                                 STATE OF VERMONT
                      SUPERIOR COURT - ENVIRONMENTAL DIVISION

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In re Cote Site Plan Approval                      {        Docket No. 52-4-10 Vtec
(Appeal of DRB Decision on Site Plan)              {
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                                      Decision on the Merits

         This case concerns Janet Cote’s (Appellee) Application for site plan approval regarding
her property at 612 Maquam Shore Road and 65 Sandy Cove Road, St. Albans, Vermont
(Property) in accordance with the Town of St. Albans (Town) Zoning Bylaws and Subdivision
Regulations, last amended July 27, 2009 (Regulations). Due to a prior enforcement action by the
Town, the Application must also satisfy the requirements of an August 8, 2008 Decision of this
Court.    John E. Maslar, Leo Bilodeau, and Jerome Franklin (Appellants) appeal the Town
Development Review Board’s (DRB) March 16, 2010 decision granting site plan approval.
         The Court conducted a site visit to the Property on October 19, 2012 approximately one
month in advance of the merits hearing. The site visit was conducted in advance of the hearing
to ensure that the Property could be observed without snow cover. Appellant John Maslar, pro
se, and Appellee, with her attorney Cynthia L. Broadfoot, Esq., participated in the site visit. A
merits hearing was held on November 27, 2012 at the Vermont Superior Court, Franklin Civil
Division, St. Albans, Vermont. Appellants John E. Maslar and Leo Bilodeau, appearing pro se,
Appellee, represented by Cynthia L. Broadfoot, Esq., and the Town of St. Albans, represented
by Vincent A. Paradis, Esq., participated in the hearing.

                                            Background
         In 2006 the Town issued Appellee a Notice of Violation (NOV) for undertaking activities
on her Property without a permit. The alleged activities included digging a drainage ditch,
installing an underground pipe, and placing fill in various places on or along the border of the
Property. Appellee appealed the Town’s NOV to the DRB and subsequently appealed the
DRB’s decision upholding the NOV to this Court. This Court held a hearing on the issue of the
alleged violations.    Appellee did not participate in this hearing but rather requested a
continuance. This Court denied the continuance and, in a December 19, 2007 Order, affirmed
the Town’s alleged violations. In re Cote NOV Appeal, Docket No. 273-11-06 Vtec, slip op. at 2
(Vt. Envtl. Ct. Dec. 19, 2007) (Durkin, J.), aff’d Nos. 2008-011, 2008-393 (Vt. July 23, 2009) (mem.).

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          Appellee appealed the December 19, 2007 decision to the Vermont Supreme Court,
which stayed the appeal to allow this Court to hear a related enforcement action brought by the
Town against Appellee. This related enforcement action concerned whether the Town was
entitled to civil penalties and injunctive relief as a consequence of Appellee’s zoning violations.
In its August 14, 2008 Decision, this Court imposed a civil penalty of $21,630.00 on Appellee and
ordered that Appellee apply for Town approval for “all drainage, piping and fill work
completed on her property, remedial work already conducted on her property, and any further
remedial work she proposes to complete on her property.” Town of St. Albans v. Janet Cote,
Docket No. 165-8-07 Vtec, slip op. at 8 (August 14, 2008) (Durkin, J.) aff’d Nos. 2008-011, 2008-
393 (Vt. July 23, 2009) (mem.). Appellee appealed the 2008 Decision to the Vermont Supreme
Court, which, in a July 23, 2009 decision, affirmed this Court’s 2007 Order and 2008 Decision.
Cote v. Town of St. Albans, Nos. 2008-011, 2008-393 (Vt. July 23, 2009) (mem.).
          In November 2008, Appellee first applied for Town approval, as required by the 2008
Decision, for the unpermitted activities that she previously carried out on her Property. The
Town requested additional information, and in August 2009 Appellee filed a second application
for Town approval. The Town first held a public hearing on the second application on October
22, 2009, followed by a site visit on November 7, 2009. Two additional hearings, on December
10, 2009 and March 11, 2010, followed the site visit. The DRB then issued its March 16, 2010
written decision approving the Application, with conditions.         On or about April 8, 2010,
Appellants appealed the DRB decision to this Court.
          In support of their appeal, Appellants filed a Statement of Questions containing 28
Questions. In advance of the trial, Appellants withdrew 4 Questions, leaving 24 remaining for
trial.1 A majority of Appellant’s Questions are stated as though this were an on-the-record
appeal; however, this is a de novo trial. In this proceeding, we are not concerned with what the
DRB did below. See Chioffi v. Winooski Zoning Bd., 151 Vt. 9, 11 (“A de novo trial ‘is one where
the case is heard as though no action whatever has been held prior thereto’”) (quoting In re
Poole, 136 Vt. 242, 245 (1978)).        Rather, we must consider anew whether the Application
complies with the Regulations. See id. In an October 5, 2010 Entry Order, we denied Appellee’s
motion for summary judgment. In re Cote Site Plan Approval, No. 52-4-10 Vtec (Vt. Super. Ct.
Envlt. Div. Oct. 5, 2010) (Durkin, J.). The Entry Order expressly reminded the parties that this is



