                                  STATE OF VERMONT

                               ENVIRONMENTAL COURT

                                                                }
In re: Higgins - Jockey Lane subdivision final plat             } Docket No. 200-8-06 Vtec
  (Appeal of Clark W. Hinsdale, III, and Monica Tupper)         }
                                                                }

             Decision and Order on Renewed Motion for Summary Judgment
                            and Motion for Reconsideration

         Appellants Clark W. Hinsdale III and Monica M. Tupper appealed from a decision

of the Development Review Board (DRB) of the Town of Monkton granting final plat

approval to Appellee-Applicants John and Lesley Higgins for a six-lot subdivision.

Appellants are represented by Liam L. Murphy, Esq. and Pamela A. Moreau, Esq.;

Appellee-Applicants are represented by Matthew T. Daly, Esq. The Town of Monkton is

represented by David Rath, Esq., but has not taken an active role in the briefing of the

pending motions.

         This Court granted summary judgment in favor of Appellee-Applicants with respect

to Questions 5, 6, 8, 9 of Appellants’ Statement of Questions, and also with respect to those

parts of Question 2 dealing with §§ 321(6), (9), and (13) of the Subdivision Regulations. In

re: Higgins-Jockey Lane Subdivision Final Plat, Docket No. 200-8-06 Vtec (Vt. Envtl. Ct.

Sept. 28, 2007). Appellee-Applicants have renewed their motion for summary judgment

on Questions 1, 3, 4, 7, and 10 of their Statement of Questions, and on the parts of Question

2 that refer to §§ 321(2), (7), (11), and (12) of the Subdivision Regulations. The following

facts are undisputed unless otherwise noted; as necessary to understand the present

decision, portions of the facts as stated in the Court’s September 2007 decision are repeated

here. All references to section numbers are to the Subdivision Regulations unless otherwise

noted.


                                             1
       Appellee-Applicants own an 85.83-acre parcel of land that they propose to subdivide

into the six lots at issue in the present application. The project property has frontage on

the north side of Jockey Lane in the Town of Monkton. Appellant Tupper owns a 10.2-acre

parcel of land immediately to the north of and adjoining Appellee-Applicants’ property.

Appellant Hinsdale owns 78.5 acres of land in two parcels north of Appellee-Applicants’

property, separated from it by another unrelated property.

       Appellants claim rights of access to their property from Jockey Lane via private

rights-of-way and/or by a so-called “pent” public road, over Appellee-Applicants’

property. Appellants have filed1 a complaint for declaratory relief in the Addison Superior

Court for a declaration that the pent road and the rights-of-way exist over the Higgins’

property giving access to Appellants’ properties from Jockey Lane.

       Appellee-Applicants propose to divide the 85.83-acre parcel into six lots, numbered2

as Lots 7 through 12, each proposed to have a building site for a single-family house. The

relative locations of the proposed building envelopes and infrastructure in relation to the

rights-of-way are the focus of Appellants’ Statement of Questions. Lots 7 through 11, the

five southernmost of the six proposed lots, range from 5.1 acres to 7.9 acres in size.

Proposed Lot 12 contains the remaining 53.8 acres and comprises the northern half of the

project.

       Proposed Lot 7 has frontage on Jockey Lane. Access to the subdivision is proposed


       1
        The complaint was filed on July 25, 2007 and was assigned Docket No 197-7-07
Ancv. An answer has been filed and discovery is proceeding; as of January 15, 2008 the
matter had not been scheduled by the Superior Court.
       2
         The application uses a numbering system beginning with Lot 7, possibly due to
a prior subdivision having lots numbered 1 through 6, while Appellants’ Exhibit C shows
the lots for the present proposal as numbered 1 through 6. To avoid confusion, this
decision uses the numbering system used in the application at issue in the present case,
referring to the lots as numbered 7 through 12.

                                            2
to be by a subdivision road having a fifty-foot-wide right-of-way and extending northerly

from Jockey Lane at the southwesterly corner of Lot 7, through Lots 7 and 8, and

terminating in a cul-de-sac located on Lot 9. A fire pond to provide water for fire fighting

is located within the cul-de-sac. Two additional fifty-foot-wide easements benefitting Lot

12 extend northerly from the cul-de-sac, one over Lot 9 and one over Lot 11. Access to

each house site is via a separate driveway from the subdivision road, except that access to

the house site on Lot 12 is by an extension of the driveway serving Lot 11.

