                                      STATE OF VERMONT

                                     ENVIRONMENTAL COURT

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Appeal of Baker and Johns                          }   Docket No. 200-10-04 Vtec
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                Decision and Order on Cross-Motions for Summary Judgment

       Appellants Patricia Baker and Yvonne Johns appealed from a decision of the Town of
Middlebury Planning Commission (Planning Commission), approving Appellee-Applicant Co-
operative Insurance Companies’ (Co-operative) application for a two-lot subdivision. Both Co-
operative and Appellants have filed motions for summary judgment. Co-operative is represented
by Willem Jewett, Esq.; Appellants are represented by James W. Runcie, Esq.; the Town has
entered an appearance and is represented by Karl W. Neuse, Esq.
                                        Factual Background
       1. Co-operative owns an 80.3-acre parcel of property (the 80± acre parcel) north of
Colonial Drive in Middlebury.          This parcel is the subject of Co-operative’s subdivision
application.
       2. Co-operative also owns land within the Chipman Hill Estates Planned Unit
Development (the PUD). Co-operative’s PUD lands abut the 80± acre parcel to the south and
include Co-operative’s offices, as well as 6 PUD lots numbered 7, 8, 9, 10, 11, and 11a. Lots 7-
11a are located between Colonial Drive and the 80± acre parcel.
       3. Appellants’ property (purchased from Marsden on June 30, 2004) is between Colonial
Drive and the southerly boundary of the 80-acre parcel, and abuts Lot 7 to its west.
       4. Co-operative submitted a subdivision application to the Planning Commission
seeking to subdivide the 80± acre parcel into two parcels: Lot A, containing 38.3± acres and Lot
B, containing 42± acres. Co-operative intends to sell Lot A for residential development and
retain Lot B for agricultural use.
       5. Proposed access to Lots A and B is by right-of-way from Colonial Drive, northerly
over one of its PUD lots, and onto Lot B, then turning westerly across the southwesterly corner
of Lot B to the southeasterly corner of Lot A.
          6. On May 10, 2004, Co-operative submitted a subdivision application to the Planning
Commission. A public hearing before the Planning Commission was noticed for June 14, 2004.
The notice stated that the Planning Commission was to consider “[t]he application by
Cooperative Insurance Companies to subdivide their 80 acre parcel on Washington Street
Extension into two parcels.”
          7.   After discussing Co-operative’s application on June 14, 2004, the Planning
Commission voted to recess the hearing and reconvene on July 12, 2004.
          8. At the July 12, 2004 Planning Commission hearing, several neighbors, including the
Appellants here, expressed concern over the originally proposed subdivision access. Many
questions were raised about the proposed future development of Lot A. Following a brief
discussion on the application, the Planning Commission voted to again recess the hearing.
          9. At some point between the June 14 and July 12 hearings, Co-operative held a separate
meeting to which interested person were invited.
          10. The continued public hearing before the Planning Commission was warned for
August 9, 2004. The Notice for this hearing stated that its purpose was for the “[r]econvened
hearing for the Co-operative Insurance Companies subdivision on Washington Street Extension.”
At the August 9th hearing, Co-operative presented three alternative access proposals for their two
lot subdivision. The alternative accesses appeared to be offered in response to neighbors’
concerns about the traffic the future development of Lot A may generate.
          11. It was noted at the hearings that Co-operative’s proposed access for their two lot
subdivision would cross over at least one of Co-operative’s PUD lots. In the course of this
discussion, it was suggested that Co-operative’s revised access proposals would require an
amendment to the 1979 PUD approval, and would therefore require Planning Commission
review.
          12. The parties dispute the extent to which the issue of PUD modification should have
been separately noticed and whether a separate hearing should have been held by the Planning
Commission.
          13. The Planning Commission approved the subdivision application1[1] at the conclusion
of its August 9, 2004 hearing.


1[1]
    The August 9, 2004 Planning Commission minutes reflect that the first motion considered was “for approval of
the subdivision with option #2 as access.” Such a motion appeared proper, as it was upon the application properly
        14. Appellants appealed the decision of the Planning Commission to this Court and filed
a Statement of Questions, providing nine questions for appeal.


                                                   Discussion
        On March 29, 2005, the Court issued a Decision and Order dismissing questions 1, 3, 4,
and 5 of Appellants’ Statement of Questions (Questions), leaving questions 2, 6, 7, 8, and 9 to be
addressed by the Court through further pretrial motions or a merits hearing. Co-operative filed a
supplemental memorandum to renew its request for summary judgment on the remaining
Questions. Appellants filed their own Motion for Summary Judgment, requesting the Court to
remand this matter to the Middlebury Planning Commission for consideration of the
modification to the PUD. The Town filed a memorandum in opposition to Appellants’ request
for remand.
        The primary issue posed by the pending motions and the remaining Questions concern
the propriety of the Planning Commission’s amendment of the PUD, as part of the Planning
Commission’s approval of Co-operative’s subdivision application.                       Co-operative argues in
support of summary judgment that the existing PUD was lawfully modified pursuant to 24
V.S.A. § 4462 and the Town’s Zoning Ordinance. Appellants argue that the existing PUD was
unlawfully modified by virtue of the fact that such a modification was not properly warned for
public hearing. The Town contends in opposition to Appellants’ request for remand that the
existing PUD was properly modified under 24 V.S.A. § 4412(3).
        Under the Town’s Zoning Ordinance, “any substantial change to a PUD shall require a
public hearing and approval of the Planning Commission.”                       See § 550.IV of the Zoning
Ordinance.      The access to Co-operative’s proposed subdivision approved by the Planning
Commission is by right-of-way from Colonial Drive over PUD Lot 8, with PUD Lot 7 to become
a developable house lot.2[2] The access ultimately approved by the Planning Commission was

