Smith 4-Lot Subdivision Final Plat

STATE OF VERMONT
ENVIRONMENTAL COURT
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In re Smith 4-Lot Subdivision Final Plat } Docket No. 244-12-09 Vtec
(Appeal of Pauze) }
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Decision and Order on Appellant’s Motion for Partial Summary Judgment
Appellant E. Francis Pauze, Jr. appealed from a decision of the Development
Review Board (DRB) of the Town of Poultney, granting final plat approval, with
conditions, for a four-lot subdivision proposed by Applicant Howard Smith. Appellant
is represented by John C. Thrasher, Esq.; and Appellee-Applicant Howard Smith is
represented by Phyllis R. McCoy-Jacien, Esq. The Town of Poultney has not entered an
appearance in this matter.
Appellant has moved for partial summary judgment on Questions 1 through 6 of
the seven-question Statement of Questions, and asks this Court to deny the subdivision
application. Appellant also asks the Court to disregard Applicant’s memorandum in
opposition to his motion for summary judgment, arguing that it was filed two days
beyond the deadline set in the Court’s scheduling order.
The scheduling order issued on February 3, 2010, in this matter allowed
Appellant to file a motion for summary judgment by March 3, 2010, and further
provided that “[a]ny response to a motion for summary judgment shall be filed within
the time frame set forth in” the Vermont Rules of Civil Procedure. If Appellant’s
summary judgment motion had been filed on March 3, 2010, Applicant’s response
would have been due on Monday, April 5, 2010, including the three additional days
allocated under V.R.C.P. 6(e) for responses to motions mailed by parties. However,
Appellant’s motion was filed a week early, on February 24, 2010, so that the time for
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responses expired on March 29, 2010, also including the three additional days.
Applicant’s response was filed on March 31, 2010, only two days beyond the time
allowed in the scheduling order, if calculated from the date Appellant’s motion was
actual filed, and five days earlier than required if calculated from Appellant’s original
deadline to file the motion. Under these circumstances, the Court will consider
Applicant’s memorandum in opposition to the motion, as well as Appellant’s reply
memorandum filed on April 8, 2010.
The facts stated in this decision are undisputed unless otherwise noted.
Classification of Subdivision as Major
Applicant proposes a subdivision to consist of four numbered lots, one
containing an existing house, in a Rural Residential 1-Acre zoning district in the village
of East Poultney. Only the lot containing the existing house has frontage on a public
street. The other three lots do not have frontage on a public street; access to the public
street for those lots is proposed over a new private subdivision access road.
The proposed subdivision access road is proposed as a private road, not as a
public road. It is not proposed to be a new municipal street or street extension, even
though it proposes a new private road. Nevertheless, the proposed subdivision falls
within the review category of a major subdivision, because all the proposed lots do not
have frontage on an existing public street, regardless of whether the subdivision itself
requires a “new municipal street, [new municipal] street extension, or [new] municipal
facilities.” Town of Poultney Subdivision Regulations, art. V [hereinafter Subdivision
Regulations].1
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The definition of “minor subdivision” requires it to be a “subdivision containing not
more than four (4) lots which have frontage on an existing public street . . . .”
Subdivision Regulations, art. V (emphasis added). By its terms, this definition requires
each of the proposed subdivision lots to have frontage. That is, if the intent of the
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Questions 4 and 5 of the Statement of Questions
Question 4 of the Statement of Questions asks the Court to determine whether
the proposed subdivision access roadway is a “separate and distinct lot,” apart from
any of the four proposed single-family lots. If the Court determines that it is a separate
and distinct lot, Question 5 asks whether “any of the lots created by the subdivision
meet the minimum lot size required by the Town of Poultney Zoning Regulations.”
However, material facts are in dispute, or at least have not been clearly provided
to the Court, as to the ownership status of the roadway, as shown on the subdivision
plan itself. The proposed ownership of the land lying under the subdivision access
roadway as shown on the plan is somewhat inconsistent with Applicant’s current
description of his proposal. The outcome of the present motion, and of the application
itself, depends on the way in which Applicant has configured the proposed subdivision.
