                                       STATE OF VERMONT

                                    ENVIRONMENTAL COURT

             Appeal of Village of Morrisville    }
             Water and Light Department          }
                                                 }     Docket No. 43-3-04 Vtec
                                                 }
                                                 }

                                         Decision and Order

Appellant Village of Morrisville Water and Light Department appeals from a decision of the
Development Review Board (DRB) of the Town of Morristown, granting Appellant-Applicant
Charles Gregory's application for approval of a six-lot subdivision. This appeal is taken as an on-
the-record appeal as the Town has adopted and implemented the procedures necessary for such
appeals. Appellant is represented by David John Mullett, Esq.; Appellee-Applicant Charles
Gregory is represented by Gene Ann Condon, Esq.; and the Town of Morristown is represented
by Amanda S.E. Lafferty, Esq.

This is the second appeal regarding this application. The initial decision of the DRB on the
application was issued on July 17, 2003, based on the DRB's pre-application review on
December 12, 2002; public hearings on March 27, 2003 and May 22, 2003; and a site visit held
by the DRB on April 12, 2003. Due to the fact that the recording equipment at one or more of
those hearings failed to record, the parties agreed that the appeal had to be vacated and
remanded for further proceedings to be properly recorded before the DRB. This Court's
November 4, 2003 remand order stated that " Applicant is free to revise the application or to
present additional evidence before the DRB."

Appellee-Applicant filed a 're-application' for a subdivision permit for the identical subdivision on
December 23, 2003, and the DRB held a new hearing on the application on January 8, 2004. No
revisions were made to the application or the documents; all the substantive documents in the
record are dated prior to the initial July 2003 decision.

                         1
The documentary record and a digital audio CD containing the recorded January 8, 2004 hearing
have been forwarded to the Court. The documentary record contained certain documents not
appropriate for inclusion, which the Court has disregarded: the July 31, 2003 DRB decision
(which had been vacated and remanded); and minutes of the hearings leading up to that
decision: the December 12, 2002; March 27, 2003; and May 22, 2003 DRB meetings. As no
record appears to have been made of the site visit held by the DRB on April 12, 2003, the Court
also could not consider as evidence any observations that may have been made by the DRB
members at that site visit.

No party has had the January 8, 2004 hearing transcribed; the Court has listened to the digital
                 2
CD of the whole hearing. The minutes of the January 8, 2004 hearing were also provided; they
do not constitute evidence (except as agreed by the parties to substitute for the missing portion at
the end of the hearing). In the present appeal, only the documentary evidence and the testimony
taken at the January 8, 2004 hearing may be used in determining whether the February 12, 2004
decision of the DRB is supported by substantial evidence in the record. The parties were given
the opportunity to submit written memoranda of law.

In an on-the-record appeal, the factual findings of the administrative body are given great weight,
although they are not conclusive. The court must determine if substantial evidence exists in the
record as a whole from which the factual findings of the DRB might reasonably be inferred. See In
re Petition of Town of Sherburne, 154 Vt. 596, 604-05 (1990); Appeal of Lussier and Noe, Docket
No. 116-5-02 Vtec (Vt. Envtl. Ct., Sept. 16, 2002). If there was conflicting evidence, the DRB is
the body charged with weighing this evidence and the court will not disturb its factual findings if
supported by substantial evidence in the record as a whole. See Appeal of Doyle, Docket No.
100-5-02 Vtec (Vt. Envtl. Ct., Jan. 21, 2003). However, a DRB is obligated to make findings that
will make a clear statement to the parties, as well as to the courts in the event of an appeal, on
what was decided and how the decision was reached, and the court is directed not to peruse an
inadequate record to the extent of making its own assessment of the weight to be given to the
evidence in the record. E.g., In re Appeal of Leikert, Docket No. 2004-213 (Vt. Supreme Court,
Nov. 10, 2004) (three-justice panel).

Upon consideration of the record and the parties' memoranda, the court determines that the
following facts are supported by substantial evidence in the record as a whole, and concludes as
follows.

Appellee-Applicant owns a 93-acre parcel of land off Route 15A (Park Street) in the ' Rural
Residential with Agriculture' zoning district of the Town of Morristown. All the land except for a
small portion in the extreme southwestern corner of the parcel also lies within an overlay zoning
district for the Public Community Ground Water Source Protection Area of Appellant's water
system, which uses two gravel wells next to the river.

A proposal for a six-lot subdivision in this zoning district must be reviewed under the subdivision
review standards in Articles VII and VIII of the Zoning and Subdivision Bylaws, and each lot must
meet the use and dimensional standards in § 260 for that district. In addition, any development
proposed within a Public Community Ground Water Source Protection Area must meet the
requirements of § § 300 through 305 of the Bylaws.

