Pintair DP 15-06 ( 2017 )

STATE OF VERMONT
SUPERIOR COURT ENVIRONMENTAL DIVISION
Docket No. 114-9-16 Vtec
Pintair DP 15-06 DECISION ON MOTION
DECISION ON CROSS-MOTIONS FOR SUMMARY JUDGMENT
Neighbors appeal a decision by the Town of Williston Development Review Board (DRB)
to grant a discretionary permit that would allow Alex Pintair (Mr. Pintair or Applicant) to
subdivide a 1.7-acre lot into two parcels and build a duplex in place of an existing barn (the
Project).1 Following pre-trial motions, neighbors Kevin and Zuzana Brochu (the Brochus or
Appellants) have limited their appeal to challenge the requirements for setbacks, landscaped
buffers and frontage.
Pending before the Court are cross-motions for summary judgment by the Town of
Williston (Town), represented by Attorney Paul Gillies, Esq., and the Appellants, represented by
Attorney Alexander J. LaRosa, Esq. The Town filed its motion for summary judgment on
November 2, 2016. The Brochus filed a response and a cross-motion for summary judgment on
November 30, 2016. The Town then filed a response and reply on December 16, 2016, and the
Brochus filed a final reply on January 11, 2017. Mr. Pintair did not submit any filings regarding
the pending motions.
Legal Standard
Summary judgment may only be granted when the moving party shows “there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a matter of
law.” V.R.C.P. 56(a) (applicable here through V.R.E.C.P. 5(a)(2)). The moving party shows that no
material facts are in dispute principally by filing a statement of undisputed facts supported by
1
The Unified Development Bylaw for the Town of Williston, Vermont uses the term “discretionary permit”
to refer to all the types of approvals within the jurisdiction of the DRB, as contrasted with “administrative permits”
which are issued directly by the zoning administrator. See Unified Development Bylaw § 4.3.
-1-
materials in the record. V.R.C.P. 56(c)(1)(A). In reviewing a motion for summary judgment, the
Court: 1) accepts as true any factual allegations made in opposition to the motion by the non-
moving party, as long as they are supported by affidavits or other evidentiary material; and 2)
gives the non-moving party the benefit of all reasonable doubts and inferences. Robertson v.
Mylan Labs., Inc., 2004 VT 15, ¶ 15, 176 Vt. 356 (internal citation omitted).
Factual Background
In their motions, the parties filed and responded to statements of material facts. We
recite the undisputed facts of the case as presented by the Town and the Appellants in their
statements and documents attached as exhibits to their filings:
1. Alex Pintair received a discretionary permit from the DRB on August 23, 2016 to subdivide
a 1.7-acre tract at 7997 Williston Road in Williston, Vermont (the Town).
2. The permit allows Mr. Pintair to retain an existing four-bedroom house, garage and barn
on the 0.5-acre Lot #1, and to demolish an existing barn on the 1.2-acre Lot #2 and build a duplex
with three bedrooms per unit in its place.
3. The Project is located in the Village Zoning District (VZD) and is also within the Williston
Village Historic District.
4. The Project is located on U.S. Route 2, which is also named Williston Road.
5. Development in the VZD is regulated by the Unified Development Bylaw for the Town of
Williston, Vermont (Bylaw), Chapter 42. The Bylaw was adopted on June 1, 2009 and last
amended on August 18, 2015.
6. All lots in the VZD are required to have at least 40 feet of frontage on an existing or
proposed public or private road. Bylaw § 42.3.4. Lot #2’s road frontage on U.S. Route 2 is 45.4
feet.
7. The Town requires a minimum setback of 50 feet from the right-of-way of U.S. Route 2,
“where it is town policy to maintain a wide, landscaped ‘greenbelt.’” Bylaw § 42.3.3.2.
-2-
8. The 50-foot setback from U.S. Route 2 “must be landscaped as a Type I, III, or IV buffer in
compliance with Chapter 23.” Bylaw § 42.3.3.5.2
9. A Type I or “existing vegetation” buffer is:
composed primarily of existing woodland or forest that must be of sufficient
height and density to provide an effective visual buffer. Where this type of buffer
is proposed, the landscaping plan shall include photographic documentation of
the buffer’s effectiveness. The landscaping plan shall also propose supplemental
new plantings where the existing vegetation is too thin to be an effective visual
buffer. This type of buffer must be relatively wide to sustain its habitat value and
to function as a woodland or forest that needs only minimal maintenance. Other
types of buffers may be narrower, but are assumed to require regular
maintenance.
