2014 VT 99


Regan v. Pomerleau, DeForest Realty, Inc. and City of
Burlington (2013-101 & 2013-281)
 
2014 VT 99
 
Filed [14-Aug-2014]
 
NOTICE:  This opinion is subject
to motions for reargument under V.R.A.P. 40 as well as formal revision before
publication in the Vermont Reports.  Readers are requested to notify the
Reporter of Decisions by email at: JUD.Reporter@state.vt.us or by mail at: Vermont
Supreme Court, 109 State Street, Montpelier, Vermont 05609-0801, of any errors
in order that corrections may be made before this opinion goes to press.
 
 

2014 VT 99

 

Nos. 2013-101 & 2013-281

 

Ute Regan 


Supreme Court


 


 


 


On Appeal from


     v.


Superior Court, Chittenden Unit,


 


Civil Division


 


 


Antonio B. Pomerleau, DeForest
  Realty, Inc. and
City of Burlington


December Term, 2013


 
 


 


In re Regan Subdivision Permit
(DeForest Realty, Inc. and Friends of Chittenden
Drive, Appellants)


Superior Court,
Environmental Division


 
Geoffrey W. Crawford, J.
  (13-101)
Thomas S. Durkin, J. (13-281)
 

Liam L. Murphy and Damien J.
Leonard of Murphy Sullivan Kronk, Burlington, for 
  Plaintiff-Appellee (13-101) and Appellee (13-281) Regan.
 
Daniel P. O’Rourke and Adam P. Bergeron of Bergeron, Paradis
& Fitzpatrick, LLP, Burlington,
  for Defendant-Appellant (13-101) and Appellant (13-281) DeForest
Realty, Inc. 
 
Claudine C. Safar and Courtney E. Butler of Monaghan Safar
Ducham PLLC, Burlington, for
  Appellant Friends of Chittenden Drive (13-281).
 
Kimberlee J. Sturtevant, Assistant City Attorney, Burlington,
for Amicus Curiae 
  City of Burlington (13-281).
 
 
PRESENT:   Reiber, C.J., Skoglund and Robinson, JJ., and Teachout
and Eaton, Supr. JJ.,
                     Specially Assigned
 
 
¶ 1.          
SKOGLUND, J.   In these consolidated appeals we review rulings by
the environmental and civil divisions concerning a subdivision application for
a property located within a residential development in the City of Burlington. 
Appellants’ principal contention is that the courts erred in concluding that
the subdivision had the requisite access to a public road.  We affirm the judgments.
¶ 2.          
The background to these appeals may be briefly summarized; additional
material facts will be set forth in the discussion which follows.  Ute Regan
(applicant) owns a lot and single-family dwelling in a residential subdivision in
Burlington known as the Overlake Park Development. The subdivision was created
in 1955 by the Overlake Park Development Corporation, which built several
streets within the development.  One of these, Chittenden Drive, was laid out
along a fifty-foot wide strip.  Overlake paved a thirty-foot wide portion of
the street and retained ten feet of “greenspace” on either side.  
¶ 3.          
In 1961, Overlake sold the development to DeForest Realty, Inc.  The
deed to DeForest contained a covenant restricting the use of each lot within
the subdivision to “one dwelling for a single family dwelling unit.”  By its
terms, the covenant expired in 1995.  In 1965, DeForest sold Lot 76, which fronts
on Chittenden Drive, to applicant’s predecessor-in-interest.  Consistent with
the other deeded lots, the deed to Lot 76 placed the boundary ten feet from the
curb of Chittenden Drive, and stated that the lot was subject to the covenants
more particularly set forth in in the 1961 deed from Overlake to DeForest
Realty.  A single-family home was built on the property in the 1960s.  Applicant
purchased the home and lot in 1987.  
¶ 4.          
In April 2010, applicant submitted an application to the City’s
Department of Planning and Zoning for a permit to establish an accessory apartment
in her single-family home. The Department granted the permit, prompting an
administrative appeal by Friends of Chittenden Drive (Friends), a group
comprised of other residents on the street.  In June 2010, following a hearing,
the Development Review Board (DRB) approved the permit, and Friends appealed to
the environmental court.    
¶ 5.          
Applicant had also sought a permit to subdivide her property into two lots,
one containing the existing single-family home and the other vacant.  The subdivision
plan provided that each lot would contain at least sixty feet of road frontage,
as required by the City’s Comprehensive Development Ordinance (CDO).  CDO §
4.4.5-1.  In reviewing the application, however, the DRB noted that “a 10 foot
wide strip of privately owned land runs between the subject lot and Chittenden
Drive (a private street).”  Thus, while the DRB ultimately granted the permit,
it conditioned approval on applicant’s demonstrating “that the proposed vacant
lot has the required access (via easement or otherwise) to the adjacent street
(Chittenden Drive).”  DeForest Realty appealed the DRB’s decision to the
environmental court, and Friends and applicant submitted separate appeals.[1] 

