                                   STATE OF VERMONT

                                 ENVIRONMENTAL COURT

                                   }
In re: Kibbe Zoning Permit         }            Docket No. 173-8-07 Vtec
        (Appeal of Lamb)           }
                                   }

                                    Decision and Order

      In this appeal, No. 173-8-07 Vtec, Appellant George Lamb appealed from a decision

of the Zoning Board of Adjustment (ZBA) of the Town of Weathersfield relating to

Appellee-Applicants (Applicants) Christopher and Gail Kibbe’s application for a zoning

permit to build a single-family residence.      Appellant is represented by George T.

McNaughton, Esq., Applicants are represented by Lawrence G. Slason, Esq., and the Town

of Weathersfield is represented by J. Christopher Callahan, Esq.

      Two additional appeals related to this property have been filed with the

Environmental Court, but have not been consolidated with the present appeal. In No. 159-

7-08 Vtec, Appellant appealed from a decision of the ZBA upholding the Land Use

Administrator’s decision not to bring an enforcement action; in No. 198-9-08 Vtec,

Appellant appealed from the Planning Commission’s decision on Applicants’ application to

amend the 2002 Final Plat to reflect any differences between it and the locations approved

in the 2003 State Wastewater Permit, ruling that no such amendment is required.

      In the present appeal, after this Court’s February 13, 2008 decision and order ruling

on a motion to dismiss questions from the Statement of Questions, only Question 10 of the

Statement of Questions remained for trial, as to whether the proposed construction is in an

“inappropriate soil location.”

      An evidentiary hearing was held in this matter before Merideth Wright,

Environmental Judge. In this de novo proceeding, the Court sits in place of the ZBA to

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consider what was before the ZBA, applying the substantive standards that were applicable

before the ZBA.      V.R.E.C.P. 5(g); 10 V.S.A. § 8504(h). The parties were given the

opportunity to submit written memoranda and requests for findings. Upon consideration

of the written memoranda and requests for findings filed by the parties, the Court finds

and concludes as follows. Some of the undisputed facts stated in the motion decision are

also repeated, to the extent helpful for clarity.

       Appellant owns an approximately three-acre parcel of property located on the

easterly side of Skyline Drive. Appellant’s property is bounded on its southerly side lot

line by property unrelated to this litigation. It is bounded on its northerly side lot line and

on its easterly rear lot line by Applicants’ 17.68-acre L-shaped lot, which also has frontage

on Skyline Drive adjacent to Appellant’s frontage. The wooded area of the property begins

approximately 340 feet back from the road; all of the proposed development is proposed

for the open area of the property.

       Applicants’ lot was Lot 3 of a four-lot subdivision known as the Gosselin-Rogers

subdivision, the final plat for which was approved in 2002 by the Planning Commission.

Issues relating to whether the 2002 final plat requires amendment in order for Applicants to

construct their house, garage, driveway and primary septic system in the locations now

proposed for those features are the subject of No. 198-9-08 Vtec; they are not before the

Court in the present case.

       In July of 2003, the State of Vermont Agency of Natural Resources, Department of

Environmental Conservation, issued Wastewater System and Potable Water Supply Permit

#WW-2-1577 (the 2003 State Wastewater Permit) for the Gosselin-Rogers subdivision,

approving septic system designs for Lots 2, 3, and 4. The 2003 State Wastewater Permit

shows the proposed house site on Applicants’ property as being located approximately 80

feet easterly of Skyline Drive and approximately 200 feet northerly of Appellant’s northerly

(side) property line. It shows the primary mound for the septic system, that would actually

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be constructed to serve the proposed house, as being located approximately 160 feet

easterly of Skyline Drive and 150 feet northerly of Appellant’s northerly property line. It

shows a replacement mound, that would not be constructed until or unless the primary

mound were to fail, as being located approximately 160 feet easterly of Skyline Drive but

only approximately 60 feet northerly of Appellant’s northerly side property line.

       Applicants purchased Lot 3 of the Gosselin-Rogers subdivision in April of 2006, and

applied in June 2007 for the zoning permit that is at issue in the present appeal. Applicants

now propose to construct a single-family dwelling and separate garage, with associated

primary mound septic system.

       The Land Use Administrator determined that the zoning permit application

required referral for conditional use approval by the ZBA, under § 6.10.7 of the Zoning

Bylaws, due to the location of the proposed development on soils designated by the

Natural Resources Conservation Service (NRCS) as either “Prime” or “of Statewide

Significance.”

       Rather than submitting the proposal for conditional use approval by the ZBA,

Applicants appealed the Land Use Administrator’s decision to the ZBA. Accordingly, the

merits of conditional use approval were not ruled on by the ZBA and are not before the

Court in this appeal.