warned in connection with the Commission’s hearings on Co-operative’s subdivision application. The motion was
then amended to be for “approval of the subdivision with option #2 as access with Lot 7 deemed as a building lot.”
(Emphasis added). This addition to the pending motion was presumably at the request of Co-operative’s attending
representative, and presumably because the proposed access had been moved from Lot 7 in Co-operative’s revised
access options. However, this amendment caused the Commission to act upon a request—an amendment to the
PUD—that had never been properly noticed.
2[2]
     Whether the Planning Commission decision actually changed the permitted character of Lot 7 is of some
question. The Town asserts that “the Planning Commission gratuitously stated that the said PUD
was modified „to create Lot #7 as a future house lot as earlier platted,‟ [but that] the Planning
Commission further indicated that the „conditions of the PUD shall remain in effect.‟” Town‟s
not the access proposed in Co-operative’s original application of May 10, 2004, and initially
discussed at the Planning Commission’s first hearing of June 14, 2004. In fact, the access that
ultimately received Planning Commission approval was one of three options that Co-operative’s
representatives proposed in the subsequent hearings. Those three options appeared to be made in
response to neighbors’ concerns, including the Appellants here, about access for the future
development on Lot A.3[3] Because of the particular emphasis the parties have placed on the
question of whether it was proper for the Planning Commission to amend the PUD in these
subdivision proceedings, and whether it would be proper for this Court to render a similar
decision in this appeal, we address that question first.
         It is well settled in Vermont that “[t]he reach of the [environmental court] in zoning
appeals is as broad as the powers of a zoning board of adjustment or a planning commission, but
it is not broader.” In re Torres, 154 Vt. 233, 235 (1990). Furthermore, the Environmental Court
“is limited to consideration of the matters properly warned before the local board,” In re Maple
Tree Place, 156 Vt. 494, 500 (1991); see also Torres, 154 Vt. at 235, because “notice and hearing
requirements on application to a [planning commission] are mandatory and jurisdictional, and
failure to adhere to these requirements renders the action taken null and void.” Torres, 153 Vt. at
236.
         In the present case, the warnings for the June 14 and August 9 public hearings only
referred to Co-operative’s subdivision application; a public hearing on the modification to the
existing PUD was not warned at any time. Therefore, the modification to the PUD is null and
void. See Torres, 153 Vt. at 236.
         Co-operative argues that Torres is distinguishable from the present case because that case
involved two separate zoning applications, while in the present case the Planning Commission
had continuing jurisdiction over the PUD and is directed by the Town’s Zoning Ordinance and
the Planning and Development Act to conduct subdivision and PUD review concurrently. See
Attach. to Co-operative’s Mot. to Dismiss, Ex. 7 (the Chipman Hills Estates 1979 PUD
approval); § 550.III.2 of the Zoning Ordinance (directing the Planning Commission to conduct
subdivision and PUD reviews concurrently); 24 V.S.A. § 4462 (“[i]f more than one type of