¶ 6.          
In September 2010, the parties agreed to place the environmental-court appeals
on inactive status pending the outcome of a contemplated quiet-title action by
applicant in the civil division to determine her right to access Chittenden
Drive from the vacant lot.  Applicant filed her quiet-title action in January
2011, naming DeForest Realty and its principal owner Antonio B. Pomerleau as
defendants.  Applicant claimed that she was entitled to access Chittenden Drive
under a number of theories, including adverse possession of the disputed
ten-foot strip, implied easement, and easement by necessity.  In a written
ruling issued in October 2011, the trial court granted applicant’s motion for
summary judgment, concluding that she had acquired an implied easement of
access over the ten-foot greenbelt strip “by reference” to the recorded plat
map.  The court also concluded that, inasmuch as the restrictive covenant had
expired in 1995, the implied easement allowed access from the additional vacant
lot.  DeForest filed a timely appeal of the ruling with this Court. 
¶ 7.          
The parties then moved to reactivate the pending appeals in the environmental
division, which the court granted, and the matters proceeded to decision.  In mid-December
2012, the trial court granted applicant’s motion for summary judgment in the
accessory-dwelling appeal, and entered judgment in her favor.  Shortly
thereafter, the court addressed the parties’ cross-motions for summary judgment
in the subdivision appeal, issuing a written decision largely in applicant’s favor. 
The court reserved ruling, however, on the question of compliance with CDO §
5.2.2, which prohibits development on “lots that do not have frontage on a
public road or public waters” except for “lots of record existing as of January
1, 2007, . . . if access to such road or public waters exists by a permanent
easement or right-of-way at least twenty-five (25) feet in width.”  
¶ 8.          
Applicant had argued—and the City agreed—that although privately owned,
Chittenden Drive qualified as a “public road” under the development ordinance.  The
trial court concluded, however, that the City’s definition conflicted with the
State’s enabling statute, which provides that land development “may be
permitted on lots that do not have frontage on either a public road or public
waters provided that access through a permanent easement or right of way has
been approved” under the municipal bylaws.  24 V.S.A. § 4412(3).  Although the
enabling statute did not at the time of the application contain a definition of
“public road,” the term had been interpreted by this Court to be synonymous
with “highway” as defined by 19 V.S.A. § 1(12), meaning essentially roads
laid out “by statute or by dedication and acceptance.”  Okemo Mountain, Inc.
v. Town of Ludlow, 164 Vt. 447, 454, 671 A.2d 1263, 1269 (1995).[2] 

