Krag Special Zoning Permit for Culvert

STATE OF VERMONT
SUPERIOR COURT ENVIRONMENTAL DIVISION
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In re Krag – Special Zoning Permit for Culvert }
(Appeal of Marks) } Docket No. 51-4-09 Vtec
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Decision and Order
Appellant Andrew Marks (Appellant) appealed from a decision of the
Development Review Board (DRB) of the Town of Shelburne, upholding the Zoning
Administrator’s issuance of a special zoning permit to Appellee-Applicants David
and Jesusa Krag (Appellees). The special zoning permit authorized Applicants to
install a culvert on their property, leading from a pond to behind a berm that had
been the subject of an earlier permit. Appellant is represented by Thomas F.
Heilmann, Esq.; Appellees are represented by Liam L. Murphy, Esq.; and the Town
is represented by David Rugh, Esq. but did not participate actively in the trial.
An evidentiary hearing was held in this matter before Merideth Wright,
Environmental Judge. A site visit was taken on a later date with the parties and
their representatives. The parties were given the opportunity to submit written
memoranda and requests for findings, and extended the time for these filings by
motion. Upon consideration of the evidence as illustrated by the site visit, and of the
written memoranda and requests for findings filed by the parties, the Court finds
and concludes as follows.
Appellees own a 15.8-acre L-shaped parcel of property, comprising Lots 4
and 3-C of the former Thomas Road subdivision, located at 76 Rivervale Road in the
Town of Shelburne. Appellees’ property is bounded on the north and west by the
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LaPlatte River, which makes a bend at the northwest corner of Appellees’ property.
The river flows at an elevation of approximately 150 feet above sea level in the
vicinity of the properties at issue in this appeal; the river bank is at an elevation of
approximately 154 feet above sea level. Appellees constructed their residence in
1993 on a plateau at an elevation of approximately 172 to 176 feet above sea level.1
Close to the foot of the plateau, which slopes steeply downward behind (to the west
of) their house, Appellees have constructed or maintained a large spring-fed pond
(the Swim Pond) at an elevation of 156 feet above sea level. Another, smaller pond
(the Field Pond or Lower Pond) is located farther to the west on Appellees’ property,
and at a slightly lower elevation, close to its southern boundary adjoining
Appellant’s property. The remainder of Appellees’ property between the Lower
Pond and the bend in the river is relatively flat but contains a shallow channel that
leads water generally northward to the river northeasterly of the bend at the
northwest corner of Appellees’ property.
Appellant owns a 3.1-acre rectangular parcel of property located at 150
Rivervale Road. Appellant’s property is bounded by the LaPlatte River on the west,
bounded by Appellees’ property to the north and east, and bounded by an unrelated
property to the south. The easterly end of Appellant’s property contains an
extension of the plateau of land, which slopes steeply down towards the north tin
the direction of Appellees’ Swim Pond and Lower Pond. Appellant’s residence was
constructed in about 2004 at the elevation of the plateau of land. As of early 2008,
surface water from Appellant’s property flowed by surface or sheet flow northerly
over the edge of the plateau onto Appellees’ property between the Swim Pond and
the Lower Pond, some of the water then flowed slightly northeasterly into the Swim
1 All the elevations in this decision are taken from Appellant’s Ex. C, the overall
property plan of the Thomas Road subdivision.
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Pond and some of the water flowed slightly northwesterly into the Lower Pond.
In the summer of 2008 the Zoning Administrator issued a zoning permit to
Appellees (the Berm Permit), which became final and is not at issue in the present
case. It authorized Appellees to dig a third pond (the Upper Pond) in a location in
the former Parcel 3-C portion of Appellees property where a depression or wet area
had been located. The Upper Pond is located on Appellees’ property on the plateau,
to the south of Appellees’ house, at approximately an elevation of 176–178 feet
above sea level. Prior to the construction of the Upper Pond, drainage from that wet
area traveled over land in sheet flow or poorly-defined natural drainage swales in a
generally northerly direction, towards Appellees’ house and past it towards the
Swim Pond, as well as northeasterly towards a culvert under Appellees’ driveway.
The Berm Permit also authorized Appellees to use the fill extracted from the
Upper Pond to construct a berm, which was meant to prevent the surface water
flowing off Appellant’s property from entering and contaminating the Swim Pond.
The berm and the Upper Pond were constructed in accordance with the Berm
Permit.
In late September of 2008 the Zoning Administrator approved Appellees’
application for the installation of a fifteen-inch-diameter pipe, referred to in the
present appeal as a culvert. It was designed to have its inlet at the surface of the
Upper Pond, to run under the Upper Pond and within the berm, and to exit on the
southerly side of the berm, still on Appellees’ property but near the boundary with
Appellant’s property. The application referred to the purpose of the pipe as being
“to reestablish flow from [Upper] pond” and referred to the location of its outlet as
being at “existing water collecting area.” The culvert therefore was designed to
carry the flow of surface water from the area of the Upper Pond through the berm
and into the Lower Pond, bypassing the Swim Pond. Appellees installed the culvert
in accordance with the permit; Appellant’s appeal of it is the subject of this appeal.
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The culvert permit was issued under the authority of § 1720.2 of the 2007 Zoning
Bylaws.
This Court’s March 5, 2010 summary judgment decision determined certain
legal issues. It determined that § 1720.2 would be applicable only if the culvert
project involved any additional extraction of earth materials for use off the site, or
any additional fill, beyond that which had already been approved in the Berm
Permit. The summary judgment decision, slip op. at 16, suggested that the Court
would first need to hear evidence necessary to decide whether the culvert project
required a § 1720.2 permit at all, or instead whether § 1720.1 is applicable. If § 1720.1
is applicable, the summary judgment decision stated that the matter would have to
be remanded for the Zoning Administrator in the first instance to determine
whether a special zoning permit should issue for the culvert under § 1720.1.