       Appellants and Appellee-Applicants agree that several traveled ways cross the

proposed subdivision and appear to agree as to their locations; they disagree as to the legal

status of these traveled ways and as to whether the more westerly of these is a so-called

“pent” or enclosed public road.3

       Two asserted rights-of-way extend northerly from Jockey Lane, crossing into Lot 12

of the proposed subdivision at its southeasterly and southwesterly corners. The more

easterly of these asserted rights-of-way extends northerly from Jockey Lane along the

proposed subdivision roadway to just past the driveway for the house site on Lot 7, and

then extends northerly through proposed Lots 8 and 9, crossing through or very close to

the proposed sites for the septic disposal fields, house sites, and well shield envelopes on

Lots 8 and 9. After extending onto Lot 12 at its southeasterly corner, one branch of this

asserted right-of-way extends to the north across Lot 12 onto the property directly to the

south of Appellant Hinsdale’s property. On Lot 12, the other branch of the more-easterly

asserted right-of-way turns to the west and extends westerly across Lot 12, crossing the



       3
         The term “pent road” is defined as “any town highway which, by written
allowance of the selectmen, is enclosed and occupied by the adjoining landowner with
unlocked stiles, gates and bars in such places as the selectmen designate.” 19 V.S.A. §
301(4). The legislative body of a municipality may discontinue any town highway under
the procedures found in 19 V.S.A. §§ 708-11. 19 V.S.A. § 771(a).

                                             3
proposed driveway to the Lot 12 house site and crossing through the proposed site for the

primary disposal field for Lot 12.

       The more westerly of the two asserted rights-of-way is the one claimed by

Appellants to be a “pent” public road. It extends northerly from Jockey Lane over

unrelated land and enters the proposed subdivision along the westerly boundary of Lot 11

onto Lot 12 at its southwesterly corner, extending to the north across Lot 12 onto or near

Appellant Tupper’s property.

       Appellee-Applicants and the Town of Ferrisburgh entered into a settlement

stipulation that was ratified by the Town of Ferrisburgh on June 5, 2007, ratified by the

Town of Monkton on July 9, 2007, and approved by the Court on July 17, 2007. The

stipulation provided that Ferrisburgh would agree to approval of the subdivision if the

traveled portion of the access drive is at least twenty feet wide, if all other roads in the

subdivision are at least fourteen feet wide, if the dry hydrant and fire pond are constructed

to provide sufficient fire protection as determined by the Chief of the Ferrisburgh Fire

Department, if Appellee-Applicants convey an easement to the Town of Monkton at the

southeast corner of the property for the construction of a separate cul-de-sac adjacent to

Jockey Lane, if Appellee-Applicants provide by covenant for the maintenance of the dry

hydrant, fire pond, and subdivision roadway, and if they file a revised plot plan depicting

these conditions. The revised plot plan referred to in the settlement has not been filed with

the Court as of the date of this decision.



Question 10 of the Statement of Questions

       Question 10 asks whether the layout of the proposed subdivision protects and

provides for forestry and recreational uses to continue on adjoining properties, specifically

citing “Section 2, subsections E and F” of the Monkton Town Plan. Section 305(2) of the

Subdivision Regulations requires subdivisions to “be in harmony with the Town Plan.”

                                             4
Appellee-Applicants’ response focused on the provisions for forestry and recreational uses

within the subdivision project property, rather than the adjoining property.

        The September 2007 decision denied summary judgment on this issue because the

Town Plan had not been provided. Appellee-Applicants have now submitted a copy of a

Municipal Development Plan dating from May of 1977, consisting (in full) of two pages of

text and one map, with no numbered subsections. However, the citation to “Section 2,

subsections E and F” of the Town Plan in Question 10 suggests to the Court that the parties

dispute the edition of the Town Plan that is applicable to this proceeding. At the very

least, the discrepancy between the municipal plan provided by Appellee-Applicants and

Question 10 as stated by Appellants precludes its resolution on summary judgment.

        Therefore, Appellee-Applicants’ Renewed Motion for Summary Judgment remains

DENIED regarding Question 10, as material facts are in dispute as to the applicable Town

Plan.



Question 1 of the Statement of Questions

        Appellants’ Question 1 addresses whether the proposed subdivision plat contains

certain information required to be included in the application, specifically whether it

accurately shows and identifies existing accesses to Appellants’ parcels to the north of the

subdivision property, pursuant to § 210(44). Section 210 requires (in the first subsection (4))

that the applicant submit information regarding “existing restrictions on the use of land,

including easements” and requires (in the second subsection (4)) that the applicant submit

information regarding “streets which are proposed, mapped, or built.”

        This Court is without jurisdiction to determine the extent of the property rights of


        4
         Section 210 contains two sets of numbered subsections, both of which are required
for the present project as it is a “major” subdivision of more than three lots and requires
a new street.

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the parties with respect to any claimed right-of-way or claimed pent public road; that

matter is before the Addison Superior Court. This Court does have jurisdiction to

determine whether an application for subdivision has met all the requirements for

submission and for approval under the Subdivision Regulations.

