                                                       STATE OF VERMONT


                                                ENVIRONMENTAL COURT


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Appeal of Teeter                                        }            Docket No. 195-11-03
                                                Vtec
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       Decision and Order on Appellees' Motion to Dismiss and for Summary Judgment

      Appellant Stanley Teeter appealed from a decision of the Planning Commission[1] of

the Town of Norwich approving a three-lot subdivision of property of Appellee-Applicants

Edwin and Joyce Childs. Appellant is represented by Brad W. Wilder, Esq.; Appellee-

Applicants Edwin and Joyce Childs are represented by C. Daniel Hershenson, Esq.; and

the Town of Norwich is represented by Frank H. Olmstead, Esq. Appellee-Applicants have

moved to dismiss Questions 1, 2 and 3 of the Statement of Questions as moot or beyond

the scope of the Environmental Court's jurisdiction, and have moved for summary judgment

in their favor on Questions 4 and 5 of the Statement of Questions.


      The following facts are undisputed unless otherwise noted.       Appellee-Applicants

own an approximately rectangular 85.94-acre parcel of land, bounded on its northeasterly

truncated corner by Turnpike Road, a town road. An existing fifty-foot-wide non-exclusive
right-of-way (the "fifty-foot-wide right-of-way")   runs southerly from Turnpike Road on

Town land along an existing parcel owned by Jorgensen[2], and continues on Town land

along or near the easterly boundary of Appellee-Applicants' property. Appellee-Applicants'

property is bounded both on its easterly and its southerly sides by land now owned by the

Town, on its westerly side by land of the Barbara G. Britton Revocable Trust, and on its

northerly side by Appellant's land.

       In October of 1978, Allen H. Britton, Jr., conveyed to the Town of Norwich a 7.3-

acre triangular parcel of land bounded on its westerly side by the Childs parcel at issue in

the present appeal and extending some 70 feet onto the Town land lying to the south of

the Childs parcel, bounded on its northeasterly side by Turnpike Road, and bounded on its

southerly side by then-retained lands[3] of Britton. In that conveyance to the Town, Britton

reserved the fifty-foot-wide right-of-way running from Turnpike Road to what was then

Britton's retained land. The deed also provided that "[i]t is further expressly a condition

of this conveyance that:"

       1. Edwin S. Childs and Joyce B. Childs, contig[u]ous land owners along
       the westerly boundary of the parcel herein conveyed shall use a part of the
       reserved right-of-way for access to the lands of the Childs.
              *                       *                    *
       5. That the land is not to be used for any over night activities.
       Appellee-Applicants propose to subdivide their property into three parcels containing

18.08, 6.00, and 61.86 acres, respectively, and to deed the 61.86-acre parcel to the

Town, with conservation restrictions being held by the Upper Valley Land Trust.


       After the subdivision approval had been appealed to this Court, but before the

briefing of these motions, in March of 2004, in contemplation of and conditioned on this

subdivision and the conveyance to the Town of the 61.86-acre parcel, the Town granted

to Appellee-Applicants a non-exclusive easement over the fifty-foot-wide right-of-way, plus

an easement of an additional narrow triangle of land to filling in the small area between

the existing fifty-foot-wide right-of-way and the easterly boundary of the 61.86-acre parcel,

with the right to locate and the duty to maintain a private driveway or road within that

right-of-way for vehicular and pedestrian access to the 6-acre parcel and to the 61.86

parcel, and for underground residential utility lines to the 6-acre parcel. In the 2004 right-

of-way easement deed, Appellee-Applicants relinquished to the Town any claim to use the

portion of the fifty-foot-wide right-of-way continuing southwesterly of the end of that

additional triangle. In the 2004 right-of-way easement deed, the Town may (but has no

duty to) improve, repair, or maintain any driveway or road located within the easement

area. On land owned by the Town, the Town maintains a hiking trail known as the Gile

Mountain Trail, extending towards Gile Mountain at least from the end of the 2004 right-

of-way deeded to Appellee-Applicants.
       The proposed 18-acre parcel has frontage on Turnpike Road, is bounded on the

north by Appellant's property, and contains Appellee-Applicants' existing residence.

Access to it is by an existing driveway directly from Turnpike Road. No issues are raised

in this appeal with respect to the proposed 18-acre parcel.

