Appeal of Agnes Mitchell Trust ( 2004 )

STATE OF VERMONT
ENVIRONMENTAL COURT
Appeal of Agnes Mitchell Trust }
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} Docket No. 10-1-03 Vtec
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Decision and Order
Appellant Agnes Mitchell Trust appealed from a decision of the Planning Commission of the Town
of Huntington granting final subdivision approval with conditions for six of nine proposed lots in a
nine-lot residential subdivision, and denying final subdivision approval for the remaining three
lots. Appellant is represented by Michael Marks, Esq.; Interested parties Lynn Ann Reynolds,
Robin Worn, and David Brosius appeared and represented themselves; the Huntington
Conservation Commission appeared through its Chair, Aaron Worthley; and the Town is
represented by David L. Grayck, Esq.
An evidentiary hearing was held in this matter before Merideth Wright, Environmental Judge.
Judge Wright had taken a site visit in an earlier case dealing with the same property, Docket No.
47-4-01 Vtec, and by agreement of the parties did not take another site visit in the present
appeal. The parties were given the opportunity to submit written requests for findings and
memoranda of law. Upon consideration of the evidence and the written memoranda and
proposed findings, the Court finds and concludes as follows.
Appellant proposes to subdivide a 19.3-acre parcel of land with frontage on Main Road near its
intersection with Hinesburg Hollow Road. Approximately 12.7 acres of the parcel is located in the
Village zoning district. Approximately 6.6-acres in the south and west of the property is located in
the Residential-Agricultural zoning district. The district boundary cuts at an angle across the
southerly portion of the parcel from west to southeast. Although the portion of the property
located in the Residential-Agricultural zoning district is proposed to form the majority of Lot 9 and
the southernmost portions of Lots 4, 8, 7, and 6, none of the property within the Residential-
Agricultural zoning district is proposed for construction.
The property is roughly a long truncated triangle in shape, with approximately 673 feet of frontage
on Main Road. It is relatively flat and open from Main Road towards the west, with a wooded
upland portion of the property cutting obliquely across the southwesterly end of the property. The
wooded upland extends to the south and west across neighboring properties, forming an
extensive woodland. A stream referred to as Hollow Brook, with its 100-year floodplain, runs
along the northerly property boundary. A ditch or swale cuts across the property roughly from
south to north, extending from the property's southerly boundary to join Hollow Brook midway
along the property's northerly boundary.
Class Two wetlands occupy approximately half of that portion of the property located in the
Village zoning district. Class Two wetlands adjoin Hollow Brook and adjoin the swale or ditch, and
also extend across much of the southern portion of the property from Main Road to the edge of
the wooded upland and along the western portion of the property across the width of the property
to Hollow Brook. Under the Vermont Wetland Rules, the presence of this extent of Class Two
wetlands on the property constrains the potential for development of the property.
Two areas on the property not classified as Class Two wetlands are proposed for development: a
larger area (the front or east area) east of the swale or ditch, between it and the Main Road
frontage of the property, and a smaller area (the back or west area) to the west of the swale or
ditch. The project property is proposed to be divided into nine lots, each of which is proposed for
a single family house and to be supplied by a drilled well, and each of which has access to Main
Road via a common road or a driveway to the common road.
Proposed Lot 1 has frontage on Main Road and access from the project roadway. It includes an
area for a 4-bedroom single-family house and its driveway. Lot 1 also includes an area subject to
an easement benefitting the other eight lots, containing the common leach fields for the septic
systems for all nine houses. Lot 1 also includes the land lying under the project road right-of-way
and its hammerhead turnaround. A 24-foot-wide private road within this 50-foot wide extension of
Lot 1 is proposed to provide access for the house sites on the front six lots: Lots 1, 2, 5, 6, 7, and
8. The hammerhead turnaround is an approximately 50' x 60' rectangular space that provides a
place for vehicles to turn around by executing a three-point turn, but is not a circular turnaround
or cul-de-sac. The driveway for proposed Lots 3, 4, and 9 continues as a 16-foot-wide roadway,
also within a fifty-foot-wide right-of-way.