Bylaw § 23.3.2.2.
10. A Type III or “informal plantings” buffer:
must be composed of a planted area that includes a ground cover, a partial
understory of shrubs and small trees, and major trees. The minimum density of
planting per 100 feet of buffer shall be a full ground cover, two major trees, three
ornamental or understory trees, and any combination of shrubbery or flower beds
that occupies at least 50% of the area at the time of planting. This type of buffer
can be used in many circumstances. The DRB may require an earthen berm, a
screening fence or wall, and/or additional plant materials where the uses being
separated are substantially different in intensity. The buffer width reduction
provided for in WDB 23.3.3 shall be given where the DRB requires a berm or fence.
Bylaw § 23.3.2.4.
11. Residential subdivisions with one- and two-family dwellings need to provide minimum
landscaped buffers when they are next to other residential subdivisions. A minimum buffer width
of 9 feet is required with Type III buffers. Bylaw Table 23.A.
12. Residential subdivisions with one- and two-family dwellings also must provide landscaped
buffers when they abut mixed use developments that include residential use. A minimum buffer
width of 23 feet is required with Type III buffers. Id.
2
This section of the Bylaw refers to the “required setbacks in the RZD” in describing the permitted uses in
the setback from U.S. Route 2 and other roads. “RZD” is the Residential Zoning District, another zoning district
identified by the Town. The Court assumes this is a misprint, and that the Bylaw should instead refer to the VZD, or
the Village Zoning District, which is the subject of Chapter 42 and the zoning district in which the Project is located.
-3-
13. Performance standards for the required landscaping are intended to, in part, protect
functional existing vegetation as development occurs, ensure land use compatibility, and
maintain and enhance the appearance and character of individual developments and the
community. Bylaw Chapt. 23.
14. The current lot, prior to subdivision, is shaped like a long rectangle, with the short sides
on the front and rear property lines.
15. Lot #2 includes the proposed duplex situated in the rear of the current parcel. Lot #2 also
has a long, narrow section along the eastern boundary of Lot #1 up to U.S. Route 2 (the
“panhandle”).
16. No changes are proposed on the Project within the 50-foot setback from U.S. Route 2.
Existing landscape in the setback includes a grassy lawn, deciduous trees and shrubs. An existing
driveway that serves the existing home on Lot #1 is also in this setback and runs through a stand
of mature and understory maple trees.3
17. The Applicant proposes to install a gravel drive running from the end of the existing
driveway to the proposed duplex, which would be located behind the existing house.
18. The Applicant will need to remove some of the trees to extend the driveway to the duplex.
19. Lot #2 is primarily bordered by residential properties, with the exception of the property
on its southeastern boundary, 8031 Williston Road, which is classified as “mixed use, including
residential” for the purposes of determining the required landscaped buffers.
20. The access driveway for Lots #1 and #2 is contained in the 45.4-foot wide panhandle
extending from Lot #2 that is covered with an existing stand of mature maple and understory
trees.
21. The existing lot proposed for subdivision and the mixed-use property are buffered by the
existing stand of mature maple and understory trees.
22. The Applicant proposes a Type III, 9-foot buffer along the external property boundary of
Lot #2 adjacent to other residential uses where there is no existing vegetation.
3
The existing driveway will be shared by Lots #1 and #2.
-4-
Conclusions of Law
After the Town moved for summary judgment on the Appellants’ Statement of Questions,
the Appellants withdrew Questions 4–8 and cross-moved for summary judgment. The remaining
questions are:
1. Does the [P]roject as proposed comply with the Town of Williston Unified
Development Bylaw Sections 42.3.3 and 23 concerning required landscaping
and buffers?
2. If the [P]roject is required to install either a type I, III or IV buffer within the
50-foot “greenbelt” along Route 2, does the [P]roject as proposed have
sufficient frontage to provide access?
3. Does the [P]roject as proposed comply with any side, rear or front yard
setbacks mandated by Williston Unified Development Bylaw Section 43.3.2?4
The material facts in this case are not in dispute and this case turns on the interpretation
of the Town’s zoning ordinance. The parties are therefore entitled to judgment as a matter of
law.
