                                    STATE OF VERMONT
SUPERIOR COURT                                                ENVIRONMENTAL DIVISION
Vermont Unit                                                    Docket No. 123-9-13 Vtec


Moore 3 Lot Subdivision                                  DECISION ON THE MERITS



       James and Mia Moore (the Moores) seek to subdivide the 6.27-acre parcel they own at
18 Leap Frog Hollow Road in the City of Montpelier, Vermont. The Moores’ subdivision
application was approved by the Montpelier Development Review Board (the DRB) by written
decision dated August 19, 2013. Neighboring property owner James Nagle (Mr. Nagle) timely
appealed that decision to this Court and raised 15 questions for the Court’s review.
       In a July 28, 2014 decision we addressed the Moores’ motion to dismiss and the parties’
cross-motions for summary judgment. We GRANTED judgment to the Moores on Questions 1–
11 and 13–15 of Mr. Nagle’s Statement of Questions. As to Question 12, we concluded there
was a material dispute of facts regarding whether the Moores’ application meets the
requirements of the Montpelier Zoning and Subdivision Regulations related to the delineation
of environmental resources, and thus we denied summary judgment on Question 12. Finally,
we denied Mr. Nagle’s request that the application be remanded to the DRB. Thus, Question
12 remained for trial.
       The Court completed a site visit to the Property on the morning of December 16, 2014
immediately followed by a merits hearing at the Washington County, Civil Division in
Montpelier, Vermont. Appearing at the site visit and merits hearing were James Moore and his
attorney Daniel Burke, Esq., and James Nagle, participating as a self-represented litigant.
       Based upon the evidence presented at trial, including that which was put into context by
the site visit, the Court renders the following Findings of Fact.
                                        Factual Background
1.     James and Mia Moore purchased a 6.27-acre parcel of land on Leap Frog Hollow Road in
       the City of Montpelier in May 2012.


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2.    The 6.27-acre parcel was once part of a larger parcel owned by Mr. Nagle. Mr. Nagle
      subdivided this larger parcel into three lots; Lot 1 was, and still is owned by Mr. Nagle;
      Lot 2 was owned by the Moores’ predecessor in interest, Dejung Gewissler; and Lot 3
      was then, and still is owned by Na An.
3.    Mr. Gewissler further subdivided Lot 2 into Lots A and B, with Lot A being 1.04 acres and
      Lot B being 6.27 acres. Mr. Gewissler conveyed Lot B to the Moores and that is the
      subject lot they now seek to further subdivide (Project Lands).
4.    On June 18, 2013, the Moores submitted an application for a subdivision permit with
      the City of Montpelier Development Review Board (the DRB). The application is to
      subdivide Lot B into three lots: a new Lot B of 2.96 acres, Lot B1 of 2.04 acres, and Lot
      B2 of 1.27 acres. The plans accompanying the application depict general locations of
      single-family residences, garages, driveways, wells, and water and sewer lines. With
      respect to this appeal, the Moores did not apply for any development or construction
      permits other than approval to subdivide their lot.
5.    The Site Plan depicts Leap Frog Hollow Road which provides access to the subject parcel.
6.    The DRB approved the subdivision application with conditions by written decision dated
      August 19, 2013.
7.    Mr. Nagle timely appealed that decision to this Court.
8.    The Project Lands do not contain wetlands; shoreline management areas; rare,
      threatened or endangered plant and animal species; geological sites; historic sites;
      scenic roads; bodies of water; flood hazard areas; significant trees; significant wildlife
      habitats; wellhead protection areas (for public water supplies); or ridge lines.
9.    The Site Plan depicting the Project Lands shows a water course as a “stream.” The
      stream and stream bank are or will be crossed by underground utilities. Otherwise, the
      stream and stream banks are provided with a buffer area.
10.   The Project Lands include agricultural soils, but these soils are not prime agricultural
      soils as they have an agricultural value of 7 out of 12.
11.   Project Land soils have a high water table; however, development can take place
      without adverse impacts.
12.   The Project Lands contain limited open spaces as depicted on the Site Plan.

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13.    There is a View Shed from the Project Lands looking to the southwest across a valley
       setting.
14.    The Project Lands have some areas with slopes of greater than 20 percent. These areas
       are shown by shading on the Site Plan. The Project Lands can be developed without
       adverse impacts to the steep slopes.
15.    A majority of the Project Lands are south facing slopes.
16.    Private well shield areas are shown on the Site Plan.
17.    The Project Lands and the surrounding hillside act as an aquifer recharge area.
       Subdivision and development should not adversely impact aquifer recharge.
                                               Discussion
       Mr. Nagle’s Question 12 asks: “Have appellees/applicants accurately represented the
streams, watercourses and other natural features on their survey for the proposed
development?” This raises the issue of whether the application on appeal complies with the
requirements of the City of Montpelier Zoning and Subdivision Regulations (Regulations). The
Regulations at Article 4, Subdivision and Planned Development Procedures, establish the
approval requirements for subdivisions.       Specifically, Table 401 details the submission
requirements for subdivisions in three sections of review: Sketch Plan, Preliminary Plan, and
Final Plan. Every subdivision application must go through both preliminary and final plan
review, but only the sketch plan and preliminary plan must include the following information:
       ENVIRONMENTAL FEATURES INVENTORY: On a plan at the same scale as the base
       plans, delineate significant natural resources; wetlands, shoreline management
       areas; water courses; rare, threatened or endangered plant and animal species;
       geological sites; historic sites; scenic roads; agricultural lands; open spaces; view
       sheds; streams; bodies of water; woodlands; flood hazard areas; slopes with
       gradients greater than 20%; south-facing slopes; significant trees; significant
       wildlife habitats, wellhead protection areas; and ridge lines.
Regulations at Table 401. We therefore read Mr. Nagle’s Question 12 to ask whether the
Moores have included this delineation, required by Table 401, in the application materials now
before this Court.
       In considering a subdivision application, the Regulations direct that the DRB, and
therefore this Court on appeal, “may consider and impose appropriate conditions and
safeguards with respect to the subdivision’s or planned development‘s conformance with the

