                                STATE OF VERMONT

SUPERIOR COURT                                   ENVIRONMENTAL DIVISION

                                               }
In re Krag – Special Zoning Permit for Culvert }
       (Appeal of Marks)                       }        Docket No. 51-4-09 Vtec
                                               }

                                 Decision and Order

       Appellant Andrew Marks (Appellant) appealed from a decision of the

Development Review Board (DRB) of the Town of Shelburne, upholding the Zoning

Administrator’s issuance of a special zoning permit to Appellee-Applicants David

and Jesusa Krag (Appellees). The special zoning permit authorized Applicants to

install a culvert on their property, leading from a pond to behind a berm that had

been the subject of an earlier permit.      Appellant is represented by Thomas F.

Heilmann, Esq.; Appellees are represented by Liam L. Murphy, Esq.; and the Town

is represented by David Rugh, Esq. but did not participate actively in the trial.

       An evidentiary hearing was held in this matter before Merideth Wright,

Environmental Judge. A site visit was taken on a later date with the parties and

their representatives. The parties were given the opportunity to submit written

memoranda and requests for findings, and extended the time for these filings by

motion. Upon consideration of the evidence as illustrated by the site visit, and of the

written memoranda and requests for findings filed by the parties, the Court finds

and concludes as follows.



       Appellees own a 15.8-acre L-shaped parcel of property, comprising Lots 4

and 3-C of the former Thomas Road subdivision, located at 76 Rivervale Road in the

Town of Shelburne. Appellees’ property is bounded on the north and west by the


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LaPlatte River, which makes a bend at the northwest corner of Appellees’ property.

The river flows at an elevation of approximately 150 feet above sea level in the

vicinity of the properties at issue in this appeal; the river bank is at an elevation of

approximately 154 feet above sea level.        Appellees constructed their residence in

1993 on a plateau at an elevation of approximately 172 to 176 feet above sea level.1

Close to the foot of the plateau, which slopes steeply downward behind (to the west

of) their house, Appellees have constructed or maintained a large spring-fed pond

(the Swim Pond) at an elevation of 156 feet above sea level. Another, smaller pond

(the Field Pond or Lower Pond) is located farther to the west on Appellees’ property,

and at a slightly lower elevation, close to its southern boundary adjoining

Appellant’s property. The remainder of Appellees’ property between the Lower

Pond and the bend in the river is relatively flat but contains a shallow channel that

leads water generally northward to the river northeasterly of the bend at the

northwest corner of Appellees’ property.

       Appellant owns a 3.1-acre rectangular parcel of property located at 150

Rivervale Road. Appellant’s property is bounded by the LaPlatte River on the west,

bounded by Appellees’ property to the north and east, and bounded by an unrelated

property to the south. The easterly end of Appellant’s property contains an

extension of the plateau of land, which slopes steeply down towards the north tin

the direction of Appellees’ Swim Pond and Lower Pond. Appellant’s residence was

constructed in about 2004 at the elevation of the plateau of land. As of early 2008,

surface water from Appellant’s property flowed by surface or sheet flow northerly

over the edge of the plateau onto Appellees’ property between the Swim Pond and

the Lower Pond, some of the water then flowed slightly northeasterly into the Swim



1 All the elevations in this decision are taken from Appellant’s Ex. C, the overall
property plan of the Thomas Road subdivision.

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Pond and some of the water flowed slightly northwesterly into the Lower Pond.

          In the summer of 2008 the Zoning Administrator issued a zoning permit to

Appellees (the Berm Permit), which became final and is not at issue in the present

case. It authorized Appellees to dig a third pond (the Upper Pond) in a location in

the former Parcel 3-C portion of Appellees property where a depression or wet area

had been located. The Upper Pond is located on Appellees’ property on the plateau,

to the south of Appellees’ house, at approximately an elevation of 176–178 feet

above sea level. Prior to the construction of the Upper Pond, drainage from that wet

area traveled over land in sheet flow or poorly-defined natural drainage swales in a

generally northerly direction, towards Appellees’ house and past it towards the

Swim Pond, as well as northeasterly towards a culvert under Appellees’ driveway.

      The Berm Permit also authorized Appellees to use the fill extracted from the

Upper Pond to construct a berm, which was meant to prevent the surface water

flowing off Appellant’s property from entering and contaminating the Swim Pond.

The berm and the Upper Pond were constructed in accordance with the Berm

Permit.

      In late September of 2008 the Zoning Administrator approved Appellees’

application for the installation of a fifteen-inch-diameter pipe, referred to in the

present appeal as a culvert. It was designed to have its inlet at the surface of the

Upper Pond, to run under the Upper Pond and within the berm, and to exit on the

southerly side of the berm, still on Appellees’ property but near the boundary with

Appellant’s property. The application referred to the purpose of the pipe as being

“to reestablish flow from [Upper] pond” and referred to the location of its outlet as

being at “existing water collecting area.” The culvert therefore was designed to

carry the flow of surface water from the area of the Upper Pond through the berm

and into the Lower Pond, bypassing the Swim Pond. Appellees installed the culvert

in accordance with the permit; Appellant’s appeal of it is the subject of this appeal.

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The culvert permit was issued under the authority of § 1720.2 of the 2007 Zoning

Bylaws.

       This Court’s March 5, 2010 summary judgment decision determined certain

legal issues. It determined that § 1720.2 would be applicable only if the culvert

project involved any additional extraction of earth materials for use off the site, or

any additional fill, beyond that which had already been approved in the Berm

Permit. The summary judgment decision, slip op. at 16, suggested that the Court

would first need to hear evidence necessary to decide whether the culvert project

required a § 1720.2 permit at all, or instead whether § 1720.1 is applicable. If § 1720.1

is applicable, the summary judgment decision stated that the matter would have to

be remanded for the Zoning Administrator in the first instance to determine

whether a special zoning permit should issue for the culvert under § 1720.1.



