STATE OF VERMONT
SUPERIOR COURT - ENVIRONMENTAL DIVISION

In re Bibby 5-Lot Final Plat
Subdivision & Waiver Application

Docket No. 189-11-10 Vtec

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Decision on Cross-Motions for SummarV ludgment and Dismissal

Before us on appeal is a decision by the Town of St. Albans Development Review Board
(”the DRB”) granting Thomas and Yu Bibby (”Applicants") final plat approval to create a five-
lot subdivision from an approximately 29-acre property along French I-Iill Road in the Town of
St. Albans, Vermont. The DRB decision also grants Applicants a waiver from the road frontage
requirement for two of the resulting lots. Susan Roush and Lawrence Bruce (”Neighbors”), who
own property adjacent to Applicants’, have appealed the DRB decision, filing a Statement of
Questions detailing 25 Questions.

Currently pending before the Court is a motion from Applicants requesting either
summary judgment or dismissal of 24 of the 25 Questions. Also pending before the Court is a
competing motion for partial summary judgment filed by Neighbors. Applicants are
represented by Brian P. Hehir, Esq. Neighbors are represented by Annie Dwight, Esq. The
Town of St. Albans, an interested person in this appeal, is represented by Vincent A. Paradis,
Esq., and interested person Eril< Kilburn is self-represented Neither the Town of St. Albans nor

Mr. Kilburn has filed a responsive pleading to the pending motions.

Factual Background

For the sole purpose of putting the pending motions into context, the Court recites the
following facts, which it understands to be undisputed'unless otherwise noted:
1. On ]uly 27, 2010 Applicants submitted an application to the DRB requesting final plat
approval to subdivide, into five lots, their approximately 29-acre property along French Hill
Road in the Town of St. Albans, Vermont. They also sought a waiver from the road frontage
requirement for two of the resulting lots (Lots 3 and 4).
2. On October 20, 2010 the DRB granted Applicants final plat approval for the proposed
five-lot subdivision and also granted Applicants a waiver from the road frontage requirement

for the two identified lots.

3. Applicants' 29-acre property includes portions located in two zoning districts, the
Conservation District and the Rural District, as designated by the Town of St. Albans Zoning
Bylaws and Subdivision Regulations.

4. As part of their application to the DRB, Applicants have proposed a 20-foot-wide right-
of~way that is intended to operate as a shared driveway for three of the resulting lots, as well as
proposed septic systems that will serve the resulting lots, The parties in this appeal debate the
import of the inclusion of these improvements in the pending application

5. The parties also debate whether any wetlands exist on Applicants' property that warrant
protection under the applicable version of the state wetland protection rules.

6. On November 14, 2010, Neighbors appealed the DRB's decision to this Court, raising 25

Questions.

Discussion

Neighbors have appealed the DRB’s grant of final plat approval to Applicants to
subdivide, into five lots, an approximately 29-acre property along French Hill Road in the Town
of St. Albans. Neighbors have also appealed the DRB's grant of a waiver from the road frontage
requirement for two of the resulting lots. Neighbors’ Statement of Questions details 25
Questions to be determined in this appeal. Applicants have filed for either summary judgment
or dismissal of 24 of the 25 Questions,1 and Neighbors have responded with a motion for partial
summary judgment concerning select Questions. Neither of the interested parties in this appeal
has responded to these motions.

Although Applicants’ motion here seeks dismissal of some of the Questions rather than
summary judgment, Neighbors have treated Applicants’ motion as one requesting summary
judgment on all of the Questions addressed in the motion. Thus, we have done the same in this
Decision, and we determine that the parties in this appeal have had reasonable opportunities to
respond to Applicants’_ motion as one for summary judgment By treating the requests for
dismissal as requests for summary judgment, we are able to take into account the information
offered by each party that goes outside of the text of the questions themselves See V.R.C.P.

12(b)(6) (”lf, on a motion . . . to dismiss for failure . . . to state a claim upon which relief can be

 

1 Although Applicants' motion indicates that they seek summary judgment or dismissal for all of
Neighbors’ Questions, their motion mal<es no mention or argument as to Question 19. Consequently, we
do not examine Question 19 in this Decision, `

granted, matters outside the pleadings are presented to and not excluded by the court, the
motion shall be treated as one for summary judgment . . . .”).2

We Will grant summary judgment for a moving party if that party shoWs, with
”pleadings, depositions, answers to interrogatories, and admissions on file, together With the
affidavits, if any,” that no material facts are in dispute and that the party is entitled to judgment
as a matter of law. See V.R.C.P. 56(c)(3) (2011) (amended ]an. 23, 2012);3 V.R.E.C.P. 5(a)(2);
Travelers lns. Cos. v. Demarle, lnc. USA, 2005 VT 53, jj 3, 178 Vt. 570 (stating that the moving
party has the burden of proof). ln considering cross~motions for summary judgment, we give
each party the ”benefit of all reasonable doubts and inferences when the opposing party’s
motion is being judged.” City of Burlington v. Fairpoint Commc’ns, 2009 VT 59, il 5, 186 Vt. 332
(citing ToVs, lnc. v. F.M. Burlington Co., 155 Vt. 44, 48 (1990)). lhat is, we ”accept as true the
[factual] allegations made in opposition to [each] motion for summary judgment" when

determining Whether there are disputed material facts, as long as those allegations are also

 

supported by affidavits or references to other evidentiary material. Robertson v. lean Labs.,
B, 2004 VT 15, 1[ 15, 176 Vt. 356,' V.R.C.P. 56(e).

Before considering whether summary judgment is warranted for individual Questions,
we clarify the scope of our jurisdiction and authority in this de novo appeal. We are limited to
addressing those issues that the DRB had the authority to address when considering the
application before it. See ln re Torres 154 Vt. 233, 235-36 (1990),' V.R.E.C.P. 5(g).

 

With their application, Applicants seek both final plat approval to subdivide an
approximately 29-acre property in the Town of St. Albans into five lots as well as a waiver from
the road frontage requirement for two of the resulting lots, (See Appellees’ Mots. for Summ. ].
and to Dismiss Questions, Attachment, filed ]une 9, 2011.) Their application does not seek
approval to complete any physical development on their property. (See i_d.) Following the
direction of _T_Q_rre§, our review of this application is limited by the applicable provisions of the
Town of St. Albans Zoning Bylaws and Subdivision Regulations (”the Bylaws”). See M, 154

Vt. at 235-36. Unless a provision of the Bylaws requires Applicants to seek and obtain approval

 

2 All of Applicants' requests for dismissal can be characterized as falling Within Rule 12(b)(6) of the
Vermont Rules of Civil Procedure.

3 An updated version of V.R.C.P. 56 took effect on january 23, 2010. However, we analyze the pending
motions under the previous version of the rule because that version Was in effect at the time the motions
Were filed. In any case, the new version of Rule 56 incorporates the familiar standard for granting
summary judgment from former V.R.C.P. 56(€). See Reporter's Notes-2012 Amendment, V.R.C.P. 56.

3

for anticipated physical development in conjunction with their request for final plat approval
and a waiver from the road frontage requirement, we do not have the authority, in this appeal,
to render a decision on whether Applicants need, or can be granted, such approval. 4

When interpreting the provisions of the Bylaws applicable to the pending appeal, we -
will apply the familiar principals of statutory interpretation See ln re Vt. Nat’l Banl< 157 Vt.

 

306, 312 (1991). That is, we will interpret the Bylaws with the goal of giving effect to the intent
of the municipal legislative body that drafted them. See Town of Killington v. State, 172 Vt. 182,

 

188 (2001). Our examination of intent begins by considering the ordinary meaning of the plain
language of the Bylaws. l_d. However, we are cautioned not to accept the ordinary meaning if it
would make the Bylaws ineffective or create irrational results M. at 189.

We keep these standards in mind as we review the pending motions on Neighbors’

Questions.

