                                  STATE OF VERMONT

                               ENVIRONMENTAL COURT

                                           }
In re: Morris 7-Lot Subdivision            }       Docket No. 71-4-07 Vtec
       (Appeal of Kelley)                  }
                                           }

               Decision and Order on Cross-Motions for Summary Judgment

       Appellants Evelyn Kennedy Kelley and the Evelyn Kennedy Kelley Trust appealed

from a decision of the Planning Commission of the Town of Fayston, granting site plan

approval to Appellee-Applicants Robin and Jennifer Morris (Applicants) for a seven-lot

subdivision. Appellants are represented by John G. Hutton, Jr., Esq.; Appellee-Applicants

are represented by Paul S. Gillies, Esq.

       Applicants have moved for summary judgment on all questions1 in Appellants’

Statement of Questions. The following facts are undisputed2 unless otherwise noted.

       Applicants own a 130.5-acre parcel of hillside property, part of which is in the Rural

Residential zoning district and part of which is in the Soil and Water Conservation zoning

district. The terrain is steeply sloping, with heavily wooded areas containing large stands

of beech trees that serve as a deer- and bear-wintering habitat. A recreational trail is also

located on the property, available for use by the public.

       The property essentially consists of two discrete sections, joined at a corner. The

more westerly section is a rectangle of land at a higher elevation up the mountainside; it



       1
           There is no question numbered 17.
       2
        Questions 1 through 7, although posed as questions, are factual statements that
more properly should have been placed in a statement of undisputed facts that is required
by V.R.C.P. 56(c)(2) to accompany the motion and opposition.

                                               1
lies completely in the Soil and Water Conservation zoning district and is not proposed for

development. The more easterly section of the property is bounded on its east and north

by Fayston Town Highway 21, also known as Old Center Fayston Road, or Armstrong

Road.3 The road is a Class 4 public highway in the location of the property; it has not been

maintained by the town.

       Access to the property from Vermont Route 100 in Waitsfield is over Old County

Road (Waitsfield Town Highway 14) to Old Center Fayston Road, in a westerly and

northerly direction.4 Old Center Fayston Road enters the Town of Fayston at Appellants’

property, and continues as a Class 4 “unimproved” road past Appellee-Applicants’

property towards the west-northwest, where it joins the gravel Class 3 Center Fayston

Road (Fayston Town Highway 4).

       The parties dispute the extent to which Old Center Fayston Road in its present

condition can carry vehicular travel to the proposed subdivision roadway entrance. That

disputed fact is not material to the present motions; the parties do not dispute that

Applicants propose to upgrade the road sufficiently to provide access to the internal

subdivision roadway.

       Appellant Trust owns a 2.2-acre parcel of property on the east side of Old Center

Fayston Road, part of which is located in Waitsfield (1.6 acres) and part in Fayston (0.8

acre), between the end of the currently-improved portion of Old Center Fayston Road and

the access road to the proposed subdivision. Appellants’ property is situated across the

road from property unrelated to this appeal, at an elevation lower than that property and

lower than the elevation of Applicants’ property. Appellants’ property is subject to

existing water runoff and sedimentation problems.


       3
           Question 5 of the Statement of Questions.
       4
           Question 6 of the Statement of Questions.

                                             2
       Applicants propose to subdivide thirty-five acres in the easterly portion of the

project property into seven residential building lots, each of which will consist of

approximately four to five acres of development land (with smaller building envelopes).

The remainder of both sections of the property, approximately ninety-five acres, is

proposed to be restricted as conservation land. Although three of the proposed lots have

frontage on Old Center Fayston Road, all seven lots are proposed to have access only from

the proposed subdivision roadway, so that only one curb cut (for the subdivision roadway)

is proposed onto Old Center Fayston Road.