Appellee-Applicant proposes a six-lot subdivision consisting of five single-family residential lots
(Lots 2 through 6, ranging from 3.8 acres to 7.0 acres in size), with a remaining 63.7-acre parcel
(Lot 1) of retained land. The retained parcel is not proposed for development, and is subject to a
deferral-of-permit under the state subdivision approval process.

The five proposed residential lots are located in the southwestern area of the property, at its
upper elevation away from Route 15A. Access to the lots is via an existing private road that
crosses an existing neighboring lot over a fifty-foot-wide right-of-way. The access will remain
private, but was proposed orally at the hearing to be upgraded in width to Town road standards
up to the point at which it serves three or fewer lots; beyond that point the driveways will meet the
Town's driveway standards.

The house sites are proposed to be served by on-site drilled wells, which are expected to reach
into the bedrock and not to draw from the gravel layer serving the municipal water system. Even if
they were to draw from the same aquifer, they are small enough and far enough away from the
municipal water system so that their zone of influence (extending only 100 to 150 feet from each
well) would not affect Appellant's wells.

                                              3
Appellee-Applicant proposes to locate all five of the primary leach fields and all five of the
replacement leach field areas in an approximately .4-acre area on Lot 6, outside of the Source
Protection Area. Each system is designed to handle 560 gallons per day, so that the five systems
will be handling 2800 gallons per day. At the hearing, Appellee-Applicant's engineer stated that
the plans before the DRB had not yet been revised to reflect that the Source Protection Area
boundary was some 50 feet closer to the property boundary than shown on the plans. He stated
that the leach fields could be placed on the property outside of the Source Protection Area's
revised boundary, and stated Appellee-Applicant's willingness to accept a condition that the plans
be revised and that an amended state wastewater permit be obtained as a condition of the
subdivision approval.

No party provided hydrogeological expert evidence to the DRB in connection with this application,
except the evidence not specific to this proposal that was contained in Appellant's source
protection plan and in the supporting material. The soils map shows that there is an impeding clay
layer between the leach field location and the aquifer, approximately five to six feet below the
surface of the ground and approximately seven feet thick. The soils above the impeding layer are
coarse granular soils through which liquid flows relatively quickly. Without the impeding layer,
they would not provide a sufficient retention time in the soil for treatment. However, with the
impeding layer, septage or other pollution that flows through the coarse granular soils is expected
to hit the impeding layer and to be conducted along it in a westerly direction (away from the
Source Protection Area), from which it would reach the river downstream from Appellant's wells
and where it would not in any event reenter the groundwater and therefore would not reach the
subsurface aquifer at the location of Appellant's wells. This theory assumes that the impeding
layer is continuous, and that it will not be breached by the construction of basements, water well
casings, or other subsurface work in connection with the construction of the houses or garages
on the lots.

Soils testing done by hydrogeologists for a project in 1988 proposed for a location on the property
much closer to Appellant's wells showed, however, that at least in the area of that proposal the
impeding clay layer was not continuous, that is, that it had areas of holes or voids through which
subsurface pollution could flow through into the deeper aquifer. No evidence was presented in the
present case regarding the likelihood of that occurrence, and no conditions were proposed or
imposed to prevent or regulate the potential for breach of that impeding clay layer due to the
construction of basements, water well casings, or other subsurface work on the five residential
lots.

Appellee-Applicant argues that, as the five individual and five replacement leach fields for the
septic systems are proposed to be located outside the Source Protection Area, the proposal
should be considered a permitted use in a Source Protection Area under § 303 of the Bylaws.
However, portions of the sewage disposal facilities are located over or impacting the Source
Protection Area: the septic tanks (for Lots 2, 3, 4, and 5), and the septage pump stations and
force mains (for Lots 2 and 4) and siphon chambers and sewer piping (for Lots 3 and 5), and
therefore the proposal must be treated as a conditional use in a Source Protection Area under §
304. Under § 304 the proposed subdivision may only be allowed if approved by the DRB as a
conditional use, that is, under § § 630 et seq., and then only if the DRB also determines " that
such uses will not pollute or have any undue adverse effects on the groundwater supply."

In the present case, the DRB did not take evidence on, make findings on, state conclusions on or
otherwise address any of the conditional use standards in § 630 and the following sections, in
particular the standards found in § § 632.1, 633.2, 634, and 636 relating to health, water supply
and the effect on community facilities. Therefore, even if the remainder of the DRB decision could
be upheld, the decision would have to be reversed and remanded for the DRB to take evidence
on and make findings and conclusions on whether the proposal meets the conditional use
standards of the Town's own Bylaws.

