                                                      STATE OF VERMONT
                                                    ENVIRONMENTAL COURT

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Appeal of Robustelli Realty                                    }            Docket No. 255-12-05 Vtec
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                                  Decision on Cross-Motions for Summary Judgment

            Appellant Robustelli Realty (Robustelli) appealed from the decision of the Town of
Manchester (Town) Development Review Board (DRB) dated November 16, 2005, upholding
the administrative opinion of the Zoning Administrator dated August 31, 2005, in which the
Zoning Administrator determined that Robustelli’s .57-acre lot located in Manchester Center (the
“remainder lot”) does not qualify as a pre-existing small lot, and thus is not developable under
the current Manchester Zoning Ordinance (Ordinance). Robustelli is represented by Joseph J.
O’Dea, Esq. and the Town is represented by Robert E. Woolmington, Esq. Interested Person J.P.
Wickert is represented by W. Michael Nawrath, Esq. Now pending for the Court to consider are
the parties’ cross-motions for summary judgment.
                                                       Factual Background
            The parties have jointly filed a stipulated statement of undisputed facts. From that filing
and the uncontested facts presented in the affidavit in support of the Town’s motion, we note the
following undisputed material facts:
            1.          In 1967, Ski Gateway Village, Inc. (“SGV”), acquired title to an approximately
one-acre parcel of land near East Manchester Road in Manchester Center. It subsequently
subdivided the parcel into seven lots, numbered 1 through 6, and a seventh, unnumbered lot.
            2.          In 1968, SGV conveyed Lots 1 and 2 to Andrew and Jean Robustelli.
            3.          In 1969, the Robustellis conveyed Lot 2 and the development thereon1 to
Nicholas and Merthap DiNapoli.
           4.           In 1969, SGV conveyed Lot 3 and the development thereon to Mario and Viola
Scala.



                                                 
1    As noted in the parties’ joint Stipulation of undisputed facts, some of the lots contained duplex buildings that
straddled the lot boundaries. Because the nature of this development is not dispositive of the pending motions, we
do not recite it here. This appeal does not involve a challenge to the legality of the development contained on Lots 1
through 6.
          5.     In September of 1970, zoning was first adopted by the Town.            The Town
thereafter continuously maintained zoning regulations.        At all times, the zoning ordinance
contained a provision that defined lawful pre-existing small lots as “[a]ny lot in separate and
non-affiliated ownership from surrounding properties . . . in existence on the effective date of
[this ordinance provision], even though not conforming to minimum lot size requirements . . . .”
          6.     The zoning ordinance enacted in 1970 and all amendments thereafter contained a
provision that established a minimum lot size requirement of one acre for the zoning district in
which the subject property lay.
          7.     In 1971, the Robustellis conveyed Lot 1 and the development thereon to Thomas
Martin.
          8.     In 1971, SGV conveyed Lot 4 and the development thereon to Mark and Sunni
Breen.
          9.     In 1973, SVG conveyed Lots 5 and 6 and the partially completed development
thereon to John Ward.
          10.    After the sale of Lots 5 and 6 to John Ward, the only remaining property owned
by SGV was the .57-acre un-numbered remainder lot which is the subject of this appeal.
          11.    The remainder lot is located within the Single Residential zoning district. The
minimum lot size in that district continues to be one acre.
          12.    A driveway over the remainder lot provides the only access from the public street
to the adjoining lots.
          13.    The remainder lot has been assessed as a separate lot (parcel #1907) since 1973.
          14.    In 1999, SGV conveyed the remainder lot by quitclaim deed to Robustelli Realty,
a Connecticut general partnership.
          15.    The 1999 quitclaim deed from SGV to Robustelli Realty was signed by Andrew
Robustelli. At the time of the transfer of the remainder lot, Andrew Robustelli was the President
of SGV, a shareholder in SGV, and a partner in Robustelli Realty.
                                             Discussion
          Robustelli advances three arguments in its motion for summary judgment. It first argues
that since the remainder lot was part of a common scheme of development that vested with the
sale of the first parcels in 1968, prior to the adoption of zoning, it is improper to consider the
current zoning ordinance in connection with Robustelli’s application to now develop the