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general development standards of Article 7.” Regulations § 407.E. Section 715(A) of Article 7
of the Regulations requires consideration of impacts on natural resources. To the extent that
the subdivision layout could impact these natural resources, the proper delineation and
description of the resources is material to determining whether the application should be
approved. Our review on appeal is limited to ensuring that the Table 401 Environmental
Features Inventory information is provided in the Moores’ application and we do not further
consider potential impacts to these features as to do so is beyond the Statement of Questions
in this matter. V.R.E.C.P.5(f) (“The appellant may not raise any question on the appeal not
presented in the statement as filed.”)
       The parties provided considerable testimony regarding what streams, watercourses, and
other natural features exist on the site and whether the Moores’ application accurately
delineates those resources. A few examples are as follows:
       During his cross examination of the Moores’ Professional Engineer, Don Marsh,1 who
developed the Moores’ application and site plans, Mr. Nagle elicited testimony that the ANR
on-line Natural Resource Atlas identified a wetland advisory area on the Project Lands.
Wetlands, however, were not depicted in the Moores’ application or on any site plans. Mr.
Marsh subsequently credibly testified on re-direct that based upon site visits, there are no
wetlands, and more specifically, no hydric soils or plants associated with wetlands, on the
Project Lands.
       During his examination of Julie Moore, a water resources engineer and environmental
consultant, Mr. Nagle elicited testimony that based upon two site visits, Ms. Moore believed
there were slopes in excess of 15% on the Project Lands south of the Moores’ house location
and that these slopes were not shown on the Site Plan. Ms. Moore testified to her professional
opinion regarding her concerns of development on slopes of 15% or more. Even if true, these
facts would not cause the Site Plan to be non-compliant with Table 401 as this provision of the
Regulations only requires showing slopes with gradients greater than 20%.
       Mr. Nagle and his witnesses also testified to environmental features located outside of
the Project Lands and he asserted that off-site features, such as steep slopes and wetlands,


1
 We note that Mr. Nagle had retained Mr. Marsh a few years earlier and used Mr. Marsh for the Nagles’
development of their property.
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should be material to the Moores’ application and shown on plans.                          Again, we find no
requirements within the Regulations for depicting off-site environmental features.2
                                                       Conclusion
        We therefore conclude that the Moores’ application on appeal complies with the
requirements of the City of Montpelier Zoning and Subdivision regulations related to the
delineation of environmental resources. Judgment is GRANTED to the Moores on Mr. Nagle’s
Question 12. As our July 28, 2014 decision GRANTED judgment to the Moores on Questions 1–
11 and 13–15 of Mr. Nagle’s Statement of Questions, this matter is now complete.
        We remind the parties that each house site will require additional zoning and building
permits, some of which may have been already acquired.


        Electronically signed on March 20, 2015 at 04:17 PM pursuant to V.R.E.F. 7(d).




_________________________________________
Thomas G. Walsh, Judge
Superior Court, Environmental Division




2
  Article 7, General Development Standards, of the Regulations applies to subdivisions. Regulations § 701, Purpose
and Applicability. Relevant to this appeal, the Moores do not apply for any development or construction permits
other than approval to subdivide their lot. Regulations §715.A, titled “Site Protection and Design,” requires that
any development plans “make appropriate provision for protection of the following items: streams and stream
banks, steep slopes, wetlands, soils unsuitable for development, agricultural lands and primary agricultural soils,
unique natural and manmade features, significant historic and archaeological sites, wildlife habitat and sensitive
environmental features as identified in the Montpelier Municipal Plan, aquifer recharge area and wellheads, and
scenic features, including roads and major ridgelines as delineated in the Montpelier Municipal Plan.” Regulations
§ 715.A. These provisions could be at issue during subdivision review. The Regulations require that efforts be
made to protect or preserve these areas with buffers while allowing reasonable development of an applicant’s
property. Id. These issues, however, were not raised by Mr. Nagle within his Statement of Questions. As such,
they are outside of our review. We do note, however, that at trial, the Moores provided some conclusory
evidence asserting compliance with §715.A, and Mr. Nagle provided no credible evidence that the subdivision
failed to comply with § 715.A.

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