1   Appellants withdrew their Questions 21, 26, 27, and 28.
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a de novo proceeding, where the Court will review anew Appellee’s site plan to determine if it
complies with the Regulations. Id.
       Many of Appellants’ Questions raise issues involving private property rights, sufficiency
of evidence before the DRB, mediation, potential Town liability, and damages. This Court does
not have jurisdiction to adjudicate private property rights.            See, e.g., In re Britting
Wastewater/Water Supply Permit, No. 259-11-07 Vtec, slip op. at 4 (Vt. Envtl. Ct. Apr. 7, 2008)
(Wright, J.) (“This Court’s consideration of property-related issues and rights is limited to issues
within the scope of the regulations governing the permit application.”). Our scope of review in
this matter is limited to whether the Application complies with the Regulations. Generalizing
Appellants’ opposition to Appellee’s site plan Application, we understand Appellants to be
concerned with surface water issues. For instance, many of Appellants’ Questions ask whether
the site plan restores the natural or pre-existing surface water flow. Appellants’ Questions are
only within the scope of our review, however, to the extent that they are reviewable under the
Regulations. Therefore, we interpret Appellant’s remaining Questions as raising only three
justiciable questions for our review in this appeal:
       1. Whether the site plan complies with Regulations §§ 303 and 315?
       2. Whether the site plan complies with Regulations § 411?
       3. Whether the site plan complies with the Court’s August 14, 2008 Decision?
To the extent that Appellants’ Questions raise issues beyond the three questions above, we
dismiss Appellants’ Questions as outside of our jurisdiction in this appeal.
       Based upon the evidence presented at trial, including that which was put into context by
the site visit, the Court renders the following Findings of Fact and Conclusions of Law.

