                                STATE OF VERMONT
                     SUPERIOR COURT - ENVIRONMENTAL DIVISION

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In Re: Saman ROW Approval                           {                    Docket No. 176-10-10 Vtec
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                                 Decision in On-the-Record Appeal
        In this on-the-record proceeding, William Basa (“Appellant”) appeals a 2010 decision by
the Town of Plainfield Development Review Board (“the DRB”) granting an application for
approval of a fifty-foot right-of-way in the Town of Plainfield, Vermont to Peter Saman
(“Applicant”).     Appellant contends that (1) the application is barred by the successive
application doctrine; (2) Applicant is bound by the principles of issue and claim preclusion1;
and (3) the approved right-of-way did not comply with Section 3.4 of the Town’s Interim
Zoning Regulations (“the Regulations”).2
        Appellant is represented by Elizabeth H. MaGill, Esq.; Applicant is represented by
Thomas Hayes, Esq.; and the Town of Plainfield is represented by Robert Halpert, Esq.
                                              Background
        Applicant owns a 66± acre parcel of land in the Town of Plainfield, Vermont. In 2002,
Applicant filed an application seeking subdivision approval before the Zoning Administrator
(“the ZA”). At the same time, he also sought the Planning Commission’s approval of a fifty-
foot right-of-way which crossed an adjoining lot and provided access to the 66± acre parcel.
The Planning Commission denied the right-of-way, and, subsequently, the ZA denied the
subdivision application as nonconforming based on insufficient road frontage and the lack of an
approved right-of-way.
        Applicant appealed only the Planning Commission’s decision to this Court. See In re
Appeal of Peter Saman, No. 83-4-02 Vtec, slip. op. at 2 (Vt. Envtl. Ct. Apr. 2, 2003) (Teachout, J.).


1 In their briefs, the parties use the terms “res judicata” and “collateral estoppel.” The Vermont Supreme
Court, however, frequently refers to those terms as claim and issue preclusion, and thus we adopt its
wording here.
2  Appellant also contends that approving the right-of-way requires construing Section 3.4 of the
Regulations so as to undermine the frontage requirements of Section 4.2. Because this is an on-the-record
appeal, however, we are limited to a review of the DRB’s Findings of Fact and Conclusions of Law. As
Applicant submitted the 2010 application solely for the purpose of obtaining approval of a right-of-way
but did not include a request for subdivision approval, the DRB considered only the right-of-way issue.
Our review is similarly limited, and we do not consider Appellant’s arguments relating to the frontage
requirements.

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However, we reviewed both the ZA’s decision as well as that of the Planning Commission
because both decisions were “issued in an interrelated manner.” Id. On appeal, we affirmed
the ZA’s denial of subdivision approval based on the violation of the minimum frontage
requirements. Id. at 5. However, we did not reach the merits of the request for right-of-way
approval because our decision on the frontage issue rendered it moot.
       On April 29, 2010, Applicant filed another application (“the 2010 application”) seeking
only approval of a right-of-way. This application presumably addressed the same right-of-way
for which approval was sought in 2002.          The application did not include a request for
subdivision approval. In June and August, 2010, the DRB held two hearings to determine
whether the right-of-way complied with Section 3.4 of the Regulations. During those hearings,
the DRB received evidence concerning the width of the right-of-way; emergency access via the
right-of-way; the right-of-way’s negative impact on wetlands, waterways, and adjacent
residences; and the slope of the right-of-way. After considering the evidence, the DRB issued
Findings of Facts and Conclusions of Law in which it concluded that the right-of-way complied
with Section 3.4. See In re Saman Request for Right of Way Use Approval, Findings of Fact and
Conclusions of Law (Town of Plainfield Dev. Review Bd. Nov. 5, 2010). The DRB unanimously
approved the right-of-way but made clear that its decision was limited solely to an approval of
the right-of-way and was not an approval of any proposed subdivision. Appellant then timely
appealed the DRB’s decision to this Court.
                                      Standard of Review
       In an on-the-record appeal, our role as a tribunal reviewing the decisions of municipal
panels is similar to that of the Vermont Supreme Court when reviewing appeals from
administrative bodies.    That is, we do not take new evidence or complete our own
determination of the facts. Instead, we will uphold the DRB’s factual findings if they are
supported by substantial evidence in the record. See In re Stowe Highlands Resort PUD to PRD
Application, 2009 VT 76, ¶ 7, 186 Vt. 568. We will review the DRB’s legal conclusions without
deference unless such conclusions are within the DRB’s area of expertise. Id.
                                             Discussion
       Appellant contends that (1) the application is barred by the successive application
doctrine; (2) Applicant is bound by the principles of issue and claim preclusion; and (3) the
approved right-of-way did not comply with Section 3.4 of the Regulations. The only issue that