¶ 9.          
While finding that Chittenden Drive had not been formally dedicated and
accepted and therefore did not meet this definition, the court nevertheless observed
that it clearly connects with South Willard Street—a public road also known as
Vermont Route 7—and that this would normally bring the proposal within the
exception for lots with “access” to a public road.  The only difficulty with
this conclusion, however, was the January 1, 2007 date restriction in the City ordinance,
which appeared to bar development of any new “lot of record” resulting from an
approved subdivision—a result the court found to be paradoxical and self-defeating. 
Accordingly, the court deferred to trial the question of whether the date restriction
had any “rational relation to the purpose” of the frontage requirement.  
¶ 10.      
Following an evidentiary hearing, the trial court issued a written decision
and judgment order in April 2013.  The court found that the “evidence presented
provided no explanation” for the time limitation; that its literal application
“would lead to an absurd result;” that the subdivision proposal otherwise met
the exception; and therefore that the proposal qualified for a subdivision permit,
subject to certain unrelated conditions.  Applicant later filed a “motion to
clarify,” resulting in a modified judgment explaining and reaffirming the
original ruling.  DeForest and Friends then filed this appeal, which we
consolidated with DeForest’s appeal from the civil division for purposes of
oral argument and review.
I.
¶ 11.      
We turn first to the environmental court judgment granting the
subdivision permit.  Friends claim that the court erred in concluding that the
date restriction in § 5.2.2 of the CDO is irrational and unenforceable.[3] 
See Simendinger v. City of Barre, 171 Vt. 648, 653, 770 A.2d 888, 895
(2001) (mem.) (noting that ordinance which is “irrational” is invalid).  For
the reasons that follow, however, we need not address this particular issue.  
¶ 12.      
The threshold question before the DRB and the court was whether applicant’s
subdivision was authorized under the City’s development ordinance.  To recall,
§ 5.2.2 of the CDO prohibits development on “lots that do not have frontage on
a public road or public waters,” so the first issue is whether the road
fronting applicant’s proposed subdivision, Chittenden Drive, constitutes a
public road under the ordinance.  For the definition of “road,” the  CDO directs
the reader to “see street,” which is defined, in turn, as “[a] public way as
defined in Section 1-2 of the Code of Ordinances, or a private way devoted
to public use.”  CDO § 13.1.2. (Emphasis added).  The CDO defines a “public
use” as “[a] use that is owned and operated by a public agency, or by a
private/non-profit entity for use by the general public without unreasonable
restriction.”  Id.  The City’s Code of Ordinances reinforces these
definitions, stating that a “street” includes “every way used for vehicular and
pedestrian travel which has become public by authority of the law, and such
ways in public places other than highways as the public is permitted to use for
vehicular and pedestrian traffic.”  Burlington Code of Ordinances § 1-2. 
(Emphasis added).  A “public place” includes “all streets.”  Id. 
¶
13.      
It is clear from the foregoing that the City defines “public road” to
include private streets open and accessible for use by the public for
pedestrian and vehicular traffic, and that this definition applies to
Chittenden Drive.  Indeed, a senior planner with the City testified
specifically that the CDO’s definition of public road includes “private roads .
. . open to the public and such is the case on Chittenden Drive.”  This view
was echoed by the City’s director of public works, who confirmed that
Chittenden Drive was considered by the City to be a “public street.”  While
Chittenden Drive remains in private ownership, the undisputed evidence
established that it is open year round to the public for pedestrian and
vehicular traffic, is routinely used by the public for that purpose, and is regularly
plowed, sanded, swept, and generally maintained by the City’s department of
public works for that purpose, as well.  The public works director explained
that the City’s policy is to sweep, plow, sand, and undertake minor repairs to
Chittenden Drive and other private roads in the City to ensure their access to
mail carriers, ambulances, fire trucks, and other safety vehicles.  Thus, we
have no difficulty concluding that applicant’s subdivision proposal was authorized
under the ordinance.
¶ 14.      
As for whether the proposal comports with the enabling statute, as noted
24 V.S.A. § 4412(3) provides that land development may be permitted on
lots that do not have frontage on either a public road or public waters
provided that it has approved access to a public road “through a permanent
easement or right-of-way.”  Thus, regardless of whether Chittenden Drive meets
the statutory definition of a public road as the City and applicant vigorously maintain,
there is no question that it satisfies the alternative statutory basis for
development as a “right-of-way” connecting to a public road.  Therefore, we
conclude that the proposal satisfies the statutory requirements for
development, as well.   
¶ 15.      
None of Friends’ remaining claims requires extended discussion.  They assert
that the trial court erred in granting summary judgment on the subdivision proposal’s
compliance with CDO § 4.4.5, which sets forth a variety of dimensional
standards for lots in residential districts.  The trial court observed that Friends
conceded the proposal “arguably [met] the dimensional requirements of the RL
[Residential Low Density] District” under § 4.4.5 but claimed nevertheless that
it was inconsistent with that section’s “Purpose” statement, which provides, in