                                         Findings of Fact
1.   Appellee owns property at 612 Maquam Shore Road and 65 Sandy Cove Road, St. Albans,
     Vermont (Property).
2.   The Property is generally described as approximately 1.3 acres, 100 feet wide, and 500 feet
     long.
3.   A commercial structure is located at the east end of the Property, and although it is
     presently vacant, it once contained a store and an apartment.
4.   Three residential year-round cottages are located at the southwest end of the Property.
5.   Although the Property is close to Lake Champlain, a private road and a row of additional
     off-site cottages separate the Property from the lake.
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6.    The Property is bordered to the north and west by Sandy Cove Road, to the east by
      Maquam Shore Road, and to the South by an open field owned by Appellant Maslar.
7.    In 2006 and earlier, Appellee undertook several unpermitted activities at the Property,
      including digging a drainage ditch and placing fill in various places on or along the
      border of the Property to create soil berms.
8.    As part of her compliance with this Court’s 2008 Decision, Appellee retained Jennifer A.
      Desautels, P.E., a project manager and engineer with Trudell Consulting Engineers, to
      assist Appellee in creating a site plan and obtaining Town approval of the Property.
9.    In January 2010, Ms. Desautels performed a site visit to the Property. Ms. Desautels
      observed the unpermitted soil berms created by Appellee. Ms. Desautels photographed
      and measured the berms.
10.   Ms. Desautels also reviewed relevant maps of the area, a USGS Map of the area, and a
      topographic survey of the Property compiled by Button Professional Land Surveyors, PC
      (Button Land Surveyors).
11.   Ms. Desautels obtained electronic topographic data from Button Land Surveyors for the
      Property and used this data to generate a site plan. She also used this data to calculate
      that the berms contained approximately 25 cubic yards of fill.
12.   Appellee retained John Irish, a general contractor, to organize and oversee the berm
      removal work.
13.   Mr. Irish retained Jamie Curtis to excavate the berms from the Property. Mr. Curtis
      understood that he was retained to remove fill which had previously been deposited at
      the Property and existed in the form of soil berms and that he was to restore the Property
      to its original grade.
14.   Prior to Appellee’s creation of the berms, railroad ties were placed on the Property, and
      these railroad ties served as one measure of determining the original grade of the
      Property.
15.   In May 2010, over a period of approximately 20 hours of work, Mr. Curtis excavated
      approximately 20 to 22 yards of fill from the Property and transported the fill off-site.
16.   Mr. Curtis also understood that an engineer would inspect his work and certify that all fill
      was removed and that the Property was returned to its original grade.
17.   When Mr. Curtis finished his excavation work, he believed that there were no remaining
      soil berms at the Property.
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18.   Mr. Irish assisted Mr. Curtis with removing the pre-existing railroad ties along Sandy
      Cover Road and witnessed Mr. Curtis excavating and trucking fill off of the Property.
19.   Mr. Irish has mowed the lawn at the Property both with the berms and after they were
      removed. With the berms in place along Sandy Cove Road, Mr. Irish had to use a weed
      trimmer to cut the grass covering the berms. Following berm removal, Mr. Irish could use
      a lawn mower to mow right up to Sandy Cove Road.
20.   Appellee installed a curtain drain at the Property for the purpose of directing surface
      water away from an existing septic system. This drain was removed in 2007 and no longer
      is present at the Property.
21.   The elevation of Sandy Cove Road is slightly higher than the elevation of Appellee’s
      Property. As one travels west on Sandy Cove Road, toward Maquam Shore Road, Sandy
      Cove Road’s elevation above Appellee’s Property increases. Thus, any surface water on
      Appellee’s Property cannot naturally flow over or across Sandy Cove Road until the
      standing water exceeds the elevation of Sandy Cove Road.
22.   Jewett Road, located west southwest of the Property, also has a higher elevation than both
      the Property and Appellant Maslar’s adjoining property.
23.   A berm is located south of the Property wholly upon Appellant Maslar’s property.
24.   After Mr. Curtis finished his soil excavation and removal work, Ms. Desautels conducted a
      site visit to the Property on June 2, 2010. Ms. Desautels observed that all the berms on the
      Property had been removed, and Ms. Desautels again noted that the Property was very
      flat and that Sandy Cove Road was slightly elevated above the Property along its northern
      boundary.
25.   On June 3, 2010, Ms. Desautels certified to the Town that all berms on the Property had
      been removed. She made this certification by written letter and attached photographs.
26.   Appellant Bilodeau maintains Sandy Cove Road, including removing snow with a plow
      truck. Sometimes during snow removal, material from Sandy Cove Road is scraped or
      “windrowed” onto Appellee’s property. As part of his maintenance work, Appellant
      Bilodeau adds fill to and grades Sandy Cove Road.

                                      Conclusions of Law
       Appellants appeal the DRB’s March 16, 2010 site plan approval awarded to Appellee.
Although Appellants raise many questions, the scope of our review in this case is limited to
whether Appellee’s site plan Application complies with the Regulations and the Court’s August
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14, 2008 Decision.        We first address compliance with the Regulations and then address
compliance with the Court’s 2008 Decision.
      I.      Regulations § 303 – Site Plan Approval
           To obtain site plan approval from the DRB, Appellee’s Application must include a site
plan depicting contoured features of the existing site, watercourses and wetlands, vegetation
and natural features, structures, access points, easements, exterior lighting, size design and
location of signs, and property and zone boundaries. Regulations § 303(1)(A).                     Appellee’s
Application includes a site plan prepared on February 18, 2010 by Trudell Consulting
Engineers. Appellee’s Exhibit B. The plan expressly states that its purpose is to provide visual
representation of existing conditions and runoff patters. The plan shows contoured features of
the site (including soil berms), wetlands (existing off-site to the south), vegetation (trees and an
area of disturbed ground), natural features (swales in the southwest corner of the site),
structures (a store with an apartment, three year-round homes labeled as “buildings,” and a
shed), access points (shown as gravel drives), and property boundaries. Also included with the
Application is a Button Land Surveyors Topographic Survey Map dated September 2009
showing topography contours, features and structures of the Property, and the lands to the
south of the Property. Appellee’s Exhibit C. Thus, the Application, including Exhibits B and C,
complies with Regulations § 303(1)(A).
           Appellee’s Application must also show any proposed improvements to the Property,
including drainage and site grading. Regulations § 303(1)(B).2 As described above, Appellee’s
site plan provided as Exhibit B shows runoff or drainage patterns. Appellee’s Application
includes a second version of the February 18, 2010 Trudell Consulting Engineers site plan
showing “existing berms removed as of 5/29/2010 elevation returned to original grade.”
Appellee’s Exhibit E. We conclude that the Application, including the two versions of the
Trudell Consulting Engineers site plan, complies with Regulations § 303(1)(B).
           Lastly, Appellee’s Application must show any proposed protections and/or
enhancements of watercourses, wetlands, and other natural features to be utilized during and
after construction. Regulations § 303(1)(C). Again, as described above, Appellee’s Exhibits B, C,
and E satisfy the requirements of Regulations § 303(1)(C).
           The remaining subsection of Regulations § 303 are not relevant to Appellee’s activities at
the Property and are therefore not relevant to site plan review in this appeal.