I. gluestions 1 and 16

Neighbors’ Question 1 asks whether Applicants' proposed subdivision complies with
Bylaws § 220(1), and Neighbors’ Question 16 asks if the location of the septic systems that will
serve the resulting lots complies with the objective in the Bylaws for one of the districts in
which Applicants’ property is located. Applicants ask that we dismiss Questions 1 and 16,
arguing that the questions are moot because Applicants obtained a Wastewater System and
Potable Water Supply Permit from the Vermont Agency of Natural Resources (”ANR”), Permit
No. WW-6-2242.

For the Court to determine that a question from a party’s statement of questions is moot,
the Court would need to conclude that our resolution of the question can no longer provide
relief to the party raising it because the controversy the question references no longer exists.
See ln re Moriarty, 156 Vt. 160, 163 (1991) (describing the concept of mootness). Applicants
have failed to show that Questions 1 and 16 no longer reference live controversies

Any subdivision application submitted to the DRB must meet the requirements
referenced in Questions 1 and 16. That is, the application must conform to Bylaws § 220 and, if

the subdivision is to take place in the Conservation District, it must meet the specific

 

4 The DRB’s review Was also so limited. ln reviewing Applicants’ application, the DRB granted final plat
approval to Applicants for the five-lot subdivision and Waived the road frontage requirement for two of
the lots, based on a proposed 20-foot-Wide right-of-way. The DRB did not grant approval or a permit for
any physical development on Applicants’ property.

development rules for that district that restrict final plat approval for a subdivision See Bylaws
Part ll, Subdivision Regulations; Bylaws §§ 211(3), 220, 221 (1), 315(2); Bylaws Part V, Definitions
(defining development as including subdivision). A pre-trial showing that Applicants’
application meets these requirements would not render Questions 1 and 16 moot; rather, it l
could be grounds for granting summary judgment in Applicants’ favor.

rl'hus, we address whether Applicants are entitled to summary judgment on Questions 1
and 16 based on their receipt of Permit No. WW-6-224. Question 1 asks whether the proposed
subdivision complies with Bylaws § 220(1) in that the property to be subdivided has ”adequate
capacity for on-site sewage disposal.” (Clarified Statement of Questions 1, filed Mar. 15, 2011).
Bylaws § 220(1) requires the following: ”[l]and to be developed shall be physically suitable for
the purpose with particular regard to the adequacy of on-site sewage disposal.” Applicants
argue that their receipt of a state wastewater permit, Permit No. WW-6-224, is conclusive proof
that the subdivision complies with Bylaws § 220(1). Neighbors respond that they have evidence
of wetlands on Applicants’ property and that, therefore, there are disputed material facts
regarding the proposed subdivision's compliance with Bylaws § 220(1).

Section 1973 of Title 10, Chapter 64 of the Vermont Statutes Annotated requires anyone
who wishes to subdivide property in Vermont to first obtain a permit from ANR for a
wastewater system or systems that will serve each proposed lot. Beginning on ]uly 1, 2007, the
provisions of Chapter 64, which establish ”technical standards and criteria for the design,
construction, operation, and maintenance” of wastewater systems, supersede any municipal
bylaws that were previously operating to do the same. See 10 V.S.A. § 1976(b),' Envtl. Protection
Rules, Chp. 1, Wastewater System & Potable Water Supply Rules (”Wastewater Rules”) § 1-501
(Sept. 29, 2007). While municipalities can continue to impose regulations that address
wastewater systems as development generally, for example by imposing setbacks, the state
regulations were meant to establish a comprehensive review and permitting process for
wastewater systems that would have state-wide uniformity. 10 V.S.A. § 1971 ; Wastewater Rules
§ 1-501. 7

In the context of the proposed subdivision of land, Bylaws § 220(1) requires that the land
to be subdivided is suitable for such subdivision and asks that decision-makers take into
”particular regard the adequacy of on-site sewage disposal.” By issuing Permit No. WW-6-
2242, ANR has concluded that the proposed mound wastewater disposal systems, or septic

systems, that Applicants have depicted in plans and propose for the new lots in a single-family
residence subdivision of their property, meet the state-wide technical standards and criteria for
wastewater systems, provided the systems are constructed in compliance With the conditions
established in Section 3.6 of their wastewater permit, (See Appellees’ Opp. to Appellants’ Mot.
for Entry Upon Land, Attachment, filed May 19, 2011),' Wastewater Rules §§ 1-801 to -808
(establishing the general technical requirements for wastewater systems), 1-913 (establishing the
technical requirements for mound wastewater disposal systems). Essentially, the submission of
Permit No. WW-6-2242 to the Court establishes a rebuttable presumption that, if Applicants
construct their septic systems in compliance with that permit, there Will be adequate on-site
sewage disposal for the proposed subdivision

Here, the central argument Neighbors make in opposition is that there are wetlands on
Applicants’ property. Characteristics of land going to its drainage-including, for instance, the
depth of the soil, the rate at which water placed in the soil percolates, the height of the water
table in relation to the soil, and the slope of the ground-are some of the central pieces of
information ANR must consider when determining whether to grant a wastewater system and
potable water supply permit, See Wastewater Rules §§ 1-805, 1-913. The existence of wetlands
on Applicants’ property, depending on their location and the location of the proposed
wastewater systems, would directly impact the measurement of these characteristics Thus,
whether there are wetlands on Applicants’ property that could affect the proposed wastewater
systems is a consideration Al\lR necessarily took into account when issuing Permit No. WW-6-
2242. Neighbors offer no information that contradicts this conclusion.

Neighbors' argument-and the evidence they reference-does not pose a challenge to
the presumption that if Applicants construct the septic systems for their subdivided property in
compliance with Permit No. WW-6-2242, there will be adequate on-site sewage disposal for the
proposed subdivision Rather, Neighbors' argument appears to challenge ANR’s issuance of
Permit No. WW-6-2242 and the findings ANR relied on in issuing the permit, Such an
argument cannot be raised in this appeal, but must be raised in an appeal from the permit itself.
See 10 V.S.A. §§ 8503(a)(1)(K), 8504(a). Consequently, we conclude that there are no disputed
material facts as to the proposed subdivision's compliance with Bylaws § 220(1). We therefore

GRANT summary judgment to Applicants on Question 1, answering it in the affirmative

Turning to Question 16, Neighbors ask whether the location of the Septic systems that
will serve the lots resulting after the subdivision of Applicants’ property will comply With the
objective stated in the Bylaws for the Conservation District in terms of protecting wetlands The
”Objective and Description” for the Conservation District reads as follows:

Location, topography and soil limitations make lands in this district unsuitable
for intensive development Included are areas of steep slopes and wetlands
Designation of this district is intended to protect the scenic and natural resources
value of the lands which lack direct access to public roads, are important for
wildlife and wildlife habitat, and Which are poorly suited for development Only
low density residential development . . . which [is] compatible with the district
purposes will be permitted

Bylaws § 315(2) (emphasis added).

Both Applicants and Neighbors agree that a portion of Applicants’ property is in the
Conservation District, although Applicants claim that only one of the proposed septic systems is
in that district and that it is within 100 feet of the zoning district boundary. Applicants also
argue that, even if the objective is applicable, their receipt of Permit No. WW-6-224 is conclusive
proof that the subdivision complies with the objective As with Question 1, Neighbors respond
here that they have evidence of wetlands on Applicants’ property and that, therefore, there are
disputed material'facts regarding the proposed subdivision's compliance with this objective of
the Conservation District,

Without determining where the boundary for the Conservation District crosses
Applicants’ property or whether there are wetlands on Applicants’ property, as that term is
defined in the Bylaws, we conclude that summary judgment is warranted in favor of Applicants
on Question 16. We reach this conclusion based on our reading of the objective for the
Conservation District and how it operates in the context of the application before us in this
appeal.