part, as follows: “Development that places emphasis on architectural details
and form is encouraged, where primary buildings and entrances are oriented to
the sidewalk, and historic development patterns are reinforced.”  (Emphasis
added).  Friends asserted below, and argue on appeal, that the proposed
subdivision results in small and irregularly shaped lot sizes and an “angled” building
envelope inconsistent with “historic development patterns” in the
neighborhood.  
¶ 16.      
The trial court concluded, however, that the CDO language in question
did not “constitute enforceable regulatory language.”  As we have observed, “ ‘[b]road
policy statements phrased as nonregulatory abstractions’ are not equivalent to
enforceable restrictions.”  In re Chaves Act 250 Permit, 2014 VT 5, ¶
38, ___ Vt. ___, 93 A.3d 69 (quoting In re John A. Russell Corp., 2003
VT 93, ¶ 16, 176 Vt. 520, 838 A.2d 906 (mem.)).  The language relied on by
Friends, “encourag[ing] . . . historic development patterns,” is broadly aspirational
rather than mandatory and sets forth no specific enforceable standards.  See id.
¶¶ 40-41 (holding that town plan’s policy of maintaining “man-made features . .
. of local scenic, cultural and historic significance” contained “no specific
requirements that are legally enforceable”); In re JAM Golf, LLC, 2008
VT 110, ¶¶ 13-14, 185 Vt. 201, 969 A.2d 47 (holding that ordinance which
required design to “protect” natural resources created no enforceable
standard).   Accordingly, we find no error.
¶ 17.      
In a similar vein, Friends assert that the trial court erred in failing
to apply and enforce a provision in the statement of “principles” preceding the
CDO’s development review standards, stating that development shall
“[c]omplement Burlington’s architectural and cultural heritage by conserving
and/or reflecting dominant design elements and characteristics of
neighborhoods, and maintaining neighborhood proportions of scale and mass.”  CDO
§ 6.0.1(f). The trial court concluded, and again we agree, that while preceded
by the mandatory “shall,” the statement of principle in question provides no
clear, specific, and enforceable standards to determine compliance with “dominant
design elements” or neighborhood “characteristics.”  In re JAM Golf,
2008 VT 110, ¶ 14.  We note, as well, that the section goes on to explain that
development “principles” are generally drawn from “community goals . . . in
adopted city plans” and are designed to provide guidance where more specific
“individual standards appear to conflict.”  CDO § 6.0.1.  This provision reinforces
the conclusion that the “principle” in question was not framed or intended to
serve as a mandatory and enforceable design standard.  Accordingly, we
find no error.   
¶ 18.      
The court reached a similar conclusion with respect to Friends’ claim
that the partly-angled lot lines provided for in applicant’s subdivision
proposal violate the design-review provision of CDO § 6.1.2(c), captioned
“Arrangement of lots.”  This section contains two short paragraphs, the first
of which provides: “The size and arrangement of lots shall reflect and perpetuate
the existing development pattern of the surrounding neighborhood. Lots shall be
created in such a way as to enable their development pursuant to the
requirements of this ordinance, and ensure a clear transfer of title.”  The
court concluded that, like the provision of § 6.0.1 dealing with
“neighborhood characteristics,” the requirement of conformity with “development
patterns of the surrounding neighborhood” was insufficiently precise to be
meaningfully enforced, but should instead be read in conjunction with the
second sentence to require “development pursuant to the” specific dimensional
and design requirements that follow.  In this regard, the court noted that the
second paragraph of § 6.1.2(c) specifically provides that “[i]nterior lot lines
extending from a street should be perpendicular or radial to the street
right-of-way line to the greatest extent feasible,”  that “[f]lag lots
and through lots . . . shall be allowed only to the extent where topography and
existing block and lot arrangement allow no suitable alternative,” and that, in
such cases, “frontage for access of 20-feet shall be required.”   
¶ 19.      
The court went on to observe that Article 6 of the CDO specifically differentiates
between design components that are “required (‘shall’)” and those that are “flexible
(‘should’).” CDO § 6.0.1.  The court further observed that the provision
concerning perpendicular lot lines was expressly stated to be “flexible,” and
found that applicant’s plan, which included lot lines that were both partially
perpendicular and partially angled to accommodate the necessary street
frontage, comported with the design component “to the greatest extent
feasible.”  Although Friends dispute this finding, they have not shown that it
was unfounded or clearly erroneous.  See In re Rinkers, Inc., 2011 VT
78, ¶ 8, 190 Vt. 567, 27 A.3d 334 (mem.) (noting that “[o]ur review of
Environmental Court decisions is deferential,” and that we will not disturb its
findings unless clearly erroneous, nor its conclusions if reasonably supported
by the findings).            
¶ 20.      
Friends further assert that the trial court erred in holding that the
proposal met the specific density limit of seven dwelling units per acre in the
RL District, set forth in CDO § 4.4.5-2.  The record does not show that this
claim was properly preserved for review on appeal.  In its summary judgment
decision, the trial court observed that its earlier decision granting a permit
for an accessory dwelling unit within applicant’s existing single-family home resulted
in a potential nonconformity with the density requirement, “as two dwelling
units on that lot could result in a density of over seven dwelling units per
