                               STATE OF VERMONT
                    SUPERIOR COURT – ENVIRONMENTAL DIVISION

                                                {
  In re Regan Subdivision Permit                {      Docket No. 188-9-09 Vtec
  (Apps. for Prelim. & Final Approval)          {    (Appeal from Burlington DRB approval)
                                                {

                                         Judgment Order

       The Court conducted a site visit and merits hearing for the above-entitled appeal on
February 13, 2013. At issue in this de novo appeal was the application for preliminary and final
approval of a subdivision proposed by Ute Regan (“Applicant”), dividing into two lots her
0.41± acre parcel located at 46 Chittenden Drive in Burlington. When the City of Burlington
Development Review Board (“DRB”) approved the pending subdivision application,
Appellants DeForest Realty, Inc. (“DeForest”) and Friends of Chittenden Drive (“Friends”)
(collectively “Appellants”) appealed the DRB decision, asking this Court to consider whether
the proposed subdivision meets the applicable standards and criteria in the City of Burlington
Comprehensive Development Ordinance (“CDO”).
       Appellant DeForest and Applicant initially challenged the propriety of a condition
(Condition 3) that the DRB imposed requiring Applicant to prove that the new lot to be created
by the proposed subdivision would have legal access across a ten-foot wide strip of land
separating it from the paved roadway portion of Chittenden Drive. In connection with this
disputed access way, Applicant instituted an action in the Civil Division, Chittenden Unit, of
the Vermont Superior Court. This Court (the Environmental Division) placed the pending
appeal on inactive status while the parties awaited the resolution of the civil law claims.
       The Civil Division thereafter issued its decision, finding that Applicant, as owner of the
property at 46 Chittenden Drive, enjoyed an access across the ten-foot wide strip of land
between her property and Chittenden Drive. See Regan v. Pomerleau, No. S0239-11 CnCv (Vt.
Super. Ct. Civ. Div. Oct 27, 2011) (Crawford, J.).        This Court thereafter reactivated this
subdivision application appeal and considered cross-motions for summary judgment filed by
each party.
       In a decision filed December 18, 2012, this Court addressed all pending motions,
concluding that Applicant’s subdivision application conformed to CDO §§ 3.2, 6.1.2, and 4.4.5
(subject to Applicant submitting a revised site plan); the Court also granted summary judgment



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to Applicant concerning CDO § 6.0.1 by concluding that since the pending application only
sought subdivision approval and not approval for any construction or further development, the
§ 6.0.1 design standards did not apply to the pending application. In re Regan Subdivision
Permit, No. 188-9-09 Vtec, slip op. at 10–16 (Vt. Super. Ct. Envtl. Div. Dec. 18, 2012) (Durkin, J.).
In that decision, the Court declined to answer, on summary judgment, the question of whether
Chittenden Drive was a “public road” as that terms is used both in CDO § 5.2.2 (limiting
subdivision to lots with frontage on a public road or, in certain circumstances, with sufficiently
wide access to a public road) and the statute that authorizes Vermont municipalities to allow for
the subdivision of land lacking public road frontage: 24 V.S.A § 4412(3).              In re Regan
Subdivision Permit, No. 188-9-09 Vtec, slip op. at 5–10. The Court therefore denied summary
judgment to all parties as to CDO § 5.2.2 and noted that the only legal issues to be resolved at
trial were contained in Applicant’s Question 1, Friends’ Question 3, and DeForest’s Questions 1
and 4. Id. at 16–17. Collectively, these Questions posed the legal issue of whether the proposed
subdivision conforms to CDO § 5.2.2.
       Once the parties had a full and fair opportunity to present all relevant and admissible
evidence at the February 13, 2013 trial, the Court took a recess to complete its deliberations and
conduct some additional legal research. The Court then reconvened the hearing to announce its
Findings of Fact and Conclusions of Law on the record of the hearing. This Judgment Order is
issued to supplement the Findings and Conclusions issued on the record of the merits hearing.
       In light of the evidence presented and the prior legal determinations rendered by the
Civil Division in the matter of Regan v. Pomerleau, No. S0239-11 CnCv, noted above, the Court
concluded that Applicant has fulfilled her threshold showing that she enjoys an access way over
the ten-foot wide strip of land that separates her property from Chittenden Drive. This Court
further concluded that Chittenden Drive is not a “public road,” at least as that term must be
interpreted pursuant to 24 V.S.A. § 4412(3) and CDO § 5.2.2, but that Chittenden Drive, while
not a “public road,” is an access way over25 feet in width and open to the general public that
provides Applicant and her neighbors with access from their respective properties to a nearby
public road (Vermont Route 7).
       Given the access Applicant enjoys for her property, the Court concluded that her
proposed subdivision, while not enjoying road frontage, is not precluded by 24 V.S.A. § 4412(3).
The Court struggled with the determination of whether the proposed subdivision conformed to
CDO § 5.2.2, since that provision allows for subdivisions that lack frontage on a public road


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when the subdivided parcels instead have an easement over an access way at least 25 feet wide
connecting to a public road, but expressly provides that that exception only applies to “lots of
record existing as of January 1, 2007.” Id. The evidence presented provided no explanation for
this limitation and, in fact, evidenced a DRB practice of approving subdivisions that created lots
that lacked public road frontage but possessed an adequately wide access way easement, even
though those lots were created after January 1, 2007. Evidence of how the DRB has historically
applied CDO § 5.2.2 to new subdivisions such as Applicants, while understandable, seemed
confusing at the least and, at the most, provided evidence of a necessary disregard for the stated
limitation that the ordinance exception only applies to “lots of record existing as of January 1,
2007.” Id.
       In the absence of an explanation of the intent or purpose for the CDO § 5.2.2 exception,
the Court concluded that applying its literal wording to the pending subdivision application
would lead to an absurd result. Therefore, the Court concluded that Applicant’s pending
subdivision application, with the conditions noted below, conforms to the understandable
portions of CDO § 5.2.2. That being the remaining legal issue in this de novo hearing, the Court
concluded that Applicant Ute Regan’s pending two-lot subdivision application should be
APPROVED, subject to the following conditions:
   •   Conditions 1, 2, 4, 5, and 6 imposed by the DRB shall remain in full force and
       effect, as they were not challenged by any party to this appeal;
   •   DRB Condition 3 is hereby deemed MOOT, since it has been satisfied through
       the Civil Division proceedings; and
   •   The mylar Applicant submits pursuant to DRB Conditions 1 and 2 shall consist
       of a revised site plan, clarifying the site plan presented at trial (Exhibit 1) and
       including a certification from her surveyor or engineer that the revised
       subdivision plan conforms to all applicable density requirements for one
       dwelling unit on Lot 1 and two dwelling units on Lot 2.

       This proceeding is hereby REMANDED to the City of Burlington Zoning Administrator
for the sole purpose of confirming Applicant’s satisfaction of the applicable conditions and to
issue any further approval or permit in accordance with this Judgment Order.

       Done at Berlin, Vermont this 10th day of April, 2013.



                                                    ____________________________________
                                                     Thomas S. Durkin, Environmental Judge


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