                                     STATE OF VERMONT

                                  ENVIRONMENTAL COURT



                In re: Appeals of Patrick           }
                Simoneau and William Penrod         }
                                                      Docket Nos. 210-9-00 Vtec
                                                    }
                                                      and 146-9-01 Vtec
                                                    }
                                                    }

                                        Decision and Order

    Appellants Patrick Simoneau and William Penrod appealed in Docket No. 210-9-00 Vtec
from a decision of the Planning Commission and in Docket No. 146-9-01 Vtec from a decision
of the Zoning Board of Adjustment (ZBA) of the Town of Colchester approving Appellee-
Applicant Winooski Valley Park District= s (the District) applications for site plan approval and
for a zoning permit for a 1400-foot-long footpath completing a loop around the south end of
Colchester Pond. Appellants are represented by Liam L. Murphy, Esq. and Lisa B. Shelkrot,
Esq.; Appellee-Applicant is represented by Scot L. Kline, Esq.; the Town is represented by
Richard C. Whittlesey, Esq.

    An evidentiary hearing was held in this matter before Merideth Wright, Environmental Judge,
who also took a site visit with the parties. The parties were given the opportunity to submit
written requests for findings and memoranda of law. Upon consideration of the evidence, the site
visit, and the written memoranda and proposed findings, the Court finds and concludes as
follows.

   Appellant Patrick Simoneau owns property and a residence near the south shore of Colchester
Pond and overlooking the Pond, where he has lived since the late 1980s. Appellant William
Penrod owns property and a residence adjoining and to the west of Appellant Patrick Simoneau=
s property. In the early 1990s, Appellee-Applicant Winooski Valley Park District began
purchasing property surrounding Colchester Pond. It has acquired property including the entire
shoreline of Colchester Pond, including a twenty-foot-wide strip of land along the southern
shoreline of the pond, between Appellants= properties and the pond, that is at issue in the present
appeals.

    Access to Colchester Pond and the District= s property around Colchester Pond is by a gravel
road, Colchester Pond Road, leading over a small bridge to an 18-car-plus-one-bus parking lot at
the southwesterly side of the pond. Parking is not allowed outside the gate to the parking lot
along the entrance road, and the District enforces a towing policy for such vehicles. The District
has posted signs on the entrance road advising visitors of this policy, but as of the date of the site
visit in the fall of 2001, the signs were ineffective for that purpose as they were posted in a
temporary form subject to being blown or folded over by the wind. The parking lot is gravel and
is open to the public from dawn until dusk daily, year round. The caretakers open and close the
gates controlling access to the parking lot. Colchester Pond Park is used in the warmer weather
for boating, swimming, picnicking and hiking, and in the winter for ice fishing. Hiking in the
winter is predominantly on the ice of the pond rather than on the trails.

    This area of the District= s property contains the caretakers= residence, an informational
bulletin board at which park policies and maps of the park land and paths are posted, a picnic
table near the pond, and a path down to the pond edge at which canoes and small boats may be
walked down to the pond and launched into the water. A trail around much of Colchester Pond
leads from the parking area towards the north and east. Another picnic table is located along this
trail about a quarter mile to the north of the parking lot, under a large tree and having a view
looking to the south over the pond. Farther along the trail along the north shore of Colchester
Pond is a peninsula jutting out into the pond that provides a good area for swimming and
picnicking. The trail proceeds around the northeast, easterly and southeasterly sides of
Colchester Pond, for a distance of more than two miles from the parking lot. Additional hiking
trails extend from this trail up into the hills to the north and east of the pond. Park policy is that
pets are required to be leashed on trails, and that no hunting or trapping is allowed at Colchester
Pond. The degree to which the District has in the past enforced or monitored its policies is not
before the Court in the present case.

    At the present time, the trail is not complete around the southwesterly segment of Colchester
Pond. Signs are posted at the parking lot bulletin board and along the trail partway around the
pond, warning users of the trail that it is not complete. Without the trail segment at issue in these
appeals, most of the Park= s users either access the pond by boat from the parking lot, or walk
some distance on the trails to or around the north end of the pond. Some users of the trail walk
all the way around the north and east sides of the pond to the south side of the pond where the
present trail terminates in open fields near Mr. Simoneau= s house.