I. Front Setback
The Brochus contend that Lot #2 is not wide enough to meet the Town’s zoning
regulations for front setbacks and landscaped buffers. Their argument relies on inappropriately
combining the requirements for a 50-foot landscaped setback from U.S. Route 2, and a
landscaped buffer in the side yard. See Bylaw §§ 42.3.3.2 and 42.3.3.5. The Appellants seek to
enforce the side yard buffer requirements within the front yard 50-foot setback from the road.
Along with the 20 feet needed for a driveway, Lot #2 would need to be at least 52 feet wide at
the point where it connects with U.S. Route 2 to comply with side yard requirements, according
to the Brochus.5 Bylaw § 13.2.6.2. Lot #2 is 45.4 feet wide at that juncture.
4
Chapter 43 of the Bylaw deals with Parks and Recreation Impact Fees, and there is no section numbered
43.3.2. Based on the question, the Court interprets the question to refer to § 42.3.2, which states that “[s]etbacks
from rear and side property lines may be controlled by the landscaped buffer requirements of Chapter 23 of this
bylaw. Where the requirements of Chapter 23 do not apply, the minimum setback from both side and rear property
lines is 10 feet.”
5
By overlapping the side yard and front yard buffer requirements, the Brochus contend Lot #2 can only use
a Type I, III, or IV buffer within 50 feet of U.S. Route 2 and therefore the buffer abutting the mixed-use property at
8031 Williston Road must be at least 23 feet wide. See Bylaw §§ 42.3.3.2, 42.3.3.5, and Table 23.A. That buffer,
combined with the 20 feet required for a driveway and the 9-foot landscaped buffer required next to Lot #1 totals
52 feet. See id. at § 13.2.6.2 and Table 23.A.
-5-
We disagree. Side yard setbacks and side yard buffers are not applied within front yard
setbacks. Rather, front yard setbacks supersede any side yard requirements.
The Bylaw expressly states that the landscaped buffer requirements supersede the side
and rear setbacks, but not the front yard setback. Bylaw § 23.3.5 (“Do landscaped buffer
requirements eliminate setback requirements? Where they are required, they eliminate side and
rear setbacks, but do not eliminate front setbacks. Landscaped buffers replace rear and side
yard requirements for uses other than one and two family dwellings.”) (emphasis added). The
Bylaw also states that the side and rear setbacks may be controlled by the landscape buffer
requirements, omitting any mention of front setbacks. Id. § 42.3.2 (“Must development in the
VZD be set back from property lines? Yes. Setbacks from rear and side property lines may be
controlled by the landscaped buffer requirements of Chapter 23 of this bylaw.”).
In interpreting zoning regulations, our goal “is to give effect to the legislative intent.” In
re Bjerke Zoning Permit Denial, 2014 VT 13, ¶ 22 (quoting Lubinsky v. Fair Haven Zoning Bd., 148
Vt. 47, 49 (1986)). We will “construe words according to their plain and ordinary meaning, giving
effect to the whole and every part of the [regulation].” In re Appeal of Trahan, 2008 VT 90, ¶ 19,
184 Vt. 262. Because zoning regulations limit common law property rights, we resolve any
uncertainty in favor of the property owner. Bjerke Zoning Permit Denial, 2014 VT 13, ¶ 22.
Taking Chapters 23 and 42 together, we conclude that the Bylaw’s plain language requires
that the front yard setback must prevail over the landscaped buffer requirements, rather than
requiring the property owner to meet both requirements in the same space. Thus, the Project
must conform to the 50-foot setback requirement as measured from U.S. Route 2, and the
landscaped buffer requirements for side yards begin where the front setback ends.
Here, the Project does not propose any changes inside the 50-foot setback to U.S. Route
2. An existing stand of mature maple trees lines the driveway on both sides, and satisfies the
requirements in a front setback for either a Type I buffer, which is described as existing
vegetation that is “composed primarily of existing woodland or forest,” or a Type III buffer, which
is described as “informal plantings” and includes a ground cover, a partial understory of shrubs
and small trees, and major trees.” Bylaw § 42.3.3.5 (describing the types of landscaped buffers
-6-
required in the front yard setback), § 23.3.2.2 (defining a Type I buffer) and § 23.3.2.4 (defining
a Type III buffer).
The Court concludes that the landscaped buffer requirements for side yards in Chapter
23 Table 23.A do not apply in the front yard setback, and that the Project complies with the Bylaw
§§ 42.3.3 concerning the landscaping required in a 50-foot front setback from U.S. Route 2.