Mem. in Opp‟n to Appellants‟ Mot. for Summ. J., filed June 21, 2005, at 2 (citing Applicant‟s Ex.
9) (emphasis added).
3[3]
    As is noted later in this Decision, the impacts of any future development of Lot A, including a proposal of up to
80 new homes, was not properly before the Planning Commission in this two lot subdivision application and is not
properly before this Court now.
review is required for a project, the reviews, to the extent feasible, shall be conducted
concurrently).
       Notwithstanding the accuracy of Co-operative’s reading of the Zoning Ordinance, the Act
and the approved PUD, the Town remains obligated under Torres to provide notice of the
Planning Commission hearings on applications under consideration for some action. Because
modification of both the PUD and subdivision would require two separate and distinct
applications and reviews, notice is required for each, even if conducted concurrently. This point
is especially applicable in this case because while Appellants had actual notice of the PUD
modification by way of their participation in the public hearings on Co-operative’s subdivision
application, the record does not show that all persons who would have been interested and
entitled to notice actually were notified of the Planning Commission’s intent to review and
potentially modify the PUD.
       The Town contends that the modification of the PUD was proper under 24 V.S.A.
§ 4412(3), which addresses the statutory requirement that access be provided by a permanent
right-of-way or easement when land development is proposed on lots that do not have frontage
on a public road or public waters. While § 4412(3) does state that approvals “shall be pursuant
to subdivision bylaws,” the Court is not persuaded that this section abrogates the necessity for
notice of the modification of the PUD.
       What is clear is that the PUD could not be lawfully modified in the proceedings below, or
in the Court’s proceedings on this appeal, because there was no notice. As made clear by our
Supreme Court in Torres, the notice provided for in the proceedings below establishes the
parameters of this Court’s jurisdiction in a subsequent appeal.      The remaining question is
whether the record in this de novo appeal allows for this Court’s continued analysis of
Applicant’s subdivision application. We believe that it does.
       We recognize the very legitimate concerns that neighbors would have when they learn of
a development being proposed near their homes that is as substantial as suggested here by the
discussion at the Planning Commission’s first hearing on June 14, 2004. Such concerns can
grow even more worrisome when questions about the specific nature of the development could
not be answered.
       Land use review, particularly by municipal panels, can sometimes appear unnecessarily
confusing and complex to all parties, applicants included. While the neighbors’ concerns here
appear legitimate, we must limit our focus to the questions that are properly presented by the
pending application. When reviewing subdivision applications in particular, we have been
cautioned by our Supreme Court “that subdivision review is not intended to police prospective
uses of the subdivided lots.” In re Taft Corners Assocs., 171 Vt. 135, 141 (1991).
              Here, all that was properly before the Planning Commission, and now on appeal to this
Court, is a two lot subdivision of Applicant’s 80± acre parcel of land. The questions concerning
the possible future development of one or both of the subdivided lots are legitimate, but not
relevant in a proceeding that only has before it the question of whether the proposed two lot
subdivision meets the applicable municipal regulations and state statutes.4[4] We therefore turn
our analysis to whether the undisputed evidence shows that those regulatory requirements have
been met.
              It appears undisputed from the record here that Applicants’ proposed subdivision does
not run afoul of the Town Subdivision Regulations, particularly Definitions §§ 302(15) and
302(16) and § 606 concerning minor and major subdivisions, with exception to the question of
access. Let us defer the access issue for a moment.
              In reaching our conclusion that the facts material to the Town subdivision provisions
(other than access) have been met, we have remained solely focused on the proposals contained
in the pending two lot subdivision application: one lot will be retained and will continue in
agricultural use, the other lot will remain undeveloped until approved for a future development.
Any future development of Lot A must be the subject of a later application that would need to be
properly noticed and reviewed by the Planning Commission.
              Pursuant to 24 V.S.A. § 4412(3), a municipal panel (and on appeal, this Court) is
obligated to determine whether a “permitted right of way or easement” exists to serve land that is
proposed for development, when the land does not have “frontage on, or access to, public roads
or public waters.” Id. The last access the Planning Commission approved was over other lands
owned by Co-operative.5[5]


4[4] 24 V.S.A. § 4418 allows municipalities to “regulate the division of a . . . parcel of land into two or more lots or other division of land for sale, development or lease.”
(Emphasis added). The subdivision at issue here appears to be solely for the purpose of creating Lot A, so that it may be sold off by Co-operative. Development of Lot A is not
the subject of the pending subdivision application.

5[5]
    The proposed accesses are often referred to as a right of way “easement,” although the use of this legal term may
not be appropriate, given that the land over which the right of way passes, while a separate set of lots, is also owned
by Applicant. “Easement” is not usually the term used when the servient and dominant estates are owned by the
same entity.
         The access last approved by the Planning Commission is across PUD Lot 8 and the new
Lot B.     That access was one of three alternatives Co-operative proposed to the Planning
Commission during its last hearings.              It is unclear from the record whether these three
alternatives included the access Co-operative first proposed in its initial application, or whether
that access would have required modification or amendment to the PUD. Lastly, no party has
suggested in their Statement of Material Facts that the three proposed accesses are the only
access options for this two lot subdivision that could be submitted in this de novo proceeding.
Thus, material facts are uncertain, thereby warranting a merits hearing.
         Accordingly, and based on the foregoing, Co-operative’s motion for summary judgment
is GRANTED as to all applicable Town subdivision regulations, but is denied as to the access
question mandated by 24 V.S.A. § 4412(3). On the issue of permittable access, we find that
alternate accesses available here give rise to facts being in dispute, thereby necessitating a
hearing on the merits.6[6]
         The Court will conduct a telephone conference with the parties pursuant to the Notice
which accompanies this Decision. The parties should be prepared to discuss the following issues
at this conference:
         1. Possible trial dates, including in December, 2005, and January, 2006;
         2. Additional Discovery that may be needed in light of this Decision;
         3. Whether the parties wish to stipulate to stay these proceedings to allow for an
             application to be filed and addressed by the Planning Commission on the sole issue of
             amendment to the Chipman Hill Estates PUD for the limited purpose of providing
             access for this two lot subdivision; and
         4. Such other issues the parties believe are relevant to the remaining issues in this
             proceeding.
         All other pending motions are DENIED. Nothing contained in this Decision is to be
regarded as authorizing an amendment to the Chipman Hill Estates PUD.


                 Done at Berlin, Vermont, this 27th day of September, 2005.



6[6]
   Our procedural conclusion here presumes that one or more of the access options Co-operative may present at a
hearing on the merits would not require this Court to consider an amendment to the PUD in these proceedings.
___________________________________
  Thomas Durkin, Environmental Judge