       Lot 1 is proposed to have an area of 4 acres; Lot 3 is proposed to have an area of 5.3

acres; Lot 6 is proposed to have an area of 5.1 acres; Lot 2 is proposed to have an area of

17.7 acres, approximately half of which is restricted as conservation land; Lot 4 is proposed

to have an area of 10.1 acres, approximately half of which is restricted as conservation land;

Lot 5 is proposed to have an area of 13.1 acres, approximately half of which is restricted as

conservation land; and Lot 7 is proposed to have an area of 75.3 acres, including some

conservation land within the easterly parcel as well as including the whole of the westerly

parcel of conservation land.5

       Each lot is proposed to be limited to a single-family, five-bedroom residence. Each

lot is proposed to be served by an individual well and an individual septic system. Each

septic system is located on the lot which it serves, except that the leach field for Lot 6 is

located on Lot 7.6 A fifty-foot vegetated buffer is proposed along the roadway and at the

westerly boundary of the development land.


       5
           Question 4 of the Statement of Questions.
       6
          Question 4 of the Statement of Questions. The undated “Project Description”
states that Lots 5 and 6 share a septic system; however, Sheet S-6 of the project plans,
revised at the end of December of 2006 shows the leachfields for Lots 6 and 7 to be located
on Lot 7.

                                              3
       The project that is the subject of this proceeding is described in the application for

subdivision approval, consisting of plans dated July 10, 2006, with revision dates of October

12, 2006, November 2, 2006, and December 27, 2006, as attached to Appellee-Applicants’

Exhibit 2.7 The 2004 Land Use Regulations and the 2006 Town Plan are the applicable8

versions of those documents.

       On April 8, 1996, the Fayston Selectboard had granted permission to Applicants to

perform work on Old Center Fayston Road (also described as Class 4 Armstrong Road or

Town Highway 21), for the purpose of ingress and egress to and from the project,9 subject

to conditions. The 1996 approval was to be recorded in the town land records, and the

terms of the approval were specified as running with the land and binding on “the parties

hereto, their heirs, successors and assigns.” No appeal of the 1996 Selectboard action was

taken to superior court.

       Ten years later, on April 10, 2006, the Selectboard granted amendments to that

approval, reducing the allowable grade of the road and increasing the minimum size of the

proposed culverts, to conform to the 2004 amendments to the land use or zoning

regulations. No appeal of the 2006 Selectboard action was taken to superior court. The

approval is limited by its terms to the portion of Old Center Fayston Road that will be used

to access the property. On January 8, 2007, the Selectboard further amended its approval

to recognize that the surveyed length of the road upgrade is 2,065 feet, and to establish a

recreation trail within the Town’s road right-of-way (which the Selectboard minutes

characterized as a “50 foot right of way”). No appeal of the January 2007 Selectboard

action to superior court has been brought to the attention of this court.


       7
           Question 1 of the Statement of Questions.
       8
           Question 2 of the Statement of Questions. The Plan has not been provided.
       9
           Question 7 of the Statement of Questions.

                                             4
       The Planning Commission approved the subdivision application10 on March 6, 2007.

The application is now before the Court in this appeal de novo.



Questions 1 through 7 of the Statement of Questions

       As to the facts stated in Questions 1 through 7 of the Statement of Questions,

summary judgment is granted as to those facts as stated above, corresponding with the text

at each footnote above.



Questions 8, 11 and 18 of the Statement of Questions

       Appellants’ Question 8 asks whether the Fayston portion of Old Center Fayston

Road affords “the minimum width of 50 feet required for an access road to a

development,” which Appellants characterize as being required by § 6.4(B)(1) of the Land

Use Regulations.

       The parties do not disagree that the width of Old Center Fayston Road has not been

“otherwise recorded” and that therefore its presumed width is three rods, which is equal

to 49½ feet.11 19 V.S.A. §§ 32 and 702. Section 6.4(A) establishes the applicability of the

road standards found in the remaining subsections of § 6.4 (including § 6.4(B) governing

road design). Section 6.4(A) states that: “[t]hese standards apply to all proposed public

roads and to private roads serving three or more lots.” (Emphasis added.) The proposed

roadway within the subdivision must meet12 the remaining subsections of § 6.4, because it



       10
            Question 3 of the Statement of Questions.
       11
        Although the three-rod width has been treated by the Supreme Court as the
equivalent of fifty feet in at least one appeal. Morse v. Murphy, 157 Vt. 410, 411–12 (1991).
       12
         Unless a requirement is waived by the Planning Commission, or this Court in a
de novo appeal, pursuant to § 6.4(B)(1).