2   Other improvements listed in Regulations § 303(1)(B) are not relevant to Appellee’s site activities.
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          Thus, we conclude that Appellee’s Application complies with Regulations § 303.

   II.       Regulations § 315(3) – Lakeshore District
          Regulations § 315(3) provides the objective and description of the Lakeshore District, the
zoning district in which the Property is located. This section also lists the permitted and
conditional uses allowed within the Lakeshore District and establishes the dimensional
requirements for properties within the District. Although Appellants’ Statement of Questions is
reasonably interpreted to raise issues of compliance with this section of the Regulations,
Appellants have not provided the Court with any testimony or evidence of the Application not
complying with the Lakeshore District standards. Furthermore, as Appellee is not proposing a
new or different use of the Property, and is not proposing new or altered structures or other
physical alterations other than reversing previously unpermitted filling and drainage, we fail to
see any potential non-compliance issue with this section of the Regulations. Thus, we conclude
that the Application complies with Regulations § 315(3).

   III.      Regulations § 411 - Landfilling, Site Excavation, Underground Services and
             Drainage
          Section 411, entitled Landfilling, Site Excavation, Underground Services and Drainage,
requires that any land alteration or excavation that would cause a substantial change in the
volume, velocity, or direction of drainage must obtain site plan approval. Regulations § 411(2).
As discussed above, we conclude that Appellee’s Application satisfies the Regulations’ site plan
approval requirements. In addition to site plan approval, Regulations § 441(2) requires that an
applicant:
          A. Submit an acceptable plan showing existing and proposed finish grades of
             the site (to demonstrate that the site will be left in a usable condition);
          B. Agree to cover the finished grades, except exposed ledge rock, with a least
             three (3) inches of topsoil and seed with a suitable crop cover upon
             completion of the operation;
          C. The Development Review Board may require an applicant to post a
             performance bond or a letter of credit sufficient to guarantee restoration of
             the site.
          Appellee’s Application provides a site plan and topographic survey map, Exhibits B and
C, showing existing grades of the site. Additionally, Appellee’s Application includes a site
plan, Exhibit E, showing finished grades; this site plan shows the Properties’ grades following
berm removal. Appellee’s witnesses testified to the ground cover following berm removal and


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stated that these areas were easily mowed. Exhibits admitted on behalf of Appellee show
ground conditions immediately following berm removal. See Appellee’s Exhibit D. These
pictures show top soil remaining as the ground cover. The soil is now covered by grass.
According to Ms. Desautels, the site was left in a usable condition.             Ms. Desautels was
impressed with the excavation work which left the Property smooth and without elevation
change. Appellants provided no credible testimony to refute Appellee’s compliance with
Regulations § 411(2)(A) & (B).
         With respect to the discretion to require a performance bond or letter of credit pursuant
to Regulations § 411(2)(C), we find this protection unnecessary as the work is already complete.
See Appellee’s Exhibit D certifying completion of berm removal by June 2, 2010. We conclude
that the Application complies with Regulations § 411.