A series of three diagrams is appended to this decision to enable the reader better to
follow the distinctions among the possible configurations.
As shown in Diagram 1, Applicant appears to be proposing that Lot 1 consists of
the land lying under the right-of-way for the private subdivision access road, together
with two other segments of land: the triangular piece of property containing the
existing house, located northerly of the private access road, and the roughly rectangular
piece of property containing the proposed replacement area for the Lot 1 septic system,
located southerly of the private access road and easterly of Lot 2. If that is the
configuration actually proposed by Applicant, then the parties do not dispute that Lots
1, 2, 3, and 4 each meet the minimum 40,000-square-foot lot size. Compare Appellant’s
Exhibits H & I (depicting Appellant’s measurements), with Appellant’s Exhibit A
section had been to require only that the subdivision property as a whole had to have
some frontage, then grammatically the definition would have had to have stated instead
that a minor subdivision is one which “has” frontage on an existing public street.
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(Applicant’s plot plan depicting Applicant’s measurements).2
Such a configuration, which includes the private subdivision access road as part
of Lot 1, requires that Lots 2, 3, and 4 each have an easement over Lot 1 to use the
private subdivision access road in order to access to those three lots. On the other hand,
if Applicant instead intends in the future to convey the land lying under the private
subdivision access right-of-way to be held in common by the owners of the four
subdivision lots, as is suggested by paragraph 1 of Applicant’s Road Maintenance
Agreement and Covenants, such a conveyance may require future subdivision approval
to create a fifth lot, consisting of the land lying under the access road right-of-way. See
Diagram 2.
Under those circumstances, the two resulting portions of Lot 1 would be
separated by the private subdivision access road, but would have to be considered a
single lot in order for Lot 1 to meet the minimum lot size requirements. No such
proposal is made as part of the present application. To the contrary, it appears instead
from Applicant’s memorandum in opposition to the motion for summary judgment that
the Road Maintenance Agreement and Covenants document is being changed. See
Applicant’s Opposition to Appellant’s Motion for Summary Judgment, at 4 (Mar. 31,
2010) (“The Town is requiring amendments to the Road Maintenance Agreement and
changes will be made by [Applicant’s] now counsel in regard to wording in the
Agreement.”). If that document is indeed being changed, the parties should be
prepared to state, at the telephone conference scheduled in the final paragraphs of this
decision, whether this application needs to be remanded to the DRB for it to consider
the changed configuration of the property and the new covenants document.
In addition, both of the configurations discussed in the parties’ memoranda
differ from what appears to be shown on the subdivision plan. Although the legend on
2 Although Appellant’s motion refers to the minimum lot size as being 1 acre, Article V
of the Zoning Regulations defines it as 40,000 square feet.
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the plan provided in connection with the motion for summary judgment does not
define either the solid or the broken lines depicted on the plan, the plan appears to
show lot lines for Lots 2, 3, and 4 that extend across the subdivision access roadway to
the northerly boundary of the subdivision property. See Diagram 3. If Lots 2, 3 and 4
do in fact extend all the way across the subdivision access road to the northerly
boundary of the subdivision property, then each of the lots, including Lot 1, will instead
require an easement over each of the other lots in order to use the private roadway to
access the public street or to access the turnaround at the other end of the roadway.
Because material facts are in dispute as to the configuration of what is actually
being proposed, the Court cannot resolve Questions 4 and 5 of the Statement of
Questions regarding whether each (or any) of the proposed lots meets the minimum
required lot size.
Questions 1 and 2 of the Statement of Questions
Question 1 of the Statement of Questions asks the Court to determine whether
the proposed subdivision access roadway is a “street” as that term is defined in the
Subdivision Regulations. If the Court determines that the access roadway is a “street,”
Question 2 asks whether the application can comply with the Subdivision Regulations
as to street construction.
The Town of Poultney Road Policy (Road Policy) establishes minimum
requirements for the Town to consider taking over a road, that is, to convert it from a
private roadway to a public road for which the Town is responsible. The Road Policy
establishes that the Town will not take over as a public road any road that is less than
1500 feet in length and serves fewer than three houses. Town of Poultney Road Policy
§ IV(15). However, the Road Policy does not obligate or require the Town to take over
streets that serve three or more houses or those that are longer than 1500 feet. The Road
Policy also establishes the presumption that any road less than 500 feet in length is
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private, id. § IV(16), but it does not state that all roads longer than 500 feet are public.
