In re Shantee Point, Inc.

In re Shantee Point, Inc. (2000-474); 174 Vt. 248; 811 A.2d 1243

[Filed 04-OCT-2002]

       NOTICE:  This opinion is subject to motions for reargument under
  V.R.A.P. 40 as well as formal revision before publication in the Vermont
  Reports.  Readers are requested to notify the Reporter of Decisions,
  Vermont Supreme Court, 109 State Street, Montpelier, Vermont 05609-0801 of
  any errors in order that corrections may be made before this opinion goes
  to press.


                                No. 2000-474


  In re Appeals of Shantee Point, Inc.	         Supreme Court
       
                                                 On Appeal from
                                                 Environmental Court
                                                 and Franklin Superior Court 

                                                 September Term, 2001


  Merideth Wright, J.
      
  Lisa B. Shelkrot and Liam L. Murphy of Langrock Sperry & Wool, LLP,
    Burlington, for Appellant.

  Brian P. Hehir, Burlington, for Cross-Appellant.
      
  David A. Barra of Hill, Unsworth & Barra, PLC, Essex Junction, for
    Appellee.

  PRESENT:  Amestoy, C.J., Dooley, Morse, Johnson and Skoglund, JJ.
   
        
       DOOLEY, J.   This case centers on a road, known as Shantee Point Road,
  located on a peninsula on Lake Champlain in the Town of St. Albans.  The
  road was relocated in part by appellant, Shantee Point Estates, Inc. (SPE). 
  The Town Zoning Board, affirmed by the environmental court, ruled that the
  relocation required a subdivision permit.  SPE appeals that decision,
  arguing that it was based on an invalid subdivision ordinance, was
  erroneous even if the ordinance were valid, and resulted from an improper
  intervention by appellee, Stephen Dana (Dana).  Dana also sued in superior
  court, and that court, with the environmental judge sitting by designation,
  ruled that SPE had the power to relocate the road.  Dana appeals from that
  decision, arguing that SPE 

 

  could not relocate the road without his consent and that the relocated road
  was not of the same width and quality as the prior one.  SPE responds that
  Dana failed to properly and timely appeal the superior court decision.  We
  conclude that we have jurisdiction over the superior court appeal and
  affirm it and the decision of the environmental court.

       The Shantee Point peninsula juts out into Lake Champlain in a
  southerly direction.  Access has been provided by a dirt road along the
  west edge of the peninsula between the Lake and a series of summer camps
  and permanent homes.  Up until 1965, the developed land was owned by one
  person who rented lots, some forty-three in all, upon which the camps and
  homes were constructed.  In that year, the owner's daughters inherited the
  property as tenants in common.  Each sold her interest so that ownership of
  the land ended up with the litigants in this case as tenants in common.

       Dana brought an action to partition the property in 1989, and the
  superior court did so in 1990 pursuant to a commissioner's report.  Each
  party received some of the land containing camp and house lots, but to
  equalize value the lots were not entirely contiguous.  Thus, proceeding
  from the north down the peninsula, Dana received the land containing the
  first ten lots, but the next group went to SPE, and the lots to the south
  of these were again awarded to Dana.  The distribution of the land meant
  that both parties, and their tenants, would regularly use the length of the
  access road.

       Litigation between the parties developed when SPE decided to relocate
  the road section serving its contiguous lots away from the Lake and behind
  the camps and homes.  Dana chose not to do a similar relocation of the road
  serving his ten contiguous lots to the North.  Thus, after SPE's road
  relocation, a vehicle coming onto the peninsula from the North would first
  proceed along the Lake on the old road in front of Dana's ten lots, then
  proceed to the East on the "connector" portion and then proceed South on
  the new road behind SPE's lots, until joining the old road again South of
  these lots.

 
   
       SPE built the road relying on opinions of the zoning administrator
  that no site plan or subdivision permit was necessary for the construction,
  and the following language in the partition order:

    Nothing herein shall be interpreted to construed to [sic] prohibit
    the above identified access roadway as it crosses the [a]bove
    parcels partitioned to [SPE] from being relocated by [SPE]
    (subject to applicable laws and regulations, if any) as long as
    its width and quality is at least maintained.

