                                 STATE OF VERMONT

                              ENVIRONMENTAL COURT

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In re: Carusona Subdivision Final Plat     }       Docket No. 170-8-08 Vtec
        (Appeal of Bohline, et al.)        }
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            Decision and Order on Appellants’ Motion for Summary Judgment

       Appellants Edward G. Bohline, Christopher A. Burroughs and Melanie A.

Burroughs (as trustees), Lawrence Speigel and Arlene Speigel, Emma Jones-Higley and

Kristian Higley, appealed from a decision of the Development Review Board (DRB) of

the Town of Brattleboro granting final approval to a two-lot subdivision proposed by

Appellee-Applicants Richard Carusona and Alicia Carusona.                 Appellants are

represented by Michael J. Hertz, Esq.; Appellee-Applicants Richard Carusona and

Alicia Carusona (Applicants) are represented by Richard D. Perra, Esq.; and the Town

is represented by Robert M. Fisher, Esq.

       Appellants have moved for summary judgment on Questions 1, 2, 3, and a

portion of Question 9 of the Statement of Questions. The following facts are undisputed

unless otherwise noted.

       The following description of the parties’ property and claimed rights-of-way is

taken from In re Applications of Carusona, Nos. 21-1-07 Vtec, 55-3-06 Vtec, slip op. at

1–2 (Vt. Envtl. Ct. Jan. 15, 2008) (Wright, J.) (footnotes omitted), an earlier decision of

this Court on a different development proposal involving the same parties and

property:

             Applicants own a 3.79-acre parcel of land with access from Old
       Guilford Road in the Rural Residential zoning district. Applicants’ parcel
       was Lot 4 of the so-called Mears subdivision and was conveyed to them in
       August of 2005. Applicants’ parcel is located generally uphill and to the


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      south of the Bohline and the Burroughs property. Fort Dummer State
      Park adjoins Applicants’ parcel on its southerly boundary.
             [Appellant] Bohline owns an approximately two-acre parcel
      consisting of two lots that were Lots 1 and 2 of the so-called Mears
      subdivision and were conveyed to him in 1999; the property is improved
      with his single-family residence. [Appellants] Burroughs, as trustees, own
      an approximately one-acre lot that was Lot 3 of the so-called Mears
      subdivision and was conveyed to them in 1997; the property is improved
      with their single-family residence.
              The Bohline, Burroughs and Carusona lots have access to Old
      Guilford Road by a deeded thirty-foot-wide right-of-way also known as
      “Fort Dummer Heights,” which extends southerly from Old Guildford
      Road to the northerly boundary of the Carusona property. The Bohline
      property lies on the easterly side of the thirty-foot-wide deeded right-of-
      way, the Burroughs property lies on the westerly side of this right-of-way.
      [Appellants] Jones-Higley and Higley own a parcel of land improved with
      their single-family residence, with frontage on Old Guilford Road as well
      as on the northeasterly side of the thirty-foot-wide deeded right-of-way.
      In connection with the present case, the Court has not been provided with

Applicants’ two-lot subdivision application, #2008-035, dated May 8, 2008, or with a

plan entitled “Proposed 25’ ROW” prepared by William J. Fitzgerald, Land Surveyor,

dated April 26, 2006, both listed as exhibits to the decision on appeal, and referred to in

the motions now before the Court.

      In the earlier litigation, Applicants also showed a second access to their property

from Old Guilford Road by a more easterly claimed right-of-way, running south from

Old Guilford Road along the easterly boundaries of the Bushey property and the

Bohline property, and along the westerly boundary of the Spiegel property.             The

materials submitted in support of the motions in the present case include a reduced-size

plan of the proposed subdivision, originally dated February 23, 2007, and with a

revision date of May 16, 2008, and referred to in the December 26, 2008 cover letter from

Appellants’ attorney as having been submitted by Applicants at the June 16, 2008

hearing.   This plan shows the thirty-foot-wide right-of-way extended across one

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proposed lot of the proposed subdivision and ending at the boundary of the second

proposed lot of the proposed subdivision. This plan also shows the path of the easterly

claimed right-of-way, and shows a “proposed 25’ right-of-way” along a portion of that

path.