Proposed Lot 2 is located adjacent to Hollow Brook. It contains a drilled well to serve its proposed
3-bedroom house, and also contains a drilled well to serve the house proposed for Lot 8. This
latter well site is located in the wetland buffer on Lot 2. Lots 5, 6, 7, and 8 are located southerly of
the project roadway. Each is proposed for a 3-bedroom house, although on Lots 6, 7, and 8 there
is very little room on each lot between its required front yard setback along the project roadway
and the 50' wetlands buffer in its rear yard. Lots 5, 6, and 7 are each proposed to have an on-site
drilled well. All the lots meet the dimensional and lot size requirements of the zoning ordinance.
The house sites proposed for the three back lots (Lots 3, 4, and 9) are located southerly of the
private drive for those lots. Lots 3, 4, and 9 are each proposed to be served by an individual
drilled well located on each building lot; Lots 3 and 4 are proposed as 3-bedroom houses, while
Lot 9, like Lot 1, is proposed as a 4-bedroom house. See Declaration of Protective Covenants in
evidence as Exhibit 7, § 2. That section provides a minimum habitable square footage for each of
the house sizes, but no maximum size.
Without stating any analysis in the " conclusions'section of its decision of how or why it reached
its result, the Planning Commission approved the proposed development of the six front or
easterly lots (Lots 1, 2, 5, 6, 7, and 8), including their associated roadways and septic systems,
and disapproved the three back or easterly lots (Lots 3, 4, and 9). The applicant appealed this
decision, seeking approval of the entire project as originally proposed. No party cross-appealed
the approval of the front six lots; they and the overall project are only described in this decision to
the extent necessary to provide the context for the appeal relating to whether the back three lots
should also be approved.
Under the Vermont Wetland Rules in evidence as Exhibit 8, a fifty-foot-wide buffer zone must be
maintained around the Class Two wetlands. The only residential-related activities allowed in the
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buffer zone without prior state review (§ 6.2(r)) are "the mowing of existing lawns, the placement
of barbecue pits, sandboxes, bird houses and other similar activities incidental to ordinary
residential use." Any other activities in the wetlands or the wetland buffer would have to receive a
prior Conditional Use Determination (CUD) from the state. The Declaration of Protective
Covenants applicable to the property requires compliance with permits governing the
development (§ § 8 and 15) but does not require compliance with the state wetland rules
themselves, nor does it warn owners that under those rules, no construction or activities are
allowed in the wetland or wetland buffer areas of the lots without a further CUD. The Declaration
of Protective Covenants does not restrict construction to a " building envelope'shown on the
proposed plans, and it is not clear from the proposed plans or application narrative whether the
house sites are the " building envelope" , or whether houses could be constructed anywhere
within the development area for each lot, even adjacent to the wetland buffer, as long as they
respected the required setbacks and wetland buffer requirements.
With respect to the development of Lots 3, 4 and 9, the proposed project has received a CUD
from the state Agency of Natural Resources allowing the construction of the private drive (serving
the three rear lots) to cross the wetland swale and its associated wetland buffer (using a culvert
designed to promote the passage of amphibians and other wetland animals), and allowing the
installation of the wells for Lots 3, 4, and 9 within the wetland buffer. The CUD and its amendment
letter in evidence as Exhibit 3 do not allow any installation of lawns, gardens or other landscaping
within the wetlands buffer for any of the lots, and do not allow any mowing of the vegetation within
the wetlands buffer for any of the lots except within the 20-foot construction zone behind the
house sites for lots 6, 7, and 8. The CUD and its amendment letter in evidence as Exhibit 3 do not
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allow the use of any pesticides or fertilizers within the wetlands buffer for any of the lots, while §
15 of the Declaration of Protective Covenants is inconsistent with it by providing that "only
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organic fertilizers and pesticides may be used in the wetland buffer areas depicted on the Plan."