       Dana was unhappy with the road relocation and commenced an action in
  superior court to require relocation of the road to its former location. 
  Various proceedings started in the town planning commission and zoning
  board of adjustment (ZBA) and continued on appeal in the environmental
  court.  The environmental judge was assigned to preside over the related
  superior court case and she heard it in conjunction with the environmental
  court cases, but did not consolidate them.  The court issued a final
  decision and order on September 21, 2000.  We have consolidated all of the
  matters on appeal.

       In the superior court case,  Dana claimed that Shantee Point Road was
  a public road and that SPE unlawfully interfered with his easement over the
  road by relocating part of it without his consent.  He also claimed that
  SPE unlawfully built the connector portion of the road on his property. 
  SPE filed a third-party complaint against the Town to resolve whether the
  road was public or private.
   
       While the trial in superior court was going on, and a year after
  construction of the new road section, the zoning administrator informed SPE
  on June 15, 1998 that a site plan permit was  required for the road.  On
  July 8, the administrator issued a notice of violation to SPE for
  constructing the road without site plan approval.  The ZBA upheld the
  administrator's decision, and SPE appealed that decision to the
  environmental court.  On June 1, 1999, the environmental court 

 

  affirmed with respect to the connector section, but deferred decision on
  the rest of the new road until the superior court determined whether the
  old road was private or public.

       On May 27, 1999, the administrator issued SPE a notice of violation
  for constructing the new road without subdivision approval.  He relied upon
  § 200(b) of the Town of Saint Albans Subdivision Regulations, which
  provides that land development for residential or recreational purposes is
  subject to the subdivision regulations if it involves "[c]onstruction or
  extension of a road or driveway to serve more than two lots."  The ZBA
  upheld this decision, and SPE appealed to the environmental court, arguing
  that (1) all the land it owned was one "lot" despite the home and camp
  leases and (2) § 200(b) was invalid because it created a permit requirement
  without an actual subdivision.  On cross motions for summary judgment, the
  environmental court agreed with the Town and held that the road required
  subdivision approval under § 200(b).  It did not, however, address SPE's
  argument that § 200(b) is invalid.  This decision is one of the two on
  appeal before us.

       Thereafter, the parties continued to skirmish over the connector
  section.  The superior court ruled that it had been constructed on Dana's
  property and required that it be moved.  On appeal from the planning
  commission, the environmental court granted site plan approval to the
  connector section once it was moved.  Because the superior court ruled that
  Shantee Point Road was not a public road, this ended the site plan permit
  litigation, and the site plan permit has not been appealed. 

       As noted above, the superior court first ruled that the connector
  section had to be moved and that Shantee Point Road was a private road.  On
  September 21, 2000, the court ruled that pursuant to the partition order,
  SPE had the right unilaterally to relocate the road section without Dana's
  consent.  The court also found that the new road section surpassed the old
  road section in width and quality, as required by the partition order. 
  This is the second decision on appeal before us.

 
   
       SPE has filed appeals in the environmental court and the superior
  court cases.  SPE also claims that, on the same day, Dana filed an appeal
  of the environmental court cases, but failed to file an appeal of the
  superior court case.  We are treating these appeals under one docket
  because these cases are obviously interrelated. 

       We begin with SPE's claim that the trial court erred by allowing Dana
  to intervene in the environmental court matters.  The environmental court
  allowed intervention under V.R.C.P. 24(a)(2), made applicable to the
  environmental court by V.R.C.P. 76(a)(2), (FN1) which allows for
  intervention of a party in certain circumstances when the intervener claims
  an interest in property which is the subject of the action and the
  intervener's interests are not adequately represented by other parties. 
  SPE's position is that the Town of Saint Albans adequately represented
  Dana's interests so it was error to allow Dana to intervene.

       We do not reach SPE's argument because we find that Dana was entitled
  to intervention under V.R.C.P. 24(a)(1), which allows intervention "when a
  statute confers an unconditional right to intervene."  24 V.S.A. § 4471(a)
  provides a right to intervene "to every interested person appearing and
  having been heard at the hearing before the planning commission, board of
  adjustment, or the development review board."  The term "interested person"
  is defined in 24 V.S.A. § 4464(b), including:

    (3) A person owning or occupying property in the immediate
    neighborhood of a property which is the subject of any decision or
    act taken under this chapter, who alleges that the decision or
    act, if confirmed, will not be in accord with the policies,
    purposes or terms of the plan or bylaw of that municipality.