        Appellants assert, and Applicants do not contest, that Applicants intend to

connect the two proposed lots to municipal water and sewer service, using pipes that

would run within the easterly claimed right-of-way. Appellants dispute the width of

that right-of-way (that is, whether it is at least 25 feet wide), dispute whether the scope

of that right-of-way allows its use for utility lines, and also dispute the scope of the 30-

foot-wide right-of-way relating to the original subdivision.

        The Environmental Court has no subject matter jurisdiction to adjudicate parties’

respective property rights to a claimed right-of-way; any such claims are instead within

the jurisdiction of the Superior Court. In particular, issues regarding the proportionate

allocation of the costs or burdens of an easement among the lot owners, when lots

benefited by an easement are subdivided, are within the jurisdiction of the Superior

Court and not of this Court. All that this Court can do is to determine whether an

applicant has shown compliance with the subdivision regulations or other applicable

regulations. Of course, it may be beneficial for any mediation undertaken by the parties

or required by either court to address all the issues raised in both courts; this decision

only reiterates that the Environmental Court cannot resolve issues that are solely within

the jurisdiction of the Superior Court.

        It would not be a wise use of the Court’s or the parties’ time to proceed to hold

an evidentiary hearing on whether this proposal meets the Subdivision Regulations, as

to the westerly 30-foot-wide right-of-way, in advance of the Windham Superior Court’s

resolution of the Bohline and Burroughs claims regarding the physical and legal extent

of that right-of-way in Bohline and Burroughs v. Carusona, No. 308-6-08 Wmcv (filed in

June 2008, Windham Super. Ct.). On the other hand, the parties have not drawn the
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Court’s attention to any other litigation involving the easterly claimed right-of-way. If

Applicants’ present proposal does involve the use of that right-of-way for utility access

to the proposed subdivision, it is possible that at least the utility access issue could be

addressed by this Court during the pendency of the Superior Court litigation. The

parties should be prepared to discuss this scheduling question at the scheduled

telephone conference (see enclosed notice).

       In addition, Appellants argue that the proposal should be denied for failure to

comply with § 260(3) of the Subdivision Regulations. The state subdivision permit

issued by the Agency of Natural Resources in connection with the original four-lot

subdivision (#EC-2-1432) approved Lot 4 (and each of the other original lots) for “one

single-family residence with maximum three (3) bedrooms with six person occupancy.”

As the proposal is to divide one of the original lots into two residential lots, Applicants

are required by § 260(3) to submit to the Planning Commission a copy of their

application to the state Agency of Natural Resources to amend their state subdivision

permit #EC-2-1432 (unless a waiver of that requirement of § 260(3) has been obtained

from the Planning Commission under § 140). On the other hand, § 260(3) does not

require Applicants to have obtained the ANR permit amendment prior to the Planning

Commission’s (or this Court’s) ruling on their subdivision application. Rather, § 260(3)

only requires Applicants to have obtained and to submit the ANR permit amendment

(and any other required permits) within ninety days after subdivision approval, when

they must file “the final plat” under § 270(1).



       Accordingly, based on the foregoing, it is hereby ORDERED and ADJUDGED

that Appellants’ Motion for Summary Judgment as to Questions 1, 2, and 9 of the

Statement of Questions is DENIED, as material facts are in dispute, or at least have not

been provided to the Court in connection with the motion, regarding the parties’

respective rights to the rights-of-way, as discussed above.       Appellants’ Motion for
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Summary Judgment as to Question 3 of the Statement of Questions is DENIED in Part,

in that § 260(3) does not require submittal of all required permits, but is GRANTED in

Part, in that § 260(3) does require submittal of copies of all required applications.

       A telephone conference has been scheduled (see enclosed notice) to discuss

whether or which portions of this appeal should await resolution of the related Superior

Court case. Please also be prepared to discuss the timing of the Town’s adoption of on-

the-record proceedings, in connection with the scheduling of this appeal and any

related matters.




       Done at Berlin, Vermont, this 19th day of February, 2009.




                            _________________________________________________
                                  Merideth Wright
                                  Environmental Judge




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