The application before the DRB, and now before the Court, seeks final plat approval for
a subdivision While the parties have not briefed the Court on the following two legal issues,
before we can determine if either party should be granted summary judgment on Question 16
we must address 1) whether the location of septic systems is incorporated into final plat
approval in the Town of St. Albans, and, if so, 2) whether the objective of the Conservation

District includes any enforceable regulatory language restricting the location of septic systems

Bylaws § 211 requires that an applicant seeking final plat approval for the subdivision of
land into three or more lots submit a proposed plat to the DRB that includes the ”location and
design of all required improvements (see section 221 herein)." Because Bylaws § 221 requires
that ”Water and Sewage Disposal Systems shall comply with all Town of Saint Albans
Regulations," it appears that new septic systems are a type of improvement that must be
included in applications for final plat approval However, what: if any, wastewater systems are
”required improvements” for subdivided lots is dictated by the state regulations discussed
above, the Wastewater Rules. The Wastewater Rules establish state-wide uniform technical
standards and criteria for wastewater systems that supersede municipal regulations doing the
same and are triggered when a landowner proposes a subdivision See 10 V.S.A., Chapter 64;
Wastewater Rules § 1-501. Municipalities can regulate the location of wastewater systems in
terms of imposing setbacks or other requirements applicable to the wastewater systems as a
type of development generally, but most of the siting requirements are established through the
state permitting system. See 10 V.S.A. §§ 1971, 1976(b); Wastewater Rules § 1-501.

Therefore, it is reasonable to conclude that Applicants were required to include the
location of the proposed mound wastewater disposal systems in the proposed plat theyl
submitted to the DRB, although the design and siting of the systems is largely a determination
made by ANR. The next preliminary question the Court must answer is whether the objective
of the Conservation District includes enforceable regulatory language restricting the location of
septic systems during final plat approval for a subdivision

Municipal bylaws often contain both purpose provisions and regulatory provisions

Purpose provisions are often non-enforceable but provide assistance when the interpretation of

 

the regulatory provisions comes into question See ln re Meaker 156 Vt. 182, 185 (1991); lnre
Musty Permit, No. 174-10-10 Vtec, slip op. at 2-3 (Vt. Super. Ct. Envtl. Div. Feb. 24, 2011)
(Durkin, ].), appeal docketed, 2011-290. Purpose provisions can, however, include individual
mandatory requirements that are enforceable See ln re Gerlach Parking Area Permit, No. 31-2-
09 Vtec, slip op. at 8 (Vt. Envtl. Ct. Dec. 21. 2009) (Durkin, ].) (concluding that the requirement
that a parking area ”shall provide for pedestrian circulation" was an enforceable requirement
despite its location within the context of a bylaw provision labeled ”purpose”).

The ”Objective and Description” for the Conservation District quoted above is largely a

purpose provision lt establishes the objective, or purpose, for the district, and provides

guiding principles that are helpful in interpreting the remaining provisions that the Town of St.
Albans has enacted for the district. While it includes general statements that lands in the
district are ”unsuitable for intensive development" and only ”low density residential
development” and certain types of uses ”will be permitted” in the district, these statements do
not establish any specific restrictions for the location of wastewater systems Bylaws § 315(2).
Thus, there is no enforceable regulatory language in the objective provisions for the
Conservation District restricting the location of septic systems in that District. Because such
regulatory language is a necessary premise for the inquiry posed by Question 16, we DISMISS
Neighbors' Question 16.5

II. Questions 15 and 17

Neighbors' Question 15 and 17 raise related issues about possible wetlands on
Applicants’ property. Question 15 is divided into four sub-questions that inquire about the
proposed subdivision's compliance with § 403(1), a provision establishing setbacks for the.
location of ”structures, roadways and parking” from ”classified wetlands,” streams and Lake
Champlain. Question 17 asks whether Applicants must obtain a permit from ANR under the
August 1, 2010 version of the Vermont Wetland Rules.

Applicants make two principal arguments for dismissal of these Questions: 1) the Court
does not have jurisdiction to review their application under the Vermont Wetland Rules
because the State of Vermont has not asserted jurisdiction over any wetlands on their property,
and 2) the version of the Vermont Wetland Rules that applies to their application is the version
in effect when their application was filed and under which the wetlands on their property are
classified as Class III. Neighbors respond that Bylaws § 220(5) requires the application before
the Court in this appeal to comply with the Vermont Wetland Rules, and that the most recent
version of the Vermont Wetland Rules applies retroactively to the pending application because
the rules indicate that they apply to ”commenced” activities Neighbors ask for summary
judgment on these Questions. 7

We first determine that the Vermont Wetland Rules are, indeed, applicable to the
pending application .The pending application must comply with Bylaws § 220(5). See Bylaws
Part II, Subdivision Regulations; Bylaws §§ 211(3), 220; Bylaws Part V, Definitions (defining

 

5 Because We reach the conclusion that the objective of the Conservation District does not include any
enforceable regulatory language, we need not examine Applicants’ argument that their receipt of Permit
No. WW-6-2242 establishes a presumption of compliance With that objecu`ve.

9

development as including subdivision). Bylaws § 220(5) requires a proposed subdivision to
conform to the criteria found in 10 V.S.A. § 6086, commonly referred to as the Act 250 criteria.
lncluded in the Act 250 criteria is the requirement that a project comply with the Vermont
Wetland Rules. See 10 V.S.A. §§ 6001(1), 6086(a)(1)(G) (requiring demonstration by an applicant
that the proposed ”development or subdivision will not violate the rules of the [Natural
Resources Boardj . . . relating to significant wetlands”); Vermont Wetland Rules (Aug. 1, 2010).
Thus, the Court must determine, in this appeal, whether the proposed subdivision conforms to
the applicable version of the Vermont Wetland Rules 6

We also determine, for the following two reasons that the version of the rules applicable
in this municipal proceeding is that which was in effect when Applicants submitted their
application on july 27, 2010. First, there is a general prohibition against the retrospective
application of statutes and their amendments unless the laws include a clear, affirmative
statement that they apply retrospectively See 1 V.S.A. §§ 212, 214(b) (”The amendment . . . of
an act or statutory provision . . . shall not (1) [a]ffect the operation of the act or provision prior
to the effective date of the amendment . . . jor] (2) [a]ffect any right, privilege, obligation or
liability acquired, accrued or incurred prior to the effective date of the amendment . . . .”); To_wn
of Sandgate v. Colehamer, 156 Vt. 77, 90 (1990). Second, the Vermont Supreme Court has
established that a landowner is entitled to review of a land use proposal under the version of
the land use laws in effect at the time the landowner submits a ”proper application." See ln_re

jolley Assocs, 2006 VT 132, jj 11, 181 Vt. 190 (citing ln re Ross 151 Vt. 54, 57 (1989)). ln other

 

words the submission of a complete application for a municipal permit vests the landowner's
right to its review under the land use laws existing on that date. l_d_. jjjj 11, 16.

Here, the Vermont Wetland Rules are regulations adopted by the Water Resources Panel
of the Vermont Natural Resources Board under the statutory authority provided by the
Vermont State Legislature in 10 V.S.A. § 6025(d)(5)-(7). The Court cannot find any clear,

affirmative language in the newest version of the rules or the statute authorizing them, that

 

6 Applicants argue that the Court should not address this issue here because Neighbors did not include a
Question in their Statement of Questions explicitly citing Bylaws § 220(5). We disagree As discussed in
In re jolley Assocs., while the Court is confined to addressing issues raised in an appellant's statement of
questions We are not restricted to the ”literal phrasing” of the questions but rather can consider issues
intrinsic to the questions as phrased 2006 VT 132, jj 9, 181 Vt. 190. Neighbors' Questions 15 and 17
clearly raise the issue of compliance under the Vermont Wetland Rules; we can therefore consider
Neighbors' legal argument that Bylaws § 220(5) requires Applicants to comply With the Vermont Wetland
Rules. ' .

10

indicates they are to apply retrospectiver before their effective date of August 1, 2010. While
1 V.S.A. § 214(b) speaks specifically to statutes Neighbors have not presented us with any
argument as to why the general prohibition against the retrospective application of statutes
does not also extend to duly adopted regulations Neighbors instead argue that a statement
that appears in the rules~that the rules ”apply to . . . land uses occurring within a significant
wetland . . . that are commenced after February 23, 1990"-positively means they are
retroactive Vermont Wetland Rules § 1.1 (Aug. 1, 2010 and jan 1, 2002) (emphasis added). We
assume Neighbors are arguing that this conveys that the current version of the rules applies
retrospectively to projects still in the proposal stage on the date the current version became
effective, that is, August 1, 2010.