                                             5
is proposed to serve seven lots; Applicants do not dispute this requirement.

       The recognized canons of statutory construction are applicable to this appeal. In re:

Kim Wong Notices of Violation, Docket Nos. 169-7-06 Vtec and 293-12-06 Vtec, slip op. at

2 (Vt. Envtl. Ct., Mar. 12, 2007). The court must give “effect to the whole and every part of

the ordinance,” In re Stowe Club Highlands, 164 Vt. 272, 279–80 (1995) (citation omitted),

so that no language is surplusage, In re Dunnett, 172 Vt. 196, 199 (2001), and so that the

construction does not produce an absurd result. Willard v. Parsons Hill Partnership, 2005

VT 69, ¶21, 178 Vt. 300, 308 (2005).

       Appellants argue that not only the proposed subdivision roadway, but also the

existing Old Center Fayston Road, must meet the minimum right-of-way width required

by § 6.4(B)(1). However, the Old Center Fayston Road, regardless of its present condition,

is an existing public road, not a proposed public road, and therefore is not required to meet

the 50-foot right-of-way width. Indeed, a contrary interpretation would produce the

absurd result that all proposed subdivisions served by three-rod roads would have to

obtain an additional six-inch strip of right-of-way from the landowners adjoining those

roads, as no private applicant would have the condemnation power otherwise to

accomplish that result.

       Rather, reading the Land Use Regulations as a whole, §6.4 requires that applicants

only have the obligation to create fifty-foot-wide rights-of-way over underlying land that

they own, whether the right-of-way will be used for new proposed public roads or for

internal subdivision roads that may remain private. This requirement ensures that,

especially if the town might be asked to take such roads over in the future, such roads

would be constructed to adequate standards. The fact that the Applicants were granted

the right to upgrade the conditions of the existing public road does not convert it to a

proposed public road, as it is already existing.

       Accordingly, Appellee-Applicants’ Motion for Summary Judgment as to Question

                                             6
8 is GRANTED.



       Question 11 asks whether the project, if constructed as shown and described in the

documents submitted, will comply with §6.4(B) of the Land Use Regulations, which

establishes road design standards. Applicants have presented evidence in an affidavit from

the project engineer, with attached detailed site plans, demonstrating that the subdivision

roadway complies with all the standards in §6.4(B), and also that the improvements to Old

Center Fayston Road will meet those design standards13 (other than as to the issue of the

right-of-way width for Old Center Fayston Road dealt with in Question 8). Question 18

asks whether the permit should be denied due to lack of compliance with the right-of-way

width or design standards.

       When both parties move for summary judgment, each motion for summary

judgment is to be analyzed giving the nonmoving party the benefit of all reasonable doubts

and inferences. Alpine Haven Property Owners Ass'n, Inc. v. Deptula, 175 Vt. 559, 561,

2003 VT 51, ¶8. In responding to a motion for summary judgment supported by affidavits

and other evidentiary material, the nonmoving party “may not rest upon the mere

allegations or denials in its pleadings.” White v. Quechee Lakes Landowners’ Ass’n, 170

Vt. 25, 28 (1999). Rather, V.R.C.P. 56(e) requires that the opposing party must set forth

specific facts showing a genuine issue for trial. Dillon v. Champion Jogbra, Inc., 175 Vt. 1,

2–3 (2002). Those facts must be supported by affidavits or other evidentiary material.

Morway v. Trombly, 173 Vt. 266, 270 (2001). It is not sufficient for the opposing party to

rely on “conclusory allegations or mere conjecture.” Mello v. Cohen, 168 Vt. 639, 641 (1998).