  24 V.S.A. § 4464(b)(3).

 
   
       It is undisputed that Dana appeared and was heard before the ZBA. 
  Nevertheless, the environmental court ruled that Dana could not intervene
  as of right under § 4471 because he was not an interested person. 
  Apparently, the court ruled that Dana would be an interested person under §
  4464(b)(3) only if he were contesting an adverse decision of the ZBA, and
  not when he is supporting the ZBA decision.  SPE argues that this
  represents a policy judgment of the Legislature that a landowner should not
  have to litigate against both the municipality and the adjoining landowner
  at the same time. 

       Although we recognize that the plain meaning of the statute appears to
  support the environmental court's decision, we also recognize that we held
  in Mohr v. Village of Manchester, 161 Vt. 562, 562, 641 A.2d 89, 90 (1993),
  that an adjoining landowner was an interested person who had a statutory
  right to intervene in an appeal taken by the permit applicant.  The
  difficulty with the environmental court's construction of the statute is
  that it means that the adjoining landowner is not even entitled to notice
  of the appeal to the environmental court, the situation that occurred in
  Mohr.  Thus, we conclude that we should continue to follow the holding in
  Mohr and allow intervention as of right to persons described in 24 V.S.A. §
  4464(b)(3) who make a timely motion to intervene.  The court did not err in
  allowing Dana's intervention in this case.
   
       We address first SPE's arguments about the subdivision ruling.  SPE
  contends that the ZBA and environmental court had jurisdiction, if at all,
  only because of § 200(b) of the town subdivision regulations, and that
  ordinance is invalid as beyond the authority of the Town to adopt.  That
  section provides that land development for residential or recreational
  purposes is subject to the subdivision regulations if it involves
  "[c]onstruction or extension of a road or driveway to serve more than two
  lots."  SPE argues that the Town's authority to enact subdivision
  regulations must be based on the Vermont Planning and Development Act, 24
  V.S.A. § 4301 et seq., see In re Lowe, 164 Vt. 167, 169,

 

  666 A.2d 1178, 1179-80 (1995), and that Act allows subdivision regulation
  only if there is a division of land into two or more parcels.  To analyze
  that argument, we look at the relevant sections of the Act.

       The purpose of the Act is to regulate land development, defined as:

    [T]he division of a parcel into two or more parcels, the
    construction, reconstruction, conversion, structural alteration,
    relocation or enlargement of any building or other structure, or
    of any mining, excavation, or landfill, and any change in the use
    of any building or other structure, or land, or extension of use
    of land.

  24 V.S.A. § 4303(3).  The Act contains a specific authorization for
  subdivision regulations:

    (2) Subdivision Regulations.  A municipality may authorize its
    planning commission or its development review board to approve,
    modify or disapprove all plats of land as prescribed below, and
    approve the development of such plats previously filed in the
    office of the clerk of such municipality if such plats are
    entirely or partially undeveloped, under the subdivision
    regulations of such municipality. Within the jurisdiction of such
    municipality, except as specifically limited herein, such
    municipality may adopt subdivision regulations setting forth the
    procedures, requirements and specifications for the submission,
    processing and design of plats. 

  Id. § 4401(b)(2).  Separate sections define the content of subdivision
  regulations.  For example, § 4413 provides, in part:

    (a)  Any subdivision regulation shall contain:  

          (1) Procedures and requirements for the submission
          and processing of plats.  

          (2) Standards for the design and layout of streets,
          curbs, gutters, street lights, fire hydrants, shade trees, 
          water, sewage and drainage facilities, public utilities and other 
          necessary public improvements.  

    (b)  Such regulations may provide, however, that the planning
    commission or the development review board may waive or vary,
    subject to appropriate conditions, the provision of any or all
    improvements and requirements as in its judgment of the special
    circumstances of a particular plat or plats are not requisite in
    the interest of the public health, safety and general welfare, or
    which in its judgment are

 

    inappropriate because of inadequacy or lack of connecting
    facilities adjacent or in proximity to the subdivision.  

