                                        STATE OF VERMONT
SUPERIOR COURT                                                        ENVIRONMENTAL DIVISION
Vermont Unit                                                           Docket No. 159-11-14 Vtec


Packard Pine Ridge Lots Merger                                     DECISION ON MOTION



                         Revised Decision on Motion for Summary Judgment1
        This matter relates to two adjoining parcels of land owned by Ellery E. Packard and
Jennifer D. Packard (the Packards) located on Pine Ridge Road in the Pine Ridge Planed
Residential Development in the Town of East Montpelier, Vermont (the Town). The Packards
purchased the first lot, Lot 9, in 1995 and purchased the second lot, Lot 8, at a tax sale in May
2008. They reside at a house they built on Lot 9. Both lots are less than two acres in size and
are therefore undersized lots per the applicable East Montpelier Land Use & Development
Regulations (Regulations), as amended January 6, 2009, which require a minimum lot size of
three acres.
        On July 3, 2014 the Packards sought the opinion of the Town of East Montpelier Zoning
Administrator (ZA) as to whether they had the right to convey Lot 8 as a separate lot or
whether the two lots had merged at purchase as a matter of law. The ZA determined that
pursuant to Regulations § 3.9 and 24 V.S.A. § 4412(2) the two lots had merged as a matter of
law and therefore Lot 8 was not a separate transferrable lot. The Packards appealed the ZA’s
determination to the East Montpelier Development Review Board (DRB). The DRB held a
hearing on the appeal on October 7, 2014 and voted unanimously to uphold the ZA’s decision.
The vote was followed by a single page letter, dated October 8, 2014, memorializing the DRB’s
decision. The Packards timely appealed that decision to this Court and now move for summary
judgment in their favor asking the Court to conclude as a matter of law that the two lots remain

1
  The original decision on this motion, issued June 11, 2015, contained a minor typographical error. In the second
paragraph on Page 6 the Court referred to the Packards’ Statement of Undisputed Material Facts as having been
filed March 9, 2014. This was in error; the Statement of Undisputed Material Facts was filed March 9, 2015. At the
request of the Packards’ attorney we hereby correct this mistake and issue this revised decision.
separate and, therefore, that Lot 8 is freely transferrable by the Packards. Appellants are
represented in this appeal by Stephen Reynes, Esq. and Hannah Smith, Esq. The Town of East
Montpelier is represented by Bruce Bjornlund, Esq.


                                         Factual Background
       For the sole purpose of putting the pending motion into context the Court recites the
following facts which are undisputed:
1.     Ellery and Jennifer Packard own a 1.96 acre parcel of land, known as Lot 9, within the
       Pine Ridge Planned Residential Development (PRD) in the Town of East Montpelier,
       Vermont.
2.     The Pine Ridge PRD was approved as a 14-lot subdivision and PRD in May of 1991 by the
       East Montpelier Planning Commission and Zoning Board of Approval. The approval
       allows for the creation of the 14 lots, each with a single-family residence and its own on-
       site septic system and water supply.
3.     At the time of the subdivision all lots within the Pine Ridge PRD were located in the Zone
       C Zoning District per the East Montpelier Land Use & Development Regulations
       (Regulations), which allowed residential uses and had a minimum lot size of one acre.
4.     The Packards purchased Lot 9 in 1995. They constructed a single-family residence on
       Lot 9, where they have resided since that time.
5.     The lot immediately to the north of Lot 9 remains undeveloped. This lot, known as Lot
       8, is approximately 1.53 acres.
6.     Both Lots 8 and 9 front Pine Ridge Road, a Town road, along their southwestern and
       western boundaries, respectively, and the Winooski River along their eastern
       boundaries.
7.     In May 2008 the Town sold Lot 8 to the Packards at a tax sale in order to satisfy back
       taxes owed on the lot. The sale provided that, pursuant to Vermont statute, the owners
       of Lot 8 had one year to redeem the property by paying all taxes dues, as well as any
       costs and fees, before title would pass to the Packards.