The (inner) edge of the wetlands buffer (or the allowed encroachments for the well sites and road
right-of-way) is required by the CUD to be memorialized in the field by a fence, stone wall, or row
of shrubs. Condition 5 of the Planning Commission approval requires the memorialization to be
accomplished with natural wood or stone fencing not more than four feet in height nor less than 1
foot in height that would allow the passage of wildlife.
A deer yard used by deer for seasonal feeding and protective winter habitat is located within and
on the wooded upland area in the southwest of the property, extending almost to the edge of the
trees as shown on Exhibit H in evidence and as described by Professor Capen in his testimony
about his field observations. Ordinary residential activities of people and their pets within the
southerly wetland and wetland buffer on proposed Lots 9 and 4, as well as at the house sites and
the southerly portion of the development area shown as proposed for those lots, especially
domestic dog activity, will adversely affect the use by deer of the deer yard near the edge of the
forested area on those lots. In addition, to allow any dogs from any of the lots to run loose on the
western three lots will adversely affect the use by deer of the deer yard.
Although Appellant of course does not contest the approval of the six easterly lots, and the
potential for disapproval of those lots is therefore not before the Court, the test for the subdivision
as a whole is whether it meets each particular standard at issue in the appeal; that is, whether the
three westerly lots can be approved in addition to the six easterly lots. Section 400 requires the
Planning Commission, and hence this Court, to evaluate any application for final subdivision
approval in accordance with these standards, and allows the Commission to approve or deny the
application, to require modifications of it, or to impose conditions to " mitigate adverse impacts."
We address each of the issues raised in the Statement of Questions.
Whether the proposed subdivision meets the standards of the ordinance because it will not have
adverse impacts on wetlands and whether the project site is suitable for the proposed density of
nine lots in that it meets the density requirements of the subdivision ordinance and does not
adversely impact on wetlands.
Section 400(2) of the Subdivision Regulations requires the proposed subdivision to 'show[] due
regard for the preservation and protection of existing natural features, trees, brooks, rock
outcroppings, water bodies, or other natural and/or historical resources." Wetlands are included
by example in the category of " natural features or resources.'see § 210(10): [an application must
show] " the location of all natural features or resources on the site such as streams, ponds,
wetlands, floodplain, forest stands, deer yards, etc.'section 400(7) of the Subdivision Regulations
requires the Court to analyze whether the site is " suitable" for the proposed density.
First, the proposed subdivision requires some additional reconciliation between the requirements
of the Wetland Rules and CUD, on the one hand, and the requirements of the Declaration of
Protective Covenants, on the other, in order for the proposed subdivision to show " due regard"
for the wetland or to be suitable for development anywhere on the area proposed for Lots 3, 4,
and 9.
Although the development area allowed on each of the lots is very small, as it is constrained by
the setback requirements of the zoning regulations related to the layout of the road and the lots,
and is further constrained by the wetlands existing on site and the limitations on use of the
wetlands buffer areas, it is not appropriate to deny a landowner's application solely because of a
prediction about whether subsequent buyers of the property will comply with those restrictions.
Rather, it is necessary for the limitations on the use of the lots to be fully, clearly and consistently
disclosed to the subsequent buyers in their deeds and the covenants and permits applicable to
the property, and for an adequate enforcement mechanism to be established so that the
association as well as the Town can take steps to enforce those limitations efficiently and fairly.
With respect to effects on the wetlands, if and only if the restrictions in the CUD and the Wetland
Rules and the Planning Commission's and this Court's conditions are properly and effectively
implemented and enforced, then the wetlands crossing and the establishment of a density of up
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to three dwelling units within the development area of Lots 3, 4, and 9 are approvable with
respect to the criteria of due regard for the preservation and protection of the wetlands, and
suitability of the site for the proposed density.