acre.”  Accordingly, the trial court ordered applicant to revise her plan to
comply with the density requirements, and to disclose the revised plan to the
other parties at least thirty days prior to trial.  
¶ 21.      
The record reveals that applicant thereafter mailed a revised plan to
the court and opposing parties on January 15, 2013, and that the revised plan
was subsequently admitted into evidence without objection at trial on February
13, 2013.  To address the court’s concern, the revised plan increased the size
of the lot with the existing house and accessory unit, although applicant continued
to maintain that the accessory unit should not count as a separate unit for
measuring density.  At the conclusion of the hearing, the trial court entered
findings on the record approving the subdivision permit, and directed applicant
to submit the revised plan to the City within sixty days, together with a
certification that the plan conformed with the density requirements for two
dwelling units on lot two and one dwelling unit on lot one.     
¶ 22.      
The record does not disclose any objection to the revised plan on the
ground that it continued to exceed the seven-unit per acre density limit,
although the plan was disclosed before trial and admitted without objection and
the parties continued to litigate issues relating to the proposal’s compliance
with the CDO both at trial and post-judgment.  Accordingly, we conclude that
the issue was not preserved for review on appeal.  See Agency of Natural
Res. v. Glens Falls Ins. Co., 169 Vt. 426, 432, 736 A.2d 768, 772 (1999)
(failure to raise claim at trial waives issue on appeal).                  
¶ 23.      
Friends’ final claim concerning the subdivision proposal is that the trial
court erred in concluding that it complied with CDO § 3.2.2(e), which broadly requires
that subdivision applications conform to the dimensional standards in Article 4
and the development standards in Article 6.  Having affirmed the trial court’s
determination that the proposal satisfied the requirements of both Articles, we
find no merit to the claim.
II.
¶ 24.      
As noted, Friends has also briefed issues relating to the
accessory-dwelling permit granted by the environmental court.  While this
appeal was pending, however, applicant moved to strike those portions of
Friends’ brief dealing with the accessory permit and to dismiss their purported
appeal from that judgment on the ground that it was untimely.  The record
discloses that the trial court entered a judgment order granting the accessory-dwelling
permit on December 14, 2012.  The order concludes: “This completes the current
proceedings before this Court.”  The record contains no separate appeal from
this judgment.  It would appear, therefore, that claims relating to the
accessory-dwelling permit are not properly before us.  See Turner v. Turner,
160 Vt. 646, 647, 641 A.2d 342, 344 (1993) (mem.) (noting that “[t]his Court
lacks jurisdiction” where notice of appeal is not timely filed).   
¶ 25.      
Friends maintain, however, that the two matters before the environmental
court had been consolidated into one action, so that the accessory-dwelling
case was not actually complete until the modified final judgment was entered in
the subdivision case.  The basis of the claim is a statement in the
environmental court’s March 2012 order returning the two cases to active
status, in which the court referred to the matters as having been “previously
consolidated for purposes of trial.”  The record contains no order or docket
entry, however, partially or fully consolidating the two cases for any purpose,
and two earlier docket entries in the subdivision appeal refer to the
accessory-dwelling appeal as merely a “related case.”  
¶ 26.      
The record following the reactivation of the two appeals demonstrates,
moreover, that the environmental court considered and treated them as separate
matters.  As noted, the court entered a final judgment in the accessory-dwelling
appeal in December 2012, stating that the judgment order “completed” the
proceedings.  Shortly thereafter, the court ruled on the parties’ cross-motions
for summary judgment in the subdivision appeal, observing that it had already
ruled in “a coordinated case” on applicant’s request for an accessory dwelling
permit.  This reinforces the conclusion that the court may at one point have
ordered a joint trial if it became necessary, but that is a qualitatively
different matter from ordering the cases consolidated into one action.  See
V.R.C.P. 42(a) (providing that court may order “joint hearing or trial” of
actions “involving a common question of law or fact,” but may order the
“actions consolidated” only with the “consent of the parties”); see id.
Reporter’s Notes (observing that Rule 42(a) “gives the court the power to order
either the joint trial of common questions . . . or, with the consent of the
parties, the full consolidation of actions into a single action”).   
¶ 27.      
Four months later, moreover, in April 2013, the court entered a separate
judgment order approving the subdivision, and thereafter, in June 2013, issued
a modified judgment.  The captions in both the original and modified judgment
orders reference only the docket number in the subdivision appeal; there is no
reference to the previously decided accessory-dwelling case.  On July 15, 2013,
Friends and DeForest Realty filed separate, timely appeals from the modified
judgment.  Tellingly, the notice of appeal in each instance referenced only the
docket number in the subdivision case.  Friends’ notice of appeal, moreover,
states expressly that they are appealing from the environmental court decision
“approving with conditions [the] application for a two-lot subdivision.”  There
is no reference to the environmental court’s decision approving the accessory dwelling. 
   