   The land uses near the southerly end of Colchester Pond include three farm fields that are
actively cultivated for hay and are hayed twice a year. The farmer brings a tractor and its
associated mowing equipment and wagons as necessary to cut and process the hay and bring it
out. The equipment is brought in and out via a farm road which passes uphill from the pond
along Mr. Simoneau= s and Mr. Penrod= s property. Access to the farm road is controlled by a
padlocked gate near Mr. Simoneau= s house. Depending on weather conditions, each cutting
takes approximately a week. Three houses are located near the south end of Colchester Pond,
with two barns. One of the barns is used for horses, which are pastured in a field in the area.

    Outside the gates of the parking lot and south along the Park= s entrance road is an entrance to
or exit from the northwestern end of the proposed trail segment. Access from the entrance road
to this segment leads first to a series of small gravel peninsulas constructed to support double
pole towers holding electricity transmission lines. Access to these gravel peninsulas has
traditionally been used for fishing, even prior to the District= s acquisition of the land
surrounding the rest of Colchester Pond.

   In the applications that are the subject of the present appeals, the District proposes to
complete the trail around the southwesterly segment of Colchester Pond, for a distance of
approximately1400 feet. The proposed trail would be two feet wide and would follow a path
generally as marked in orange on the District= s Exhibit 2. The map shown in Exhibit 2 meets the
submission requirements of ' 1803.1(a) of the Zoning Regulations, as there are no
improvements= proposed in association with this project. The proposed trail segment is located
entirely on land owned by the District between Colchester Pond and Appellants= property, and
does not involve the construction of any boardwalks or other structures or the placement of any
fill. The district proposes to mow or cut vegetation on the trail, but to leave low vegetation
growing in the trail to assist in preventing erosion of the trail.

    Other than cutting the vegetation on the pathway of the trail itself, and removing branches
extending across the trail, no removal of vegetation will be associated with the creation or
maintenance of the proposed trail. A wire fence approximately four feet high runs along the
property line between Appellants= property and the District= s property. This fence is and would
continue to be effective to prevent users of the proposed trail from trespassing onto Appellants=
property. The route of the new trail segment, described from north to south, runs along the shore
adjacent to the electric transmission tower peninsulas. Southerly of the first two electric
transmission tower peninsulas, the proposed trail segment turns to the west and sharply uphill to
avoid a pool or deeper marsh area which extends inland from the shoreline. The trail follows
either of two alternate upland routes, one near the boundary fence and one partway down the hill
from the boundary fence. It then proceeds downhill again, and generally follows the fenceline to
the farm road gate near Mr. Simoneau= s house. The vegetation surrounding the footpath is from
two to five or six feet tall, as the path traverses the lower area at about the elevation of the
shoreline. Within the vegetated areas the trail segment will be marked by the distinction between
the mowed surface of the trail segment and the taller, unmowed surrounding vegetation. Within
the woods uphill from the pool area, the trail will need to be marked by paint, or other markers
applied to the trees or along the rocks or markers inserted into the soil at the edges of the trail.

    Mr. Penrod= s house is well-screened by existing vegetation from users of the new trail
segment. Mr. Simoneau= s house is well-screened by existing vegetation from users of the new
trail segment until the southernmost end of the new trail segment, near the farm road gate, where
the area opens up to the existing farm fields traversed by the end of the existing trail. The
proposed trail segment has adequate existing vegetation (landscaping) and screening to meet the
site plan approval requirements without additional plantings. Setbacks are technically
inapplicable as the proposed trail segment does not involve any buildings, structures or other
improvements. The proposed trail segment will not adversely affect the considerable scenic and
natural beauty or the aesthetics of the area.

    Colchester Pond Park= s caretakers monitor the number of cars in the parking lot, but they are
not always present at the park. The District= s Executive Director has visited the Park
approximately weekly on weekdays for approximately four years, and on weekends less
frequently. As of 1999, when the segment of trail was open for a time, the caretakers observed1
approximately 311 cars using the parking lot in the heaviest month of use, with an average of
15.2 cars using the lot on the heaviest weekend day. From these observations, the District
estimates that no more than approximately 60 people visit Colchester Pond Park on even the
busiest day. Only some portion of those visiting the Park are expected to reach and use the new
trail segment at issue in the present appeals, as there are attractions on land to the north and east
of Colchester Pond and many visitors come for the purpose of boating and fishing from boats out
on the pond, and not for using the land adjacent to the pond. When this trail segment was open in
1999, Mr. Simoneau observed in the low-usage month of November approximately 60 users, or
approximately two users per day, at the proposed trail segment.