       The proposed 6-acre parcel has frontage only on the fifty-foot-wide right-of-way on

Town land. It is proposed to have access to Turnpike Road by a private road or driveway

running along the fifty-foot-wide right-of-way. The proposed 6-acre parcel is intended to

be developed in the future for single-family residential use; the subdivision plan shows a

building envelope for such future development.

       The remaining 61.86-acre parcel is proposed to be conveyed to the Town after

conservation easements and use restrictions have been conveyed to be held by the Upper

Valley Land Trust. Access to it is proposed to be over the fifty-foot-wide right-of-way and

the new easement triangle. It is not proposed for development of any structures.


       The proposed three-lot subdivision qualifies to be considered as a minor subdivision

under §2.1(B) of the Subdivision Regulations, and to proceed directly to final plan approval

as the total density does not exceed one unit per twenty acres. §2.3(A)(1). Two of the

conditions imposed in the Planning Commission's approval of the proposed subdivision

addressed the issue of the access for the 6-acre lot: that no building permit be issued for

a residential structure until a town access permit has been issued for the intersection of
the driveway with Turnpike Road, and until a permanent right-of-way has been granted

and recorded by the Town for the portion of that driveway located on Town land. It is not

necessary to the present motions to determine whether these conditions have been

satisfied by the March 2004 right-of-way easement (Exhibit E) and the access permit

attached to the affidavit of Edwin S. Childs.

       In the present appeal the Court only has jurisdiction to determine whether the

proposal complies with the requirements of the subdivision regulations. The Court cannot

otherwise resolve private property disputes as between the parties, and cannot interpret

deed language unrelated to the requirements of the subdivision regulations. See, e.g.,

Appeal of Keough, Docket No. 244-11-02 Vtec (Vt. Envtl. Ct., March 11, 2003).

       In Questions 1 and 2 of the Statement of Questions, Appellant challenges whether

the language in condition 1 in the 1978 deed from Britton to the Town, conditioned on

allowing the Childs to use "a part of the reserved right-of-way for access to" their land,

was adequate to provide Appellee-Applicants with rights of access from the proposed 6-

acre parcel and the proposed 61.86-acre parcel to Turnpike Road. Because the Town

owns the land lying under the fifty-foot-wide right-of-way, and there is no dispute that the

Town has deeded directly to the Childs a new easement for driveways to serve the 6-acre

parcel and the 61.86-acre parcel over that fifty-foot-wide right-of-way, the question of

whether Appellee-Applicants already held sufficient rights of access over the fifty-foot-wide
right-of-way has become moot.        Accordingly, Appellee-Applicants' motion to dismiss

Questions 1 and 2 as moot is GRANTED.

       In Question 3 of the Statement of Questions, Appellant claims that the language in

condition 5 in the 1978 deed of the 7.3-acre triangular parcel from Britton to the Town,

that the then-granted "land is not to be used for any over night activities," prevented the

Town from later granting the 2004 right-of-way over that land to be used for access to

Appellee-Applicant's land.


       The Court has jurisdiction to determine whether the 2004 right-of-way was deeded

as a permanent easement or right-of-way and whether it is at least twenty feet wide,[4] a

prerequisite under the state statute to development of land with access to a public road via

a private road or right-of-way. The Court does not have jurisdiction to interpret language

in the 1978 deed unrelated to the requirements of the subdivision regulations[5] and the

state statute, nor to determine whether Appellant would have standing in superior court to

obtain a declaration or interpretation of the deed from Britton to the Town, nor to

determine whether any rights reserved to Britton in the 1978 deed may have since

transferred to the Town or been extinguished by the Town's acquisition of any additional

Britton property benefitted by that right-of-way. Accordingly, Appellee-Applicants' motion to

dismiss Question 3 as beyond the jurisdiction of the Environmental Court is GRANTED.
       Appellee-Applicants have moved for summary judgment on Question 4 of the

Statement of Questions, arguing that the 6-acre lot and the 61.86-acre lot meet the

requirements for access to a public road. As of the date of their application, the state

statute required that a developable lot without frontage on a public road (or waters) have

access to such a public road, approved by the planning commission, by a permanent

easement or right-of-way at least twenty feet in width. 24 V.S.A. former §4406(2); and

see current §4412(3). The Norwich subdivision regulations do not require a greater width

for such an access right-of-way than that required by the state statute. As discussed

above, Appellee-Applicants have access from a public road (Turnpike Road) to the 6-acre

lot and to the 61.86-acre lot over the 2004 deeded right-of-way.          It is a permanent

easement or right-of-way, and is fifty feet in width. It is therefore adequate to satisfy the

minimum requirements for access to a public road.           24 V.S.A. former §4406(2).

