                                  STATE OF VERMONT
SUPERIOR COURT                                             ENVIRONMENTAL DIVISION
Environmental Division Unit                                 Docket No. 150-10-14 Vtec


Wagner & Guay Permit                                   DECISION ON THE MERITS



        William and Barbara Wagner and Christopher Guay (Applicants) seek to construct a
single-family home and detached garage (the Project) on merged lots 3 and 4 of a previously
approved six-lot subdivision located on Dodge Terrace in the Town of Grand Isle, Vermont (the
development). Mary Bourassa (Appellant) resides in a single-family home located on lot 2 of
the development. On October 1, 2014, the Town of Grand Isle (Town) granted Applicants’
zoning permit. On October 14, 2014, Appellant timely appealed the Town’s decision to this
Court, filing a Statement of Questions consisting of 9 Questions.
        On December 22, 2014, Applicants filed a Motion to Dismiss Appellant’s Questions 1, 3,
4, 6, 8, and 9. On January 5, 2015, Appellant filed a Motion to Stay the appeal before this Court
pending resolution of a civil complaint in the Chittenden Unit of the Vermont Superior Court
(Docket No. 1276-12-14 Cncv), seeking a declaratory judgment as to the interpretation of
covenants and restrictions in the deeds for lots 2, 5, and 6, and raising claims of fraud and
breach of contract against the Wagners relative to those covenants and restrictions. On March
27, 2015, this Court denied Appellant’s motion to stay the appeal, and on April 2, 2015 this
Court granted Applicants’ motion in part and denied it in part, dismissing Appellant’s Questions
1, 3, 4, and 6. On July 17, 2015, Appellant filed a Motion for Summary Judgment in her favor on
Question 2. Applicants opposed that motion and moved for summary judgment in their favor
on all Questions remaining before the Court, Questions 2, 5, 7, 8, and 9. In an August 27, 2015
decision, this Court denied both motions for Summary Judgment leaving Questions 2, 5, 7, 8
and 9 for trial.
        The Court held a trial on September 21 and 22, 2015, and conducted a site visit at the
subject property on September 22, 2015. Appearing at the site visit and trial were William and
Barbara Wagner and their attorneys Matthew S. Stern, Esq. and Robert F. O’Neill; Mary
Bourassa and her attorney David E. Bond, Esq.; and Michael Bleau representing himself. The
Town of Grand Isle, through its attorney Amanda Lafferty, attended and participated in the first
day of trial but did not attend the site visit or second day of trial.
        Based upon the evidence presented at trial, the Court renders the following Findings of
Fact and Conclusions of Law.



