Binkhorst Lake Access

STATE OF VERMONT
ENVIRONMENTAL COURT
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In re: Binkhorst Lake Access } Docket No. 286-12-07 Vtec
(Appeal of Wool) }
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Decision and Order on Renewed Motions for Summary Judgment
Appellants Michael and Martha Wool appealed from a decision of the Zoning
Board of Adjustment (ZBA) of the Town of Charlotte, upholding the Zoning
Administrator’s determination that certain work performed on Appellees Mark and
Julie Binkhorst’s property was “exempt from permitting.” Appellants are represented
by Hobart F. Popick, Esq.; Appellee is represented by Stuart M. Bennett, Esq.; and the
Town is represented by William E. Flender, Esq.
In March of 2009, the Court issued a decision and order on the parties’ motions
for summary judgment, which resolved Question 1 and several issues raised by
Questions 2, 3, and 4 of the Statement of Questions. That decision concluded that a
number of facts were either in dispute or had not been provided to the Court, so that
the remainder of Questions 2, 3, and 4 could not be resolved at that time. In re:
Binkhorst Lake Access, No. 186-12-07 Vtec, slip op. at 5–8. (Vt. Envtl. Ct. Mar. 9, 2009)
(Wright, J.). The parties requested an opportunity to submit additional facts and
arguments to the Court by motion, and submitted a Joint Supplemental Statement of
Undisputed Material Facts to the Court. Appellees submitted a Supplemental
Statement of Disputed Material Facts, and Appellants submitted a supplemental
memorandum in support of their motion.
The following facts are undisputed unless otherwise noted, in addition to the
facts as described in the March 2009 decision.
1
The narrow parcel of land at issue in this appeal, also known as the “Windmill”
lot (“the property”), is located in the Shoreland zoning district between Hills Point Road
and Lake Champlain. It is approximately 350 feet in length, running west from Hills
Point Road to Lake Champlain. The property gradually widens from only
approximately 50 feet in width at Hills Point Road to approximately 100 feet in width at
Lake Champlain.
Beginning in 2007, Appellees engaged in the following four categories of
contested activities on the property: landscaping, electrical service to the pump house,
improvement to the traveled way on the property, and installation of a culvert.
Appellees performed landscaping on the property, including pruning and
removing trees, shrubs, and underbrush; placing and grading topsoil; and planting
grass, plants, and trees. All of this landscaping activity occurred more than 100 feet
from the Lake Champlain shoreline.
A pump house for a water supply system serving persons not party to this
appeal is located on the property within 100 feet of the shoreline. Prior to the work at
issue in this appeal, the electrical service to the pump house was connected by a
electrical wire to an existing electric service pedestal on Hills Point Road. By 2006, that
electrical wire had partially surfaced and had become a hazard. In 2006, Appellees
contracted to have a trench dug from the pump house along the north side of the
property, in order to bury the wire in conduit. However, the wire was not in fact buried
at that time, leaving the trench open through the winter of 2006–07. During this period,
the trench eroded to create a shallow ditch running along the north side of the property,
causing some flooding in the pump house and in the basement of the house on the
adjoining property to the south. As part of the work at issue in this appeal, in 2007
Appellees had a trench excavated in which a PVC electrical conduit containing a new
electrical wire was buried, running from the electric service pedestal on Hills Point
Road to the pump house.
2
Prior to the work at issue in this appeal, the property was vegetated with trees,
bushes, and underbrush, and contained an unimproved traveled way with a grass
surface, extending from Hills Point Road to the lake. Appellees had removed debris
from the lot prior to 2006, including the remains of a windmill and rails from a boat
launching system. The traveled way was used occasionally by pedestrians or vehicles
for access to the pump house and to the lake shore. Those served by the water supply
system have an easement over the property to access the pump house. The traveled
way was in need of regrading and reseeding to maintain it in useable condition. In the
work at issue in this appeal, Appellees improved the surface of the traveled way by
installing a so-called “soft” road surface, which consisted of covering the traveled way
with gravel and then topping it with a layer of topsoil and grass. This work began at a
point near Hills Point Road and extended for approximately 150 feet toward the lake.
Since the distance between Hills Point Road and the shoreline is 350 feet, and the work
on the traveled way only extended for 150 feet toward the lake, this activity did not
extend within 100 feet of the shoreline of Lake Champlain.
Also prior to the work at issue in this appeal, an existing town culvert running
under Hills Point Road emptied onto the property at the west side of the road. In order
to address issues of flooding caused by the water draining onto the property through
the existing town culvert, Appellees installed a new culvert running the length of the
property, from the existing town culvert to a point located 50 to 75 feet from the lake
shore. Installation of the culvert consisted of excavating a ditch, installing in the ditch a
15-inch culvert pipe the length of the ditch, and placing fill to cover the culvert and the
ditch. The area around the lake end of the culvert was graded and a course of rip rap
was laid from the end of the culvert to approximately 30 feet from the shoreline.
None of the work at issue in this appeal involved the cutting or removal of trees
or shrubs within 100 feet of the shoreline of Lake Champlain.