   IV.      Compliance with the Court’s August 14, 2008 Decision
         Appellants assert that Appellee has not satisfied the injunctive relief of this Court’s 2008
Decision. Again, the core of Appellants’ concerns focus on surface water flow issues and soil
berms, which, according to Appellants, have the potential to alter surface water flow.
         In its August 14, 2008 Decision this Court ordered that Appellee pay a civil penalty and,
not later than November 12, 2008, apply for Town approval for “all drainage, piping and fill
work completed on her property, remedial work already conducted on her property, and any
further remedial work she proposes to complete on her property.” Town of St. Albans v. Janet
Cote, Docket No. 165-8-07 Vtec, slip op. at 8 (August 14, 2008) (Durkin, J.) aff’d Nos. 2008-011,
2008-393 (Vt. July 23, 2009) (mem.). To put the Court’s injunctive relief into better context, the
Court in the 2008 Decision found that Appellee had already remedied a portion, but not all, of
the unpermitted activities on the Property. Id. at 5.. The Court found that Appellee had filled
in the unpermitted drainage ditch and had removed some, but not all, of the unpermitted fill on
the Property.     Id.   This partial remedial work was undertaken without Town review or
approval. Id. Thus, this Court’s 2008 Decision sought review and approval of all remedial
work, past and future. Importantly, the 2008 Decision also stated that the Court could not
discern the direction in which surface water flows across the Property, either prior to the
unpermitted ditching and fill activities or prior to the partial remedial activities. Id.
         In the present appeal, no party argues or provides any evidence as to whether Appellee
has complied with the 2008 Decision to pay a civil penalty. Thus, we do not review this aspect
of the 2008 Decision.
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         Appellee initiated the process of satisfying the 2008 Decision on November 5, 2008 by
filing an application for site plan approval.         Town Zoning Administrator Rebecca Bushey
provided written notice to Appellee on December 2, 2008 that the site plan application was
incomplete. Thereafter, Appellee filed an amended application in August 2009 in an attempt to
satisfy the Town’s concern over the original incomplete application.            Ultimately, Appellee
retained Ms. Desautels to assist in obtaining Town site plan approval of Appellee’s unpermitted
site work, and past and future remedial work. With Ms. Desautels’ engineering services and
assistance, Appellee obtained DRB site plan approval on March 16, 2010. As concluded above,
the Application complies with the Regulations, and therefore, we conclude that Appellee has
complied with the Court’s 2008 Decision.
    V.      Additional Findings
         This matter has a long history of related proceedings before the Town, this Court and
the Supreme Court, during which Appellants’ concerns have focused on surface water flow
issues and soil berms at the Property. In light of this history and Appellants’ concerns, we note
the following additional credible evidence in this matter. Ms. Desautels, the only Professional
Engineer to provide testimony and evidence to the Court, credibly described the Property’s
topography, with or without the berms, to be like a bathtub. Any surface water that collects on
the Property cannot simply run off the Property, but rather must infiltrate into the soil. This is
because the roadways bordering the Property are elevated and effectively prevent surface water
from flowing off the Property. Accordingly, in Ms. Desautels’ opinion, the unpermitted soil
berms created by Appellee had no effect on surface water flow in the area of the Property.3
         Throughout this proceeding, Appellants have expressed particular concern that
Appellee’s activities on her Property have directed and continue to direct surface water onto
Appellant Maslar’s adjoining field. Ms. Desautels testified that while she did not enter Mr.
Maslar’s field to the south of the Property, she did observe the middle section of the field
appearing wet. Ms. Desautels noted, however, that Jewett Road, bordering the west side of the
Maslar field, and a private driveway, bordering the south side of the Maslar field, both had
significantly higher elevations than the Maslar field. As a result, these features impede surface
water from flowing from the Maslar field west and south ultimately into the lake.                  See


3  Originally, Ms. Desautels designed a site plan with the berms remaining in place, because, in her
opinion the berms did not alter surface water flow. At the Town’s insistence, Ms. Desautels revised the
site plan to include the removal of all berms. Appellee has fully carried out this revised site plan.
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Appellee’s Exhibit L. Furthermore, Ms. Desautels observed a large culvert under Maquam
Shore Road which connected surface water flow from approximately 50 acres of agricultural
fields on the east side of Maquam Shore Road to the Maslar field. See id. Thus, even though
Appellee has successfully remediated the Property to conditions before the creation of the
unpermitted soil berms, it appears that there are topographic and surface water flow features
separate and apart from anything on Appellee’s Property that may continue to contribute to the
wet conditions on Appellant Maslar’s property and other properties in the area.

                                         Conclusion
       For the reasons detailed above, we conclude that:
       1. The Application complies with Regulations § 303 – Site Plan Approval; Regulations
           § 315(3) – Lakeshore District; and Regulations § 411 – Landfilling, Site Excavation,
           Underground Services and Drainage; and
       2. The Application complies with the Court’s August 14, 2008 Decision.

       A Judgment Order accompanies this Decision. This completes the current proceedings
before this Court.
       Done at Berlin, Vermont this __th day of March, 2013.



                                                      Thomas G. Walsh,
                                                      Environmental Judge




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