       First, the evidence at trial showed that the culvert project did not involve any

additional extraction of earth materials for use off the site, or any additional fill,

beyond that which had already been approved in the Berm Permit. Section 1720.2

therefore is inapplicable to the culvert that is the subject of this appeal.

       Section 1720.1 of the 2007 Zoning Bylaws states that “[t]here shall be no

diversion, redirection[,] or relocation of any natural water course, drainage[,] or

water runoff pattern unless a special zoning permit for that purpose is obtained

from the administrative officer.”

       The term “natural” cannot be interpreted to mean the state of the area’s

watercourses, drainage, and water runoff patterns as they existed prior to any

human development at all. Equally, the term “natural” cannot be interpreted to

mean the state of those features immediately prior to the application before the

Court. Both of those extreme interpretations would create an absurd result or would

make the term ”natural” into surplusage in that regulatory provision. Wesco, Inc. v.

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Sorrell, 2004 VT 102, ¶ 14, 177 Vt. 287 (citations omitted) (noting that the Court

presumes that the legislature does not intend a statutory interpretation that would

lead to an absurd result); Loiselle v. Barsalow, 2006 VT 61, ¶ 16, 180 Vt. 531 (mem.)

(citing State v. Carroll, 2003 VT 57, ¶ 7, 175 Vt. 571 (mem.)) (noting that the Court

presumes that the legislature “chooses its language advisedly so as not to create

surplusage”).

      If the term “natural” were interpreted to refer only to the state of the area’s

drainage prior to any human development, the section would have very limited

applicability in areas which are already somewhat developed. This would be an

absurd interpretation, as areas that are undergoing development are the very areas

which require zoning regulation of the potential effect of water diversion on

neighboring properties. Cf. Hazen v. Perkins, 92 Vt. 414, 420 (1918) (“natural” lake

level regulated and controlled by man-made dam and sluice at outlet); State v.

Malmquist, 114 Vt. 96, 102 (Vt. 1944) (lake level artificially created by dam

considered “natural” lake level after period of forty years). On the other hand, the

use of the term “natural” at all in § 1720.1 would be surplusage if all diversion,

redirection, or relocation of any water courses, drainage, or water runoff patterns

required permits, regardless of whether they were considered natural or not.

      Thus, to make sense of the term “natural” in § 1720.1, as applied in the

present case, it must refer to the drainage pattern of the land before the berm and

the Upper Pond were installed, but after all the other changes to the surrounding

areas were made, including the site work, earth moving, and driveway culverts

involved in the construction of both the Marks and the Krag houses, and of the

Swim Pond.

      At that time, drainage on both properties was by sheet flow off the plateau

onto the lower land down to the 156-foot elevation level. Some of the drainage from

the location of the Upper Pond on Appellees’ property flowed towards Appellees’

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house, and past it over the plateau edge towards the Swim Pond. The drainage or

water runoff from Appellant’s property flowed by sheet flow over the edge of the

plateau to a low area or channel along the base of the plateau, some traveling

northeasterly into the Swim Pond and some traveling northwesterly along the

southerly edge of Appellees’ property to the Lower Pond, and thence to a shallow,

poorly defined channel traveling westerly and northerly across the flat, lowland area

of Appellees’ property to the river. In fact, drainage from Appellant’s property over

its northerly boundary to the Swim Pond was the reason that Appellees constructed

the berm.

      For the purposes of this decision, the result does not change depending on

whether the low area or channel at the foot of the plateau near the southerly

boundary of Appellees’ property conducted water only westerly before the berm

was constructed, or conducted some of it westerly and some of it easterly to the area

of the swim pond. Regardless of the direction of that flow, the installation of the

culvert or pipe from within the Upper Pond to southerly of the berm did not merely

restore the previously existing natural drainage or water runoff pattern.         The

installation of the culvert or pipe from within the Upper Pond to southerly of the

berm did not restore the flows from the area of the Upper Pond towards Appellees’

house or past the house towards the Swim Pond. Nor did it restore the portion of

the flow from the foot of the plateau near Appellant’s house towards the Swim

Pond. Rather, it redirected what would have been overflow from the Upper Pond to

the channel southerly of the berm, so it would proceed to the Lower Pond and

beyond it without flowing through or into the Swim Pond.

      Because the culvert at issue in this case did not simply restore the drainage or

water runoff pattern in existence prior to the construction of the berm and the Upper

Pond, it required a permit under § 1720.1 of the 2006 Zoning bylaws.



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

that § 1720.2 is not applicable to the culvert project, because it did not involve any

additional extraction of earth materials for use off the site, or any additional fill,

beyond that which had already been approved in the Berm Permit, but that the

project does require a permit under § 1720.1; the culvert permit issued under

§ 1720.2 is therefore VACATED and REMANDED2 to the Zoning Administrator for

further proceedings consistent with this decision, concluding this appeal.



      Done at Berlin, Vermont, this 31st day of August, 2011.




                           _________________________________________________
                                 Merideth Wright
                                 Environmental Judge




2
  If it is remanded, Appellant argues that it should be considered under § 2020.1 of
the 2010 Zoning Bylaw. The issue of whether Appellees’ 2008 application gave
Appellees any vested rights to be considered under the 2007 Bylaw is not before the
Court in the present appeal; it would be an impermissible advisory opinion.

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