  Id. § 4413(a), (b).

       Although the Act contains no explicit definition of "subdivision," we
  held in Lowe that, consistent with the definition of land development,
  "subdivision" means the division of a parcel into two or more parcels. 
  Lowe, 164 Vt. at 169, 666 A.2d  at 1180; see also In re Taft Corners
  Assocs., Inc., 171 Vt. 135, 137, 758 A.2d 804, 807 (2000) (same).  The Act
  also contains no definition of "plat," a term used throughout the
  subdivision statutes.  SPE argues that in this context "plat" means a map
  of a subdivision.  From these definitions, it argues that subdivision
  regulation can occur only when there is a division of a parcel into two or
  more parcels.  Since the Town's subdivision regulations require a
  subdivision permit based solely on the construction or extension of a road
  without the actual division of a parcel of land into two or more parcels,
  SPE argues that the regulations are invalid.

       The main weakness in SPE's argument is that it ignores the regulatory
  difficulties caused by subdivisions that preexist the adoption of
  subdivision regulation in any town.  As we noted in Taft Corners
  Associates, "[a]s Vermont has gone from a rural state, with large tracts of
  land devoted to farming, forestry or like uses, to a more urbanized state,
  much of its land has been subdivided to accommodate residential, commercial
  and industrial development."  171 Vt. at 144, 758 A.2d  at 811.  Much of
  this subdivision occurred before regulation.  See, e.g., In re McCormick
  Mgmt. Co., Inc., 149 Vt. 585, 588-90, 547 A.2d 1319, 1321-23 (1988) (zoning
  ordinance adopted two years after subdivision).
   
       A major purpose of modern subdivision regulation is to locate roads
  and ensure they are adequate not only for land owners they immediately abut
  but also for others who may pass over them 

 

  to other destinations.  See Gardner v. City of Baltimore, 969 F.2d 63,
  66-67 (4th Cir. 1992) (subdivision regulation serves as "a mechanism to
  insure that streets [are] properly constructed and [are] sufficiently wide
  for anticipated traffic"); D. Mandelker, Land Use Law § 9.2 (1982).  Thus,
  following the partition of the land by the superior court, Dana and others
  who might purchase land from Dana depend upon SPE to provide adequate and
  convenient access over its lands.  The Town depends upon SPE to provide
  adequate access for fire or public safety protection.  Although the road is
  currently owned privately, the Town is legitimately concerned that it may
  become a public road.
   
       Thus, for three reasons we conclude that the ordinance provision
  requiring subdivision approval for construction of a road serving more than
  two lots is valid.  First, the Act not only does not define "subdivision,"
  but it also does not explicitly limit the circumstances under which a
  municipality can require a subdivision permit.  The real limit on the
  Town's regulatory power is contained in the Act's definition of "land
  development," and the use of undeveloped land to site the new road is
  clearly "land development" under 24 V.S.A.  § 4303(3). (FN2)   We note that
  it is not uncommon for state statutes to fail to specify the reach of
  subdivision regulations, see Del. Midland Corp. v. Westhampton Beach, 359 N.Y.S.2d 944, 946 (N.Y. Sup. Ct. 1974), aff'd, 369 N.Y.S.2d 378 (App. Div.
  1975), aff'd, 387 N.Y.S.2d 248, 355 N.E.2d 302 (N.Y. 1976) ("The absence of
  a 'subdivision' definition in planning and zoning legislation is not
  unique."), and the lack of specificity leaves room for local variation. 
  See id. (lack of a "subdivision" definition "reserv[es] to each locality
  the right to determine one 'who subdivides' or what constitutes a
  subdivision"); Bd. of Supervisors v. Georgetown Land Co., 131 S.E.2d 290,
  292-93 (Va. 1963) (legislative intent was to 

 

  reserve to each locality the right to define subdivision controls); City of
  Mequon v. Lake Estates Co., 190 N.W.2d 912, 916-17 (Wis. 1971)
  (municipality is given broad discretion in implementing subdivision
  control).  While the local discretion is not unlimited, we conclude it is
  broad enough to validate the ordinance provision involved here.