¶ 28.      
From the record, therefore, it is apparent that the environmental court
did not order or consider the two cases to be consolidated into one action pursuant
to V.R.C.P. 42, and equally clear that Friends’ appeal pertains solely to the environmental
court judgment granting the subdivision permit.  Accordingly, we are without
jurisdiction to review the judgment granting the accessory dwelling permit.  Turner,
160 Vt. at 647, 641 A.2d at 344. 
III.
¶ 29.      
In its related appeal from the civil division, DeForest contends the trial
court erred in concluding that applicant had an implied easement to access
Chittenden Drive from the vacant lot created by the subdivision.  In reaching
this conclusion, the trial court relied on our decision in Clearwater Realty
Co. v. Bouchard, where we endorsed the “familiar principle of law that
where lots are sold by reference to a recorded plat, lot purchasers acquire the
right to keep open and use roads, streets, highways and park areas as indicated
on the plat.”  146 Vt. 359, 363, 505 A.2d 1189, 1191 (1985).  In keeping with
the rule’s purpose of “secur[ing] to persons purchasing lots . . . those
benefits . . . which, it is reasonable to infer, has induced them to buy,” we
held that the right extended to all of the roads, parks and other common areas
shown on the plat, not just those that touch the purchaser’s land or which are
strictly necessary for the enjoyment of the property.  Id. at 363-64,
505 A.2d at 1192 (quotation omitted).  Later, in Lalonde v. Renaud, we
clarified that Clearwater set forth an “objective test,” granting rights
to purchasers and their successors without the requirement of demonstrating
“specific reliance on depictions in the plat.”  157 Vt. 281, 283, 597 A.2d 305,
306 (1989); accord Noble v. Kalanges, 2005 VT 101, ¶ 18, 179 Vt. 1, 886
A.2d 767.    
¶ 30.      
Applying these principles to the facts here, the trial court concluded
that the purchasers of Lot 76 and their successors-in-interest acquired an
implied easement to access the streets depicted on the recorded plat for the
Overlake Park development, observing that road access “was an obvious
inducement to any purchaser,” and further concluded that this right included an
implied easement from the additional lot created by the subdivision.[4]
 