Rather, it addresses the “minimum specifications for roads proposed for acceptance by
the Town of Poultney as town highways.” Id. § IV.
The Town is not obligated to accept streets or roads serving a subdivision as
public streets. Rather, § 280 of the Subdivision Regulations makes it clear that DRB
approval of a subdivision plat does not obligate the Town to take over the subdivision
access road as a public street, and, if such a street is intended to become a public street,
makes it clear that the DRB may require a written agreement between an applicant and
the Town regulating their respective responsibilities.
In the present case, Applicant does not propose that the private subdivision
access roadway be taken over by the Town as a public street. In fact, in approving the
subdivision application the DRB imposed a condition that the private road remain
private and that it not be not be taken over by the Town as a public street.
Appellant, however, argues that the private subdivision access roadway
nevertheless falls within the definition of “street” in the Subdivision Regulations, and
therefore must comply with the Town Highway specifications pursuant to § 420.8 of the
Subdivision Regulations. The term “street” is defined in the Subdivision Regulations as
“any road, highway, avenue, street, [or] land or other way between right-of-way lines,
commonly used by the public for vehicular traffic.” Although the parties have not
disclosed the date of adoption of the Subdivision Regulations, those regulations
evidently were adopted prior to July of 2004, as may be seen by references in the
regulations to certain section numbers in the state statute that changed after that date.
See, e.g., Subdivision Regulations § 170 (This provision, regarding enforcement, refers
to 24 V.S.A. §§ 4444 and 4445, which were recodified at 24 V.S.A. §§ 4451 and 4452 in
2004.). By contrast, the later-adopted Zoning Regulations, which became effective in
July of 2008 and are also administered by the DRB, define the term “street or road” as a
“public way for vehicular traffic which affords the principal means of access to abutting
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properties,” Zoning Regulations, art. XI (emphasis added); this later-adopted definition
suggests that there is a distinction between a public street and a private street.
In the present case, the Court need not reach the question of whether the internal
subdivision roadways of a large subdivision qualify as “streets” under either ordinance,
even if the subdivider is required or agrees to keep those roadways in private
ownership. Rather, all that is before the Court in the present case the Court is whether a
private right-of-way used to access three or four single-family houses is considered to
be “commonly used by the public.”
The Court, however, cannot interpret this phrase without the context of knowing
how it has been applied by the DRB in the past or whether it has been consistently
applied.3 The only evidence that has been presented to the Court by either party on this
issue, as the Town has not submitted a memorandum, is the statement by the Town’s
attorney during the August 2009 DRB hearing, reported in the meeting minutes as
follows:
Town Attorney Neal Vreeland commented that the road described in the
application cannot be considered a ‘street’ as per the definition of a
‘street,’ and therefore there was no requirement that the access conform to
Town Highway Specifications.
Because material facts are in dispute, or at least have not been provided to the
Court, regarding whether the DRB or the Town have consistently applied the definition
of “street” as described in the Town attorney’s comment quoted above, summary
judgment must be denied on Questions 1 and 2 at this time.
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See In re Champlain College Maple Street Dormitory, 2009 VT 55, ¶ 10 (“We defer to
the approach taken by the City below, which appears to have been applied consistently,
and we uphold the Environmental Court's conclusion that the project complies with the
density requirement.” (citations omitted)); In re Duncan, 155 Vt. 402, 408 (1990)
(standing for the proposition that the court gives deference to interpretation of zoning
ordinance by local administrative body).
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Question 6 of the Statement of Questions
Question 6 of the Statement of Questions asks whether there is “sufficient
clearance” to the subdivision access roadway “where one of the existing septic systems
is located within the right of way and the septic system of the adjacent lot owner is
closer than the minimum isolation distance from the proposed roadway or driveway.”
