                                    STATE OF VERMONT

                                ENVIRONMENTAL COURT

               Appeal of Anna Neville and      }
               Jennifer Bright                 }
                                               }     Docket No. 213-9-02 Vtec
                                               }
                                               }



      Decision and Order on Motion for Judgment as a Matter of Law and to Dismiss

   Appellants Anna Neville and Jennifer Bright appeal from a decision of the Planning
Commission of the Town of Georgia, granting final plat approval to Appellee-Applicant Jeffrey
Boissoneault. Appellants are represented by Paul S. Gillies, Esq.; Appellee-Applicant is
represented by Donald R. Pellman; and the Town of Georgia is represented by Amanda S. E.
Lafferty, Esq.

   Appellee-Applicant has moved for judgment as a matter of law on the two questions
presented by Appellant, and to dismiss the appeal. Question 1 of the Statement of Questions is
whether the standards of the Town= s subdivision regulations (and in particular ' ' 700.1, 700.2
and 700.7) have been satisfied with respects to Lots 1 and 2, as the proposed or potential
development of these lots A may offend@ a view easement burdening this land and benefitting
Appellants= land. Question 2 is whether, as a consequence, additional conditions should be
imposed on the subdivision to ensure that the Appellants= view easement is A protected and
respected.@ A declaratory judgment case relating to the extent of the view easement is pending in
Franklin Superior Court under the caption of Boissoneault v. Neville, Docket No. S-255-02 Fc.

   The parties have not provided a statement of undisputed facts, the subdivision regulations, the
subdivision application, the Planning Commission decision on appeal in this matter, or a copy of
the view easement or the superior court complaint.

    Based on the assertions in both parties= motion memoranda, it appears that Appellants= house
overlooks a field on Appellee= s land over which Appellants enjoy a view of Lake Champlain.
Appellants assert that a view easement, benefitting their land and burdening Appellee= s land,
protects this view. In the present motion, Appellee argues that Appellants= appeal improperly
attempts to implement the view easement through the Town= s subdivision regulations.

    Although the Court would prefer to examine the text of the Subdivision Regulations referred
to, Question 1 of the Statement of Questions does appear to raise issues under the Subdivision
Regulations which Appellants are entitled to have resolved, whether or not they have a view
easement benefitting their property. To some extent, the parties= dispute over the view easement
or restrictive covenant may have obscured the fact that Appellants would have an appealable
issue regarding the effect of Lots 1 and 2 of the proposed subdivision on their view and on their
property, even without the contested easement.

   Question 2 of the Statement of Questions asks whether additional conditions should be
imposed on the subdivision to ensure that Appellants= view easement is protected. Appellee-
Applicant is correct that Appellants= view easement cannot be protected per se by conditions of a
subdivision permit, unless some section of the Subdivision Regulations requires the protection of
easements or restrictive covenants. However, the Planning Commission and hence this Court
does appear to have authority under those regulations to impose conditions protecting
Appellants= view, or otherwise protecting Appellants= property.

   Accordingly, it is hereby ORDERED and ADJUDGED that Appellee-Applicant= s Motion for
Judgment as a Matter of Law and to Dismiss is DENIED. However, on or before March 5, 2003,
Appellants shall file an amended Statement of Questions to reflect that this Court= s jurisdiction
does not extend to any analysis of or protection of easements or covenants, or shall cite the
sections of the Town of Georgia Subdivision Regulations which provide such authority.

   We will hold a brief telephone conference on February 28, 2003 at 11 a.m. to discuss whether
the parties can agree that the elements of the final subdivision plat regarding Lots 3 and 4 are not
contested in this appeal, and to determine whether this appeal should be set for hearing or should
await the determination of the Superior Court declaratory judgment case.

   Done at Barre, Vermont, this 18th day of February, 2003.



___________________
Merideth Wright
Environmental Judge