That is, the Declaration of Protective Covenants must be amended to make it completely
consistent with the restrictions imposed by the CUD and the Vermont Wetland Rules, to provide
an enforcement mechanism for the Association to require compliance with the various restrictions
imposed by the CUD and the Planning Commission, and to provide notice to the zoning
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administrator of any non-compliance, to allow the Town to take its own enforcement action. With
such amendments, as required in the conditions below, the proposal will meet the criteria of § §
400(2) and 400(7) of the Subdivision Regulations with respect to the impact of the proposal on
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wetlands . That is, the proposal will meet the standards in the ordinance regarding protection of
wetlands if conditions are imposed to amend the Declaration of Protective Covenants to make it
consistent with the Vermont Wetland Rules, the CUD, and the conditions imposed by the
Planning Commission and this Court, if the restrictions applicable to each lot are fully disclosed in
advance to lot owners and incorporated in the deeds to make them known to subsequent buyers,
and if adequate enforcement mechanisms are provided in the Declaration of Protective
Covenants so that both the Association and the Town are able to take steps to enforce those
restrictions.
Whether the conditions imposed by the Planning Commission violate the terms of the Town of
Huntington ordinances and Vermont state law
Nothing in the Town of Huntington ordinances or Vermont state law precludes a town from being
more protective of its wetlands, deer yards, or other natural features or resources on the site.
Section 400 allows consideration of the preservation and protection of existing brooks and other
natural features such as wetlands and deer yards, whether the site is suitable for the proposed
density, whether the proposal retains unrestricted access to deer yards, and whether the proposal
is " in compliance with" the Town Plan, as well as in compliance with the zoning ordinance and
other bylaws. These criteria may be more protective of the Town's resources than state wetlands
law or state land use law would be; that policy determination is for each Vermont municipality to
make when adopting its town plan and town zoning and subdivision regulations.
Whether the project is suitable for the proposed density, (that is, for development of Lots 3, 4, and
9 in addition to the easterly lots), in that it does not violate any applicable standards of the
Subdivision Ordinance concerning wildlife
Section 400(2) of the Subdivision Regulations requires the proposed subdivision to 'show[] due
regard for the preservation and protection of existing natural features, trees, brooks, rock
outcroppings, water bodies, or other natural and/or historical resources." Deer yards are included
by example in the category of " natural features or resources.'see § 210(10): [an application must
show] " the location of all natural features or resources on the site such as streams, ponds,
wetlands, floodplain, forest stands, deer yards, etc." In addition, § 400(11) of the Subdivision
Regulations requires analysis of whether the proposed development avoids deer yards or
provides adequate protection for such deer yards and retains unrestricted deer access to the
identified deer yards."
The location of the deer yard on the portion of the wooded area located on this property extends
almost to the edge of the wooded area as shown on Exhibit G. Deer use it at least as a seasonal
congregating place for extended feeding or wintering purposes. While the proposed development
on Lots 3, 4 and 9 avoids the deer yard in that it is not located within the deer yard, as proposed it
does not provide adequate protection for the deer yard. The ordinary residential activities of
people and their pets within the southerly wetland and wetland buffer located on proposed Lots 9
and 4, as well as at the house sites and the southerly portion of the development area shown as
proposed for those two lots, especially domestic dog activity, will adversely affect the use by deer
of the deer yard near the edge of the forested area on those lots. In addition, to allow any dogs
from any of the lots to run loose on the western three lots will adversely affect the use by deer of
the deer yard. The Declaration of Protective Covenants do not adequately prohibit dogs from
running loose on the property. Such activity must be made a violation of the covenants and the
permit conditions, and not just a possible violation of state wildlife law.
Based on the foregoing, it is hereby ORDERED and ADJUDGED that final subdivision approval
for the six lots approved by the Planning Commission remains granted, with the conditions as
imposed by the Planning Commission. In addition, due to the following ruling on the application
for final subdivision approval for Lots 3, 4, and 9, to address the criteria pertaining to wetlands
and the criteria pertaining to deer yards, the following additional condition affecting the
Declaration of Protective Covenants (in evidence as Exhibit 7) pertains to the development as a
whole.