We find Neighbors' interpretation unconvincing in the context of this municipal permit
proceeding for two reasons First, the quoted statement refers to the history of the Vermont
Wetland Rules generally: that they were first established, and initially became effective, on
February 23, 1990. Second, explicitly excluded by subsequent portions of § 1.1 are projects for
which ”a complete application for all local, state and federal permits . . . had been submitted as
of February 23, 1990.”7 Vermont Wetland Rules (Aug. 1, 2010 and jan 1, 2002). The question
here is what version of the rules applies in this review of Applicants’ requests before a
municipal panel. Neighbors have not indicated how this statement in the Vermont Wetland
Rules creates an exception to the general principle that Applicants have a vested right to have
their application for a municipal permit reviewed under the version of the rules in effect on the
date they submitted a llproper application ” See jolley Assocs., 2006 VT 132, jj 11.

Moreover, Neighbors have not alleged that the application Applicants submitted to the
DRB was not complete or was otherwise improper, nor does the application appear incomplete
or improper on its face. (See Appellees' Mots. for Summ. j. and to Dismiss Questions
Attachment, filed june 9, 2011). Consequently, we conclude that the version of the Vermont
Wetland Rules applicable in this particular municipal proceeding-review of Applicants’
request for final plat approval and a waiver from the road frontage requirement--is the version

which was in effect when Applicants submitted their application in july 2010.

 

7 We note that Act 250 also refers to the date that a project ”commence[s]” to describe When jurisdiction
under Act 250 applies to the project 10 V.S.A. § 6081. This language has not prevented the Vermont
Supreme Court from adopting the rule that a landowner’s right to the review of a proposed project vests
under the land use laws in existence at the time the landowner submits a complete Act 250 application
See M§, 151 Vt. at 56-57.

11

We therefore GRANT summary judgment to Applicants on Question 15(a), which asks
whether the August 1, 2010 version of the Vermont Wetland Rules regulates the proposed
subdivision The undisputed material facts and applicable law require that we answer this
question in the negative We also DISMISS Questions 17 and 15(c), which ask about
compliance of the pending application with the August 1, 2010 version-of the Vermont Wetland

n Rules which do not apply here

Thus, Questions 15(b) and 15(d) remain The latter, Question 15(d), asks whether the
proposed subdivision complies with the setbacks established by Bylaws § 403(1), a provision
establishing setbacks for the location of ”structures, roadways and parking” from Class l and ll
wetlands stream banks and the shore of Lake Champlain. 8 Question 15(b) asks in the context
of considering the subdivision's compliance with Bylaws § 403(1), whether the wetlands on
Applicants’ property are Class l or II. Neighbors argue that summary judgment cannot be
granted on these Questions because whether Wetlands exist on Applicants’ property is a
disputed material fact Applicants argue that the Questions should be dismissed because any
wetland on their property in an area potentially impacted by the subdivision is a Class III
wetland and is therefore not regulated by Bylaws § 403(1).

Section 403(1) of the Bylaws establishes setbacks for streams and shoreline along Lake
Champlain, as well as for Class l and ll wetlands but Neighbors have not made any allegations
that Applicants’ property includes streams or l_.ake Champlain shoreline Neighborsl Statement
of Undisputed Material Facts and memoranda allege only that wetlands are present (See
Appellants’ Statement of Undisputed Material Facts, jjjj 6-10, filed july 11, 2011). Applicants’
Statement of Undisputed Facts and memoranda also do not reveal any discussion of the
presence of streams or Lake Champlain shoreline on their property. Thus, it appears that the
only setbacks Question 15(d) concerns are those that Bylaws § 403(1) establishes for Class l and

- II wetlands Additionally, since neither party has indicated that a Class l Wetland may existon

Applicants’ property, and because Class l wetlands are extremely uncommon,9 here we are

 

8 Neighbors do not dispute that the references Bylaws § 403(1) makes to a ”Class 1 Wetland" and ”Class 2
Wetland” are to the classifications established by the Vermont Wetland Rules. The Bylaws do not define
these terms; included in the Bylaws' definition of ”Wetlands” generally are ”[ajreas that are delineated as
Class 1 or 2 wetlands on the wetland map,” again an apparent reference to the Vermont Wetland Rules.
See Bylaws Part V, Definitions.

9 As of August 1, 2010, there were only three Class I Wetlands identified in the entire state See Vermont
Wetland Rules, Appendix A (Aug. 1, 2010). '

12

solely concerned with identifying whether the parties' filings demonstrate a dispute as to the
presence of Class ll wetlands on Applicants’ property.

Before reaching a conclusion as to whether there are facts in dispute as to the presence of
Class ll wetlands we consider whether the setbacks established in Bylaws § 403(1) apply to any
aspect of Applicants’ proposed subdivision As stated above, § 403(1) establishes setbacks for
the location of ”structures, roadways and parking.” Neighbors argue that the setbacks apply to
a right-of-way and septic systems that Applicants propose as part of their subdivision

We agree that the pending application does include the location and design for a
proposed 20-foot-wide right-of-way that will operate as a shared driveway for three of the
subdivided lots as well as the location of proposed septic systems that will serve the resulting
lots See Bylaws §§ 211(1) (requiring applicants to include the ”[l]ocation and design of all
required improvements” in applications for final plat approval), 220, 221, 401 (indicating that
the DRB can grant a waiver from the road frontage requirement for lots that will have access to
public roads through permanent rights-of-way of 20 or more feet). That is, approval of the
location and design of the right-of-way and of the location of the septic systems is necessary for
Applicants to receive final plat approval. Additionally, approval of the location and design of
the right-of-Way is necessary before Applicants can obtain a waiver from the road frontage
requirement

However, we do not agree that the terms ”structure, roadways and parking” include
rights-of-way. The term l’roadways” itself is not defined in the Bylaws but ”road” is Road is
defined as ”[ajn open way for public passage to include streets roads avenues highways
ways circles and the lil<e.” Bylaws Part V, Definitions. Applicants’ proposed right-of-way is
not an ”open Way for public passage”,' it is a private driveway that provides for private passage
Under the plain language of the Bylaws the proposed right-of-way is not a road and, therefore,
it is also not a roadway. Furthermore, driveways are explicitly excluded from the definition of
”structure” and are not parking areas See Q. (defining ”structure” to exclude driveways and
”parking space” as ”off-street areaij . . . exclusive of loading, access and maneuvering areas").
Thus, we conclude that the setbacks established in Bylaws § 403(1) do not apply to the location
of the proposed 20-foot-wide right-of-way.

However, we agree with Neighbors that the location of the proposed septic systems is

subject to the setbacks established in Bylaws § 403(1). The Bylaws define ”structure” broadly.

13

A structure is ”|ajnything constructed, erected or placed and which requires a fixed location on
the ground in order to be used.” Bylaws Part V, Definitions (emphasis added). Examples
include buildings garages patios, retaining walls and ”other outbuildings and building
features.” lc_l. The definition excludes signs sidewalks driveways, fences swimming pools
with less than a 5,000 gallon capacity, and temporary docks or floats E. The proposed septic
systems are mound wastewater disposal systems that will be constructed on Applicants’
property in fixed locations Thus the plain language of the Bylaws provides notice to
Applicants that their proposed septic systems are structures Therefore, we conclude that the
setbacks established in Bylaws § 403(1) do apply to the location of the proposed septic systems
We also note that, as discussed in Section l above, the state Wastewater Rules explicitly allow
municipalities to impose setbacks upon wastewater systems although the technical aspects of
the systems are established at the state level. Wastewater Rules § 1-501.