       In the September 2007 decision, the Court noted that the plans provided with the

motions were reduced size versions of the subdivision plans, at a reduction of

approximately one-quarter of the size of the plans submitted with the application,

including two versions of Sheet C2, entitled “LOT LAYOUT, RIGHT OF WAY, AND

EASEMENT SHEET.” The September 2007 decision denied summary judgment on

Question 1 due to the lack of a legend or key on Sheet C2 to define whether the dotted-and-

dashed lines shown as extending from Jockey Lane towards the north (as well as the east-

west line through proposed Lot 12) in the locations asserted by Appellants to be either

private rights-of-way or a pent public road are claimed by Appellee-Applicants to be

“existing restrictions on the use of land, including easements” or to be “streets which are

. . . mapped,” under § 210. The September 2007 decision concluded that without a key,

legend, note or narrative, material facts were in dispute as to whether Sheet C2 of the

proposed subdivision plan meets the requirements of § 210.

       With their Renewed Motion, Appellee-Applicants have submitted a revised version

of Sheet C2 that labels the dotted-and-dashed lines as “Existing Logging Trails, Typical as

Shown,” and have also submitted an affidavit from Appellee-Applicant John Higgins

explaining that the dotted-and-dashed lines were placed on Sheet C2 based on aerial

photographs showing what the affidavit characterizes as “actual trails” on the property.

Mr. Higgins’ affidavit states his lack of knowledge of whether or not these “trails are

reflected in any recorded instruments that apply to the property.”

       This evidence does not resolve the dispute between the parties regarding the

adequacy of the application, that is, whether the application properly reflects existing

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restrictions on the use of the land and proposed or mapped streets, deeded or otherwise.

While the parties appear to agree as to the locations of the actual traveled ways, they

fundamentally dispute whether the traveled ways represent “existing restrictions on the

use of land” or “streets which are proposed, mapped or built,” or whether they are instead

a category of traveled way that does not have to be shown on a subdivision application.

Therefore, Appellee-Applicants’ Renewed Motion for Summary Judgment on Question 1

is DENIED, as material facts are in dispute.



Questions 2 and 7 of the Statement of Questions with respect to §§ 321(1), (2), (11) and (12)

       Appellants’ Question 2 asks in part whether the proposed subdivision meets the

requirements of §§ 321(2), (11) and (12) regarding the issues of access to adjoining parcels,

fire protection, and provision for utilities. The September 2007 decision denied summary

judgment due to the as-yet-unresolved (or “known unknown5“ ) status of the asserted

rights-of-way and asserted “pent” public road. Appellants’ Question 7 also relates to

whether the fire department can provide fire protection to the proposed subdivision. In

Appellants’ opposition to the Renewed Motion for Summary Judgment, they argue as to

Question 7 that, as well as implicating §445 (discussed below), the proposed subdivision

does not meet the requirement of § 321(1) that “[s]treets shall be suitably located to . . .

afford satisfactory access to fire fighting . . . equipment.”

       For the same reasons as discussed in the September 2007 decision, and construing

all doubts and inferences in favor of the nonmoving party, Collins v. Thomas, 2007 VT 92,

       5
       The Vermont Supreme Court aptly described the “conundrum” of such “known
unknown roads” by quoting former Secretary of Defense Donald H. Rumsfeld’s “existential
musings” that: “there are known knowns. There are things we know we know. We also
know there are known unknowns. That is to say we know there are some things we do not
know. But there are also unknown unknowns, the ones we don't know we don't know.”
McAdams v. Town of Barnard, 2007 VT 61, ¶ 13 n. 5 (citations omitted).

                                               7
¶ 6, until the status of the asserted rights-of-way (including the asserted “pent” public

road) is resolved, this Court cannot determine whether the design of the subdivision or the

relative locations of the subdivision roadway and those rights-of-way cause any hardship

to adjoining properties or compose a convenient system, or whether the project roadways

or their continuation to the property lines are necessary for convenient movement of traffic,

for fire protection, or for the efficient provision of utilities to those adjoining properties or

to the subdivision.