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was before the DRB, and therefore the only issue that is before us in this on-the-record appeal, is
the approval of the right-of-way. We do not consider any request for subdivision approval.
       For the reasons detailed below, we conclude that neither the successive application
doctrine nor the doctrines of issue and claim preclusion bar Applicant’s application for right-of-
way approval. We also conclude that the DRB’s finding that the proposed right-of-way will not
adversely impact adjacent residences is supported by substantial evidence in the record.
I.     Successive Application Doctrine, Issue Preclusion, and Claim Preclusion
       Appellant argues that the successive application doctrine as well as the principles of
issue and claim preclusion bar Applicant’s 2010 application.          Applicant contends that the
application is not barred because it is not linked to a subdivision application and because the
2002 right-of-way decision was not decided on the merits.
       The principles of claim and issue preclusion generally apply to zoning proceedings. In
re McGrew, 2009 VT 44, ¶ 10, 186 Vt. 37 (citing In re Carrier, 155 Vt. 152, 157-58 (1990)).
However, such principles operate with more flexibility in the municipal zoning context than in
the civil context. In re Ferro & Pomeroy Demo/Constr. Permit, No. 197-10-09 Vtec, slip. op. at 5
(Vt. Super. Ct. Envtl. Div. Nov. 22, 2011) (Durkin, J.) (citing In re Dunkin Donuts Site Plan
Approval, 2008 VT 139, ¶¶ 7, 10–13, 185 Vt. 583 (mem.)). This flexibility is embodied in the
successive application doctrine, a subset of the claim and issue preclusion doctrines that applies
specifically to zoning proceedings. See Dunkin Donuts, 2008 VT 139, ¶ 7 (“[T]he ‘successive-
application doctrine’ is a distinct set of preclusive rules developed specifically for zoning
proceedings.” (quoting In re Armitage, 2006 VT 113, ¶ 4, 181 Vt. 241)); In re JLD Props. – Wal-
Mart St. Albans, No. 116-6-08 Vtec, slip. op. at 11 (Vt. Envtl. Ct. Mar. 16, 2009) (Durkin, J.) (“This
general rule, known as the ‘successive-application doctrine,’ embodies the principles of claim
and issue preclusion applicable to zoning applications.”); In re Choquette Zoning Permit
Amendment, No. 199-9-08 Vtec, slip. op. at 2 (Vt. Envtl. Ct. Jan. 7, 2009) (Durkin, J.) (noting that
claim preclusion should not be strictly applied to zoning decisions and applying the successive
application doctrine instead).
       The successive application doctrine prohibits a municipal panel from entertaining a
second application for the same project concerning the same property after a previous
application has been denied, unless there has been a substantial change of conditions. Dunkin
Donuts, 2008 VT 139, ¶ 8 (quoting Carrier, 155 Vt. at 158). As in claim and issue preclusion, a