We turn next to determining whether there is a factual dispute as to the presence of
Class ll wetlands on Applicants’ property from which the proposed septic systems would have
to be set back under the requirements of Bylaws § 403(1). Under the version of the Vermont
Wetland Rules that applies to the application before us in this appeal, wetlands are classified as
Class ll either through a determination by the Natural Resources Board or by their delineation
on state-wide wetland inventory maps maps which ANR periodically updates based on the
Natural Resources Board’s determinations Vermont Wetland Rules §§ 1(d), 1(e), 4.2, 4.4, 4.5
(jan. 1, 2002). Wetlands ”contiguous to such mapped wetlands” are presumed to be Class ll
wetlands under this version of the rules but no other bases for this presumption exist M. § 4.2.
Class ll wetlands are subject to protection under the Vermont Wetland Rules but Class lll
wetlands or ”wetlands which are not designated as Class One or Two," are not E. § 4.1.

Applicants have alleged that ”the site contains only Class lll wetlands” under these
rules (See Appellees’ Statement of Material Facts jjjj 12, 13, filed june 9, 2011.) Applicants
have supported this allegation with the submission of a wetlands investigation study completed
by Peter Spear, a Senior Ecologist with the Natural Resource Consult:ing Services and a
subsequent surveyor’s map that identifies the presence of seven Class lll wetlands on
Applicants’ property. (See Appellees' Opp’n to Appellants’ l\/Iot. for Entry Upon Land,
Attachment, filed May 19, 2011.) Mr. Spear's study, dated l\/lay 25, 2010, indicates that he ”was

14

instructed to delineate several sensitive wetland portions of the site, but not the entire site,” and
that he identified only Class lll wetlands ld.

Neighbors respond by alleging that they dispute the sufficiency of the study and the
accuracy of the surveyor map. (See Appellantsl Statement of Disputed l\/laterial Facts 4, jjjj 11,
12, filed july 11, 2011). They support their allegations with an affidavit from Lawrence Bruce,
jr., one of the Appellants, in which Mr. Bruce states his belief that there are improperly
delineated and classified wetlands on Applicants’ property. Neighbors provide additional
support through submission of a wetlands inspection completed by Dori Barton, a Senior
Wetland Ecologist with Arrowwood Environmental, and an attached map that identifies the
presence of several wetlands on Applicants’ property, including one that l\/ls. Barton identifies
as Class ll. (See First Supplement to Appellants’ Cross-l\/lot. for Summ. j. and Opp’n to
Appellees’ l\/lots. for Summ. j. and to Dismiss Questions, Exhibit 4, filed Sept. 30, 2011.) Ms.
Barton indicates that in completing her study, dated September 29, 2011, she investigated the
presence of wetlands on three of Applicants’ proposed lots and concluded that there is a Class ll
wetland under the presumptions found in the August 1, 2010 version of the Vermont Wetland
Rules10

ln examining the two Wetland studies commissioned by the competing parties we first
note that both studies focus on particular portions of Applicants’ property rather than the entire
property. Neighbors do not argue that Applicants’ expert, l\/lr. Spear, failed to examine the area
in Which they claim a Class ll wetland exists Neighbors' expert, Ms. Barton, also states that she
”generally agreed with the wetland boundaries as delineated by Mr. Spear.” (See First
Supplement to Appellants’ Cross-l\/lot. for Summ. j. and Opp’n to Appellees’ Mots. for Summ. j.
and to Dismiss Questions Exhibit 4, 2, filed Sept. 30, 2011.) Thus, Neighbors' submissions do
not, in fact, show that there is an actual dispute about the completeness of Applicants’ study or
surveyor map.

Turning to theconclusions reached by the parties’ respective experts in each of their
studies we must further conclude that Neighbors' submissions do not rebut the conclusions

reached by Mr. Spear that all of the wetlands existing on Applicants’ property are classified as

 

10 Ms. Barton also concluded that this same Wetland falls Within the definition of ”wetlands” included in
the Bylaws I-Iowever, we note that the Bylaws' definition of Wetlands is not at issue here because the
setbacks Bylaws § 403(1) establishes which are at issue here, are reserved for ”Class 1 wetland[s]” and
”Class 2 Wetland[s]." See Bylaws Part V, Definitions; supra note 8.

15

Class lll under the applicable version of the Vermont Wetland Rules. That is, Neighbors'
submissions do not actually dispute whether a Class ll Wetland exists on Applicants’ property.
l\/ls. Barton concluded that one of the wetlands l\/lr. Spear had classified as Class lll is a Class ll
wetland, but her analysis and conclusion is based upon the current version of the Vermont
Wetland Rules: ”[ijt is my opinion that this wetland meets the presumption of a Class ll
wetland based on the Vermont Wetland Rules (adopted with amendments on july 16, 2010,
effective August 1, 2010).” (See First Supplement to Appellantsl Cross-Mot. for Summ. j. and
Opp’n to Appellees’ Mots. for Summ. j. and to Dismiss Questions, Exhibit 4, 4, filed Sept. 30,
2011.) Unlike the version of the Vermont Wetland Rules applicable to Applicants’ proposed
subdivision, the newest version of the Rules includes multiple bases for presuming a wetland to
be Class ll. See Vermont Wetland Rules § 4.6. Nowhere in her report does Ms Barton indicate
that she determined that the wetland is a Class ll Wetland under the applicable version of the
Vermont Wetland Rules.

As stated earlier, we have treated Applicants’ requests for dismissal as requests for
summary judgment, We conclude that Applicants have met the burden of proof they bear as
the party moving for- summary judgment on Questions 15(b) and 15(d), questions regarding the
compliance of their pending application with Bylaws § 403(1). See Travelers lns. Cos v.
Demarle lnc. USA 2005 VT 53, jj 3, 178 Vt. 580. They have provided a factual allegation

 

indicating that Bylaws § 403(1) is not triggered by their pending application, and they have
supported that allegation by submitting evidentiary material that provides a factual foundation
for their allegation Neighbors however, have failed to supply evidentiary support for their
allegations opposing Applicants'. The evidence Neighbors have referenced and submitted does
not show that Applicants’ wetland study and surveyor map is insufficient As stated earlier, we
will only accept factual allegations made in opposition to summary judgment motions When the
opposing party has referred to evidentiary material that supports such allegations See
Robertson v. l\/lvlan LabL hch 2004 VT 15, jj 15, 176 Vt. 356; V.R.C.P. 56(e).

Consequently, we GRANT summary judgment to Applicants on Question 15(b),
resolving the query of whether Class ll wetlands exist on Applicants’ property in the negative,
and DISMISS Question 15(d) because there are no wetlands from which the proposed septic

systems would have to be set back under the requirements of Bylaws § 403(1).

16

III. Questions 18 and 20-25
Neighbors' Questions 18 and 20 through 25 concern whether Applicants’ proposed

subdivision requires site plan approval, whether it complies with requirements of the Bylaws
that are triggered when site plan review is required, and whether remand to the DRB is
necessary to make these determinations Applicants argue that site plan approval is not
required for their application and that, therefore, Questions 18 and 20 through 25 should be
dismissed Neighbors respond that the proposed subdivision triggers site plan review under
the provisions of Bylaws § 303 and § 411(2), and they request summary judgment only on
Questions 18 and 20.

As discussed above, the application before the DRB and now before us on appeal is an
application for final plat approval to subdivide a property and for a waiver from the road
frontage requirement for two of the five proposed lots lt does not request site plan approval
Thus we turn to the provisions in Bylaws § 303 and § 411(2) to determine if either provision
requires Applicants’ proposed subdivision to undergo site plan review before it receives final
plat approval and a waiver from the road frontage requirement

We turn first to Bylaws § 303. Section 303 requires the DRB to complete site plan review
of ”uses other than forestry, agriculture or single and two family dwellings on single lots.” The
Bylaws define ”use” as ”[tjhe specific purpose for which land or a building is arranged,
designed, or intended, or for which it is or may be occupied or maintained” Bylaws Part V,
Definitions. Neighbors argue that Applicants have proposed the use of a ”five lot, single-
family residential subdivision” and that the DRB’s grant of a waiver to Applicants from the
road frontage requirement for two of the five proposed lots was based on this proposed use.
(Appellants’ Cross-Mot. for Partial Summ. j. and Opp’n to Appellees’ Mots. for Summ. j. and to
Dismiss Questions 10, filed july 11, 2011.)