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Town of Charlotte Land Use Regulations
Under § 1.3(C) of the Town of Charlotte Land Use Regulations (Regulations), all
“land development” must be specifically authorized by the Regulations, exempted from
the Regulations under state statute or § 9.2,1 or approved in accordance with § 2.3
(Application of District Standards). The March 2009 decision resolved that the work at
issue constitutes “land development.” See In re: Binkhorst Lake Access, slip op. at 5.
The work must therefore qualify as exempt under § 9.2 or Appellees must apply for a
zoning permit for it under § 9.3.
Uses and structures that are exempt from the Regulations under § 9.2(A) do not
require a zoning permit or approval. Section 9.2(B) provides the mechanism for
appealing a Zoning Administrator’s exemption decision to the ZBA, as was done in the
present case. The § 9.2(A) exemptions relevant to the work at issue in this appeal
include: § 9.2(A)(1), exempting “normal maintenance and repair of existing structures,
utilities and infrastructure which does not result in any change to the footprint or height
of the building . . . or change in use”; § 9.2(A)(4), exempting “[m]inor grading and
excavation associated with normal road, driveway, and parking area maintenance”; and
§ 9.2(A)(5), exempting “[l]andscaping, for example: installation of plants, soils, arbors,
terraces, and patios.”
In addition, because the property is located partially within 100 feet of the
shoreline of the lake, any work done within that hundred-foot lakeshore buffer,
whether or not it is exempt from the permit requirement, must comply with § 3.15(G)
(Lakeshore Buffers). Under § 3.15(G), a vegetated buffer zone must be maintained
within 100 feet of the shoreline of Lake Champlain. In order to maintain this lakeshore
buffer, § 3.15(G) requires (1) “no cutting or removal of trees or shrubs” except with
administrative review and approval in accordance with an approved shoreland
1 All citations to section numbers are references to the Town of Charlotte Land Use
Regulations unless otherwise noted.
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management plan; allows (2) “[l]imited pruning of branches of trees” to maintain but
not to enlarge existing cleared openings or views; allows (3) “cutting and removal of
storm-damaged, diseased, or dead trees” if the Zoning Administrator has determined
that they pose a hazard; and precludes (4) “dredging, draining, or filling of land along
the shoreline” or “cutting or removal of wetland vegetation” except “in conformance
with a shoreland management plan approved by the [ZBA].”
Landscaping
The landscaping done on the property consisted of pruning and removing trees,
shrubs, and underbrush; placing and grading topsoil; and planting grass, plants, and
trees. As all of this activity occurred more than 100 feet from the lake shoreline, it is not
subject to § 3.15(G).
Under § 9.2(A)(5), “[l]andscaping, for example: installation of plants, soils,
arbors, and patios” is exempt from the Regulations. The landscaping work done by
Appellees falls within this exemption and therefore does not require a zoning permit or
approval.2
Replacement of Existing Electrical Wire
To replace the existing electrical wire that posed a hazard after becoming
exposed, a PVC conduit containing a new electrical wire was buried in a trench that ran
from the existing electrical service pedestal near Hills Point Road to the existing pump
house. Because the pump house is located within 100 feet of the shoreline, the electrical
conduit extended into the lakeshore buffer area.
2 In their memorandum in further support of their Motion for Summary Judgment,
Appellants themselves stated that they “do not dispute that most, if not all, of the
[landscaping] work constitutes ‘landscaping’ within the meaning of § 9.2(A)(5).”
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Under § 9.2(A)(1), a permit is not needed for “[t]he normal maintenance and
repair of existing structures, utilities and infrastructure which does not result in any
change to the footprint or height of the building . . . or change in use.” The existing
wire running from the existing electric pedestal to the existing pump house was in need
of maintenance and repair, as it had surfaced and become a hazard. The existing wire
constituted an existing utility or infrastructure within the meaning of § 9.2(A)(1). By
renewing and reburying the wire safely within a PVC electrical conduit, Appellants
performed “normal maintenance and repair” of the electrical service to the pump
house. That work did not change the footprint or use of the existing utility or
infrastructure, or of the pump house. The maintenance and repair of the electrical
service to the pump house therefore falls within the § 9.2(A)(1) exemption and does not
require a zoning permit or approval.
Under § 3.15(G)(4), the “dredging, draining, or filling of land along the
shoreline” is prohibited, “except in conformance with a shoreland management plan
approved by the [ZBA].” The cutting and filling of a trench necessary to bury an
electrical conduit, leaving the land at the same elevation and in the same condition as
when the former unsafe electrical line had been buried in the ground, does not rise to
the level of “dredging, draining, or filling of land along the shoreline.” § 3.15(G)(4).
The installation of the renewed electrical service in an electrical conduit therefore also
satisfies § 3.15(G).
Improvements to Traveled Way
Appellees also renewed the surface of the traveled way by installing a so-called
“soft” road surface, consisting of covering the existing traveled way with gravel and
then topping it with a layer of topsoil and grass. This work began at a point near Hills
Point Road and extended inward for approximately 150 feet. Its appearance after the
work is that of a traveled way covered by a grass surface, as it was before the work.