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8.     Prior to 2008, runoff and other naturally occurring erosion created a deep and
       impassible ravine along the border between Lot 9 and Lot 8 from Pine Ridge Road and
       the Winooski River. This ravine or gully is unstable and impassible such that one cannot
       walk from Lot 8 to Lot 9 across the common boundary and must walk along on Pine
       Ridge Road.
9.     On January 6, 2009 the Town voted to amend the East Montpelier Land Use &
       Development Regulations. The amended Regulations included a change to the zoning
       district in which Lots 8 and 9 are located. Pursuant to the newly adopted Regulations,
       both lots are located in Zone D with a minimum lot size of 3 acres. The amended
       Regulations also included a change to the provisions regulating the treatment of
       preexisting undersized lots.
10.    On June 5, 2009, following non-redemption by the delinquent taxpayers who owned Lot
       8, the Town Tax Collector executed a Tax collector’s Deed transferring title to Lot 8 to
       the Packards.
11.    In July 2014, the Packards sought the opinion of the Town of East Montpelier Zoning
       administrator regarding whether Lots 8 and 9 had merged as a matter of law or whether
       the Packards were free to sell Lot 8 as a separate lot.
12.    The ZA issued a formal decision, dated August 8, 2014, stating that Lot 8 and Lot 9 had
       merged as a matter of law pursuant to Regulations § 3.9 and 24 V.S.A. § 4412(2).
13.    The East Montpelier Development Review Board upheld the decision of the ZA and the
       Packards timely appealed that decision to this Court.
                                             Analysis
       The sole issue in this appeal is whether Lots 8 and 9 have merged under the Regulations
and the statute. The Packards move for summary judgment on this issue and ask the Court to
determine as a matter of law that the lots are separate based on the undisputed facts stated
above. The Town asserts both that facts are in dispute and that as a matter of law the lots have
merged.
       We will grant a party summary judgment only where that party has established “there is
no genuine dispute as to any material fact and the movant is entitled to judgment as a matter


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of law.” V.R.C.P. 56(a). The party moving for summary judgment must file a separate and
concise statement of undisputed material facts with citation to admissible materials in the
record that support them. V.R.C.P. 56(c). Where the opposing party fails to address another
party’s assertion of fact, the Court may consider the fact undisputed for purposes of the
motion. V.R.C.P. 56(e)(2). We must view the facts in the light most favorable to the nonmoving
party and give the nonmovant the benefit of all reasonable doubts and inferences. White v.
Harris, 2011 VT 115, ¶ 6 190 Vt. 647 (mem.).
       The sole factual issue disputed by the Town relates to whether the Packards purchased
Lot 8 before or after the zoning change on January 6, 2009. In their responsive pleading, the
Packards agree that for the sake of this motion, the title to Lot 8 did not transfer until June 5,
2009, after the zoning change. Any dispute of fact as to when the Packards obtained an
ownership interest in Lot 8 should, therefore, be resolved in favor of the Town as having
occurred after the zoning change. We thus consider whether on the facts presented Lot 8 and
9 have merged.
       A primary purpose of zoning is to gradually eliminate nonconformities. See Drumheller
v. Shelburne Zoning Bd. of Adjustment, 155 Vt. 524, 529 (1990) (citing Hinsdale v. Village of
Essex Jct., 153 Vt. 618, 626 (1990)) (“Lots that are smaller than the minimum lot size
requirements are nonconforming uses, allowed only because the use preexists the applicable
zoning requirement. A goal of zoning is to phase out such uses.”). There is no doubt that under
the current Regulations, both Lots 8 and 9 are nonconforming undersized lots as they do not
contain the minimum three acres currently required by the Regulations. Pursuant to statute,
preexisting undersized lots will generally retain their development potential:
       Any lot that is legally subdivided, is in individual and separate and nonaffiliated
       ownership from surrounding properties, and is in existence on the date of
       enactment of any bylaw, including an interim bylaw, may be developed for the
       purposes permitted in the district in which it is located, even though the small
       lot no longer conforms to minimum lot size requirements of the new bylaw or
       interim bylaw.
24 V.S.A. § 4412(2); see also Regulations § 3.9(b) (implementing § 4412(2)).
       If, however, an existing small lot “subsequently comes under common ownership with
one or more contiguous lots” the undersized lot “shall be deemed merged with the contiguous