We disagree with Neighbors' characterization of Applicants’ proposed subdivision as a
development proposal that incorporates a proposed use for the subdivided lots, The Vermont
Supreme Court has previously spoken to the lllimited role for subdivision review” under the
statutory scheme for the municipal regulation of land development established by 24 V.S.A,
Chapter 117. See ln re Appeal of Taft Corners Assocs, 171 Vt. 135, 137-38, 141 (2000). ln
Appeal of Taft Corners, the Court drew a distinction between what it described as zoning

regulations and subdivision regulations explaining that the latter allow an ”owner to divide the

17

land and create the infrastructure” while the former allow the owner to ” develop the parcels by

placing one or more structures on thern."11 lpl. at 138. The Court Went on to explain that

”subdivision review is not intended to police prospective uses of the subdivided lots” and that
”the act of subdivision does not restrict those uses.” ld. at 141.12 The Court concluded that

”there is no requirement that the subdivider know what uses will be placed on jthe subdividedj

lots” by future owners of the property. E.

Bylaws § 303 requires site plan review for specific usps rather than for specific types of
development As indicated above, the Bylaws define a use as the llpurpose for which land or a
building is arranged, designed, or intended,” while ”development” refers to the subdivision of
land and any physical development of the land, See Bylaws Part V, Definitions (emphasis
added). Bylaws § 300, which introduces Part lll of the`Bylaws, or the ”Zoning Regulations,”
lists five different ”types of land development” that are subject to the zoning regulations in
§§ 300-322, including the ”[cjhange or expansion of the u_se of . . . land." Bylaws §300(3)
(emphasis added). None of the five types of development describes the subdivision of land. M.

Recognizing that Vermont's statutory scheme for the municipal regulation of land
development establishes a distinction between subdivision and zoning regulations we
conclude that Applicants’ request for final plat approval and a waiver from the road frontage
requirement constitutes a proposal for a type of development under the Bylaws but does not
establish a particular property use Therefore, the application does not trigger site plan review
under Bylaws § 303. Even if we were to understand the DRB’s grant of the Waiver from the
road frontage requirement to be conditioned upon a particular future property use, nothing in
§ 303 requires the DRB to conduct site plan review for that use now. Rather, site plan review
under § 303 Would be triggered when a zoning permit is sought for the physical development of
individual lots that falls within the types of development listed in Bylaws § 300 and establishes

a property use that requires site plan review under Bylaws § 303.

 

n While this Court has encountered at least one municipality that incorporates subdivision review within
its zoning regulations the choice a municipality makes to organize its bylaws in that fashion does not
negate the distinction described in Appeal of Taft Corners, a distinction compelled by the statutory
scheme set forth in Title 24 V.S.A., Chapter 117. See ln re PaVnter 2-Lot Subdivision, No. 160-7-08 Vtec,
slip op. at 2 (Vt. Envtl. Ct. May 1, 2009) (Wright, j.), Ld, 2010 VT 28.

12 However, the Vermont Supreme Court does indicate that municipal panels can deny proposed
subdivisions When the resulting lots would be unable to be lawfully developed See Appeal of Taft
Corners 171 Vt, at 141.

 

 

18

We turn next to Bylaws § 411(2). Section 411(2) requires site plan approval for ”[a]ny
land alteration or excavation that would cause a substantial change in the volume, velocity or
direction of drainage.” Neighbors argue that the application before the DRB, and now before
us on appeal, sought approval for the construction of a proposed 20-foot-wide right-of-Way and
septic systems that will serve the subdivided lots Applicants do not directly respond to
Neighbors' contention, but absent from Applicants’ filings is any assertion that they sought
approval for any construction on their property.

Unlil<e Neighbors we do not read the application before us to request approval to
complete any type of physical development on Applicants’ property. (See Appellees' l\/lots. for
Summ. j. and to Dismiss Questions, Attachment, filed june 9, 2011.) ln other words we do not
read the application as seeking authority for Applicants to complete any land alteration or
excavation on their property as discussed in Bylaws § 411(2). Nor have Applicants put forth an
argument that it does seek such approval. Applicants seek only final plat approval and a
Waiver from the road frontage requirement for their proposed subdivision

Under the Bylaws an applicant seeking final plat approval is required to identify the
location and desigp of proposed improvements on a plat Bylaws §§ 211(1), 221. lhe DRB is
required to review the plat and determine Whether it complies with the development standards
included in Bylaws § 220 and § 221. Bylaws § 211(3). We do not find anything in these
provisions that would require the DRB to review and approve the construction of proposed
improvements See also 24 V.S.A. § 4418(1)(8). Rather, we understand the`DRB's review of a
final plat to require the review and approval of the designation of proposed improvements not
their construction Additionally, in reviewing the requirements for a road frontage waiver, we
do not find anything in Bylaws § 400 or § 401 that would require approval of the construction of
the proposed right-of-way before a waiver can be granted. See also 24 V.S.A. § 4412(3). l-lere,
again, we understand the review involved with the granting of a waiver to be solely for the

designation of a qualifying right-of-way, not its construction 13

 

13 We do not decide here whether the Bylaws require Applicants to obtain site plan approval or a zoning
permit in order to complete their proposed 20-foot-wide right-of-way or septic systems; we simply decide
that the application before us and before the DRB in the proceeding below, did not seek or require
approval for any such physical development We note that Bylaws § 212(3) requires a subdivider to pay
for the construction of any ”required improvements” as a condition of final plat approval, but that
provision, on its own, does not require review of the consuuction of such improvements as part of final
plat approval,

19

The distinction between designation approval and construction approval for a right-of-
way proposed in connection with a subdivision application was also recognized in ln re Appeal
of Baker and johns See No. 200-10-04 Vtec, slip op. at 1, 2 (Vt. Envtl. Ct. l\/lar. 29, 2005) (Durkin,
j.). ln Appeal of Baker and johns this Court ultimately approved a two-lot subdivision and the
location of a proposed right-of-way but stated that no construction or use of the right-of-way
could occur until a permit was issued for that construction E.; Appeal of Baker and johns
Nos. 200-10-04 Vtec and 39-2-06 Vtec, slip. op.-at 1, 2 (Vt. Envtl. Ct. jul. 31, 2006) (Durl<in, j.),14
aff’d, ln re Appeal of Baker and johns No. 2006-364, (Vt. May term, 2007) (unpublished mem.).
The Vermont Supreme Court affirmed this Court’s decision, indicating that the ”purpose of the
proposed access way was manifest-to designate an access way” and that ”any future
development or use of the access way would have to be reviewed by the planning commission.”
Appeal of Baker and johns No. 2006-364, slip op. at 4.

We conclude that, because Applicants have not sought approval for any physical
development on their property, and because the Bylaws do not require Applicants to seek and
obtain approval for anticipated physical developments in conjunction with their request for
final plat approval or a waiver from the road frontage requirement the application before us
does not trigger site plan review under Bylaws § 411(2). rl`hat is, in addressing the pending
application, we cannot issue a decision approving any land alteration or excavation that would
trigger the application of Bylaws § 411(2).

Because we conclude that the Applicants’ proposed subdivision does not require site
plan approval under Bylaws § 303 or § 411(2), we DISMISS Neighbors' Questions 18 and 20
through 25.

IV. Questions 5! 6l 8l and 9
Neighbors' Questions 5, 6, 8, and 9 address compliance with provisions in the Bylaws

that regulate the safety impacts of a proposed subdivision The Questions specifically ask about
potential impacts from the proposed 20-foot-wide right-of-way that will operate as a shared

driveway for three of the subdivided lots Applicants ask the Court to grant summary

 

14 The proceeding for Appeal of Baker and johns Was coordinated with the proceeding for ln re Chipman
Hill Estates PUD an appeal of a decision approving an amendment to the planned unit development
containing the property proposed for subdivision See Nos. 200-10-04 Vtec and 39-2-06 Vtec, slip. op. at 1
(Vt. Envtl. Ct. jul. 31, 2006) (Durkin, j.). The amendment application included the same proposed right-
of-way as was included in the subdivision application, and the Court's distinction between designation
and construction of the right-of-way also pertained to the amendment application See i_d. at 1, 2.