                                            Findings of Fact
    1. On February 21, 1995, the Grand Isle Planning Commission approved Philip and Barbara
        Wagner’s six-lot subdivision on Dodge Terrace in the Town of Grand Isle, Vermont.
    2. The size of each of the six lots as they exist today are as follows: lot 1 is 4.72 acres, lot 2
        is 1.54 acres, lot 3 is 1.74 acres, lot 4 is 1.94 acres, lot 5 is 10 acres, and lot 6 is 21 acres.
    3. A Final Subdivision Plat Plan of the six-lot subdivision dated January 3, 1995, which was
        approved by the Planning Commission on April 6, 1995 (1995 Plat Plan), is recorded at
        Map Sleeve Number 21 of the Town’s records.
    4. Appellant Mary Bourassa owns and resides at lot 2 of the subdivision.
    5. Michael Bleau owns and has a house for sale on lot 5 of the subdivision.
    6. The Wagners presently own lots 3 and 4 of the subdivision.
    7. The Wagners seek to sell lots 3 and 4 to Christopher Guay.
    8. Together, the Wagners and Mr. Guay (Applicants) seek approval for adjusting lot lines
        and merging lots 3 and 4 into a single lot and for building a single-family residence and
        detached garage thereon.
    9. The newly merged lot will be 6.5 acres, which will include about 2.8 acres from lot 6.
    10. The locations of the proposed residence and garage are depicted on the unscaled sketch
        plan accompanying the zoning permit application filed with the Town of Grand Isle in
        June 2014 (Town Application).
    11. Dodge Terrace is a dead-end road running along the south edge of a large open field.
    12. The front corners of the proposed house will be located 98 feet and 109 feet from the
        southern edge of the traveled portion of Dodge Terrace.
    13. During the Town’s review of the Town Application, Mr. Wagner provided clarifying
        testimony that the house’s setback distances from Dodge Terrace on the sketch plan
        were distances from the front corners of the proposed house to the southern edge of
        the traveled way of Dodge Terrace.
    14. A row of trees runs parallel to the south side of Dodge Terrace and marks the beginning
        of a wooded area extending south from the road into a large wetland.
    15. The edge of the wooded area is illustrated on the 1995 Plat Plan by a scalloped line
        south of and parallel to Dodge Terrace. This line is labeled on the plan as “edge of
        woods” and further defined in the legend as the “Tree Line Boundary.”
    16. Trees and brush have continued to grow on lots 2–6 over the past twenty years.
    17. Note 16 of the 1995 Plat Plan states: “The location of all houses and driveways are for
        Illustrative purposes only. Actual locations may be selected by the lot owner, as long as
        all applicable regulations, standards and codes are met, with the provision that the
        houses for lots 2-6 must be within the tree line.”
    18. The 1995 Plat Plan depicts proposed in-ground septic systems generally located to the
        north of the scalloped line and house sites located south of the scalloped line.
    19. Ms. Bourassa retained Donald L. Hamlin Consulting Engineers, Inc. to compile a
        surveyed plan entitled Field vs Zoning Plan Analysis (2015 Hamlin Plat). This plan shows
        lot boundaries, Applicants’ proposed house (located 98 feet and 109 feet from the
        center of the traveled way of Dodge Terrace), the Tree Line Boundary from the 1995
        Plat Plan, the edge of the mature trees’ canopy (also known as a “dripline”) as surveyed
        in July 2015, and individually surveyed mature tree trunks.
    20. The Wagners retained Krebs & Lansing Consulting Engineers, Inc. to compile a surveyed
        plan entitled Building Permit Study 3 & 5 Dodge Terrace (2015 Krebs and Lansing Plat).1
        This plan shows lot boundaries, Applicants’ proposed house (located 98 feet and 109
        feet from the southern edge of the traveled way of Dodge Terrace) and garage, the Tree
        Line Boundary from the 1995 Plat Plan, the mature tree dripline as surveyed in the field,
        and individually surveyed mature trees.
    21. The only material difference between the 2015 Krebs and Lansing Plat and the 2015
        Hamlin Plat is the location of the proposed house.
                                             Conclusions of Law
        Taken together, Questions 2 and 5 address both the location of the tree line established
in Note 16 of the 1995 Plat Plan and whether the proposed single-family home is within that
tree line. Question 7 asks whether the application should be denied under Grand Isle Zoning


1
 Although the title states “3 & 5 Dodge Terrace” the Court assumes that “3 & 4” was intended. Additionally, this
plat does not show an attached deck or the detached garage.
Bylaws and Subdivision Regulations section 5.10. Questions 8 and 9 ask whether the
application should be denied because Applicants made multiple material misrepresentations of
fact in connection with their application, and whether Appellant should be awarded legal fees
and costs as a result of any misrepresentations.
I.       Questions 2 and 5
         Question 2 asks whether the application must be denied as inconsistent with the 1995
Plat Plan requiring that houses on lots 2 through 6 be within the tree line. Question 5 asks
whether the “tree line” on the 1995 Plat Plan should be interpreted as the edge of canopy or
the line mature tree trunks. We first answer Question 5 and use that conclusion to answer
Question 2.
         Our analysis begins with the importance of the basic premise of finality in land use
litigation. It is the function of a subdivision permit “to approve plats of land,” and for this
reason, “recorded plats necessarily become permit conditions.” In re Stowe Club Highlands,
164 Vt. 272, 276 (1995). The failure to appeal a permit condition binds successors in interest.
See 24 V.S.A. § 4472(d); In re Hildebrand, 2007 VT 5, ¶ 11, 181 Vt. 568.
         The location of the scalloped tree line as illustrated on the approved and recorded 1995
Plat Plan is a condition of the subdivision permit. The Court cannot alter the 1995 Plat Plan.
The Court also cannot ignore the location of the trees as they exist today.2 The surveying
experts of both the Wagners and Ms. Bourassa generally agree on the location of the scalloped
“tree line boundary” as plotted on the 1995 Plat Plan. Both the 2015 Krebs and Lansing Plat
and the 2015 Hamlin Plat depict the scalloped “tree line boundary” in the same general area.
Both plats also locate the trunks of existing mature trees in a rough line farther south from
Dodge Terrace than the scalloped “tree line boundary.” Both plats also locate the mature tree
dripline, as it exists in 2015, roughly the same distance north of the scalloped “tree line
boundary.” Understanding the similarities with each parties’ surveyed plat, we consider the
parties’ dispute over whether the “tree line” on the 1995 Plat Plan should be interpreted as the
edge of canopy or the line of mature tree trunks.


