                                 STATE OF VERMONT
                               ENVIRONMENTAL COURT

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In Re Wells Building Application          {       Docket No. 44-3-11 Vtec
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                  Decision on Cross-Motions for Summary Judgment

         Duane Wells (“Applicant”) appeals the Town of East Montpelier (“the Town”)
Development Review Board’s (“the DRB”) denial of his application to build a second
house and garage on his property. The DRB’s denial followed Applicant’s appeal of a
determination by the Town of East Montpelier Zoning Administrator (“the ZA”) also
denying his application. Currently pending before this Court are the parties’ cross-
motions for summary judgment concerning whether Applicant is entitled to a zoning
permit to construct a dwelling and garage on a 1.67-acre portion of his property that is
separated from a 1.26-acre portion of his property by a town highway known as Cutler
Heights Road.
         In this proceeding, Applicant is represented by Paul Gillies, Esq.; the Town is
represented by Bruce Bjornlund, Esq.

                                   Factual background
         For the sole purpose of putting the pending motions into context, the Court
recites the following facts, which it understands to be undisputed unless otherwise
noted:
1.       Applicant owns approximately three acres of land that straddle Cutler Heights
Road. His property is located in the Town’s Rural Residential & Agricultural Zoning
District, Zone D.
2.       Applicant acquired this 3± acre parcel on November 30, 2010 in a deed that
references the property as a single parcel of land.
3.       Applicant’s 3± acre parcel was originally part of a larger property, known prior
to 1971 as the Cutler Farm. Applicant’s property was first conveyed as a distinct lot
on or about April 1, 1971. At that time, Cutler Heights Road was not a town highway,
but rather a private right-of-way used to access other portions of Cutler Farm. What
is now identified as Applicant’s property was described in 1971 as a 3.4± acre parcel,
with 0.4± acres identified as being encumbered by a private right-of-way.


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4.      According to the current Town of East Montpelier Land Use and Development
Regulations (“the Regulations”), land located in Zone D must contain a minimum of
three acres. Regulations Table 4.2(D).
5.      A prior version of the Regulations provided minimum lot sizes of one acre.
6.      Sometime in 1977, at the request of an individual wishing to develop lands
located near what is now Applicant’s property, the Town agreed to accept what was
then a private right-of-way as a town highway.                        As a condition of the Town’s
acceptance, the developer agreed to improve the roadway to town specifications. This
highway is now known as Cutler Heights Road.
7.      Cutler Heights Road is now a Class 3 town highway serving five residential lots
adjoining or near Applicant’s property.
8.      Applicant’s property consists of 1.67 acres on the east side and 1.26 acres on
the west side of the road. There is an existing single family home on the 1.26-acre
portion.    Applicant’s property has consistently been described as a single lot, with
acreage on either side of Cutler Heights Road.
9.      In connection with and shortly after Applicant’s purchase of this property,
Applicant or his immediate predecessor in title filed two zoning applications to conduct
certain building improvements on the property. In each of these prior applications,
the property Applicant now owns was described as a single lot, consisting of 3± acres.
10.     On December 16, 2010, Applicant filed an application with the ZA, seeking
approval to build a single family home and three-car garage on the 1.67-acre portion
of his property that lies to the east of Cutler Heights Road.
11.     The ZA denied the application on January 27, 2011, finding that the two
portions of Applicant’s land had not previously been regarded as separate lots and
that the road did not cause a subdivision of the property.1
12.     Applicant appealed the ZA’s decision to the DRB, which upheld the ZA’s
decision and denied the permit application.
13.     Applicant thereafter filed a timely appeal of the DRB’s decision with this Court.




1 See ZA letter dated January 27, 2011. In this letter, the ZA states that current tax maps describe Applicant’s

property as containing 2.7± acres and that the entire parcel must therefore be regarded as not conforming to
the Regulations’ three-acre minimum lot size requirement. The total acreage of Applicant’s property is not
material to our disposition of the pending motions.

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                                       Discussion
      In his motion for summary judgment, Applicant argues that the 1.67-acre
portion of his property is a separate lot from the 1.26-acre portion and is therefore
exempt from Zone D’s three-acre minimum lot size requirement. In its cross-motion,
the Town contends that Applicant’s approximately three-acre property has always
been considered a single parcel and thus the 1.67-acre portion should not be treated
as a separate lot and is subject to the minimum lot size requirements.
      For the reasons detailed below, we conclude that the two portions of Applicant’s
property have not previously been regarded as separate lots, that the Town roadway
does not effectuate a natural subdivision, and that Applicant’s land must continue to
be regarded as one lot.    Thus, we ultimately conclude that Applicant’s land is not
exempt from the Regulations’ three-acre minimum lot size requirements for properties
in Zone D.

I.    Summary judgment standard
      When a party files a motion for summary judgment, as here, she is requesting
that the trial court dispense with her opponent’s right to an evidentiary hearing and
enter judgment on her behalf, in a summary fashion. As has been repeatedly stated, a
trial court may only grant summary judgment where “the pleadings, depositions,
answers to interrogatories, and admissions on file, together with the affidavits, if any, .
. . show that there is no genuine issue as to any material fact and that any party is
entitled to judgment as a matter of law.” V.R.C.P. 56(c)(3). In considering the parties’
cross-motions for summary judgment, we give each party the benefit of all reasonable
doubts and inferences. City of Burlington v. Fairpoint Commc’ns, 2009 VT 59, ¶ 5,
186 Vt. 332 (citing Toys, Inc. v. F.M. Burlington Co., 155 Vt. 44, 48 (1990)).         We
“accept as true the [factual] allegations made in opposition to [each] motion for
summary judgment, so long as they are supported by affidavits or other evidentiary
material.” Robertson v. Mylan Labs., Inc., 2004 VT 15, ¶ 15, 176 Vt. 356 (citations
omitted).

