                                   STATE OF VERMONT
SUPERIOR COURT                                               ENVIRONMENTAL DIVISION
Vermont Unit                                                  Docket No. 150-10-14 Vtec


Wagner & Guay Permit                                     DECISION ON MOTION



       William and Barbara Wagner and Christopher Guay (Applicants) seek to construct a
single family home on lots 3 and 4 of a previously approved six-lot subdivision (the Project)
located on Dodge Terrace in the Town of Grand Isle, Vermont (the development). Mary
Bourassa (Appellant) resides in a single family home located on lot 2 of the development. On
October 1, 2014 the Town of Grand Isle Development Review Board (DRB) granted Applicants’
zoning permit. On October 14, 2014 Appellant timely appealed the DRB’s decision to this Court,
filing a Statement of Questions consisting of 9 Questions.
       On December 22, 2014 Applicants filed a Motion to Dismiss Appellant’s Questions 1, 3,
4, 6, 8, and 9. On January 5, 2015, Appellant filed a Motion to Stay the appeal before this Court
pending resolution of a civil complaint in the Chittenden Unit of the Vermont Superior Court
(docket number 1276-12-14 Cncv), seeking a declaratory judgment as to the interpretation of
covenants and restrictions in the deeds for lots 2, 5, and 6, and raising claims of fraud and
breach of contract against the Wagners relative to those covenants and restrictions. On March
27, 2015, this Court denied Appellant’s motion to stay the appeal, and on April 2, 2015 this
Court granted Applicants’ motion in part and denied it in part, dismissing Appellant’s Questions
1, 3, 4, and 6. Appellant now moves for judgment in her favor on Question 2. Applicants
oppose that motion and move for summary judgment in their favor on all Questions remaining
before the Court, Questions 2, 5, 7, 8, and 9.
                                        Factual Background
       For the sole purpose of putting the pending motion into context the Court recites the
follow facts which it understands to be undisputed:
1.     Applicants Philip and Barbara Wagner own lots 3 and 4 of the six-lot subdivision on
Dodge Terrace in the Town of Grand Isle, Vermont.
2.     Appellant Mary Bourassa owns and resides at lot 2 of the six-lot subdivision on Dodge
Terrace.
3.     The Wagners seek to sell lots 3 and 4 to Christopher Guay for the purpose of adjusting
the lot line to create a single lot and building a single family residence thereon. The location of
the proposed residence is depicted on the sketch plan accompanying his application. The
parties dispute whether the front corners of the house will be located 98 feet and 109 feet from
the edge or from the centerline of Dodge Terrace.
4.     Dodge Terrace is a dead-end road running along the south edge of a large open field. A
row of trees runs parallel to the road and marks the beginning of a wooded area extending
north from the road into the field (tree line).
5.     Trees and brush have continued to grow on lots 2–6 over the past 20 years, including in
and around, as well as to the north of, the tree line.
6.     Note 16 of the recorded plat plan for the subdivision approved in 1995 requires that the
construction of houses on lots 2–6 be within the tree line. The tree line is clearly identified on
the plat plan.
                                              Analysis
I.     Summary Judgment Standard
       Pursuant to Rule 56(a) of the Vermont Rules of Civil Procedure (V.R.C.P.), a party seeking
summary judgment must show that “there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.” V.R.C.P. 56(a). When considering cross-
motions for summary judgment, the court considers each motion individually and gives the
opposing party the benefit of all reasonable doubts and inferences. City of Burlington v.
Fairpoint Commc’ns, Inc., 2009 VT 59, ¶ 5, 186 Vt. 332. The court also accepts as true all factual
allegations made in opposition to a motion for summary judgment, so long as they are


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supported by “specific citations to particular parts of materials in the record.”           V.R.C.P.
56(c)(1)(A).


