision, the parties
have not claimed that the Planning Commission ruled on the application as a PRD, or that
it conducted site plan approval analysis as a PRD. See, generally, §305 of the Zoning
Regulations. Moreover, the original subdivision application represents that the project will
also require Act 250 approval and a permit for the water supply and wastewater disposal
systems from the Agency of Natural Resources. Although many if not most applicants
prefer to have a single trial in Environmental Court covering all appeals of all necessary
state and local approvals, it is entirely up to the applicant whether to proceed first on only
a single required local application.
The trial remains scheduled for November 8, 2007. Accordingly, in the pretrial
conference now scheduled for October 18, 2007 (see enclosed notice), the parties should be
prepared to discuss their understanding that the trial will only cover the application for
subdivision approval as a major subdivision, and that the Court does not now have
jurisdiction of any appeals of applications for PRD approval, site plan approval, Act 250
approval or ANR permit approval.
Done at Berlin, Vermont, this 4th day of October, 2007.
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Merideth Wright
Environmental Judge
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