Under those standards, Appellant's witness did present some evidence on the specific risks to
groundwater from one component of gasoline: methyl tertiary butyl ether (MBTE), due to its small
molecular size. The evidence presented was that one gallon of spilled gasoline can contaminate
100,000 gallons of water, and that if it contaminates a water source it can be removed, but at a
great financial cost. Evidence was presented that some level of protection could be achieved by a
plastic lining under appropriately-designed paved parking areas or garages, to contain a spill.
                                                                                  4
Evidence was also presented that conditions limiting or prohibiting pesticide use might also be
appropriate to protect the water supply. Appellant also requested the installation of monitoring
wells at the periphery of each proposed residential lot, with a sampling schedule frequent enough
to provide Appellant with an early warning if contaminants were in fact to be leaching from the
developed lots towards Appellant's wells.

The Court does not make any determination in the present appeal as to the weight to be given to
this evidence or what, if any, conditions might be appropriate to impose under those standards;
the DRB will have to undertake that analysis in the remanded proceedings. The fact that
Appellant's well field is directly adjacent to Route 15A any may be at risk from other pollution
sources may certainly be considered in that analysis, but it does not relieve the DRB of the
responsibility for conducting that analysis.

Appellant also requested consideration of a condition imposing liability insurance to cover any
remediation of the water supply should the conditions not be adhered to or should contamination
occur accidentally. We note for the parties' consideration on remand that the amendments to 24
V.S.A. Chapter 117 now specifically provide in § 4464(b)(2) that a " bylaw may provide for the
conditioning of permit issuance on the submission of a bond, escrow account, or other surety . . .
to assure . . . protection of public facilities that may be affected by a project."

By contrast with the conditional use standards, the DRB did apply or attempt to apply the
subdivision standards and the § 304 standard that the proposed uses not 'pollute or have any
undue adverse effects on the groundwater supply.' Nevertheless the DRB's findings are
inadequate to support its conclusions under those standards as well, even if we consider factual
statements in the ' conclusions' section to be findings of fact, as well as those in the ' findings'
section of the DRB decision. In particular, as to the risk to Appellant's wells, the DRB decision
recited what it characterizes as ' inconsistent and sometimes conflicting information' in Appellant's
Source Protection Plan, but did not make findings as to which of that information (or any other
information) it relied on to support its conclusion that " there will be no adverse effect on the
public groundwater supply provided the conditions [imposed by the permit] are met." Nor did the
decision show how compliance with the specific conditions would satisfy the conditional use
standards, the subdivision standards, or the § 304 standards. Compare, In re Appeal of Leikert,
Docket No. 2004-213 (Vt. Supreme Court, Nov. 10, 2004) (three-justice panel).

Although the DRB did consider the location of the leach fields as lying beyond the Source
Protection Area, it did not make any findings as to whether the houses themselves and their
vehicles and garages, all located within the Source Protection Area, would pollute or have any
undue adverse effects on the groundwater supply, and did not make any findings as to whether
the leach fields would have or have any undue adverse effects on the groundwater supply, and
did not make any findings supporting whether any protective conditions were necessary.

Accordingly, based on the foregoing, it is hereby ORDERED and ADJUDGED that the DRB's
February 12, 2004 decision approving Appellee-Applicant's subdivision within the Source
Protection Area for Appellant's wells, is REVERSED and REMANDED for further proceedings
consistent with this decision. This decision concludes this appeal.

                                th
Done at Barre, Vermont, this 30 day of December, 2004.




___________________
Merideth Wright
Environmental Judge
                                             Footnotes

1.
     It appears that the documents forwarded to the Court are not the original documents in the
record but are photocopies. No party has objected, but we note for future reference that certain
information highlighted in color on some of the original exhibits (see, e.g., Exhibit 8, Attachment
E, as referenced on page 2 of Exhibit 8) was not highlighted on the copies sent to the Court. In
addition, the source protection plan (Exhibit 36) is marked „draft‟ and contains highlighting of
unknown origin not in the original.

2.
     The CD recorded an hour and twenty-two minutes. The parties stipulated that the CD is
missing some of the end of the hearing, but that the missing recording does not prevent the
decision from being considered on the record. They agreed that the Court should use the minutes
of the remainder of the hearing in place of the audio recording as the record of the remainder of
the hearing.

3.
     At the hearing, Appellee-Applicant‟s engineer stated that this design would probably be
reconfigured to create a single community leachfield (and, presumably, a single community
replacement area) to serve all five lots. Such a reconfigured design was not before the DRB and
hence is not before the Court for approval; in addition, it would have to meet the standards in
§840.6c and, presumably, §870.1, of the Bylaws, as well as all the standards discussed in this
decision that should have been applied to the present application.

4.
     Conditions imposed in the decision included a requirement that the deeds to the lots contain
covenants prohibiting the use of “non-organic pesticides, insecticides and fertilizers” in the
subdivision, and prohibiting the disposal of any “organic or inorganic contaminants.” However, the
decision does not define any of the terms, does not make the conditions enforceable by the town,
and does not contain any findings linking the conditions to the conditional use standards, the
subdivision standards, or the §304 standards.