       Second, the issue is the siting of a road, a traditional central
  concern of subdivision regulation.  See 24 V.S.A. § 4413(a)(2); see also
  North Landers Corp. v. Planning Bd. of Falmouth, 416 N.E.2d 934, 939-40
  (Mass. 1981) (adequate access is integral and principal object of
  subdivision control).  It makes less sense to regulate this form of land
  development through zoning regulations.

       Third, the ordinance allows subdivision jurisdiction only if the newly
  constructed or extended road serves more than two lots.  As a result there
  had to be subdivision of land either at the time of road construction or in
  the past.  It would not be in the public interest to allow the landowner to
  make significant changes in a preexisting subdivision with no regulatory
  review.  See Lampton v. Pinaire, 610 S.W.2d 915, 921-22 (Ky. Ct. App. 1980)
  (changing location of roadways results in new plat which should be reviewed
  under existing zoning regulations).  For example, if town fire protection
  equipment requires a road of a certain width for access to a fire, the Town
  should have the ability to ensure that any reconstructed road meets those
  standards.

       Next, SPE argues that it was not required to obtain a subdivision
  permit to relocate the road because the road serves only two lots - SPE's
  and Dana's - and not the three lots that trigger subdivision regulation
  under § 200(b) of the ordinance.  The issue reduces to whether the leased
  lots on which the camps and houses sit are "lots" for purposes of the
  section.  SPE argues they are not because they are all owned by it.  The
  environmental court held that the leased lots are separate lots.
   
       We must uphold the environmental court's construction of a zoning
  ordinance "unless clearly erroneous, arbitrary or capricious."  In re
  Dunnett, 172 Vt. 196, 200, 776 A.2d 406, 409-10 (2001).  

 

  In reaching its decision, the court relied primarily on a definition of
  "lot" in the town zoning regulations that states, in part, that a lot is "a
  parcel of land occupied or to be occupied by only one principal structure." 
  In its argument to this Court, the Town has relied upon a definition of
  "lot" in Act 250 that includes a leased lot.  10 V.S.A. § 6001(11); see
  also Hunter Broad., Inc. v. City of Burlington, 164 Vt. 391, 394, 670 A.2d 836, 838 (1995) (under Agency of Natural Resources Environmental Protection
  rules, "subdivision" for public health purposes includes dividing a parcel
  of land by lease).  SPE responds with a number of reasons why we should
  reject the court's conclusion: (1) the Town amended the ordinances to
  define "lot" to include leased lots and "subdivision" to include division
  into leased lots; (2) the town subdivision regulations did not before that
  define "subdivision" to include division into leased lots; (3) SPE did not
  construct a road, but merely relocated the current road; and (4) the
  subdivision regulations do not contemplate leased lots.
   
       Although SPE raises valid points, we do not find them sufficient to
  render the environmental court's construction of the ordinance clearly
  erroneous.  The amendments to the ordinance can be interpreted as
  clarifications adopted in light of this litigation, rather than substantive
  changes.  See Warner-Lambert Co. v. F.T.C., 562 F.2d 749, 758 n.39 (D.C.
  Cir. 1977) (subsequent grant of congressional authority does not prove
  agency's prior lack of authority); Municipality of Anchorage v. Sisters of
  Providence, 628 P.2d 22, 28 (Alaska 1981) (dispute or ambiguity surrounding
  statute is a strong indication that subsequent amendment is a clarification
  only); see also Caledonian-Record Pub. Co. v. Walton, 154 Vt. 15, 25, 573 A.2d 296, 302 (1990) (provisions can be added to statutes to exclude a
  possible ground of misinterpretation of its extent); Town of Cambridge v.
  Town of Underhill, 124 Vt. 237, 241, 204 A.2d 155, 158 (1964)
  ("Clarification is a legitimate objective of legislative action.  If the
  circumstances clearly indicate clarification to be intended," we enforce
  that intent).  The definition of "subdivision" includes division into lots
  for purposes of "conveyance or 

 

  sale;" the term "conveyance" is not inconsistent with a lease.  See Black's
  Law Dictionary 334, 335 (7th ed. 1999) ("conveyance" definition includes
  "transfer of an interest in real property from one living person to
  another;" "conveyancing" is defined as "[t]he act or business of drafting
  and preparing legal instruments, esp. those (such as deeds or leases) that
  transfer an interest in real property").  The act of relocating the road
  included discontinuing the existing road and constructing a new one.  The
  remainder of SPE's argument goes to how subdivision regulation will be
  applied in this case, rather than to whether there is subdivision
  regulation at all.

