                                   STATE OF VERMONT

                               ENVIRONMENTAL COURT

                                          }
In re: Hubbard Subdivision                }       Docket No. 207-8-06 Vtec
        (Appeal of Cook, et al.)          }
                                          }

Decision and Order on Appellee-Applicants’ Renewed Motion for Summary Judgment

       Appellants Constance Cook, and her brother and sister-in-law Edward Dumas and

Rosita Dumas, appealed from a decision of the Planning Commission of the Town of

Rutland dated August 17, 2006, approving the final plat for a two-lot subdivision proposed

by Appellee-Applicants Tracy and Nancy Hubbard. Appellants are represented by Kevin

Candon, Esq.; Appellee-Applicants are represented by Matthew Branchaud, Esq.

       Appellee-Applicants have renewed their motion for summary judgment, pursuant

to the Court’s ruling in its April 24, 2007 decision, which granted Appellee-Applicants’

earlier motion for summary judgment in part by dismissing Appellants’ Questions 4 and

5, but denied the motion as to Questions 1, 2, 3, and 6 as the governing regulations had not

been provided. That decision noted, as to Questions 1 and 2 involving the scope of the

easement, that this Court:

       does not have jurisdiction of litigation of any property law issues as among
       the parties with regard to the interpretation of the easement. (Citation
       omitted.) All that the Court can determine as to Questions 1 and 2 is whether
       the proposed subdivision meets whatever standards may exist in the
       subdivision regulations with respect to the creation of a parcel on which no
       improvements are proposed to be constructed, and on which deer are
       proposed to be kept.

That decision allowed Appellee-Applicants to renew their motion for summary judgment

as to Questions 1, 2, 3 and 6 upon providing the Subdivision Regulations (and any other

pertinent regulations incorporated by reference in the Subdivision Regulations).

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       However, in their response to the present motion for summary judgment,

Appellants acknowledge that

       [s]ince the filing of the Appeal Applicants have put in place a road to a new
       house they intend to build on property adjacent to the parcel they wish to
       subdivide. This road would provide alternate access to the proposed
       subdivision. Therefore, as a practical matter, the easement issues are made
       moot because the proposed subdivision would have alternate access. For this
       reason, and in light of the Environmental Court’s earlier rulings, Appellants
       will not pursue Questions 1 and 2.

Accordingly, Questions 1 and 2 of the Statement of Questions are hereby DISMISSED as

withdrawn by Appellants as moot. The undisputed facts as to the orientation of the

parties’ respective parcels was established in the earlier summary judgment decision and

will not be repeated here except as necessary to establish the relative locations of the

parties’ properties.

       All of the parties own land in the Town of Rutland accessed from Perkins Road;

none of the parties’ lots has frontage on Perkins Road. Appellee-Applicants own a 13.1-

acre parcel of land containing their house, which they purchased in 2000 from Jeffery and

Kimberly (daughter of Appellants Dumas) Elnicki. Property now or formerly owned by

the Rutland Fire Clay Company adjoins the Hubbard property to the north. Appellant

Cook’s property adjoins the Hubbard property to the west. The property of Edward II and

Shelley A. Dumas (son and daughter-in-law of Appellants Dumas, not involved in this

litigation) adjoins the Hubbard property to the southeast. Other property of the Hubbard

family, owned by a family trust and occupied by Appellee-Applicant Tracy Hubbard’s

father (not involved in this litigation) adjoins the Hubbard property to the southwest. The

property of Appellants Dumas adjoins the Hubbard property to the north and east. In

addition, Appellants Dumas own property to the north of the Rutland Fire Clay Company

property, between it and Perkins Road, that is not at issue in this litigation.

       Access to Perkins Road from Appellant Cook’s property is via a separate private

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road not at issue in this litigation.   Access to Perkins Road for the remainder of the litigants

is via a private road now known as Dailey Place, which runs from Perkins Road across

Appellants Dumas’ other property, then across the land now or formerly of the Rutland

Fire Clay Company, and serves lands south of that property. There appear to be three

residences using the Dailey Place easement: the then-“present residence1” of Appellants

Dumas referred to in the deed, that of the Hubbards, and that of Edward II and Shelley A.

Dumas, to the south of the Hubbard Lot.

       Appellee-Applicants’ propose to subdivide their 13.1 acre parcel into Lot 2A (a 9.7-

acre unimproved parcel) and Lot 2B (the 3.4-acre parcel containing their residence).

Approximately five acres of Lot 2A is now fenced and houses twenty-two New Zealand

Red Deer. Disputed facts as to whether the deer are being kept as a hobby or for

commercial purposes related primarily to a condition of the easement deed no longer at

issue in this case, which prohibits the use of the easement “for commercial purposes.”

        Lot 2A is not proposed for any construction or further development. Adjoining Lot

2A to the south are lands of the Hubbard family, owned by a trust and occupied by

Appellee-Applicant Tracy Hubbard’s father. Lot 2A contains a drilled well serving the

Hubbard house, the water line for which runs along the easement of Dailey Place to the

Hubbard house.