To address the criteria pertaining to wetlands and the criteria pertaining to deer yards, the
application for final subdivision approval for Lots 3, 4, and 9, is ruled on in the alternative as
follows, at the election of Appellant-Applicant. Such election shall be made within the time for an
appeal to be taken from this decision.
EITHER
Appellant-Applicant may choose the grant of final subdivision approval for Lot 3, together with the
denial of final subdivision approval for Lots 4 and 9, and together with the following additional
condition affecting the Declaration of Protective Covenants (in evidence as Exhibit 7) pertaining to
the development as a whole;
OR
Appellant-Applicant may choose the denial of final subdivision approval for Lots 3, 4 and 9 as
currently designed, specifically without prejudice to Appellant's opportunity to design a clustered
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group of three dwellings or townhomes on combined Lots 3, 4, and 9, clustered within
approximately the area now shown as the development area for Lot 3 and the northerly half of the
development area for Lot 4, together with the following additional condition affecting the
Declaration of Protective Covenants (in evidence as Exhibit 7) pertaining to the development as a
whole.
Additional condition pertaining to the development as a whole:
The Declaration of Protective Covenants shall be revised to contain requirements consistent with
the Conditional Use Determination (in evidence as Exhibits 3 and 11) granted by the State of
Vermont Agency of Natural Resources for the project, and incorporating all the conditions of final
subdivision approval imposed by the Planning Commission and this Court, and in particular
requiring that the buffer zone (backyard) be memorialized with a wood or stone fence (between 1
foot and 4 feet in height) allowing the passage of wildlife, that the memorialization be maintained
over time, that no structures be constructed beyond the memorialization, that the vegetation in
the buffer zone not be mowed or cut (and no herbicides be applied), that no pesticides or
fertilizers be applied to wetland buffer areas on any lot, that the Homeowners' Association and
the individual lot owners are responsible for continued compliance with the requirements of the
CUD, including the annual monitoring required by § 1(J), and incorporating the definition of
haying for agricultural purposes allowed to occur as provided in Exhibit 11 (as distinguished from
the mowing of lawn areas which is not allowed under the CUD).
In addition, paragraph 18 of the Declaration of Protective Covenants shall be amended to require
the Association to notify the Zoning Administrator in writing of any Owner's noncompliance with
any of the Protective Covenants and whether the Association is taking or has taken any action to
enforce.
In addition paragraph 16 of the Declaration of Protective Covenants shall be amended to change
the initial " should" to " shall" , to require that dogs be leashed when outside the development
area (beyond the wetland buffer memorialization) on any lot, as well as off the owners' lot on the
property, and to state that any violation of the leash and control requirement is a violation of the
Declaration of Protective Covenants and this permit, as well as of the named sections of Title 10.
th
Dated at Barre, Vermont, this 26 day of August, 2004.
______________________________________
Merideth Wright
Environmental Judge
Footnotes
1.
As there is no existing residential use, the establishment or mowing of any lawns within the
buffer zone does not appear to fall within this exemption.
2.
Both the CUD and the Declaration of Protective Covenants are silent as to the use of
herbicides within the wetland buffer, although the rules would appear to prohibit the chemical
removal of plants at least to the extent that mowing or mechanical removal of plants is prohibited.
3.
This term is undefined and unfortunately ambiguous, as ‘organic’ can connote ‘without
artificial chemicals’ (as in ‘organic farming’ or ‘organic ingredients’) or it can mean ‘containing
carbon’ (as in ‘organic chemicals’ which include some powerful pesticides, herbicides and
fertilizers).
4.
But see further constraints on this development area in the discussion of the deer yard,
below.
5.
It may also provide notice to the state wetlands program, but that is beyond the jurisdiction
of the Court to require in this decision.
6.
But see footnote 4 above.
7.
As may be allowed under the provisions of the Zoning Ordinance, including any provisions
for Planned Residential Developments. The Zoning Ordinance was not offered in evidence by any
party and we do not make any specific ruling regarding what is allowed under that ordinance.