 

20

judgment in their favor on these four Questions arguing that there is no factual dispute as to
the safety and adequacy of two proposed curb cuts or access points that will allow access from
three of the subdivided lots onto French Hill Road. Applicants also argue that there is no .
evidence that the proposed right-of-way will create unsafe conditions Neighbors respond that
the allegations and evidence referenced and submitted by Applicants do not show how the
proposed right-of-way complies with the provisions of the Bylaws raised in Questions 5, 6, 8,
and 9.

Question 5 poses the query of whether the proposed right-of-way meets the requirement
in Bylaws § 220(4) that a ”proposed development shall not cause unreasonable congestions or
unsafe conditions on the affected public or private roads” Neighbors' Question 5 specifically
asks if the right-of-way will cause unsafe conditions on French Hill Road and a private road on
Neighbors' property that they describe as a logging road. As discussed in Section ll above, the
location and design of the proposed right-of-way is included in the pending application and
approval of the location and design is required before an applicant can obtain final plat
approval, See Bylaws §§ 211(1), 211(3), 220, 221. Thus, in order for the Court to issue summary
judgment in Applicants’ favor on Question 5, Applicants must show that the location and
design of the right-of-way complies with Bylaws § 220(4).

Applicants have put forward no allegations in their Statement of l\/laterial Facts that
address the potential safety impacts on nearby roads from the location and design of the right-
of-way. lnstead, in support of their request for summary judgment on Question 5, they have
simply submitted a letter from the St. Albans Town Fire Department approving two curb cuts15
one of which will provide an access point to the proposed right-of-way from French l-lill Road.
While the letter approves the access point for the proposed right-of-way onto French l-lill Road,
it is not clear from the letter what the fire department official considered when determining
whether to approve the access point The letter simply states that ”[a ccess is sufficient for
apparatus to approach," implying that the fire department may have been solely concerned
with the ability of department vehicles to reach either the right-of-way or the subdivided lots it
is to serve (See Appellees’ Mots. for Summ. j. and to Dismiss Questions Attachment, filed june

9, 2011.)

 

15 Applicants have also submitted a letter from the St. Albans Town Fire Department that Applicants
state approved the same two curb cuts However, the letter appears to instead approve one or more
culverts (See Appellees' Mots. for Summ. j. and to Dismiss Questions Attachment, filed june 9, 2011.)

21

Considering the plain language of Bylaws § 220(4), the provision seeks to prevent
development that would cause ”unreasonable congestion or unsafe conditions" on public and
private roads Question 5 asks whether the proposed right-of-way creates such conditions We
cannot conclude, solely from the letter Applicants have submitted, that their proposed right-of-
way will not cause ”unreasonable congestion or unsafe conditions" on the nearby French Hill
Road or private road on Neighbors' property. ln other words Applicants have failed to show
they are entitled to summary judgment on Question 5. We therefore DENY them such
judgrnent.16

Question 6 asks Whether the proposed subdivision complies with Bylaws § 221(1)(B)
which requires that a subdivision ”wherever feasible . . . utilize common driveways for adjacent
lots” Thus Applicants must show that their application meets Bylaws § 221 (B) before we can
grant them summary judgment on Question 6. Applicants’ Statement of Material Facts includes
the allegation that three of the five subdivided lots will share a driveway, the proposed right-of-
way. Applicants’ allegation is supported by their submission of the surveyor’s map, dated
September 11, 2010, that shows the proposed right-of-way and its relationship to three of the
subdivided lots (See Appellees' l\/lot. for Summ. j. and to Dismiss Questions Attachment, filed
june 9, 2011.)

Neighbors argue that summary judgment is not warranted on Question 6 because
Applicants have not claimed that it is infeasible for four of the lots to share a driveway, or for all
five of the lots to share a driveway. We agree Because a determination of Whether Bylaws
§ 221 (1)(B) is met by the proposal before us requires a factual inquiry into the feasibility of other
alternatives for the location and design of driveways that will service the five subdivided lots,
we must DENY summary judgment for Applicants on Question 6.

Questions 8 and 9 ask whether the proposed right-of-way complies with provisions in
Bylaws §221(2). lhe two Questions reference the requirements of these provisions but fail to
recognize that the requirements pertain only to llroads.” See Bylaws § 221 (2) (requiring that the
”[d]esign of M . . . shall be constructed logically in relation to the topography” and that

”[w]herever feasible, roads shall be laid out . . . to utilize intersections that provide" the highest

 

16 We note that Applicants have also put forward a second argument for summary judgment on Question
5, posing the challenge that Bylaws § 220(4) is unenforceable because it is unconstitutionally vague and
violates a landowner’s due process rights As discussed in Section Vl below,-we do not agree that Bylaws
§ 220(4) is unconstitutional

22

service and safety) (emphasis added). As discussed in Section ll above, the Bylaws define
l'roads” as an ”open Way for public passage." Bylaws Part V, Definitions. Because the
proposed right-of-way is a private driveway that will provide for private passage, it does not
fall within the Bylaws' use of the term-”road." Thus, the provisions of the Bylaws raised in
Questions 8 and 9 do not apply to the application before us, and we DISMISS Questions 8 and
9 from this appeal.

V. Questions 13 and 14

Neighbors' Questions 13 and 14 concern whether Applicants are entitled to a waiver
from the road frontage requirement based on the proposed 20-foot-wide right-of-way under
Bylaws § 400(1) and § 401. Question 13 asks if Applicants’ proposed subdivision complies with
Bylaws § 400(1), a provision prohibiting any development without l’an adequate means of
access” through either l’[fjrontage . . . on a maintained public road, private road” or ”means of a
permanent easement at least 60 feet wide to a maintained public road or public waters" Lcep_t
when a waiver of this requirement is granted under Bylaws § 401, Question 14 asks if the
proposed subdivision complies with Bylaws § 401 which prohibits any development on lots
without frontage on a public road ”unless a permanent right-of-way, of at least twenty feet in
width and approved by the Development Review Board, provides access to not more than two
single-family dwellings that do not have adequate road frontage”

As indicated in Section lll above, the term ”development” as used in the Bylaws
includes the subdivision of land, See Bylaws Part V, Definitions Thus, the requirements in
Bylaws § 400(1) and § 401 do regulate Applicants’ proposed subdivision Because Applicants
do not allege that they can meet the frontage requirements of § 400(1) without a Waiver under
§ 401, both parties agree that two of Applicants’ subdivided lots require a waiver under § 401,
Therefore, whether Applicants can be granted summary judgment on Questions 13 and 14
depends on whether they have met their burden of proof to Show that they are entitled to a
waiver under Bylaws § 401.

Applicants argue they are entitled to summary judgment on Questions 13 and 14
because they have proposed a 20-foot-wide right-of-Way that will operate as a shared driveway
for three of the subdivided lots, including the two that lack frontage on a public or private road
or by means of a 60-foot easement Applicants have supported this allegation through

submission of an e-mail requesting a waiver from the road frontage requirement for a ”60’

23

ROW (with a 20’ road on it)” and through their submission of the surveyor’s map, dated
September 11, 2010, that shows the proposed 20-foot-wide right-of-way and its relationship to
the subdivided lots (See Appellees’ l\/lot. for Summ. j. and to Dismiss Questions, Attachment,
filed june 9, 2011.)

Neighbors also request summary judgment on Questions 13 and 14. Neighbors argue
that Bylaws § 401 is not met by the proposed right-of-way because the right-of-way is intended
to serve three lots Neighbors read § 401 to restrict a qualifying right-of-way to serving two lots
total, regardless of whether any of the lots have adequate frontage under Bylaws § 400(1).