2
  In the Court’s decision on summary judgment we characterize Question 5 as also asking whether the “tree line” in
Note 16 is the theoretical tree line surveyed on Map Slide 16 (whether it accurately reflects the real trees or not),
or the real-life tree line. In the same decision we also stated “[I]t is the trees themselves that define the tree line,
whether they correspond with the plat or not. An error in the plat as to the location of the trees then in existence
does not relieve Applicants from the final and binding condition that their building must be built “within the tree
line.” Following receipt of considerable evidence at trial, the Court continues to conclude that the trees
themselves make up the tree line, but, with the additional evidence received at trial, the Court further concludes
that the 1995 Plat Plan is not in error.
       In construing permit conditions, the Court relies on the normal rules of statutory
construction. Agency of Nat. Res. v. Weston, 2003 VT 58, ¶ 16, 175 Vt. 573. It is our principal
concern to implement the intent of the drafters, which we ordinarily determine by accepting
the plain meaning of the words. Id. Because land-use regulations are in derogation of property
rights, any uncertainty must be decided in favor of the property owner. Id.
       With these considerations in mind, we evaluate Note 16 on the 1995 Plat Plan requiring
that houses constructed on lots 2 through 6 to be “within the tree line.” It is clear from the
plain language of Note 16 that development must take place within the tree line. Thus, we
need to know the intent of the phase “within the tree line.” Mr. Wagner testified that the tree-
line condition was his creation, as he and his wife designed the original six-lot subdivision. Mr.
Wagner testified that he intended that houses be nestled within the trees and have views into
the meadow. Furthermore, Mr. Wagner testified that the purpose of the visual buffering from
the tree line condition was so that the houses on lots 2 – 6 not appear to be sitting within the
center of the meadow.
       Both Ms. Bourassa and Mr. Bleau testified that they thought all houses were required to
be placed behind or south of mature tree trunks. The basis of their thinking was not related to
the 1995 Plat Plan or the phrase “within the tree line,” but rather what they thought Mr.
Wagner told them when they considered buying lots within the subdivision. Furthermore, Ms.
Bourassa argues that allowing the front of the proposed house to sit to the north of the old-
growth tree trunks along the edge of the open field would be contrary to the purpose and
intent of the requirement that construction occur “within the tree line,” because the original
old growth trees would not fully screen the house.
       Considering the evidence before the Court, we conclude that the scalloped line on the
1995 Plat Plan is not intended to show the location of the trunks of mature trees, but rather the
line between the open meadow area and the forested area. Ms. Bourassa’s surveying expert,
Mr. Hamlin, testified at trial that a scalloped line on a plat typically represents the edge of the
open area, or in other words, the division between woods and a field. Mr. Hamlin further
explained that field-locating the scalloped “tree line boundary” depicted on the 1995 Plat Plan
would have a four or five foot margin of error. He also testified that his survey did confirm that
the scalloped “tree line boundary” as depicted on the 1995 Plat Plan was located farther north
than the trunks of the mature trees.
       We therefore answer Question 5 with the conclusion that the scalloped “tree line” on
the 1995 Plat Plan is not the line of mature tree trunks, but rather the line between the open
meadow and the forested area. Using this conclusion, we now consider Question 2, which asks
whether the location of the proposed house is within, or south of, the line between the open
meadow and the forested area. Based upon the evidence before the Court, Applicants propose
that the front corners of the subject house be located 98 feet and 108 feet from the southern
edge of the traveled way of Dodge Terrace. The 2015 Krebs & Lansing Plat clearly shows these
distances from the southern edge of the traveled way. Although Applicants admit that the
measurements on the plan accompanying the application filed with the Town Planning
Commission could reasonably be interpreted to show the setback distances from the centerline
of Dodge Terrace, Mr. Wagner credibly testified during trial that he provided testimony to the
Planning Commission clarifying that measurements were from the edge of the travelled right of
way. Measured from the southern edge of the traveled way, the proposed house lies south of
the 1995 “tree line boundary” on both experts’ surveys.
       We therefore conclude that the house complies with the 1995 Plat Plan as the house is
located “within the tree line.” Based upon the uncontroverted and uniform testimony of both
surveying experts, we note that the exact location of the line between the open meadow and
the forested areas is difficult to specifically place on a surveyed plat or in the field. This lack of
specificity is not material to the issues raised in this matter as the proposed house is located a
few feet south of or “within” the scalloped “tree line boundary” as established on the 1995 Plat