       Therefore, because the issue remains unresolved as to whether or where rights-of-

way and/or a pent public road exist on the proposed subdivision, Appellee-Applicants’

Renewed Motion for Summary Judgment on Question 2 and on Question 7 is DENIED as

to §§ 321(1), (2), (11) and (12)



Questions 2 and 3 of the Statement of Questions with respect to § 321(7)

       Appellants’ Question 3, and a portion of Question 2, asks whether the proposed

subdivision meets the requirements of § 321(7) of the Subdivision Regulations with regard

to provisions for widening the existing public street. Section 321(7) requires that, “[w]here

the subdivision borders on an existing street and the Town Plan or Official Map indicates

plans for realignment or widening of the street that would require reservation of some land

of the subdivision,” the final plat must mark those areas as “Reserved for Street

Realignment (or Widening) Purposes.” The September 2007 decision considered the

“existing street” to be Jockey Lane,6 as the only street “border[ing] on” the proposed

subdivision, and denied summary judgment on this issue because the parties had not


       6
         The fact that it is the Town of Ferrisburgh that maintains Jockey Lane (by
agreement with the Town of Monkton) does not assign responsibility to the Town of
Ferrisburgh for the potential widening or realignment of that street within the Town of
Monkton.

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provided either the Town Plan or the Official Map, or an appropriate affidavit, to show that

the Town Plan and Official Map do not indicate plans for its realignment or widening.

       Appellee-Applicants have not submitted a copy of or affidavit regarding the Official

Map, but have submitted a copy of the 1977 Municipal Development Plan.7 The 1977 Plan

does not contain any plans for any street widening or realignment, and accordingly does

not refer to any such plans with regard to Jockey Lane. However, material facts are in

dispute as to whether the 1977 Plan is the applicable Town Plan.

       If the 1977 Plan is the applicable town plan, and if the applicable Town Plan and

Official Map do not indicate any plans for the widening or realignment of Jockey Lane,

Appellee-Applicants are not required to mark areas as reserved for such purposes on their

final plat, and therefore Appellee-Applicants’ Renewed Motion for Summary Judgment

would be granted on Question 3 and that part of Question 2 dealing with Subdivision

Regulations § 321(7). It must be denied, however, until the issue of the applicable Town

Plan is resolved and until the Official Map (or an appropriate affidavit regarding the

Official Map) is also provided (or provided as an agreed or undisputed fact).



Question 4 of the Statement of Questions

       Question 4 of the Statement of Questions asks whether the application meets the

requirements of § 340, which gives the DRB discretion to require the subdivider to set aside

fifteen percent of the land to be subdivided for parks, playgrounds, or other recreational

purposes or, in the alternative, to require payment of an amount not to exceed fifteen

percent of the project parcel’s fair market value if a park, playground, or other recreational

use cannot be practically sited on the land. The Court, in this de novo appeal, applies the

standards applicable before the DRB; that is, it must exercise its discretion as provided in


       7
           See discussion at Question 10, above.

                                              9
§ 340.

         Appellee-Applicants have submitted the affidavit of the Zoning Administrator to

the effect that the DRB has never required land to be set aside under § 340 and that it

recently discontinued its “policy” of requiring the alternative fee. While this is informative

of the DRB’s past or current practices, material facts are in dispute on the merits of whether

a recreational set-aside or alternative fee should be considered by the Court under § 340 for

this proposed subdivision. Accordingly, Appellee-Applicants’ Renewed Motion for

Summary Judgment is DENIED as to Question 4.



Question 7 of the Statement of Questions

         Appellants’ Question 7 asks whether the proposed subdivision application

adequately demonstrates that the Monkton Fire Department can provide fire protection to

the proposed subdivision. The September 2007 decision treated this question as addressing

whether the subdivision proposal meets § 445 of the Subdivision Regulations and

determined that material facts are in dispute, or at least have not been provided to the

Court, as to whether the Monkton Fire Chief is satisfied with the adequacy of the water

storage facilities for fire protection provided by the subdivision plan, as required by § 445,

and as to whether the dry hydrant to be installed in connection with that fire pond meets

the requirements of § 445 for the installation of fire hydrants in the subdivision.

         Appellee-Applicants’ have submitted a letter from the Monkton Fire Chief that the

proposed dry hydrant and fire pond in the subdivision would provide adequate fire

protection. Therefore to the extent that Question 7 relates to § 445, Appellee-Applicants’

Renewed Motion for Summary Judgment is GRANTED.



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

Appellee-Applicants’ Renewed Motion for Summary Judgment is GRANTED with respect

                                             10
to the portion of Question 7 addressing § 445; it is otherwise DENIED with respect to

Question 1, with respect to the portions of Question 2 addressing §§ 321(2), (7), (11), and

(12), with respect to Question 3, with respect to Question 4, with respect to Question 7 so

far it relates to § 321(1), and with respect to Question 10, as material facts remain in dispute.

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

appropriate next scheduling for this matter, including whether this matter should be placed

in an inactive status until the superior court proceedings have resolved the status of the

asserted rights-of-way at issue in this appeal.



       Done at Berlin, Vermont, this 23rd day of January, 2008.




                             _________________________________________________
                                   Merideth Wright
                                   Environmental Judge




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