We disagree with Neighbors' interpretation of Bylaws § 401, lnstead, we read the plain
language of that provision to limit the amount and type of development l_a@g adequate
frontage that can be served by a right-of-way of 20 feet in width or more lt does not restrict the l
amount and type of development w adequate frontage that can be served by the same right-
of-way. _

Nevertheless we conclude, for a different reason, that summary judgment is not
appropriate for either party on Questions 13 and 14. Because our Decision today does not reach
a resolution on whether the location and design of the proposed right-of-way, and the other two~
driveways included in Applicants’ proposed subdivision, meet the requirements of Bylaws
§ 221(1)(B) -which requires subdivided lots to utilize common driveways wherever feasible-
we cannot reach a final resolution of whether Applicants are entitled to a waiver from the road
frontage requirement for the two identified lots Consequently, we DENY summary judgment
to both parties on Questions 13 and 14.

VI. Questions 2-5, 7, and 10-12
_ We examine the final Questions in Neighbors' Statement of Questions for Which
l Applicants seek summary judgment by first addressing Question 12. Question 12 asks about
the proposed subdivision's compliance with Bylaws § 304(1)(1<)(5). This provision allows the
DRB to impose additional conditions and safeguards when granting approval for variances and
conditional uses under the standards provided in the Bylaws See Bylaws § 304(1)(l()(5).

The application before the DRB, and before this Court on appeal, is for final plat
approval and a waiver from the road frontage requirement; it is not for a variance or a
conditional use Although Applicants do not argue that Bylaws § 304(1)(K) (5) is inapplicable to

the pending application and therefore outside our authority to address in this appeal, We must

24

address this unstated jurisdictional concem. See V.R.C.P. 12(h)(3) (”Whenever it appears by the
suggestion of the parties or otherwise that the court lacks jurisdiction of the subject matter, the
court shall dismiss the action."); V.R.E.C.P. 5(a)(2). Our jurisdiction in this appeal is limited to
addressing issues that the DRB had the authority to address when considering the application
before it. See ln re Torres 154 Vt. 233, 235-36 (1990); V.R.E.C.P. 5(g). Neither the DRB, nor this

 

Court, had or has the authority to issue variance approval or conditional use approval based on
Applicants’ submission of the pending application Consequently, We conclude that Question
12 must be DISMISSED because it does not raise an issue over which we have jurisdiction in
this appeal.

The remaining Questions, Questions 2-5, 7, and 10-11, pertain to the proposed
subdivision's compliance With Bylaws § 220(2), § 220(3), § 220(4), § 221(1)(€), and § 221(6),
provisions that the pending application must meet in order for Applicants to obtain final plat
approval, See Bylaws Part ll, Subdivision Regulations; Bylaws § 211(3),' Bylaws Part V,
Definitions (defining development as including subdivision). Applicants request summary
judgment for these seven Questions, including Question 5, which has also been addressed in
Section lll above Applicants argue that the provisions raised by these seven Questions violate
a landowner’s due process rights and are therefore unconstitutional because they provide the
DRB, and this Court, with standardless discretion when reviewing applications for final plat
approval Neighbors respond that the provisions are not standardless but instead provide
specific standards that guide their enforcement by the DRB and this Court ln addition,
Neighbors seek summary judgment on Question 7 specifically, arguing that Applicants’
proposed subdivision clearly violates Bylaws § 221(1)(C).

Our Supreme Court has made clear that standardless land use regulations are not
acceptable because they raise both equal protection and due process concerns See, e.g., Q_r_e_
Pierce Subdivision Application, 2008 VT 100, jj 19, 184 Vt. 365 (citing ln re l-landy, 171 Vt. 336,
345-46 (2000)). The principle case identifying a standardless bylaw is ln re Appeal of jAl\/l Golf,
L. 2008 VT 110, 185 Vt. 201. ln Appeal of jAl\/l Golf, the Vermont Supreme Court found two
bylaws unconstitutional because they simply required the design of a planned residential
development to ”protect” natural resources such as ”scenic views” or ”wildlife habitats”17 E.

jjjj 4, 18. The Court concluded that the term l’protect” did not clearly identify the level or kind

 

17 One of these bylaws was a provision that required compliance with the municipal plan, which itself
included a requirement to protect select natural resources

25

of protection the municipal panel tasked with reviewing applications for planned residential
development should find acceptable See i_d. jjjj 13-14, 18. The Court also concluded that the
bylaws as a Whole and in conjunction with the municipal plan they referenced did not clearly
identify what in the municipality constituted the natural resources identified for protection; the
Court found the ”zoning scheme [to bej confusing" at best E. jj 18. The Court explained that,
without specific standards the bylaws ”provide[j no guidance as to what may be fairly
expected from landowners” whose property appears to contain one of the named natural
resources and who seek to create a planned residential development lpl. jj 14.

Examining the provisions referenced by Questions 2-5, 7, and 10-11, we cannot agree
with Applicants that these provisions provide the DRB or this Court with the same unbridled
discretion as the bylaws discussed in Appeal of jAl\/l Golf. First, most of them make use of the
word ”shall,” alerting a landowner that they are mandatory, rather than discretionary, 7
requirements Bylaws §§ 220(3), 220(4), 221 (1) (C), 221 (6). Second, they all provide a landowner
with specific guidance as to what impacts a proposed subdivision must avoid to be approved
by the DRB or this Court on appeal: the proposal ”should demonstrate due regard for the
protection of existing” natural and cultural features of the area; ”shall be compatible With
adjacent uses”; shall provide sufficient open space for recreation and to safeguard the privacy of
the area inhabitants”; ”shall not cause unreasonable congestion or unsafe conditions on the
affected public or private roads”; shall l’[p]roduce the safest, most healthful and attractive
building sites” based on the natural features on the property; shall retain or require vegetation
”for reasonable screening and aesthetic purposes”; and shall maintain or enhance vegetated
buffers along stream banks ”for filtration, erosion control and aesthetic purposes.” Bylaws
§§ 220(2), 220(3), 220(4), 221(1)(€), 221 (6).

lnstead of requiring the generic protection of natural resources without specifying what
level or kind of protection must be achieved the plain language of the above-quoted provisions
of the Bylaws describe specific objectives Applicants’ proposed subdivision must meet and for
what ends The provisions provide sufficient direction so as to avoid the equal protection and

due process infirmities about which the Pierce Subdivision and jAl\/l Go]f Courts cautioned We

 

conclude that each of the challenged provisions do not suffer the constitutional infirmity
Applicants allege and therefore DENY summary judgment to Applicants on Questions 2-5, 7,
and 10-11.

26

We also DENY summary judgment to Neighbors on Question 7 because we cannot
conclude, from the factual allegations before us that the proposed subdivision fails to meet the
requirements of Bylaws § 221(1)(€). Our inquiry into whether Applicants meet this and the
other provisions discussed in Questions 2~5 and 10-11 is heavily fact-based and thus can only

occur after the presentation of evidence at a merits hearing.

Conclusion

For the reasons detailed above, we issue the following ruling on the pending cross-
motions which address 24 of the 25 questions in Neighbors' Statement of Questions. We
GRANT summary judgment to Applicants on Questions 1 (answering it in the affirmative),
15(a) (answering it in the negative), and 15(b) (answering it in the negative). We DISMISS
Questions 8, 9, 12, 15(c), 15(d), 16, 17, 18, 20, 21, 22, 23, 24, and 25, We DENY summary
judgment to Applicants on Questions 2, 3, 4, 5, 6, 7, 10, 11, 13, 14, and We also DENY summary
judgment to Neighbors on Questions 7, 13, and 14, n

Therefore, Questions 2-7, 10, 11, 13, 14, and 19 remain for resolution at trial. We direct
all of the parties in this case to submit, by March 16, 2012, a list of unavailable dates in the
months of April and May, 2012, for a trial in the Franklin Country Courthouse in the Town of
St. Albans Vermont The parties should also indicate, in their letters to the Court, whether a
one-day trial will be adequate for a full presentation of the issues remaining in this appeal. lf an
additional day or days will be required, the parties should indicate their estimate on trial
duration in their letters The Court will thereafter notify the parties of the trial date or dates

Done at Newfane, Vermont this 2nd day of March, 2012,

<Q£.T®i

Thomas S. l§urkin, Environmental judge