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remainder lot. Second, Robustelli argues that since the Town failed to bring an enforcement
action against SGV for the transfer of Lots 1–6, and since it was the transfer of those lots that
created the remainder lot, the right to develop the remainder lot has vested. Lastly, Robustelli
argues that since the remainder lot has existed and been assessed as a separate parcel since 1973,
and was never the target of a Town enforcement action, that by virtue of the fifteen-year statute
of limitation for municipal enforcement actions contained in 24 V.S.A. § 4496,2 the Town is
estopped from taking any regulatory action against the lot or to preclude its development.
            The Town both replies in opposition to Robustelli’s summary judgment motion and
argues in its own motion for summary judgment that Robustelli cannot meet its burden of
proving that the remainder lot is a lawful, preexisting small lot that may now be developed. For
the reasons more particularly stated below, we find Robustelli’s arguments unavailing and the
Town’s arguments persuasive.                        The facts, even when viewed in a light most favorable to
Robustelli, lead us to only one conclusion: Robustelli’s remainder lot does not meet the
definition of a lawful pre-existing small lot, entitled to development under either applicable State
law or the Manchester Zoning Ordinance.
            The Ordinance provision for existing small lots, presently § 3.2, was first adopted by the
Town in 1970, and subsequently amended in 1983 and 1994. All three variations mirror the
applicable statute in requiring that the purported existing small lot be “in separate and
unaffiliated ownership from surrounding properties and . . . in existence on” the effective date of
the ordinance. 24 V.S.A. § 4412(2).3
            Robustelli suggests that the manner in which the remainder lot was created can be viewed
in one of two ways: that it was either created prior to zoning as part of a common scheme of
development beginning with the sale of Lots 1 and 2 in 1968, or was created after the adoption of
zoning through the transfer of the surrounding lots. Neither of these suggestions helps us
conclude that the remainder lot fits into the definition of a lawful undersized lot entitled to be
developed.
           If the remainder lot was created as part of a common scheme of development prior to the
Town’s adoption of zoning in 1970, then the lot fails to meet the test for a developable pre-
                                                 
2  Robustelli’s motion cites to the former statute. The municipal enforcement statute of limitations is now codified,
in essentially the same form, at 24 V.S.A. § 4454.
3  This statutory provision was previously codified at 24 V.S.A. § 4406(1). The provisions relevant to our analysis
here are identical.


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existing small lot provided in 24 V.S.A. § 4412(2) and Ordinance § 3.2, both of which require
that the lot in question be “in separate and unaffiliated ownership from surrounding properties.”
It is uncontested that prior to the adoption of zoning in 1970, SGV was the common owner of the
remainder lot and other lots adjacent to it. Therefore, if the remainder lot did exist prior to 1970,
it was affiliated with and adjoining SGV’s other lots when the Town adopted zoning in 1970.
       If, on the other hand, the remainder lot did not come into existence until after the
adoption of zoning, when the surrounding lots were sold, then it again fails to meet the test for a
pre-existing small lot provided in 24 V.S.A. § 4412(2) and Ordinance § 3.2, both of which
require that the lot in question be in existence prior to the adoption of zoning. This requirement
is made especially clear by the title of each section: “Existing small lots” (emphasis added).
       Robustelli cites Smith v. Winhall Planning Commission, 140 Vt. 178 (1981), for the
proposition that “the right to review under existing regulations vests when an application is
filed.” Robustelli Mot. for Summ. J. at 2. But this citation appears to contradict Robustelli’s
claim of vested rights, since the only application filed in connection with the proposed
development of the remainder lot was filed when the current zoning ordinance was in effect.
There is no evidence that an application was ever previously filed in connection with the subject
property.
       In Smith, the town amended its zoning ordinance during the review process of plaintiff’s
previously filed subdivision application. The zoning ordinance was amended in a way that
prohibited the type of development proposed by the plaintiff.          The town then denied the
application, and argued on appeal that the new ordinance controlled.           The Supreme Court
adopted the minority view of vested rights, holding that an applicant has a vested right to have its
zoning application reviewed under the regulations in effect at the time a complete application is
filed. Id. at 182; see also In re McCormick Management Co., Inc., 149 Vt. 585, 587 (1988)
(synopsizing Smith).
       Seven years later, in McCormick, the Supreme Court declined to extend its holding in
Smith to circumstances similar to those presented here. In McCormick, the landowner claimed
vested rights to develop parcels that were created just prior to the Town of Richmond’s initial
adoption of zoning and subdivision regulations. Mr. McCormick claimed that because his
predecessor in title had filed a subdivision plat before the town adopted any zoning, he should be
allowed 15 years later to develop the remaining lots without the need of complying with the