Accordingly, Summary Judgment is GRANTED to Appellee-Applicants on Question 4 of the

Statement of Questions.

       Appellee-Applicants have moved for summary judgment on Question 5 of the

Statement of Questions.     Appellant argues that subdivision should not be approved

because the access "would likely be over a legal trail."        The only reference in the

Subdivision Regulations to the term "legal trail" is found in Table 3.2, Note 2, which

refers to the "Norwich Trails Ordinance" for the information that a "Legal Trail, although
a Town right-of-way, may not be used for vehicle access to a newly created parcel."

Neither party has provided the Trails Ordinance, and it is not incorporated by reference in

any regulatory provision of the Subdivision Regulations.         All that the Subdivision

Regulations require is that any access to a town road be approved by the Selectboard.

Even if the 2004 right-of-way were a >trail' as defined by the state highway statute, 19

V.S.A. §301(8), nothing in the Subdivision Regulations precludes Selectboard approval of

a private driveway over a town trail, with appropriate conditions for private maintenance of

that driveway.

       However, the present case is not an instance of the Town holding a right-of-way

for public use as a roadway or footpath over other owners' lands. Rather, the land lying

under the fifty-foot-wide right-of-way is owned by the Town; and as owner, the Town has

granted a non-exclusive right-of-way easement to Appellee-Applicants for their purposes of

placing a driveway for access to the 6.1-acre parcel and the 61.86-acre parcel. Even if

that deeded right-of-way also provides pedestrian access to a hiking trail extending to the

south and west of that deeded right-of-way, that fact does not transform the land lying

under the deeded right-of-way into a legal trail under 19 V.S.A. §301(8).         Therefore,

Summary Judgment is GRANTED to Appellee-Applicants on Question 5 of the Statement

of Questions.
      Accordingly, based on the foregoing, it is hereby ORDERED and ADJUDGED that

Appellee-Applicants' Motion to Dismiss Questions 1, 2, and 3 of the Statement of

Questions as moot or beyond the jurisdiction of the Court is GRANTED; and Summary

Judgment is GRANTED in Appellee-Applicants' favor as to Questions 4 and 5 of the

Statement of Questions.

      All the issues raised in the Statement of Questions have been addressed in this

decision and order, suggesting to the Court that no issues remain to be heard on the

merits of the appeal. However, Appellant's Memorandum, at page 8 (top paragraph) and

in the "conclusion" section on pages 8-9, argues that if the proposed subdivision were to

be approved, additional restrictions and conditions should be imposed. Accordingly, we

will hold a telephone conference on March 3, 2005 (notice enclosed) to determine

whether any issues remain or whether a judgment order should be entered concluding the

appeal.




      Done at Berlin, Vermont, this 22nd day of February, 2005.
                               _________________________________________________
                                       Merideth Wright
                                       Environmental Judge



       [1]
             Appellee-Applicant Edwin Childs was the Chair of the Planning Commission at
the time of the final hearing on this application, but recused himself during the
consideration of his application. In any event, this is a de novo appeal and the parties do
not raise any issue regarding this recusal.

       [2]
              The Jorgensen parcel, formerly part of the Childs' land, is not at issue in this
appeal. It lies westerly of and has frontage on the existing fifty-foot-wide right-of-way, but
access to it is by a driveway directly from Turnpike Road.

       [3]
              It appears from a comparison of Exhibit B and Exhibit F that at least some of
the then-retained land owned by Britton at the time the reserved right-of-way was created
has since also been conveyed to the Town. The parties have not presented documents in
this proceeding sufficient to determine whether the grantor's and grantee's rights to the
1978 right-of-way have both come into possession of the Town, and, if so, what are the
consequences for the purposes of the proposed subdivision.

       [4]
             The Court would also have jurisdiction to determine whether any roadways
proposed to be constructed on the right-of-way met the requirements of §3.7 of the
Subdivision Regulations; however, compliance of the proposed driveway for the 6.1-acre lot
with the requirements of §3.7 is not at issue in this appeal. The 2004 right-of-way deed
allows the driveways to be located within the right-of-way at a width up to that consistent
with the private highway specifications in place at the time of development, or such
specifications approved by the Selectboard at the time of development.
      [5]
            We note that all that is before the Court is the subdivision of the property, not
any application under the zoning ordinance to make any proposed use of the property.