II.    Appellant’s Motion
       In her motion for summary judgment, Appellant argues that she is entitled to judgment
as a matter of law on Question 2 because Applicants’ application is inconsistent with the
subdivision plat plan, which provides that the location of houses on lots 2 through 6 must be
within the tree line. Appellant contends that the location of Applicants’ proposed structure, as
depicted in the sketch plan, “clearly contravenes the original intent and purpose of the
requirement that all construction take place within the tree line. . . .” (Appellant’s Motion at 5,
filed July 17, 2015). Specifically, Appellant argues that “the front of [Applicants’] proposed
house would fall in front of the tree trunks . . .” and that “[t]he tree line would provide no visual
screening, and the proposed construction would disrupt the scenic vistas that the tree line
restriction was intended to preserve.” Id.
       The original subdivision application, dated August 17, 1994, indicated the Wagner’s
intent to plant cedar hedges along the northern boundary of lot 6 to provide a visual barrier
between houses on lots 2–6 and the McNeil residence. (Appellant’s Exhibit B, filed July 17,
2015). At a hearing on the application held September 20, 1994, Brian McNeil “present[ed] his
concern with regard to the proposed hedgerow to screen the development from his view. . . .”
(Appellant’s Exhibit C, filed July 17, 2015). At a subsequent hearing on January 3, 1995, Mr.
McNeil and Mr. Wagner “agree[d] to explore the possibility of changing a line of trees to be
planted to shield Mr. McNeil’s property from the proposed subdivision.” (Appellant’s Exhibit D,
filed July 17, 2015). On February 21, 1995 the Grand Isle Planning Commission approved the
Wagner’s application. On April 4, 1995, the Commission approved the final plat plan, which
was dated January 3, 1995.
       As illustrated on the final plat plan, Dodge Terrace runs approximately east from Lovers
Lane, with lots 2–4 and 6 on the northern side of the road. The line boundary on lots 3 and 4 is
represented as varying between approximately 60 and 100 feet north of the center line of
Dodge Terrace. The houses are depicted to the north of the tree line, but the plat notes that


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“[t]he position of all houses and driveways are for illustrative purposes only,” and that the
“[a]ctual locations may be selected by the lot owner, as long as all applicable regulations,
standards, and codes are met, with provision that the houses for lots 2–6 must be within the
tree line.” (Appellant’s Exhibit 2, filed July 17, 2015).
       According to the sketch plan accompanying the application, Applicants’ propose to
construct a single family residence approximately 100 feet to the north of the center line of
Dodge Terrace and approximately 50 feet south of the wetland setback. (Appellant’s Exhibit 3,
filed July 17, 2015). Appellant offers a survey conducted by Richard Hamlin, a professional
engineer and land surveyor, depicting the tree line and Applicants’ proposed single family
home. The survey is based on the plat plan, the location of individual old-growth tree trunks
along the historic edge of the cleared field, and information provided in the sketch plan.
       Based on Mr. Hamlin’s survey, Appellant contends that the tree line on the plat plan
“does not accurately depict the true location of the trees” and that the proposed house extends
several feet outside the actual tree line.” (Appellant’s Exhibit 3 at ¶¶ 10–11, filed July 17,
2015). Appellant further contends that new tree growth extending into the field north of the
old-growth tree line does not afford screening equivalent to that provided by the old-growth
trees. Id at ¶ 12. Appellant therefore argues that “[s]iting the front of the proposed house to
the north of the old-growth tree trunks that originally demarcated the edge of the open field
would be contrary to the purpose and intent of the requirement that construction occur ‘within
the tree line,’ because there would be no visual screening being afforded by the original old
growth trees.” Id at ¶ 13.
       In considering Appellant’s motion for summary judgment on Question 2, we must view
the undisputed facts in the light most favorable to Applicants. Based on Appellant’s exhibits
and affidavits, including Mr. Hamlin’s field survey, the Court cannot definitively say whether the
application is inconsistent with the requirement that the location of houses on lots 2 through 6
be within the tree line. Appellant has argued that the plat plan does not accurately depict the
tree line and that the location of the proposed structure will not provide adequate screening. It
is unclear from the record, however, which trees make up the tree line, the location of
Applicants’ proposed residence relative to both the old-growth trees along Dodge Terrace and