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existing zoning regulations.     The Court noted that “legislative policy would be wholly
undermined by a vested rights rule that protected preexisting [and undeveloped] small lots that
are in affiliated ownership [with] surrounding lots.” McCormick at 589. The Court continued its
analysis of Smith by holding that rights to develop a preexisting parcel only “vested” where a
zoning amendment had been effected while a permit application was under consideration. The
Court concluded that it would not be proper to allow the doctrine to apply “where the asserted
vested right precedes the adoption of a zoning ordinance.” McCormick at 590.
       Robustelli asserts here that the Smith doctrine of vested rights should apply in the very
type of factual scenario that the McCormick Court concluded should not give rise to a vested
right to develop preexisting undersized lots. Robustelli’s argument appears to be in direct
conflict with applicable precedent. We therefore are compelled to reject it.
       In short, the remainder lot was not in unaffiliated ownership if it was created prior to
1970, and was not preexisting if it was created after the 1970 adoption of zoning. We therefore
hold that no right to develop the remainder lot can now be recognized under 24 V.S.A. § 4412(2)
or Ordinance § 3.2. We also conclude that a right to develop the remainder lot did not vest under
the precedent of Smith, in accordance with the Supreme Court’s reasoning in McCormick.
       Robustelli’s final argument is that since the remainder lot existed since 1973, and since
the Town never brought an enforcement action within the fifteen-year period under 24 V.S.A.
§ 4454(a) (former 24 V.S.A. § 4496(a)), the Town is now estopped from taking any regulatory
action against or precluding the development of the remainder lot. The Town “acknowledges
that no enforcement action could be brought today to require reconveyance of the [remainder
lot].” Town Mem. in Opp’n at 2. However, the fact that the Town has not brought such an
enforcement action is not relevant or germane to the current issue of developability of the
remainder lot.
       Robustelli has not yet commenced development activity on the remainder lot. The issue
presented in this appeal is not the creation of the lot, but whether it may now be developed.
Neither Robustelli nor its predecessors in title took any action that could be used to prosecute a
zoning violation on the issue now presented: developability. We find it difficult to accept the
suggestion that the prior creation or the mere holding of an undersized undeveloped lot was a
violation of the Ordinance. However, the question of whether Robustelli or its predecessors in




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title could have once been found liable for a zoning violation on those actions alone is not
determinative of whether the undersized lot may now be developed.
       The Town did not inform Robustelli that its remainder lot was undevelopable until
Robustelli applied to develop it. That is not surprising. There has been no suggestion that the
zoning ordinance prohibits the ownership of a non-conforming, preexisting and undeveloped
parcel of land. Robustelli’s argument is premised upon two misconceptions: first, that land is
held in all instances only for its development potential and second, that Vermont municipalities
have some affirmative duty or authority to investigate and prosecute the mere possibility that a
landowner may want sometime in the future to use property in violation of the zoning ordinance.
       Accordingly, based on the foregoing, it is hereby ORDERED and ADJUDGED that the
Town’s Motion for Summary Judgment is GRANTED, and Robustelli’s Motion for Summary
Judgment is DENIED. In so holding, we specifically conclude that, even when viewed in a light
most favorable to Robustelli, the undisputed material facts require us to UPHOLD the August
31, 2005 determination of the Zoning Administrator that Robustelli’s remainder lot does not
qualify as a preexisting small lot, and thus is not developable under the Manchester Zoning
Ordinance.
       A Judgment Order accompanies this Decision.


       Done at Berlin, Vermont this 25th day of October, 2006.



                                    __________________________________________
                                          Thomas S. Durkin, Environmental Judge
 




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