¶ 31.      
On appeal, DeForest concedes applicant’s right to an implied easement for
the purpose of accessing Chittenden Drive from her current residence, but contests
the trial court’s conclusion that this right extends to the additional lot created
by the subdivision.  DeForest claims that the court’s ruling in this regard impermissibly
expands the scope of the implied easement beyond the reasonable expectations of
the parties.  We find no error.  As the record plainly showed, the restrictive
covenant limiting lots in the Overlake Park development to one single-family
home expired by its terms in 1995.  Thus, as the trial court concluded, a prospective
purchaser could reasonably expect to subdivide his or her lot after that
date—so long as the subdivision complied with current zoning regulations—and could
also reasonably expect to enjoy access from any such future development to the streets
depicted on the plat, just as from the original lot.  The intentions and
reasonable expectations of the parties—as evidenced by the recorded plat and
written deeds—therefore fully support the conclusion that applicant has an implied
easement from the subdivision lots to Chittenden Drive.   
¶ 32.      
DeForest argues that the trial court’s ruling violates the principle that
implied easements are disfavored and may not be enlarged beyond their original
purpose.  We have indeed observed that easements by implication are limited to
the use which gave rise to the implication, and can “neither be enlarged
because of subsequent necessity nor cut down by a claim that some part of it
was not indispensable.”  Read v. Webster, 95 Vt. 239, 247, 113 A.2d 814,
818 (1921) (quoted in Traders, Inc. v. Bartholemew, 142 Vt. 486, 494, 459
A.2d 974, 980 (1983)).  As the trial court here cogently observed, however, the
scope of the implied easement in this case is “not defined by principles of
necessity . . . [but] by reference to the reasonable expectations of the
purchasers,” expectations which—as discussed—included future development.  DeForest
also cites the general principle that the owner of an easement may not “materially
burden” the servient estate (in this case the ten-foot strip owned by DeForest
between applicant’s lots and Chittenden Drive) “beyond what was intended.”  Preseault
v. City of Burlington, 2006 VT 63, ¶ 12, 180 Vt. 597, 908 A.2d 419 (mem.).  Here
again, however, the trial court was correct in its observation that it was not
“increasing the burden of the easement” but simply defining the “original . . .
easement to include future development which was contemplated.”   
¶ 33.      
Finally, DeForest asserts that the trial court erred in holding that the
implied easement benefiting the newly subdivided lot[5]
includes the right to cross the ten-foot strip for the purpose of
connecting to the water and sewer lines owned by DeForest.[6] 
DeForest is correct in noting that these utilities were not depicted on the
plat map for Overlake Park, and that our cases dealing with implied easements
by reference to a plat map have not considered access to utilities.  
¶ 34.      
It is well settled in Vermont and elsewhere, however, that an implied easement
by necessity may arise by operation of law where it is essential to the
“reasonable enjoyment of [the] land,” Berge v. State, 2006 VT 116, ¶ 12,
181 Vt. 1, 915 A.2d 189, and that this principle incorporates access to
essential utilities.  See McElroy v. McLeay, 71 Vt. 396, 398-99, 45 A.
898, 899 (1899) (recognizing implied easement for access to public sewer line as
“within the rule that everything . . . that is essential to the beneficial use
and enjoyment of the property designated within the grant is . . . to be
considered as passing by the grant”); see also Brown v. Miller, 95 P.3d
57, 61 (Idaho 2004) (holding that easement by necessity “reasonably includes
utilities”); Smith v. Hiessinger, 745 N.E.2d 666, 671-72 (Ill. App. Ct.
2001) (rejecting assertion that easement by necessity is limited to ingress and
egress, and holding that it may exist for access to power, telephone, water,
and sewer lines); Morrell v. Rice, 622 A.2d 1156, 1160 (Me. 1993) (“An
easement created by necessity can include not only the right of entry and
egress, but also the right to make use of the easement for installation of
utilities, essential for most uses to which property may reasonably be put in
these times.”); Huggins v. Wright, 774 So. 2d 408, 412 (Miss. 2000)
(affirming grant of “easement of necessity . . . for ingress/egress and for
utilities”); see generally 1 Restatement (Third) of Prop.: Servitudes § 2.15
cmt. d (2000) (observing that “increasing dependence” on access to utilities
for reasonable enjoyment of property supports recognition of easement by
necessity).             
¶ 35.      
Given that the property here is residential in character, that
development is impossible without access to utilities, and that—absent any
evidence to the contrary—any additional burden to the servient estate by
allowing access to the utility lines is seemingly minimal, we have no
difficulty concluding that such access is necessary to the reasonable enjoyment
of the property, and that applicant is therefore entitled to an implied
easement by necessity for this purpose.  Moreover, given the reasonable
expectation that purchasers of lots within the Overlake Park development could
subdivide their property after 1995, we find no obstacle to the recognition of
an easement by necessity to both of the subdivided lots.  See Morrell,
622 A.2d at 1161 (rejecting claim that easement by necessity for utilities must
be limited “to serve only a single-family use of the . . . property” where
“[t]here was no evidence that the only lawful use of the . . . land would be
for one single-family home”).  Accordingly, we affirm the judgment on this
basis.  Caledonian-Record Pub. Co., Inc. v. Vt. State Coll., 2003 VT 78,
¶ 7, 175 Vt. 438, 833 A.2d 1273 (we may affirm where law and evidence support
“the same result as the trial court but based on different reasoning”).  
Affirmed.