       Lot 2A contains an existing shallow well, close to its northerly boundary and within

the fenced deer area; that shallow well serves Appellants Dumas’ house. Another shallow

well, serving the Cook property, is located just to the north of the Lot 2A property line.

Appellee-Applicants dispute Appellant Cook’s right to have a pipe from this well to her

property run across their property. Both shallow wells are contaminated with E. coli

       1
        The location of that residence was not been established as an undisputed fact or
submitted by affidavit to date in this litigation; however, due to the withdrawal of
Questions 1 and 2 it is no longer a material fact.

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bacteria. Facts are disputed as to whether the contamination is inherent in shallow wells

of these types, and as to whether the contamination is due to the deer or to other animals

in the vicinity.



Questions 3 and 6 relating to Appellants’ shallow wells and drinking water

       Question 3 asks whether the Court should deny subdivision approval under §185-5

of the Subdivision Regulations (specifically Subsection D) on the basis that the keeping of

deer on the property “adversely affects the wells and drinking water of Appellants.”

Question 6 asks whether the Court should deny subdivision approval on that basis that the

subdivision proposal “does not take into account protection for the wells and water supply

for Appellant[s’] homes.”

       As the Court noted in its earlier summary judgment decision, this Court does not

have jurisdiction over litigation of any property law or nuisance claims as among the

parties regarding their wells or water supply, including any filed under the groundwater

private right of action under 10 V.S.A. §1410. All that the Court can determine as to these

Questions 3 and 6 is whether the proposed subdivision meets whatever standards exist in

the Subdivision Regulations with respect to protection of shallow wells serving

neighboring property.

       Unlike some other municipalities’ subdivision regulations, the Town of Rutland

Subdivision Regulations do not appear to require that a proposed subdivision comply with

zoning2 regulations or any other regulations that might establish performance standards

for land uses. Therefore, with respect to Question 3 in the present appeal the Court is

limited to determining whether the existing use of a portion of proposed Lot 2A for the



       2
        Indeed, there is no indication as to whether the Town of Rutland has adopted
zoning regulations.

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keeping of deer meets the requirements of the Subdivision Regulations.

       Several sections of the Subdivision Regulations address surface and groundwater

quality, stormwater runoff, and the protection of public health, but no specific requirement

of the Subdivision Regulations protects the water supplies of adjacent properties. Section

185-5 lays out the “broad considerations” in subdivision review. Subsection D requires the

“[p]rovision of adequate safeguards to protect the general public from the perils of . . .

water pollution or other threats to public health . . . ;” while subsection B considers the

“recognition of a desirable relationship to . . . groundwater and surface water hydrology,

including the natural drainage pattern, and to the groundwater table.” (Emphasis added.)

In addition, §185-35 requires an “adequate surface stormwater drainage system for the

entire subdivision area” and provides that the Planning Commission may require the

subdivider “to carry away by pipe or open ditch any spring- or surface water that may exist

either previous to or as a result of” the subdivision.

       Appellants state in their memorandum in response to the renewed motion for

summary judgment only that they “are prepared to present evidence of stormwater

flowing into a well as a result of the deer yard,” although they have not come forward with

that evidence by an affidavit or in a statement of undisputed facts as required by V.R.C.P.

56(c)(1) and (2) to establish a disputed material fact for trial. If they do so on or before

September 7, 2007, then Questions 3 and 6 of Appellants’ Statement of Questions present

a genuine issue for trial and summary judgment will be DENIED as to Questions 3 and 6.

Absent such affidavit or undisputed fact, on September 10, 2007, Appellee-Applicants’

Motion for Summary Judgment will also be granted with respect to Questions 3 and 6 of

the Statement of Questions and the appeal will be dismissed.



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

Questions 1 and 2 of the Statement of Questions are DISMISSED as having been withdrawn

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by Appellants as moot. On or before September 7, 2007, Appellants shall come forward

with evidence as to Questions 3 and 6 by affidavit or statement of undisputed facts as

required by V.R.C.P. 56(c) to establish a disputed material fact for trial. If they do so, as of

4:00 p.m. on September 10, 2007, summary judgment will be DENIED as to Questions 3 and

6; absent such affidavit or undisputed fact, as of 4:00 p.m. on September 10, 2007, Appellee-

Applicants’ Motion for Summary Judgment will also be granted with respect to Questions

3 and 6 of the Statement of Questions and the Court will issue an order of dismissal of this

appeal.

       A telephone conference has been scheduled for September 17, 2007 (see enclosed

notice) to set a trial date, if the matter is not dismissed. Please be prepared to state whether

the parties and their witnesses are available for the morning of October 24, 2007, as well as

with their unavailable dates in December of 2007 and January and February of 2008.



       Done at Berlin, Vermont, this 22nd day of August, 2007.




                             _________________________________________________
                                   Merideth Wright
                                   Environmental Judge




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