       We now turn to Dana's claims on appeal.  We first encounter SPE's
  motion to dismiss Dana's appeal because the notice did not cover the
  superior court judgment.  SPE has really made three arguments: (1) the
  notice was filed in the wrong court; (2) by its terms, it did not cover the
  superior court proceeding; and (3) it was untimely.  The facts are that the
  environmental judge was assigned to hear the environmental court appeals
  and the independent proceeding brought by Dana in the Franklin Superior
  Court.  She issued final decisions and judgments in cases in both courts on
  September 21, 2000.  Both parties mailed notices of appeal on October 18,
  2000.  SPE mailed separate notices of appeal to the environmental court and
  the Franklin Superior Court.  Dana sent only one notice of appeal, to the
  environmental court.  All notices of appeal were received on October 19,
  2000, and all were received in the Vermont Supreme Court on October 25,
  2000, after being sent on by the court in which the notice was filed.
   
       The single notice of appeal filed by Dana was directed to the clerk of
  the environmental court.  The caption of the notice includes both the
  proceedings in the environmental court and those in the superior court, but
  the body of the notice states that Dana "hereby appeals to the Vermont
  Supreme Court from the decision and order of the Vermont Environmental
  Court, dated September 

 

  21, 2000."  The cover letter to the clerk says that a notice of appeal "in
  relation to the above captioned matters" is enclosed.  The caption for this
  letter includes the superior court docket number.

       After filing the above documents, the Supreme Court docket clerk
  informed the parties that Dana's appeal was received after SPE's appeal and
  was being considered a cross-appeal.  On October 27, Dana's counsel
  transmitted a check for the cross-appeal to the Supreme Court and stated
  that since the Court was treating the appeals from the Franklin Superior
  Court and the environmental court as one case, "it seems unnecessary to
  file a cross-appeal in response to Shantee Point Estates' separate appeal
  from the Franklin Superior Court."  Thereafter, SPE withdrew its appeal of
  the Franklin Superior Court decision and moved to dismiss Dana's purported
  cross-appeal of that decision.
   
       The timely filing of a notice of appeal is jurisdictional.  See
  V.R.A.P. 3(b)(1); Reporter's Notes, V.R.A.P. 3.  Other failures to comply
  with the appellate rules in taking an appeal do not affect the validity of
  the appeal, but are grounds for "appropriate" action.  V.R.A.P. 3(b)(1). 
  Courts liberally construe the requirements of Rule 3.  See Torres v.
  Oakland Scavenger Co., 487 U.S. 312, 316 (1988) (construing substantially
  similar F.R.A.P. 3).  If a litigant's action is the functional equivalent
  of what the rule requires, we will find compliance.  See id. at 316-17.  If
  a litigant files in a timely fashion a document that specifically indicates
  an intent to appeal and gives sufficient notice of that intent, there is
  compliance with the requirement to file a notice of appeal.  See Smith v.
  Barry, 502 U.S. 244, 248 (1992) (finding an informal brief to be the
  functional equivalent of a notice of appeal under F.R.A.P. 3).  An error in
  compliance with V.R.A.P. will affect the validity of an appeal only if it
  is prejudicial to another party.  See Intercargo Ins. Co. v. U.S., 83 F.3d 391, 395 (Fed. Cir. 1996) ("When the defect in the notice of appeal did not
  mislead or prejudice the appellee, and when appellant's intention to appeal
  the order in question was manifest . . . the 

 

  ineptness of the notice should not defeat the appellant's right to appeal." 
  (internal quotations omitted)).

       Because Dana was cross-appellant, he could "file and serve a notice of
  appeal within 14 days of the date on which the first notice of appeal was
  filed."  V.R.A.P. 4.  Although the appellant is required to file the notice
  of appeal with the court from which the appeal is taken, a notice of appeal
  filed in the Supreme Court is treated as filed in the correct court on the
  date received by the Supreme Court.  Id.  Under these rules, we hold that
  Dana sufficiently complied with Rules 3 and 4.