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the new-growth trees to the north of those trees, and whether either the old or new-growth
trees provide adequate screening of the proposed structure from Mr. McNeil’s property. As
such, we cannot conclude that the application fails to comply with the requirement in note 16.
Thus, Appellant is not entitled to judgment as a matter of law, and Appellant’s motion for
summary judgment is therefore DENIED.
III. Applicants’ Motion
       In their motion for summary judgment, Applicants argue that they are entitled to a
judgment as a matter of law on Questions 2, 5, 7, 8, and 9. Taken together, Questions 2 and 5
address both the location of the tree line established in note 16 of the plat plan and whether
the proposed single family home is within that tree line.          Question 7 asks whether the
application should be denied under Grand Isle Zoning Bylaws and Subdivision Regulations
(Bylaws) § 5.10. Questions 8 and 9 ask whether the application should be denied because
Applicants made multiple material misrepresentations of fact in connection with their
application, and whether Appellant should be awarded legal fees and costs as a result of any
misrepresentations.
A. Question 5
       Applicants contend that the location of the tree line is defined by the plat plan and that
Appellant’s challenge to the accuracy of the plat plan amounts to a collateral attack on the final
and binding subdivision approval. Applicants further contend that as proposed, the house is
within the tree line as depicted on the plat. Our analysis begins with the importance of the
basic premise of finality in land use litigation. It is the function of a subdivision permit “to
approve plats of land,” and for this reason, “recorded plats necessarily become permit
conditions.” In re Stowe Club Highlands, 164 Vt. 272, 276 (1995) (internal quotation and
citations omitted). The failure to appeal a permit condition binds successors in interest. See 24
V.S.A. § 4472(d); In re Hildebrand, 2007 VT 5, ¶ 3, 181 Vt. 568.
       In approving the final plat plan submitted by the Wagners, the DRB relied upon the plat
as submitted. The location of the tree line as referenced in the approved and recorded plat
plan is therefore a condition of the subdivision permit. As surveyed by Appellant, however, the




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existing tree line is located farther north from Dodge Terrace than as represented on the plat
plan.
        In construing permit conditions, the Court relies on the normal rules of statutory
construction. See Main Street Landing, LLC v. Lake Street Assoc., Inc., 2006 VT 13, ¶ 7, 179 Vt.
583, 585. It is our principal concern to implement the intent of the drafters, which we
ordinarily determine by accepting the plain meaning of the words. Agency of Natural Resources
v. Weston, 2003 VT 58, ¶ 16, 175 Vt. 573 (citing Sec'y, Vt. Agency of Natural Res. v. Handy
Family Enters., 163 Vt. 476, 481 (1995)). Because land use regulations are in derogation of
property rights, any uncertainty must be decided in favor of the property owner. Id.
        With these considerations in mind, we examine the plat plan. On the plat, the tree line
is represented by a scalloped line north of and parallel to Dodge Terrace. On Appellant’s 2015
survey, the scalloped line is superimposed over depictions of the individually surveyed mature
trees, which are farther north into the field from Dodge Terrace. Question 5 asks whether the
location of the tree line is defined by the plat plan or by the surveyed location. Applicants have
not disputed the accuracy of the 2015 survey; rather, they dispute whether the tree line must
be defined as indicated on the unappealed plat plan.
        Applicants are correct when they argue that the plat plan is a final and binding condition
of the subdivision permit. The Court cannot, however, ignore that the existence and location of
the trees are facts, whereas the plat offers a description that serves to assist the viewer in
ascertaining those facts. As such, it is the trees themselves that define the tree line, whether
they correspond with the plat or not. An error in the plat as to the location of the trees then in
existence does not relieve Applicants from the final and binding condition that their building
must be built with the tree line.
        Although the tree line as depicted in the plat may be based on an incorrect
representation, additional conditions established by the plan shed light on the drafters’ intent.
Specifically, note 16 establishes a condition that development on lots 2–6 to be within the tree
line. The DRB noted this condition in the minutes of its 1995 hearings on the application and
relied upon it in approving the plat and subdivision permit. It is clear from the plain language of
note 16 that development must take place within the tree line. It is also clear from the minutes