In addition, Lot #2’s 45.4 feet of frontage along U.S. Route 2 is sufficient. All lots in the
VZD are required to have at least 40 feet of frontage on an existing or proposed public or private
road. Bylaw § 42.3.4. Lot #2’s road frontage on U.S. Route 2 is 45.4 feet.
II. Landscaped Buffers in Side and Rear Yards
Having answered Appellants’ Questions 1 and 2 concluding that the Project complies with
the issues raised in those questions, the Court now turns to Question 3, which asks whether the
Project complies with any side, rear or front yard setbacks mandated by the Bylaw. As discussed
above, the Project complies with the required 50-foot front yard setback.
Under the Town’s zoning regulations, the side and rear yard setbacks are controlled by
the landscaped buffer requirements set forth in Table 23.A. Id. at § 42.3.2. Bylaw Table 23.A
requires a minimum buffer width of nine feet for Type III buffers between residential properties.
The Applicant proposes a Type III buffer nine feet wide along Lot #2’s borders where the lot abuts
other residential properties. This Type III buffer spans the western and northern boundaries of
Lot #2 and complies with the Bylaw.
This same Type III, nine-foot wide buffer is proposed on the northern half of the eastern
boundary of Lot #2. This portion of the landscaped buffer also complies with the Bylaw. The
Type III buffer on the eastern boundary ends at the location of an existing stand of mature maple
trees and understory trees. The existing stand of trees spans the southern half of the eastern
boundary of Lot #2 in the area where Lot #2 abuts a mixed-use property.
Appellants assert that a 23-foot wide Type III buffer is required along the southern half of
the eastern boundary where Lot #2 abuts the mixed-use property. See Table 23.A. This area of
Lot #2 is configured with a driveway through the 45.4-foot-wide panhandle. As it exists pre-
development, the panhandle contains the existing stand of mature maple and understory trees
-7-
and the existing driveway for Lot #1. The only development proposed in this area is the Lot #2
access driveway. The duplex on Lot #2 will be located in the rectangular portion of Lot #2 north
of the panhandle.
Pursuant to Bylaw § 23.2.2, existing vegetation that can serve landscaping functions shall
be retained to the extent possible. Furthermore, the landscaping standards of the Bylaw are
intended, in part, to protect functional existing vegetation, ensure land use compatibility, and
maintain and enhance the appearance and character of individual developments and the
community. See Id. Chapt. 23. Currently, the panhandle section of proposed Lot #2 containing
the existing stand of mature maple and understory trees and the existing driveway for Lot #1
serves as the landscaped buffer between Lot #1 and the neighboring mixed use lot. This function
will continue under the proposed Project as no changes are proposed in this area other than
continuing the access driveway for Lot #2 from the end of the driveway for Lot #1 and extending
through the existing tree stand. Bylaw § 23.3.4.1 allows for driveways to cross through
landscaped buffers.
The practical purpose and function of a landscaped buffer in the panhandle is to screen
existing Lot #1 from the neighboring mixed use lot. We therefore consider the landscaping
character of the existing stand of trees. The stand of trees is more than 45 feet wide. Even if we
ignore the exemption afforded driveways in landscaped buffers and subtract the 20 feet required
for the access drive, that still leaves 25 feet of existing trees to serve as a buffer. The Court
concludes that the stand of maple trees and the understory trees meet the definition of a Type
III buffer because it includes a ground cover, a partial understory of small trees and major trees.
The panhandle section of Lot #2 therefore satisfies the Bylaw’s minimum requirement of 23 feet
of Type III landscaped buffer.
By utilizing the existing stand of mature maple and understory trees, and installing nine-
foot, Type III buffers on the rest of Lot #2’s boundaries, the Project complies with the landscaped
buffer requirements as mandated by Bylaw Table 23.A, which controls the side and rear yard
setbacks. Id. § 42.3.2.
-8-
Conclusion
The Project complies with the Bylaw requirements for the front yard setback and frontage
for properties along U.S. Route 2, and meets the landscaped buffer requirements for the side and
rear setbacks. The Appellants’ motion for summary judgment is therefore DENIED, and the
Town’s motion for summary judgment is GRANTED.
A Judgment Order accompanies this Decision. This concludes the current proceedings
before this Court.
Electronically signed on April 28, 2017 at 10:45 AM pursuant to V.R.E.F. 7(d).
_________________________________________
Thomas G. Walsh, Judge
Superior Court, Environmental Division
-9-