                                      STATE OF VERMONT
                                  ENVIRONMENTAL COURT
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Harvey & Symmes Final Plat Application           }            Docket No. 96-5-05 Vtec
(Appeal of Bevan)                                }
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                                   Decision on Pending Motions

          This matter concerns appeals of a two lot subdivision approval issued by the Charlotte
Planning Commission as of May 5, 2005. The initial appeal was filed by John and Rosemary
Bevan, who are represented in this proceeding by Mark G. Hall, Esq. The Bevans own an
undeveloped parcel across a private road—White Birch Lane—from the proposed development.
A cross-appeal was filed by the Applicants, Jason and Andrea Harvey and William and Caroline
Symmes, who are represented by Michael B. Clapp, Esq. The Town of Charlotte (Town) has
entered its appearance through Will S. Baker, Esq.

          There are six motions or cross-motions now pending before the Court. The Town made
three filings: a Motion for Partial Dismissal, a Motion for a More Definitive Statement and a
Motion for Partial Summary Judgment. The Bevans have filed a Motion for Partial Summary
Judgment of their own. Cross-Appellants-Applicants (Harvey and Symmes) have also filed two
Cross-Motions for Partial Summary Judgment that also serve as opposition to the Town’s and
Bevans’ summary judgment requests.

          All pending motions seek this Court’s guidance on one or more of the following four
issues:

   1. May this Court, acting with the same authority as the Town Planning Commission,
          impose conditions similar to those imposed by the Planning Commission in its approval
          dated May 5, 2005?

   2. Do the Charlotte Subdivision Bylaws (Bylaws) require that the purported easement
          benefiting Appellants’ property be shown on the preliminary and final subdivision plats?

   3. May this Court determine the respective rights and responsibilities that arise from
          Appellants’ purported easement?
       4. Is Harvey and Symmes’ Question 2 so vague as to require that it be restated more
            definitively?

            We address all the pending motions by answering these questions in the order they are
posed above.

       I.      Authority to Impose Conditions in Subdivision Approval.

            It is first important to note that it is premature for the Court to determine what conditions,
if any, should be attached to the possible approval of the subdivision application.1[*] Rather,
Harvey and Symmes assert in their Motion for Partial Summary Judgment that the Town
Planning Commission exceeded its powers, and caution that the Court should not impose the
same or similar conditions in this appeal. The Town asserts in its Motion for Partial Summary
Judgment that the Planning Commission in the first instance, and this Court in the second
instance, is authorized by the applicable statutes, the Town Ordinance provisions and the Town
Plan, to impose such conditions. On this issue, we agree with the Town.

            Municipal authority to impose conditions on land use approval derives from the general
enabling provisions contained in 24 V.S.A., Chapter 117 (2004).                        Specifically, a Vermont
municipality is authorized, when ―rendering a decision in favor of the applicant, . . . [to] attach
additional reasonable conditions and safeguards as it deems necessary to implement the purposes
of this chapter and the pertinent bylaws and the municipal plan then in effect.‖ 24 V.S.A.
§ 4463(b)(2) (2004).

            The Applicants here do not directly challenge the Town’s authority derived from Chapter
117. Rather, Harvey and Symmes assert that the Town carries the burden to establish the
propriety of the conditions imposed on any permit approval. However, Harvey and Symmes do
not provide this Court with a legal foundation for their assertion that a municipality carries this
burden. We cannot adopt their assertion.

            Section 4463(b)(2) clearly authorizes a municipality to impose conditions on its approval
of a subdivision application, so long as the municipal panel ―deems‖ the conditions imposed
―necessary to implement the purposes‖ of the statute, the town plan and subdivision regulations.
1[*]
    It is also important to note that no party to this proceeding is advocating for denial of the Harvey and Symmes’
subdivision application. The Appellants only criticize the Town approval for its failure to require a reference to
their purported septic easement. Cross-Appellants surely want approval of their own subdivision application, just
not with the conditions imposed by the Charlotte Planning Commission.
Thus, if an appropriate municipal panel (or this Court on appeal) determines that a permit should
be granted, it may do so on conditions that it deems appropriate under the applicable statutory
and municipal guidelines.

       The parties have all cited the essential guidelines for a court’s review of summary
judgment requests: only in instances where there are no facts in dispute that are material to the
applicable question of law may summary judgment be granted. See Herald Ass’n v. Dean, 174
Vt. 350, 352 (2002). The parties here have each submitted their own recitation of material facts
in a timely manner, as precedent directs. See Popalski v. Lamphere, 152 Vt. 251, 254-255
(1989). No party here has failed to make some factual showing on this issue; that was the error
committed by plaintiffs in the Popalski case. Thus, each party here is entitled to the benefit of
material facts being viewed in a light most favorable to them, when we are considering the
opposing party’s motion for summary judgment. See Bixler v. Bullard, 172 Vt. 53, 57 (2001)
(citing Toys, Inc. v. F.M. Burlington Co., 155 Vt. 44, 48 (1990)).

       It this procedural light, it is premature for this Court to determine what specific
conditions, if any, should be attached to any approval of the Harvey and Symmes subdivision
application. A merits hearing is necessary to determine if the material facts support approval of
the pending subdivision application and, if so, what conditions are appropriate to attach. But on
the question of whether the Planning Commission below, or this Court on appeal, has the
authority to impose conditions on a subdivision approval, the state enabling statute clearly allows
this Court to impose conditions if they are necessarily connected to the lawful purposes
contained in the Town Plan and Bylaws.