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This activity did not come within 100 feet of the shoreline of Lake Champlain, and
therefore is not subject to § 3.15(G).
Under § 9.2(A)(4), “[m]inor grading and excavation associated with normal road,
driveway, and parking area maintenance (including ditching, culvert replacement and
resurfacing)” is exempt from the Regulations. The existing unimproved grass-surface
traveled way required resurfacing for its normal maintenance, to repair normal wear
caused by erosion and by its existing level of use for occasional vehicular and
pedestrian access to the lake shore and to the pump house. The traveled way
improvements completed by Appellee therefore fall within the § 9.2(A)(4) exemption
and do not require a zoning permit or approval.
Administrative Requirements for Exempt Land Development
Question 4 of Appellants’ Statement of Questions asks whether, “[i]f the land
development in question falls within any of the [§] 9.2 exemptions, [Appellees have]
complied with the administrative requirements under the [Regulations] in order to
enjoy the benefit of such exemption?”
Neither of the parties specifically addressed this issue in any of the memoranda
submitted to the Court. Nor have Appellants directed the Court’s attention to any
section of the Regulations containing any particular “administrative requirements” with
which a party must comply in order to commence activity that is exempt under § 9.2.
Rather, the Zoning Administrator is responsible under § 9.1(C) to “coordinate the
development review process” and “to provide information and assist applicants.” If a
Zoning Administrator makes a decision as to whether a use is exempt, § 9.2(B) provides
an appeal route. Otherwise, no other administrative requirement appears to apply to
an exempt activity, and therefore there is nothing further that Appellee must do in
regard to the landscaping, traveled way, and electrical conduit work that the Court has
determined is exempt under § 9.2 of the Regulations.
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Installation of Culvert
Appellees installed a new culvert on the property, conveying water from the
culvert under Hills Point Road to a point located 50 to 75 feet from the shoreline. Prior
to the installation of the culvert, stormwater traveled overland or in a ditch that had
eroded on the property. The culvert installation required excavation of a ditch from
Hills Point Road to a point 50 to 75 feet from the shoreline, placement of a 15-inch
culvert pipe the length of the ditch, and placement of fill covering the ditch. Even
though the ditch was filled in after placement of the culvert, the installation changed the
conveyance of stormwater across the property and the location of its outfall, compared
to the former overland flow. In addition, the area around the end of the culvert was
graded and a course of rip rap was laid from the end of the culvert to approximately 30
feet from the shoreline.
Section 9.2(A)(1) exempts from the Regulations “[t]he normal maintenance and
repair of existing structures, utilities and infrastructure which does not result in any
change . . . in use.” Regardless of whether the stormwater conveyed from the town
culvert formerly traveled by sheet flow over the surface of the property, or had eroded
an open ditch on the property, the installation of a 15-inch closed culvert to convey that
stormwater to a different outlet on the property is entirely new infrastructure, not the
maintenance or repair of existing infrastructure. § 9.2(A)(1). Therefore, the culvert
installation is not exempt under § 9.2 and Appellees are required to apply for a zoning
permit for that work.
All that is before the Court in the present appeal is the Zoning Administrator’s
determination that the work done was exempt. Any issues as to whether the culvert
work qualifies for a permit or complies with the lakeshore buffer requirements of
§ 3.15(G) will be for determination in the first instance at the municipal level. See, e.g.,
In re Wright, No. 62-4-04 Vtec, slip op. at 7 (Vt. Envtl. Ct. Nov. 14, 2005) (Wright, J.)
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(noting that it is for the Zoning Administrator to rule in the first instance as to what
aspects of Appellants’ business fall within the definition of home industry).
Accordingly, based on the foregoing, it is hereby ORDERED and ADJUDGED as
follows, concluding this appeal:
1. As to the landscaping work, the traveled way improvements, and the
electrical conduit work, Appellants’ Motion for Summary Judgment as to
Questions 2, 3 and 4 is DENIED and Summary Judgment is GRANTED to
Appellees as to Questions 2, 3, and 4, in that the landscaping and traveled
way work did not occur within the lakeshore buffer; the electrical conduit
work satisfied § 3.15(G) within the lakeshore buffer; the landscaping,
traveled way, and electrical conduit work is exempt under § 9.2; and no
further administrative requirements are applicable to the work that is
exempt under § 9.2.
2. As to the culvert work, Appellants’ Motion for Summary Judgment is
GRANTED as to Questions 2 and 3, and Appellees’ Motion for Summary
Judgment is DENIED, in that the culvert work is not exempt under § 9.2
and must go through the municipal permitting process, and that any
determination of whether the culvert work satisfies § 3.15(G) or any other
regulations must be determined in the first instance in the context of that
municipal permitting process.
Done at Berlin, Vermont, this 20th day of October, 2009.
_________________________________________________
Merideth Wright
Environmental Judge
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