    The southerly end of Colchester Pond consists of open water, merging into deep marsh,
merging into shallow marsh as it approaches the shoreline. The marsh vegetation absorbs the
energy of water moving onto the shoreline from the open water of the pond, and the roots of the
vegetation stabilize the shoreline and help prevent erosion. The proposed route of the trail would
leave the marsh vegetation and the immediate shoreline vegetation undisturbed. The marsh areas
are classified as a Class III wetland under the Vermont Wetland Rules. An unimproved footpath
such as the one proposed in this application is an allowed use even if the wetlands were regulated
as a Class II wetland. The proposed trail does not involve any filling, grading, dredging or
alteration of the flow of water in or out of the wetland. Vegetation on the proposed trail is
proposed to be cut low to the ground but leaving the roots and low growth intact to prevent
erosion. No herbicides, insecticides or other chemicals will be used in connection with the
proposed trail or its maintenance. The volume of hikers would have to exceed 50 to 60 people in
a day in order to cause unacceptable wear on the vegetation and risk erosion of the trail surface.
With the level of use predicted by the District, the proposed trail will not cause undue water
pollution, will not cause unreasonable soil erosion or compaction, and will not cause any undue
adverse effect on the wetlands (that is, on any rare or irreplaceable natural areas).

    The species of wildlife observed at the south end of Colchester Pond include birds, small
mammals, amphibians and reptiles. The bird species include the swamp sparrow, the American
bittern, the great blue heron, the mallard duck, the Canada goose, the ringtail gull, the cormorant,
the belted kingfisher, the tree swallow, the barn swallow, and the osprey. While some of the
species, in particular the bittern, are secretive in habit, they habituate easily to the level of human
presence predicted for the use of this segment of trail, even during nesting season. None of the
observed species, including those shown on Mr. Simoneau= s photographs (Exhibits K through
Y), are rare, endangered or threatened species. Based on expert observations of wildlife behavior
near trails through wetlands in the Missisquoi National Wildlife Refuge, the Dead Creek Wildlife
Management Area, the Mud Creek Management Area, and the Green Mountain Audubon
Society land in Huntington, the proposed trail segment is not expected to reduce the number of
wildlife species or the populations of those species in the area of the proposed trail segment.
With the level of use predicted by the District, the proposed trail segment will not have an undue
adverse effect on the wildlife in the area (that is, on any rare or irreplaceable natural areas).

   With the level of use predicted by the District, the proposed trail segment also will not have
an undue adverse effect on the character of the area. The south end of Colchester Pond receives
boating use and the use of the existing trail to its present terminus. Its adjoining land uses include
farm fields and their associated haying-related uses, a few residences and their associated barns
and horses. People fish from the gravel peninsulas supporting the electric transmission towers,
and access those peninsulas from the Park entrance road. The two-foot-wide proposed trail
segment is consistent with the character of the area through which it runs.

    However, the protection of and lack of adverse effect upon the area affected by the proposed
trail segment depends entirely on whether the District is correct in its predictions regarding the
number of people expected to use the new segment of trail. To avoid an adverse effect on the
character of the area, not only must the number of users of the trail not exceed a maximum of
approximately 60 on any day, but those users must be distributed through the day so that the
hourly rate will not cause undue noise and disturbance to the neighboring residents or the
neighboring wildlife. The Court does not find it convincing that the majority of users will
necessarily access the new trail segment by going all the way around Colchester Pond to the
north and east and south. Some number of new users will access the new trail segment from the
entrance road.

   Accordingly, approval of the proposed trail segment must contain the following conditions to
assure that no undue adverse effect will result from the completion of the loop trail and the
consequent access from the entrance road end of the proposed trail segment. Based on the
foregoing, it is hereby ORDERED and ADJUDGED that the proposed trail segment is approved
with the following conditions:

1. The District shall not allow any more usage of the proposed trail segment than 60 people per
day. Except for organized school, homeschool, camp, birdwatching, nature study or other
organized groups, and except for persons fishing from the northerly gravel peninsulas who have
accessed the trail segment from the north, the District shall not allow more than 12 people to use
the trail segment in any given hour. The District shall institute a reservation system for larger
groups to distribute their use of the proposed trail segment.