First, the evidence at trial showed that the culvert project did not involve any
additional extraction of earth materials for use off the site, or any additional fill,
beyond that which had already been approved in the Berm Permit. Section 1720.2
therefore is inapplicable to the culvert that is the subject of this appeal.
Section 1720.1 of the 2007 Zoning Bylaws states that “[t]here shall be no
diversion, redirection[,] or relocation of any natural water course, drainage[,] or
water runoff pattern unless a special zoning permit for that purpose is obtained
from the administrative officer.”
The term “natural” cannot be interpreted to mean the state of the area’s
watercourses, drainage, and water runoff patterns as they existed prior to any
human development at all. Equally, the term “natural” cannot be interpreted to
mean the state of those features immediately prior to the application before the
Court. Both of those extreme interpretations would create an absurd result or would
make the term ”natural” into surplusage in that regulatory provision. Wesco, Inc. v.
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Sorrell, 2004 VT 102, ¶ 14, 177 Vt. 287 (citations omitted) (noting that the Court
presumes that the legislature does not intend a statutory interpretation that would
lead to an absurd result); Loiselle v. Barsalow, 2006 VT 61, ¶ 16, 180 Vt. 531 (mem.)
(citing State v. Carroll, 2003 VT 57, ¶ 7, 175 Vt. 571 (mem.)) (noting that the Court
presumes that the legislature “chooses its language advisedly so as not to create
surplusage”).
If the term “natural” were interpreted to refer only to the state of the area’s
drainage prior to any human development, the section would have very limited
applicability in areas which are already somewhat developed. This would be an
absurd interpretation, as areas that are undergoing development are the very areas
which require zoning regulation of the potential effect of water diversion on
neighboring properties. Cf. Hazen v. Perkins, 92 Vt. 414, 420 (1918) (“natural” lake
level regulated and controlled by man-made dam and sluice at outlet); State v.
Malmquist, 114 Vt. 96, 102 (Vt. 1944) (lake level artificially created by dam
considered “natural” lake level after period of forty years). On the other hand, the
use of the term “natural” at all in § 1720.1 would be surplusage if all diversion,
redirection, or relocation of any water courses, drainage, or water runoff patterns
required permits, regardless of whether they were considered natural or not.
Thus, to make sense of the term “natural” in § 1720.1, as applied in the
present case, it must refer to the drainage pattern of the land before the berm and
the Upper Pond were installed, but after all the other changes to the surrounding
areas were made, including the site work, earth moving, and driveway culverts
involved in the construction of both the Marks and the Krag houses, and of the
Swim Pond.
At that time, drainage on both properties was by sheet flow off the plateau
onto the lower land down to the 156-foot elevation level. Some of the drainage from
the location of the Upper Pond on Appellees’ property flowed towards Appellees’
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house, and past it over the plateau edge towards the Swim Pond. The drainage or
water runoff from Appellant’s property flowed by sheet flow over the edge of the
plateau to a low area or channel along the base of the plateau, some traveling
northeasterly into the Swim Pond and some traveling northwesterly along the
southerly edge of Appellees’ property to the Lower Pond, and thence to a shallow,
poorly defined channel traveling westerly and northerly across the flat, lowland area
of Appellees’ property to the river. In fact, drainage from Appellant’s property over
its northerly boundary to the Swim Pond was the reason that Appellees constructed
the berm.
For the purposes of this decision, the result does not change depending on
whether the low area or channel at the foot of the plateau near the southerly
boundary of Appellees’ property conducted water only westerly before the berm
was constructed, or conducted some of it westerly and some of it easterly to the area
of the swim pond. Regardless of the direction of that flow, the installation of the
culvert or pipe from within the Upper Pond to southerly of the berm did not merely
restore the previously existing natural drainage or water runoff pattern. The
installation of the culvert or pipe from within the Upper Pond to southerly of the
berm did not restore the flows from the area of the Upper Pond towards Appellees’
house or past the house towards the Swim Pond. Nor did it restore the portion of
the flow from the foot of the plateau near Appellant’s house towards the Swim
Pond. Rather, it redirected what would have been overflow from the Upper Pond to
the channel southerly of the berm, so it would proceed to the Lower Pond and
beyond it without flowing through or into the Swim Pond.
Because the culvert at issue in this case did not simply restore the drainage or
water runoff pattern in existence prior to the construction of the berm and the Upper
Pond, it required a permit under § 1720.1 of the 2006 Zoning bylaws.
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Accordingly, based on the foregoing, it is hereby ORDERED and ADJUDGED
that § 1720.2 is not applicable to the culvert project, because it did not involve any
additional extraction of earth materials for use off the site, or any additional fill,
beyond that which had already been approved in the Berm Permit, but that the
project does require a permit under § 1720.1; the culvert permit issued under
§ 1720.2 is therefore VACATED and REMANDED2 to the Zoning Administrator for
further proceedings consistent with this decision, concluding this appeal.
Done at Berlin, Vermont, this 31st day of August, 2011.
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Merideth Wright
Environmental Judge
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If it is remanded, Appellant argues that it should be considered under § 2020.1 of
the 2010 Zoning Bylaw. The issue of whether Appellees’ 2008 application gave
Appellees any vested rights to be considered under the 2007 Bylaw is not before the
Court in the present appeal; it would be an impermissible advisory opinion.
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