                                        STATE OF VERMONT

                                  ENVIRONMENTAL COURT

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Appeal of Baker and Johns                           }           Docket No. 200-10-04 Vtec
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                      Decision and Order on Appellee’s Motion to Dismiss


        Appellants Patricia Baker and Yvonne Johns appeal from a decision of the Town of
Middlebury Planning Commission, approving Appellee-Applicant Co-operative Insurance
Companies’ (Co-operative) application for a two-lot subdivision. Co-operative has filed a
Motion to Dismiss all issues raised in Appellants’ Statement of Questions. Co-operative is
represented by Willem Jewett, Esq.; Appellants represent themselves.
                                         Factual Background
       1.     Co-operative owns an 80.3-acre parcel of property (the 80-acre parcel) north of
Colonial Drive in Middlebury. Co-operative also owns land within the Chipman Hill Estates
Planned Unit Development (the PUD). Co-operative’s land within the PUD abuts the 80-acre
parcel to the south and includes Co-operative’s offices, as well as 6 PUD lots numbered 7, 8, 9,
10, 11, and 11a. Lots 7-11a are located between Colonial Drive and the 80-acre parcel.
Pursuant to the approved PUD, Lots 7 and 8 are to remain in open space. See Co-operative’s
Motion to Dismiss, Exhibits 1, 8, 10, and 11.
       2.   Appellants’ property (purchased from Marsden on June 30, 2004) is between
Colonial Drive and the southerly boundary of the 80-acre parcel, and abutting Lot 7 to its west.
       3.   Co-operative submitted a subdivision application to the Middlebury Planning
Commission seeking to subdivide the 80-acre parcel into two parcels, Lots A and B, 38.3 and 42
acres respectively. Co-operative intends to sell Lot A, and retain Lot B for agricultural use.
       4. Proposed access to Lots A and B is by right-of-way easement from Colonial Drive,
over PUD Lot 8, and onto Lot B, then turning westerly across the southwesterly corner of Lot B
to the southeasterly corner of Lot A.
       5.   The Planning Commission approved the subdivision application. As part of the
Commission’s approval, the PUD was spontaneously modified: Lot 7 was “deemed” a
developable residential lot and access was approved over PUD Lot 8. Nothing in the record
suggests that an application for amendment to the PUD approval was pending.
       6. Appellants appealed the decision of the Planning Commission to this Court.
                                               Discussion
       Co-operative filed a Motion to Dismiss all questions presented by Appellants’ Statement
of Questions. Co-operative also filed factual Exhibits 1-12 with its Motion, which we are
therefore treating as a Motion for Summary Judgment. See, V.R.C.P. 12(c); Lueders v. Lueders,
152 Vt. 171 (1989) (when matters outside of pleadings are presented in support of a Motion to
Dismiss, the Motion should be treated as one for Summary Judgment).
                                         Questions 1, 3, 4, and 5
        Questions 1, 3, 4, and 5 address Appellants’ concerns regarding the potential future
subdivision and development of Lot A. However, the potential future subdivision and
development of Lots A and B are not part of Co-operative’s present subdivision application, and
therefore are not issues we may address as part of this appeal. As the Supreme Court explained,
“subdivision review is not intended to police prospective uses of the subdivided lots. No
subdivider is required to specify what uses will be placed on the subdivided lots, and the act of
subdivision does not restrict those uses. Indeed, there is no requirement that the subdivider know
what uses will be placed on those lots.” In re Taft Corners Assoc., Inc., 171 Vt.
135, 141 (2000). While the potential future subdivision and development of Lots A and B are
not a part of this appeal, any further subdivision or development of Lot A or B would require that
the proper application, review, and permit be in hand before regulated development of the
parcels begins. Appellants may advance their concerns regarding the potential future subdivision
and development of Lots A or B, if and when the applications for subdivision or development of
Lots A or B are submitted.
       Therefore, Co-operative’s Motion is GRANTED as to Question 1, 3, 4, and 5 as beyond
the present jurisdiction of the Court.
                                          Questions 2, 6, and 7
       Questions 2, 6, and 7 address issues regarding the access right-of-way to Lots A and B as
approved by the Planning Commission. Because access to Lots A and B is a part of subdivision
application review, these questions are appropriate for the Court’s review. However, the
summary judgment record is inadequate for review of these issues without the Town’s Zoning
Ordinance, because subdivision review requires analysis of the Zoning Ordinance. See
§606(C)(4) of the Subdivision Regulations (incorporating §610(C) of the Zoning Ordinance).
        Therefore, Co-operative’s Motion is DENIED as to Questions 2, 6, and 7, without
prejudice to resubmit once the Town’s Zoning Ordinance and appropriate Affidavits and other
relevant evidence are submitted to the Court.
                                         Questions 8 and 9
        Questions 8 and 9 address issues raised by the modification of the PUD as a part of the
approved access right-of-way. Because access to Lots A and B is a part of subdivision
application review, these questions are appropriate for the Court’s review. Nevertheless, the
summary judgment record is also inadequate for review of these issues without the Town’s
Zoning Ordinance, as review of Co-operative’s subdivision application requires analysis of the
Town’s PUD regulations.
       Therefore, Co-operative’s Motion is DENIED as to Questions 8 and 9, without prejudice
to resubmit once the Town’s Zoning Ordinance and appropriate Affidavits and other relevant
evidence are submitted to the Court.




       Accordingly, based on the foregoing, it is hereby ORDERED and ADJUDGED that Co-
operative is GRANTED Summary Judgment as to Questions 1, 3, 4, and 5 of the Statement of
Questions and DENIED Summary Judgment, without prejudice, as to Questions 2, 6, 7, 8, and
9. The parties shall provide one complete copy of the Town’s Zoning Ordinance, and include
any other regulations pertinent to PUD review. The parties will have 30 days after submission of
the Zoning Ordinance to file supplemental Motions or memoranda. Thereafter, if all issues are
not resolved by such Motions, this matter shall be set for trial.




       Done at Berlin, Vermont, this __th day of March, 2005.


                                                _______________________
                                                Thomas S. Durkin
                                                Environmental Judge