2. In the first full season of operation, from May 1 through October 312, the District shall post
two employees or agents, paid or volunteer, as follows at least on Fridays, Saturdays and
Sundays,3 to observe and record the hourly usage of the trail segment, to monitor and enforce the
usage requirements of this order, and specifically to record any usage beyond the levels required
by this order that they find themselves unable to enforce. One shall be located near the southerly
farm road entrance to the trail segment; the other shall be located at the northerly entrance to the
trail segment or in the area between that point and the northernmost of the gravel peninsulas. The
two district employees or agents shall be equipped with a two-way radio set or similar
communications equipment, to enable them to communicate to each other regarding the numbers
or descriptions of persons seeking to enter the trail from each end.

3. On or before the 15th of each successive month, the District shall supply the results of these
observations for the preceding month in writing to the Town and to Appellants.
4. Before opening the trail segment for operations, the District shall post a description of the trail
segment, including a warning of its steepness, the prohibition on the use of the private farm road
as an alternative exit, and information about the trail segment= s use limitations and the number
to call for group reservations, at the following locations: at the bulletin board at the parking lot;
at a point along the north shore of the Pond at which the trail leaves the picnic and swimming
areas and proceeds around the east shore; at the halfway point around the east shore (at this
location together with information that this is the halfway point); at the farm gate southerly end
of the trail segment (at this location together with a statement that unauthorized use of the private
farm road is prohibited); and at the northerly entrance to the trail segment from the entrance
road.
5. Before opening the trail segment for operations, the District shall file with the Town for its
permit files for this project4, with a copy to the Court for the Court= s file, an enlarged site plan
of only this area of the Park, specifically showing the two-foot-wide trail specifically located
within the 20-foot-wide strip of District-owned land, and specifically showing the two alternate
routes of the trail above the pool.
6. At any time after the fourth full month of operation of the trail segment, any party may file an
application with the appropriate town body for amendment of the permit conditions, based upon
the information collected under these conditions and any other observations of the functioning of
the trail segment. Any such application, if appealed, would be a new appeal and not a
continuation of the present appeal. This provision is in addition to and without prejudice to the
rights of any parties to enforce this order, or any permit issued based on this order, under the
provisions of 24 V.S.A. ' ' 4444, 4445, or 4470(c), or the general contempt authority of the
courts. It is also without prejudice to any request to amend that might result if the wetland in the
area were reclassified as a Class II wetland under the State wetlands regulations.

    Done at Barre, Vermont, this 21st day of May, 2002.



______________________________________
Merideth Wright
Environmental Judge



                                             Footnotes
1
   These numbers tend to underestimate the actual number of cars and assumed numbers of users
of the park. The observations were not done continuously over the time period, of actual cars
moving into and out of the parking lot, but rather were ‘snapshots’ of the numbers of cars there
at the times of observation. Users of the park who are present for only a portion of the day may
not be separately counted. Also, the assumed number of persons per car was set at two, which
can be expected to yield a low estimate as it does not account for family or group use. Further,
the parking lot accommodates a bus but no bus use was presented in the observations.
2
  That is, from whatever date the trail segment begins operation (after conclusion of any further
appeals) through October 31 in that year, and from May 1 to the anniversary of the initial
operation date in the following year, so that the trail use is monitored and data is collected for
one full warm-weather operating season
3
  The District is, of course, free to monitor the use of the Park or this trail segment at other times
of the year or on other days of the week, and is free to provide persons with naturalist training
who can also inform visitors regarding the bird or animal species or wetland environment.
4
 Please note that this is NOT a requirement that the site plan be filed with the Planning
Commission for any further approval. Rather, it is a requirement that the specific location of the
trail segment as testified to at trial and as demonstrated to the Court during the site visit be
memorialized on paper for the files. See the confusion caused by a similar but inadequately-
explained requirement in In re Appeal of Miserendino, Docket No. 2000-189, slip op. at 2-3 (Vt.
Supreme Ct., August 23, 2001) (decision of three-justice panel).