“[M]ere allegations of counsel unsupported by documented evidence are not enough to


       13
         While no request for a waiver was before the Planning Commission or is before
the Court, § 6.1(B) does allow the Planning Commission to waive or vary subdivision
review standards, subject to appropriate conditions, in the context of § 7.1(E).

                                             7
create a genuine issue of material fact” sufficient to preclude summary judgment.

Progressive Ins. Co. v. Wasoka, 178 Vt. 337, 349, 2005 VT 76, ¶25.

       Accordingly, summary judgment on Questions 11 and 18 also will be granted in

favor of Applicants, at a telephone motion hearing scheduled in the final paragraph of this

decision, unless at that hearing Appellants come forward with evidence to show that

disputed material facts remain for trial on these questions.



Question 9 of the Statement of Questions

       Question 9 of the Statement of Questions asks whether the Selectboard’s grants of

approval for improvement of the road grants “rights” that are “perpetual and irrevocable.”

Appellee-Applicants argue that, because the three Selectboard decisions were not appealed

and because the approval has no termination date, their rights to upgrade the road are

perpetual and irrevocable. However, neither party has shown any section of the Land Use

Regulations that requires that a developer must have a right, rather than a mere

authorization or license, to perform work on a public roadway, nor that such an

authorization must be perpetual or irrevocable. Without a reference to a section of the

Land Use Regulations under which the duration of the Selectboard’s grants of approval to

upgrade the road comes within this Court’s jurisdiction in this subdivision case, the Court

would have no jurisdiction to determine this question.

       Accordingly, Question 9 will be dismissed at the telephone motion hearing

scheduled in the final paragraph of this decision, unless it is shown to be within the

jurisdiction of this Court in this case.



Questions 10, 12 and 19 of the Statement of Questions

       Appellants’ Question 10 asks whether the proposed work on Old Center Fayston

Road constitutes land development as defined in § 10.1 of the Land Use Regulations, and

                                            8
if so, whether development of the road takes place on land having an a gradient in excess

of 25% (and thus is subject to the prohibition in § 3.4(B) of the Regulations). Question 12

asks whether the project as a whole involves excavation, filling, and/or regrading of land

with an average gradient in excess of 15%, subjecting it to the requirement of obtaining

conditional use approval under § 3.4(A).

       The Selectboard approval allows Appellee-Applicants to undertake the

improvement of a Class 4 town road. That work may require conditional use or other

zoning approval separate from the subdivision approval at issue in the present appeal; if

so, such separate approval is not before the Court in this appeal. The 2006 Selectboard

approval by its own terms requires that the maximum grade of the road be 15%; the

minutes reflect that the limitation was imposed apparently to meet the changed zoning

regulations.

       With regard to the project property itself, the “existing conditions” sheet of the

project plans shows the locations of the portions of the project with an average slope of

more than 15%; Appellee-Applicants acknowledge that therefore the project will also

require conditional use review under § 3.4(A). The affidavit of the project engineer states

that all of the land development (as that term is defined in §10.2) is proposed for slope

gradients under 25%, in compliance with §3.4(B).

       Question 19 asks whether, if the requirements raised by Questions 10 or 12 must be

met, the subdivision permit at issue in the present case should require compliance with

those sections. In any event, the project must comply with all other applicable sections of

the Land Use Regulations and must obtain all other required permits, regardless of

whether such a condition is imposed in the final subdivision approval.

       Therefore, as discussed above with regard to Questions 11 and 18, summary

judgment on Questions 10, 12, and 19 will be granted in favor of Applicants at the

telephone motion hearing scheduled in the final paragraph of this decision, unless at that

                                            9
hearing Appellants come forward with evidence to show that disputed material facts

remain for trial on these questions. If all the other issues are resolved by summary

judgment, the parties should be prepared to discuss whether they wish to agree to the

addition of a condition stating that the project must comply with all other applicable

sections of the Land Use Regulations and must obtain all other required permits.