Plan. Both the 2015 Krebs & Lansing Plat and the 2015 Hamlin Plat clearly show this.
II.    Question 7
       Question 7 asks whether the application should be denied under the Town’s zoning
regulations. See Town of Grand Isle, Vt., Grand Isle Zoning Bylaws and Subdivision Regulations
§ 5.10 (2012) [hereinafter Bylaws]. Section 5.10 requires a full subdivision hearing process if a
proposed boundary adjustment will “substantially change the nature of the development or
create new lots.” Bylaws § 5.10. Based upon the above findings of fact, we conclude that the
proposed boundary adjustment will not substantially change the development or create new
lots. The proposed merger will result in the consolidation of lots 3 and 4 along with some
acreage of lot 6 into a single lot. Furthermore, lots within the subdivision vary in size with the
smallest lot being 1.54 acres and the largest lot being 21 acres. Currently, there are only two
houses in the development, Ms. Bourassa’s and Mr. Bleau’s. The area south of Dodge Terrace
is wooded, and the two current houses are partially screened by the surrounding trees. The
current proposal will combine lots 3 and 4, and a single-family residence will be constructed on
the combined lot within the tree line. The proposal will maintain the rural nature of the
development and result in the construction of only one residence, where two were once
possible. Thus, the resulting lot being 6.5 acres with one single-family home, deck, and
attached garage will not substantially change the nature of the development or create new lots.
IV.    Questions 8 & 9
       Questions 8 and 9 ask whether the application should be denied because Applicants
made multiple material misrepresentations of fact in connection with their application, and
whether Appellant should be awarded legal fees and costs as a result any misrepresentations.
As discussed in the Court’s pretrial decision on motions for summary judgment and as discussed
during trial, this Court is generally not concerned with alleged inaccuracies in materials
presented to the municipal panel below as this is a de novo hearing. Furthermore, the Court is
unlikely to award legal fees absent a statutory authorization to do so or conduct that rises to
the level of an intentional abuse of the legal process.
       Ms. Bourassa offers that Applicants misrepresented the distance of the house from
Dodge Terrace. Although Applicants admit that the measurements on the plan accompanying
the application filed with the Town Planning Commission could reasonably be interpreted to
show the setback distances from the centerline of Dodge Terrace, Mr. Wagner credibly testified
during trial that he provided testimony to the Planning Commission clarifying that
measurements were from the edge of the travelled right of way. Based upon the evidence
before the Court, Applicants propose that the front corners of the subject house be located 98
feet and 108 feet from the edge of the traveled way of Dodge Terrace. Thus, the Court finds no
misrepresentation, before the Town Planning Commission or this Court, regarding setback
distances.
       Ms. Bourassa also claims the Applicants made material misrepresentations on the
zoning application by including the square footage of the garage along with the square footage
of the house in the permit fee calculation and that this was done because Applicants intend to
turn the garage into a second home. The Court finds no merit to this allegation. The
application is clear that the use of the garage is for “storage.” Furthermore, Ms. Linda Effel, the
zoning administrative officer for the Town at the time the application was filed, testified that it
is the correct practice to calculate the permit fee based on the total square footage of both a
house and garage when they are built at the same time.
       Ms. Bourassa offers no statutory authority for awarding legal fees, and the Court
concludes that there is no conduct of the Wagners or Mr. Guay justifying even the
consideration of awarding fees.
                                          Conclusion
       For the above reasons, the application to construct a single-family home and detached
garage on merged lots 3 and 4 of a previously approved six-lot subdivision on Dodge Terrace in
the Town of Grand Isle, Vermont complies with the 1995 Plat Plan condition that the location of
houses on lots 2 through 6 be within the tree line. Furthermore, the application does not
substantially change the nature of the development or create new lots. The Court concludes
that there were no material misrepresentations within the application, and the Court DENIES
an award of legal fees.
       The application to construct a single-family home and detached garage on merged lots 3
and 4 of a previously approved six-lot subdivision located on Dodge Terrace in the Town of
Grand Isle, Vermont is approved. Within 30 days of this decision becoming final, Applicants
shall file a final Mylar consistent with this decision with the Town Planning Commission for the
sole purpose of ensuring compliance with this decision.
       This decision does not address compliance with other potentially relevant town and
state reviews, including, but not limited to, wetland and wastewater programs.


       Electronically signed on October 01, 2015 at 12:05 PM pursuant to V.R.E.F. 7(d).




_________________________________________
Thomas G. Walsh, Judge
Superior Court, Environmental Division