       It is uncontested in this appeal that the property proposed to be subdivided is located
adjacent to Mt. Philo State Park, on a private road that may be challenging for emergency
response vehicles to navigate. When viewed in a light most favorable to the Town, conditions
that restrict the building envelope, screening, and facilities for access to water by fire responders
(such as dry hydrants) could certainly be deemed reasonably related to the statutory purposes for
permit conditions. For these reasons, Harvey and Symmes’ Motion must be denied.

       The Town’s Motion for Partial Summary Judgment raises a related issue: is it appropriate
for this Court to rule on whether the Planning Commission ―exceeded its authority‖ in imposing
conditions to its approval of this subdivision application. See Cross-Appellants’ Statement of
Questions 5–14. Our jurisdictional responsibility in de novo proceedings is not to judge the
actions of the appropriate municipal panel below, but rather to stand in its place and render a
decision, based upon the admissible facts presented in support of and in opposition to an
application. For this reason, we must strike Harvey and Symmes’ Questions 5–14. In their place
remains the general question of what conditions should be imposed on any approval of the
pending subdivision application. That question will be answered, based upon the admissible
evidence presented at the merits hearing.

   II.      Does the Ordinance require easements to be depicted on preliminary and final
   subdivision plats?

         Appellants’ Motion for Summary Judgment addresses the sole question they assert in this
appeal: do the Bylaws require reference to easements on the preliminary and final plats that are
approved for a subdivision? This issue is separate from the Harvey and Symmes’ Question 4,
which asks this Court to determine if the easement asserted by the Bevans is valid. The latter
Question is discussed in more detail below.

         Bylaws §§ 10 and 11 specifically require that preliminary and final subdivision plats
show ―existing easements.‖ Bylaws §§ 10(A)(3), 11(A)(2). In response to the Bevans’ claims,
Harvey and Symmes appear to dispute the specific boundary lines of the Bevans’ easement, but
do not appear to dispute the general existence of the easement. Harvey and Symmes’ challenge
to the specific location of the easement appears to rest upon what the Bevans characterize as a
scrivener’s error or omission now memorialized in the Charlotte Land Records.

         As discussed in more detail below, it is not within this Court’s jurisdiction to define the
parameters of the Bevans’ easement. However, the issue within our jurisdiction―whether the
applicable subdivision regulations require that an easement must be shown on subdivision
plats―does not appear to be disputed by Harvey and Symmes or the other parties to this
proceeding.     Summary judgment is therefore appropriate on this question, relating to the
Ordinance requirements, since the facts material to this legal issue are not dispute. See Herald
Ass’n, 174 Vt. at 352.
   III.      Validity of the Bevans’ Septic Easement.

          We now turn to the follow-up question of whether this Court has the jurisdictional
authority to determine the validity of the Bevans’ purported easement.

          The Town’s Motion for Dismissal of Cross-Appellants’ Question 4 asks this Court to
affirm that it is not a court of general jurisdiction and that its jurisdiction is limited to matters
enumerated in 10 V.S.A. § 8504 (2005), governing appeals to the Environmental Court. Harvey
and Symmes ask in their Question 4 ―[w]hether the deed recorded in Volume 57, Page 122 of the
Charlotte Land Records creates a valid easement.‖

          Issues relating to the validity of easements are not properly before this Court, as we do
not have jurisdiction over matters involving private property rights, such as the construction and
validity of easements, deeds, and property boundaries.          This question might properly be
presented to the Superior Court. However, the Environmental Court does not have jurisdiction to
consider the validity of easements. Thus, while we have determined that the Bylaws lawfully
require an applicant to show easements on their proposed subdivision plats, we leave it to the
parties here to challenge the validity of the purported easement in Superior Court. We decline to
address the issue raised in Harvey and Symmes’ Question 4. Therefore, that Question is also
stricken from consideration in this appeal.

   IV. Request for More Definitive Statement of Cross-Appellants’ Question 2.

          The Town’s Motion for a More Definitive Statement asks that the Court direct Harvey
and Symmes to rephrase Question 2, which asks ―[w]hether the woods on the northern building
lot are helpful in blending the proposed dwelling on that lot into the landscape from Mt. Philo
park summit.‖

          While the Court can determine that this Question in some manner addresses the blending,
screening, or shielding of a building lot as viewed from Mt. Philo State Park, Harvey and
Symmes’ specific request in Question 2 is unclear. For example, possible interpretations of that
Question include, but are not limited to, whether the screening is adequate to hide the northerly
building lot from view; whether we should require the lot to be hidden, as viewed from the top of
Mt. Philo; or whether the proposed screening of the building is adequate in light of the directives
from the applicable municipal ordinance. We assume that it is posed to suggest that further
screening conditions are unnecessary, but we are uncertain of the Question’s purpose, due to its
vagueness. Because of the uncertainty that this Question creates, Harvey and Symmes should
consider the more general issues that the Question raises when the parties address the issue of
what conditions are appropriate to attach, in the event this Court determines that the Harvey and
Symmes’ subdivision application should be granted.

       Accordingly, based on the foregoing, Cross-Appellants Harvey and Symmes’ Questions 2
and 4–14, inclusive, are hereby STRICKEN. In their place, the parties are directed to prepare to
present all relevant evidence at the merits hearing on the general issues of what conditions the
Court should consider attaching to any approval of the Harvey and Symmes’ subdivision
application.

       Appellants’ motion for summary judgment is hereby GRANTED. Harvey and Symmes
are directed to submit plats at the merits hearing that conform to Bylaws §§ 10 and 11, including
reference to the Bevans’ easement, unless the existence of such easement is successfully
challenged in a separate Superior Court proceeding.

       This matter shall be set for a pre-trial conference and merits hearing by a separate Notice
from the Court Manager.


               Done at Berlin, Vermont, this 29th day of September, 2005.




                                     __________________________________
                                     Thomas S. Durkin, Environmental Judge