       Section 6.10.7 provides that “non-agricultural development shall not occur on soils”

that have been designated by the NRCS as either prime or of statewide significance, except

if such development is “unavoidable” due to steep slopes or wetlands (presumably,

occurring elsewhere on the project property). In such a case, § 6.10.7 requires the proposed

development to be clustered to maximize the amount of such soils that remain, and

requires the project to obtain conditional use approval from the DRB.

       The Natural Resources Conservation Service methodology for classifying farmland

first classifies the type of soil material (e.g. “Vershire-Dummerston complex,” or “Buckland

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loam”), and then examines limitations for crop production such as slope, wetness, surface

stones, and bedrock outcrops, to place the soil map units in their respective Agricultural

Value Groups and, in turn, to rate them as “Prime” farmland, farmland of “Statewide”

significance, or other lower ratings. See Exhibit K at 4–9.

        Almost the entire front open area of the project property, between the tree line and

the road, including all of the project property proposed for development in the present

application, is classified as soil map unit 19C. The remainder of Applicants’ property, not

proposed for development, is classified as soil map units 25C and 25D.

        Soil map unit 19C is composed of Vershire-Dummerston complex, rocky and with a

slope1 of between 8% and 15%, which is a category having a rating of Statewide. If the

slopes were instead between 15% and 25%, such soils would qualify as soil map unit 19D,

which is a lesser rating that does not trigger § 6.10.7 of the Zoning Bylaws.

        While the Land Use Administrator was correct to refer the application to the ZBA

under § 6.10.7, because the development was proposed on soils which appear on the NRCS

maps as Prime or of Statewide significance , the NRCS methodology allows reclassification

of soils on a particular parcel after an on-site determination. See Exhibit K at 5. The NRCS

Manual for classification of soils specifically refers to “excessive . . . slope” as a justification

for reclassification. Id. Applicants are entitled to present evidence of the particular site

conditions showing that the soils qualify for reclassification due to their slope. Cf. In re

Appeal of Cowan, 2005 VT 126, 179 Vt. 560 (affirming Environmental Court’s

determination that landowner was entitled to submit engineering surveys to show that a

portion of his property was not in the floodplain, contrary to its initial designation on

federal floodplain map). An on-site determination on Applicants’ parcel shows that only

certain limited portions of the area formerly classified as 19C have a slope of less than 15%.



1   Slope is measured perpendicularly to the contour lines.

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See Exhibit 1.

       Because § 6.10.7 only prohibits non-agricultural development “on soils”2 (emphasis

added) classified as Prime or Statewide, the only areas that must be analyzed in the present

case are those soils on which development will occur for the present proposal. With the

exception of the area designated for the septic mound systems, all the areas proposed for

the development of the house, garage, and driveway have slopes greater than 15%. Those

soils are therefore properly classified as having a lesser quality rating, below Prime or

Statewide, that does not trigger § 6.10.7 of the Zoning Bylaws for that development, as the

term development is defined in § 8 of the Zoning Bylaws.

       Only a slight portion of each side of the primary mound’s slope is “on” soils less

than 15% in slope. If the mound shape or design can be altered slightly to avoid those soils,

then, similarly, § 6.10.7 would not be triggered for the construction of the primary mound.

       While the replacement mound location is shown “on” soils less than 15% in slope,

that is, with the Statewide classification of 19C, no “development” is now being proposed

for the replacement mound, as the term development is defined in § 8 of the Zoning

Bylaws. Rather, the replacement mound location is only now shown as a location suitable

for and approved by the ANR for a replacement septic disposal mound. While Applicants

may seek conditional use approval of the replacement mound location under § 6.10.7 if

they wish, they need not do so now because it is not now being “develop[ed].” Otherwise,

if a replacement mound is developed in the future, as the term development is defined in

§ 8 of the Zoning Bylaws, either in that location or in any other location on the property, it

will need to be considered under the Zoning Bylaws (and ANR Regulations) in effect at



2 Unlike the definition of “primary agricultural soils” in Act 250, 10 V.S.A. § 6001(15), this
regulation does not define such soils with reference to entire “soil map units,” nor does it
require calculation of the average slope of each soil map unit, nor does it require an
analysis of the property’s size or ability to support an agricultural operation.

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such time.



      Based on the foregoing, it is hereby ORDERED and ADJUDGED that, if the primary

mound design is adjusted as discussed above, the present proposal does not propose any

non-agricultural development to occur on soils that have been designated as either Prime

or of Statewide significance, and therefore that conditional use approval of the present

proposal is not required under § 6.10.7 of the Zoning Bylaws.



      Dated at Berlin, Vermont, this 6th day of November, 2008.




                                 ______________________________________
                                 Merideth Wright
                                 Environmental Judge




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