       Within fourteen days after SPE first filed its notice of appeal, Dana
  had filed his ambiguous notice of appeal in the environmental court, the
  notice of appeal had been filed in the Supreme Court, and Dana's counsel
  had clarified the scope of the appeal by letter to the docket clerk.  The
  clarifying letter combined with the earlier notice of appeal was the
  functional equivalent of a complying notice of appeal.  Only a couple of
  weeks thereafter, SPE withdrew its appeal of the superior court decision,
  and the issue of the validity of Dana's cross-appeal of the superior court
  decision surfaced.  We do not believe that SPE is seriously prejudiced by
  allowing the appeal.

       On the merits of the cross-appeal, Dana argues that the superior court
  erred in two respects: (1) in holding that the partition order allowed SPE
  to unilaterally move the road without Dana's consent; and (2) in holding
  that the new road built by SPE was of the same width and quality of the old
  road.  We start with the first issue.
   
       Before Dana requested that the court partition the land, no easements
  existed because the land was held by tenants in common as one parcel. 
  Presumably, the tenants in common privately maintained the road to their
  mutual satisfaction.  In order to give access to the road to both parties
  after the land was partitioned, the partitioning court, pursuant to its
  broad equitable powers, granted each parcel an easement over that part of
  the gravel road that crossed the other parcel.  See 4 Powell 

 

  on Real Property § 34.12 (1999) (court authorized to create easement in
  partition proceedings); In re Marta, 672 A.2d 984, 986 (Del. 1996) (court
  had authority to grant easement in partition proceedings where master's
  report recommended it); Allendorf v. Daily, 129 N.E.2d 673, 679 (Ill. 1955)
  (commissioners and court had authority to grant easement "if necessary to
  provide a fair and impartial partition").

       The possibility that SPE would want to relocate the road arose in the
  partition proceedings.  As a result, the commissioners in the partition
  proceedings placed in their Report and Findings the following language:

    Nothing herein shall be interpreted to construed to [sic] prohibit
    the above identified access roadway as it crosses the [a]bove
    parcels partitioned to Joseph Montcalm, Andre Dufault and Steve
    Gillis from being relocated by Joseph Montcalm, Andre Dufault and
    Steve Gillis (subject to applicable laws and regulations, if any)
    as long as its width and quality is at least maintained.

  The partition court accepted the findings and conclusions of the
  commissioners and incorporated them by reference in its decision.
   
       Dana correctly points out that the general rule is that the owners of
  both the dominant and servient estates must consent to relocate an
  easement.  See Sargent v. Gagne, 121 Vt. 1, 12, 147 A.2d 892, 900 (1958)
  ("It is the general rule that a way, once located, cannot be changed
  thereafter without the mutual consent of the owners of the dominant and
  servient estates."); see also 80 A.L.R. 2d 743, 748 (1961) (collecting
  cases).  An exception to the general rule, however, is that the parties may
  agree to grant or reserve to either or both parties the power unilaterally
  to relocate the easement.  See Holden v. Pilini, 124 Vt. 166, 170, 200 A.2d 272, 275 (1964) (deed gave defendants right to change location of right of
  way on their land); Davis v. Bruk, 411 A.2d 660, 664 (Me. 1980) ().  A
  party may relocate an easement "where the document creating the easement []
  contains an express or implied 

 

  grant or reservation of power to relocate."  Davis, 411 A.2d  at 664.  In
  this case, the document that created the easement is the partition court's
  order which adopted the commissioners' Report and Findings.  Thus, the
  issue before us is whether that order allowed for the unilateral relocation
  of the road.  Dana contends that it does not because the parenthetical
  phrase in the report - "(subject to applicable laws and regulations, if
  any)" - means that the right to relocate the easement across SPE's property
  is subject to the common-law rule that both parties must consent to
  relocate an easement.  SPE responds that the trial court was correct in
  holding that the language in question refers only to land use law and
  regulations.