II.   The 1.67-acre parcel is not a separate lot entitled to an exemption from
      the Town’s minimum lot size requirements
      Whether Applicant is entitled to an exemption from the Town’s minimum lot
size requirements depends on the application of the Town’s Regulations.            Section
3.9(A) of the Regulations provides an exemption from minimum lot size requirements

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and permits the development of any lot that was in “individual and separate and non-
affiliated ownership from surrounding properties lawfully in existence on the effective
date of these regulations. . . .”2           Thus, only properties that are in “individual and
separate and non-affiliated ownership” when the applicable zoning regulations took
effect may be exempt from the minimum lot size requirements. In re Richards, 2005
VT 23, ¶ 8, 178 Vt. 478 (mem.).
        To reach the conclusion that Applicant’s property should be regarded as two
lots and the 1.67-acre portion considered exempt from the minimum lot size
requirements, we must first be provided with some evidence that at one point the land
was regarded as two separate parcels, particularly during the time preceding the
adoption of the Regulations’ minimum lot size provisions in 1974. Applicant argues
that his property should now be regarded as two separate parcels because it was
divided in 1971 by a private roadway that later became Cutler Heights Road.
        Depending on its location and function, a right-of-way can effectuate a
subdivision of a single parcel of land, particularly when the right-of-way separates two
portions of the property in a way that prevents the portions from being used as a
single lot. Wilcox v. Vill. of Manchester Zoning Bd. of Adjustment, 159 Vt. 193, 197
(1992). However, the existence of a right-of-way separating two parcels in common
ownership does not automatically render the parcels separate lots. Richards, 2005 VT
23, ¶ 7; Wilcox, 159 Vt. at 197–98.                For example, the use of a right-of-way as a
driveway to serve a single residence does not necessarily make the property on one
side of the driveway a separate lot from the property on the other side. See Richards,
2005 VT 23, ¶ 11. Nor does a public road running between two portions of a parcel
create separate lots where there is no evidence that either parcel was ever separately
held, or otherwise existed as an independent lot, at the time the town’s zoning
regulations took effect. See In re Mastelli Constr. Application, No. 2009-072, slip op.
at 2 (Vt. Sept. 4, 2009) (unpublished mem.) (emphasis added), available at
http://www.vermontjudiciary.org/d-upeo/eo09-072.pdf.3
        Here, Applicant offers no evidence indicating that the two portions of his
property were ever considered separate lots.                     Prior conveyances of the property

2 This language reflects that found in 24 V.S.A. § 4412(2), which is the current version of 24 V.S.A. § 4406(1),
cited in several cases discussed above.
3 Of particular interest here are the similarity of facts to the application in Mastelli, which also concerned

property in the Town of East Montpelier, governed by the same zoning regulations.

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indicate that it was deeded to Applicant and to his predecessors as a single 3.4± acre
parcel, with 0.4± acres encumbered by a right-of-way. Applicant, or his immediate
predecessor, filed two applications for zoning permits in early 2010, both of which
described the property as a single parcel. It was not until Applicant submitted the
application at issue here that he described the 1.67-acre portion of his property as a
separate parcel.    Moreover, the record before us shows that both portions of
Applicant’s property were in common ownership before the private roadway’s creation
and before the adoption of the applicable Regulations.
      Citing Wilcox, Applicant argues that the road prevents the property from
functioning as a single parcel because he cannot use it for his own benefit or alter it
without the Town’s permission. But the record before us provides no support for this
assertion.   All prior references to Applicant’s property described it as one parcel.
Approximately forty years ago, a right of way was established across this parcel to
provide access to other properties that were once part of the Cutler Farm. The factual
representations before us, including the prior zoning permit applications submitted by
Applicant and his predecessor, evidence a single common use for the portions of the
property on each side of Cutler Heights Road.
      Applicant has not met his burden of showing that the 1.67- and 1.26-acre
portions of his property were ever held in individual, separate, and non-affiliated
ownership prior to the effective date of the Town’s three-acre minimum lot size
regulations. We therefore cannot regard the 1.67-acre portion of Applicant’s property
as a separate parcel, and his property is not exempt from the Regulations’ minimum
lot size requirements.   Accordingly, Applicant’s request for authority to build new
dwelling structures on his 3± acre parcel must be DENIED as a matter of law.

                                     Conclusion
      For the reasons detailed above, we GRANT the Town’s motion for summary
judgment, concluding that Applicant’s property on Cutler Heights Road consists of one
3± acre parcel and that his request to build additional dwelling structures must be
denied as a matter of law. For these same reasons, we DENY Applicant’s competing
motion for summary judgment.
      A Judgment Order accompanies this Decision.         This completes the current
proceedings before this Court.



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Done at Berlin, Vermont this 26th day of September, 2011.




                                         Thomas S. Durkin,
                                         Environmental Judge




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