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of the hearings on the subdivision application that the original parties intended this
requirement to provide a visual barrier between the houses on lots 2–6 and the McNeil
residence. (Appellant’s Exhibit B, filed July 17, 2015). As noted above, Brian McNeil’s “concern
with regard to the proposed hedgerow to screen the development from his view . . .” prompted
Mr. Wagner to “agree to explore the possibility of changing a line of trees to be planted to
shield Mr. McNeil’s property from the proposed subdivision.” (Appellant’s Exhibit C & D, filed
July 17, 2015).
       Although the tree line as depicted in the plat may be inaccurate, when read in
conjunction with note 16 and the hearing minutes, it is clear that the drafters’ intent was to
ensure that any development on the lots 2–6 be within the tree line so as to provide screening
from the McNeil property. Said in a different way, in order to comply with note 16, the trees
must provide screening of any development on lots 2–6. It is therefore illogical to require the
houses on lots 2–6 to be built within an imaginary line represented on the plat plan, by error or
carelessness, rather than within an actual line represented by the trees themselves. As the
location of the tree line is disputed by the parties, Applicants’ motion for summary judgment on
Question 5 is DENIED.
B. Question 2
       Question 2 asks whether the application must be denied as inconsistent with the plat
plan, which requires that houses on lots 2 through 6 be within the tree line. Applicants dispute
Appellant’s statement of undisputed material fact as it relates to the location of the proposed
house. Specifically, they contend that the front corners of the proposed house will be located
98 feet and 108 feet from the edge of the traveled way of Dodge Terrace, rather than from the
centerline as indicated in Appellant’s statement of facts.
       Although Applicants admit that the measurements on the sketch plan accompanying the
application show the setback distances from the centerline of Dodge Terrace, they provide that
“later statements to the DRB indicate measurements were from the edge of the travelled right
of way . . .” (Applicants’ Statement of Undisputed Material Facts at ¶ 5, filed Aug. 18, 2015).
Applicants do not, however, support this allegation in opposition to Appellant’s motion for
summary judgment with specific citations to particular parts of materials in the record, as


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required by V.R.C.P. 56(c)(1)(A). Even after undertaking a search of the record on its own
accord the Court is unable to find any support for Applicants’ statement. The version of the
application before the Court includes a sketch plan with the setbacks measured from the
centerline, and not from the edge of the travelled way. The Court must therefore determine
that the location of the proposed house is disputed. Applicants’ motion for summary judgment
on Question 2 is therefore DENIED.
C. Question 7
       Question 7 asks whether the application should be denied under Grand Isle Zoning
Bylaws and Subdivision Regulations (Bylaws) § 5.10. Section 5.10 requires a full subdivision
hearing process if a proposed boundary adjustment “substantially change the nature of the
development or create new lots.” Bylaws § 5.10. Applicants argue that the proposed boundary
adjustment will not substantially change the development or create new lots because it will
result in the consolidation of lots 3 and 4 into a single lot. Although it is clear that the proposed
adjustment would not create a new lot, the Court finds unpersuasive Applicants’ argument that
the creation of a single 6.56 acre lot from two smaller lots will not substantially change the
development. We require more evidence and testimony on the effects of such an adjustment
before rendering a conclusion on the matter. Applicants’ motion for summary judgment on
Question 7 is therefore DENIED.
D. Questions 8 & 9
       Questions 8 and 9 ask whether the application should be denied because Applicants
made multiple material misrepresentations of fact in connection with their application, and
whether Appellant should be awarded legal fees and costs as a result any misrepresentations.
As discussed above, Applicants have referenced a version of the application that was not
provided to the Court in this appeal. The Court is unable to make a determination on the issues
raised in Questions 8 and 9 without that version of the application. Applicants’ motion for
summary judgment on Questions 8 and 9 is therefore DENIED. The Court does note, however,
that we are generally not concerned with alleged inaccuracies in materials presented to the
municipal panel below as this is a de novo hearing. Nor is the Court likely to award legal fees




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absent a statutory authorization or such an award or conduct that rises to the level of an
intentional abuse of the legal process.
                                          Conclusion
       For the reasons stated in greater detail above, neither party is entitled to summary
judgment. Because the Court cannot definitively say whether the application is inconsistent
with the requirement that the location of houses on lots 2 through 6 be within the tree line,
Appellant’s motion for summary judgment on Question 2 is DENIED. Further, because there is
a dispute of material fact as to the location of the proposed house relative to Dodge Terrace,
Applicants’ motion for summary judgment on Questions 2 and 5 is DENIED. Finally, the Court
requires further evidence and testimony on the effects of the boundary adjustment and alleged
inaccuracies in the application, and for this reason, Applicants’ motion for summary judgment
on Questions 7, 8, and 9 is DENIED. Questions 2, 5, 7, 8, and 9 remain for trial which is
scheduled for September 21 and 22, 2015.




       Electronically signed on August 27, 2015 at 03:23 PM pursuant to V.R.E.F. 7(d).




_________________________________________
Thomas G. Walsh, Judge
Superior Court, Environmental Division




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