       Since the commissioners' report functions as the deed in this case, we
  will treat this as a deed construction question.  "Our first responsibility
  in a deed construction case is to determine whether the deed is ambiguous. 
  This is a question of law."  Thomas v. Farrell, 153 Vt. 12, 16, 568 A.2d 409, 411 (1989).  "In reaching this decision, we may look to the plain
  meaning of the language as well as to the object, nature and subject matter
  of the writing and the circumstances surrounding its making."  Id. at 16,
  568 A.2d  at 411.  We conclude that the language in dispute is clear and
  unambiguous with respect to the dispute before the Court.

       We begin with the plain language of the report.  Although its wording
  might be more artful, (FN3)  and it contains an unimportant scrivener's
  error, the plain language of the provision grants SPE the power to relocate
  the roadway.  Nothing in the language gives Dana the right to participate
  in, or veto, the decision to move that part of the roadway which lies on
  SPE's property.

 
   
       Dana's claim, that the phrase "(subject to applicable laws and
  regulations, if any)" means that SPE would still need to obtain his consent
  to move the roadway, would render the sentence superfluous and the
  authorization unnecessary.  See Kipp v. Chips Estate, 169 Vt. 102, 105, 732 A.2d 127, 129 (1999) (in examining a deed, we give effect to every part,
  construing it as a consistent and harmonious whole); cf. Hydeville Co. v.
  Eagle R.R. & Slate Co., 44 Vt. 395, 401-02 (1872) (court must construe a
  written contract so as to effectuate every part of it).  Since SPE and Dana
  are the only interested parties, the partition order did not have to
  contain a road relocation provision for the parties to jointly agree to
  move the road.  Thus, it is more plausible that this parenthetical phrase
  means that the partition order cannot exempt the parties from local and
  state land use law.  Rather than attempt to list all of the applicable
  permits and land use laws, the commissioners simply noted parenthetically
  that the parties must still comply with them.  We agree with the trial
  court that the partition order is not ambiguous and that it grants the
  parties the right unilaterally to move the easement on their property as
  long as they comply with the terms of the authorization and with local
  permitting and land use requirements.

       Second, Dana contends that the trial court erred by finding that the
  new road is of the same width and quality as the old gravel road.  The
  partition order states that if the road is relocated, the replacement road
  must be of at least the same width and quality as the old road.  The court
  found that the new road complied with the partition order requirement based
  largely on the testimony of SPE's witness, who is a civil engineer. 
  Pointing out that SPE's witness is the son of tenants of SPE and that other
  witnesses expressed concern about the quality of the new road, Dana argues
  that there is inadequate evidentiary support for the superior court's
  finding.
   
       We will not disturb a trial court's factual findings unless, taking
  them in the light most favorable to the prevailing party, they are clearly
  erroneous.  Cabot v. Cabot, 166 Vt. 485, 497, 697 A.2d 644, 652 (1997).  It is up to the trial court to determine the
  credibility of witnesses and to weigh the persuasive effect of evidence. 
  See In re 75,629 Shares of Common Stock, 169 Vt. 82, 92, 725 A.2d 927, 935
  (1999) ("It was within the [trial] court's discretion to determine the
  weight to be given any particular evidence.").  Based on the evidence
  presented at trial, and according the trial court the required deference,
  we conclude that the trial court's decision to rely on the engineer's
  testimony in making its findings of fact was not clearly erroneous.

       The decisions of the environmental court and the Franklin Superior
  Court are affirmed.



                                       FOR THE COURT:



                                       _______________________________________
                                       John A. Dooley, Associate Justice


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                                  Footnotes


FN1.  The rule is applicable to zoning and planning appeals but not to
  environmental enforcement cases under Chapter 201 of Title 10.  See
  V.R.C.P. 76(a)(2).

FN2.  SPE argues that relocation of a road is not land development because
  it doesn't involve change in the use of land.  This argument is at variance
  with the plain meaning of the terminology of the statute.  The use of the
  land under the new location of the road is changed, as is the use of land
  under the old location.

FN3.  Although the parties have not flagged the construction as a source of
  ambiguity, we note that the language does not create an authorization for
  moving the road, but instead says that nothing in the report prevents
  relocation.  Since it is the common law that prevents relocation of the
  road without the consent of both tenants, and not the partition order, the
  language is misdirected.  Despite the language, however, we think the
  intent is clear to allow the road to be relocated.