Questions 13, 14, 15, and 16 of the Statement of Questions

       Questions 13 asks whether Appellants’ property at present is “subject to water flows

and particularly stormwater runoff, together with silt deposits and sedimentation, which

substantially interfere with Appellants’ use and enjoyment” of their property. Question

14 asks whether that stormwater and sedimentation is “due in large part to the level of the

existing roadway in front of Appellants’ premises having been raised by about 4 to 5 feet.”

       Appellee-Applicants do not dispute that Appellants’ property may be subject to

water problems from the land and driveway of the next neighbor closer to and above

Appellants’ property, or to runoff from the Class 3 portion of the road (rather than the

portion of the road proposed for upgrading in connection with the project). Appellee-

Applicants have submitted the project engineer’s affidavit to the effect that the stormwater

design for the project and for the roadway, including a replacement culvert, ditching, and

a stormwater retention pond, will reduce the runoff and siltation from the town highway

above Appellants’ property.

       The issue of whether certain existing conditions of Appellants’ property interfere

with Appellants’ use and enjoyment of that property may relate to any property or

nuisance cause of action Appellants may claim due to the existing runoff, but such claims

are not within the jurisdiction of the Environmental Court. Rather, this Court must analyze

whether the project as proposed will meet the sections of the Land Use Regulations

applicable to subdivision approval. As stated, neither Question 13 nor Question 14 appears

                                            10
to relate to any standards for subdivision approval in the Land Use Regulations and

therefore they appear to be beyond the jurisdiction of this Court.

       Accordingly, Questions 13 and 14 will be dismissed at the telephone motion hearing

scheduled in the final paragraph of this decision, unless they are shown to be within the

jurisdiction of this Court in this case.

       Question 15 asks whether the proposal to improve Old Center Fayston Road will

result in significantly and unreasonably increased flows of storm water and sedimentation

onto Appellants’ property. Question 16 asks whether, in light of the current problems and

the possible effects from the proposed project, additional provisions should be included in

the approved permit under § 16.5 of the Land Use Regulations to prevent such adverse

effects.

       This Court does have jurisdiction to determine whether the proposed subdivision

plans will meet the provisions of the Land Use Regulations with regard to stormwater,

drainage and erosion. Appellee-Applicants do not dispute that the proposal must also

qualify for conditional use approval on this issue under § 5.4(B)(5), as well as obtaining a

state stormwater permit and an Act 250 permit addressing these issues. As in the

discussions of the previous groups of questions, Appellee-Applicants have supported their

motion for summary judgment on the issue of stormwater runoff and sedimentation with

the affidavit of the project engineer, supported by the project plans and calculations, that

the project as proposed will not result in erosion or increased runoff problems onto

Appellants’ property. Appellants have not supported their opposition on these question

with affidavits or documented evidence to show that there is a genuine issue of fact for trial

on Questions 15 or 16.

       Therefore, as discussed above with regard to Questions 10, 11, 12, 18, and 19,

summary judgment on Questions 15 and 16 will be granted in favor of Applicants at the

telephone motion hearing scheduled in the final paragraph of this decision, unless at that

                                             11
hearing Appellants come forward with evidence to show that disputed material facts

remain for trial on these questions.




       Accordingly, based on the foregoing, it is hereby ORDERED and ADJUDGED as

follows: summary judgment is GRANTED as to the facts stated in Questions 1 through 7

of the Statement of Questions, as stated above; summary judgment is GRANTED in favor

of Appellee-Applicants as to Question 8 of the Statement of Questions; and the remaining

questions in the Statement of Questions, as discussed above, will be addressed on the

record of the telephone motion hearing scheduled for December 3, 2007, at a time stated

in the enclosed notice of hearing.




       Done at Berlin, Vermont, this 26th day of November, 2007.




                            _________________________________________________
                                  Merideth Wright
                                  Environmental Judge




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