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lots for the purpose of these regulations.” Regulations § 3.9(B) (emphasis added); see 24 V.S.A.
§ 4412(2)(B) (“The bylaw may provide that if an existing small lot subsequently comes under
common ownership with one or more contiguous lots, the nonconforming lot shall be deemed
merged with the contiguous lot.”). Preexisting undersized lots that come under common
ownership will therefore merge, losing their individual development potential.
       Based on the undisputed facts, Lots 8 and 9 were under separate and nonaffiliated
ownership at the time the zoning change went into effect. After the zoning change, the
Packards took title to Lot 8 which adjoins Lot 9. Both lots are undersized and therefore,
pursuant to § 3.9(B) of the Regulations, the two lots would merge absent any other
considerations.
       The Vermont Supreme Court has, however, acknowledged that where the two lots in
question “cannot reasonably be considered a single lot under a generally accepted definition of
lot” there should be no merger. Wilcox v. Vill. of Manchester Zoning Bd. of Adjustment, 159 Vt.
193, 197 (1992) (quoting Bankers Trust Co. v. Zoning Bd. of Appeals, 165 Conn. 624, 634
(1974)). In Wilcox and subsequent cases, the Supreme Court has considered whether a right-
of-way separating two undersized lots was sufficient to interrupt the contiguity of the lots and
prevent merger. “The Wilcox exception to merger asks the court to look at the function and
location of the right-of-way to determine if it effectively prevents the use of the property as a
single lot.” In re Richards, 2005 VT 23, ¶ 11, 178 Vt. 478 (concluding that the function and
location of the right of way was consistent with a single lot and therefore the two lots had
merged).
       The question now before this Court is whether natural site features which effectively
prevent the use of the property as a single lot act as an exception to merger. This Court has
previously answered that question in the affirmative. In re Weeks, No. E95-135, slip op. at 2–3
(Vt. Envtl. Ct. Oct. 28, 1996) (Wright, J.) (applying Wilcox and holding that where a ravine
between two lots prevented their use as functionally one property, the lots did not merge). On
appeal, the Vermont Supreme Court concluded that the lots in Weeks did not merge as a
matter of law because there was no provision in the relevant zoning bylaw requiring merger of
undersized lots that subsequently came under common ownership. In re Weeks, 167 Vt. 551,


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555–56 (1998). Because the court concluded that the lots had not merged regardless of
whether the ravine prevented the use of the lots as one property, the court “d[id] not reach the
issue of whether physical attributes of the subject parcel can preclude merger . . . .” Id. at 554.
       In the present case, the Regulations require merger of nonconforming lots that
subsequently come under common ownership. This Court must determine what the Supreme
Court did not address in Weeks: whether physical attributes of the property can preclude
merger. The purpose behind the Wilcox exception to merger—to exempt mergers of lots that
cannot be used functionally as a single lot—applies equally to this case as it did there. We must
therefore determine whether the function and location of the interruption in contiguity
between Lots 8 and 9 “effectively prevents the use of the property as a single lot.” Richards,
2005 VT 23, ¶ 11.
       Prior to the relevant zoning changes and the Packards’ purchase of Lot 8, there existed a
naturally occurring “deep, impassible gully or ravine along the border between the Packards’
Lot 9 and abutting Lot 8.” (Statement of Undisputed Material Facts at 2, filed Mar. 9, 2015).
This fact is supported by the affidavit of a licensed surveyor with supporting site plans and
pictures. The Town has not disputed this fact. The Court therefore accepts as undisputed that
it is not practicable to pass from Lot 9 to Lot 8 along the common boundary between the two
lots. A deep and impassible gully presents an even greater obstacle to the use of the property
as one lot than even the most well-travelled right-of-way, as was the case in Wilcox. Because
the impassible gully effectively severs the contiguity between the lots, we conclude that the
lots cannot be used functionally as a single lot.
       Furthermore, as the Supreme Court recognized in Weeks, “zoning ordinances are in
derogation of common law property rights and that ‘in construing land use regulations any
uncertainty must be decided in favor of the property owner.’” 167 Vt. at 555 (quoting In re
Vitale, 151 Vt. 580, 584 (1989)).       Where the reasoning and purpose behind the Wilcox
exception to merger strongly support a conclusion that an undersized lot retains its
development potential despite common ownership, we will give the property owner the
benefit of the exception.




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                                          Conclusion
       The Packards now own two undersized lots, Lots 8 and 9, that share a common
boundary. There is, however, a deep and impassible gully completely separating the lots so
that the two lots cannot be effectively used as a single lot. We therefore conclude that Lots 8
and 9 did not merge. The Court, therefore, GRANTS the Packards’ motion for summary
judgment, overturning the October 8, 2014 decision of the Town of East Montpelier
Development Review Board, and we conclude that Lot 8 of the Pine Ridge subdivision remains a
separate individual lot. This concludes the matter before the Court. A Judgment Order
accompanies this decision.


Electronically signed on June 23, 2015 at 09:57 AM pursuant to V.R.E.F. 7(d).




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




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