The septic systems and water supplies for the proposed lots were approved by
the Vermont Agency of Natural Resources; that permit has not been appealed. The
ANR permit requires the plans submitted for that permit approval to be complied with,
and prohibits construction, earthwork, or other activity within the areas reserved for the
replacement areas. If the private subdivision access road is not considered a “street,”
and therefore does not need to be built to town highway specifications, then the
traveled way of the road is not required to be as wide as claimed by Appellant and no
ditches are required as claimed by Appellant, allowing the project to comply with the
ANR requirements as designed and as approved by the ANR.
Because material facts are in dispute, or at least have not been provided to the
Court, regarding whether the DRB or the Town have consistently applied the definition
of “street” as described in the Town attorney’s comment quoted above, summary
judgment must be denied on Question 6 at this time.
Question 3 of the Statement of Questions
Question 3 of the Statement of Questions asks the Court to determine whether
the Applicant’s subdivision application conforms with § 460(B) of the Subdivision
regulations, which “require[es] open space or recreation areas or the payment of an
amount determined by the legislative body to be used for open space or recreation
areas.”
Section 460(A) of the Subdivision Regulations requires that, if a park,
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playground, or other recreation area is shown on the municipal plan, the developer of a
subdivision including that area must provide for the park, playground, or recreation
area, or must pay a fee in lieu of providing it. Nothing has been provided to the Court
to suggest that the Town Plan shows a park, playground, or other recreation area
within the area covered by the proposed subdivision. However, if no park, playground,
or recreation area shown in the Town Plan is located within the proposed subdivision,
by its terms §460(B) does require the Board to impose a condition requiring the
subdivider to make a payment to the Town towards a park and recreation special fund,
in an amount to be determined by the Town’s legislative body. It remains for trial
whether the legislative body of the Town has established a schedule for such payments,
or, if not, whether a mechanism and any standards exist by which the legislative body is
to perform that action, and whether any such action would be separately appealable.
Accordingly, based on the foregoing, it is hereby ORDERED and ADJUDGED
that Appellant’s Motion for Summary Judgment is GRANTED in Part as to Question 3,
and is otherwise DENIED as material facts are disputed, as follows.
As to Question 3, no park, playground, or recreation area is required to be
provided under §460(B) of the Subdivision Regulations, partially resolving Question 3
of the Statement of Questions; the remainder of Question 3 remains for trial.
The remainder of Appellant’s Motion for Summary Judgment is denied, as
material facts are in dispute, or at least have not been provided to the Court in
connection with the motion memoranda. Specifically as to Questions 1, 2, and 6 of the
Statement of Questions, as discussed above, material facts have not been provided as to
whether the position stated by the Town’s attorney at the August 2009 DRB hearing,
that the proposed private subdivision access road does not fall within the definition of
“street” as that term is used in the Subdivision Regulations, is an interpretation that has
been applied consistently by the DRB. Champlain College Maple Street Dormitory,
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2009 VT 55, ¶ 10. Specifically as to Questions 4 and 5 of the Statement of Questions, as
discussed above, once Applicant clarifies the configuration that is being proposed, it
will be possible for the Court to rule on summary judgment as to whether the proposed
lots meet the minimum lot size. The parties should be prepared to discuss at the
telephone conference (see enclosed notice) whether any of these facts require trial or
may instead be submitted through supplementary motions for summary judgment.
The parties should also be prepared to discuss at the telephone conference
whether changes to Applicant’s plans or documents warrant a remand of this matter to
the DRB to act in the first instance on the revised application. The parties may wish to
consult with their surveyors or other consultants in advance of the conference, or to
have them available at the time of the conference, to resolve any factual questions about
what is being proposed. Due to the issues of interpretation of the Town’s Subdivision
Regulations, a copy of this decision has been sent to the Town’s attorney; if the Town
will be entering an appearance, or wishes to participate as amicus, any application to do
so should be filed enough in advance of the conference so that the Court can rule on it
at the conference. If the matter will not be remanded, the parties also should be
prepared at the conference to establish a schedule for the mediation already ordered in
this case, and to discuss the length of time that would be needed for trial.
Done at Berlin, Vermont, this 30th day of April, 2010.
_________________________________________________
Merideth Wright
Environmental Judge
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