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final decision on the merits denying an application is required before a subsequent application
will be barred. See Armitage, 2006 VT 113, ¶¶ 4–7 (discussing issue preclusion and final
judgments in the successive application context); In re Stormwater NPDES Petition, 2006 VT 91,
¶ 23, 180 Vt. 261 (listing the requirements for issue preclusion, including a final judgment on the
merits); Dep’t of Taxes v. Murphy, 2005 VT 84, ¶ 9, 178 Vt. 269 (discussing the requirements for
claim preclusion, including the existence of a final judgment). A decision is final if it “makes a
final disposition of the subject matter before the Court.” Armitage, 2006 VT 113, ¶ 6 (quoting
State v. CNA Ins. Cos., 172 Vt. 318, 322 (2001)).
       Here, the 2002 applications involved a request for approval of both a right-of-way and a
subdivision. The right-of-way included in that application is presumably the same right-of-way
found in the 2010 application. After the Planning Commission denied right-of-way approval in
2002, Applicant appealed that decision to this Court. Thus, a “final disposition” of the case was
not made at that time. See Armitage, 2006 VT 113, ¶ 6. This Court then concluded that the
subdivision to which the right-of-way was linked lacked sufficient frontage under Rule 4.3 of
the Regulations and could not be approved, thus rendering the right-of-way issue moot.
Appeal of Peter Saman, No. 83-4-02 Vtec, slip. op. at 3. The Court therefore did not address the
right-of-way issue on its merits during its adjudication of the 2002 applications, and there was
no final disposition of the request for right-of-way approval made at that time.
       In conclusion, although the 2010 application presumably concerns the same right-of-way
for which approval was sought in 2002, neither the successive application doctrine nor the
principles of claim or issue preclusion bar its consideration because the right-of-way issue was
never finally decided on the merits.
II.    Compliance with Section 3.4
       Appellant also argues that the right-of-way does not meet all of the criteria set forth in
Section 3.4 of the Regulations. That section provides, in pertinent part:
       No development may be permitted on lots, which do not have frontage on a
       public road or public waters or, with the permission of the Planning
       Commission, access to such road or waters by permanent easement or right-of-
       way at least twenty feet in width, is accessible to emergency vehicles, does not
       negatively impact any waterway, wetland or adjacent residences, and does not
       traverse a slope greater than 15%.

2011 Town of Plainfield Interim Zoning Regulations § 3.4. Specifically, Appellant contends that
the DRB did not comply with 24 V.S.A. § 4464(b)(1), which requires that the DRB “include a

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statement of factual bases on which [it] has made its conclusions and a statement of the
conclusions.” Appellant argues that the DRB violated this provision by failing to make explicit
factual findings supporting its conclusion that the proposed right-of-way will not adversely
impact adjacent residences.
       In his filing of September 22, 2011, Appellant presents sincere arguments regarding the
potential impacts the right-of-way may have on adjacent landowners.        However, he fails to
include any references to the record that provide a foundation for his arguments, and our
review of the record also reveals none. In its Findings of Fact and Conclusions of Law, the DRB
specifically found that the right-of-way would not adversely impact adjacent residences based
on Applicant’s testimony that the nearest residence was at least 200 feet away. The DRB was
presented with nothing other than Applicant’s testimony, and it rendered a legal conclusion
under Section 3.4 based on that testimony. The DRB’s finding that the proposed right-of-way
will not adversely impact adjacent residences is therefore supported by substantial evidence in
the record.
                                          Conclusion
       For the reasons detailed above, it is ORDERED that although the 2010 application
presumably concerns the same right-of-way for which approval was sought in 2002, its
consideration is not barred by the successive application doctrine or the principles of claim or
issue preclusion. Moreover, the DRB had a sufficient factual basis on which to conclude that the
right-of-way complies with the requirements of Section 3.4, specifically the requirement that the
right-of-way not adversely impact adjacent residences. The DRB’s decision is AFFIRMED.


       Done at Berlin, Vermont this 6th day of February, 2012.




                                                       Thomas G. Walsh,
                                                       Environmental Judge




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