 


 


FOR THE COURT:
 
 


 


 


 


 


 


Associate
  Justice

 


[1]
 Applicant’s sole question on appeal to the environmental court was whether the
condition requiring that it demonstrate access to Chittenden Drive was proper.


[2]
 Subsequent to applicant’s 2009 subdivision application, the Legislature
adopted a definition of “public road” that essentially incorporates the
definition accorded the term in Okemo but also expressly includes class one,
two, or three town highways as defined in 19 V.S.A. § 302(a) and class four
highways at the municipality’s discretion.  See 24 V.S.A. § 4303(33), 2011, No.
155 (Adj. Sess.), § 13.  The legislation also amended 24 V.S.A. § 4412(3) to
authorize development “on either a public road, class four town highway, or
public waters.”  2011, No. 155 (Adj. Sess.), § 13.   
 


[3]
 DeForest and Friends raised both separate and overlapping questions in the
environmental court, and have filed separate briefs with this Court.  Friends’
brief, however, addresses multiple issues while DeForest’s is confined to the
single question of whether applicant’s lot has the required frontage on a
public road or easement, an issue which is also comprehensively addressed in
Friends’ brief.  Accordingly, for convenience we shall refer to appellants
jointly as “Friends” in this section dealing with the subdivision appeal. 


[4]
 Although not cited by the trial court, the fact that the original plat map
depicts Chittenden Drive as a fifty-foot right-of-way directly adjoining Lot 76
rather than a paved thirty-foot road with ten-feet of green space on either
side, reinforces the conclusion that the purchasers of Lot 76 enjoyed a reasonable
expectation of roadway access.   


[5]
 DeForest conceded below applicant’s right to connect her existing home to the
utilities underlying the road.  
 


[6]
 The court’s judgment order granted applicant an implied easement across the
ten-foot strip for purposes of ingress and egress, as well as the right to
connect to “utility lines, including but not limited to, water, sewer, power,
and communications, that may be necessary for the use and enjoyment of said
property, including but not limited to, the construction and use of dwellings
on any lot that may be created by a subdivision of [applicant’s] property.” 
Despite this clear judgment, the trial court’s actual decision granting summary
judgment did not expressly address the utility question.  However, because the issue
was raised and litigated below and briefed on appeal, and the trial court’s
conclusion is clear from the judgment, we see no impediment to addressing the
issue here.   


