Bibby Final Plat 5-Lot SD Waiver
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STATE OF VERMONT
SUPERIOR COURT — ENVIRONMENTAL DIVISION
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Docket No. 189-11-10 Vtec
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In re Bibby 5-Lot Final Plat
Subdivision & Waiver Application
Decision on the Merits
Before us in this de novo appeal is an application by Thomas and Yu Bibby
(“Applicants”) for final plat approval to create a five-lot subdivision of an approximately 29acre parcel along French Hill Road in the Town of St. Albans, Vermont. Applicants included in
their application a request for a waiver from the road frontage requirement for two of the
resulting lots.
Susan Roush and Lawrence Bruce (“Neighbors”), owners and residential
occupants of property adjacent to Applicants’, filed a timely appeal of the decision issued by the
Town of St. Albans Development Review Board (“the DRB”) to approve the proposed
subdivision and road frontage waiver request.
Applicants are represented by Brian P. Hehir, Esq. Neighbors are represented by Annie
Dwight, Esq. and Claudine C. Safar, Esq.
The Town of St. Albans (“Town”) entered its
appearance and is represented by Vincent A. Paradis, Esq. Interested Person Erik Kilburn is
self-represented.
Procedural Background
Neighbors raised a number of legal issues in their Statement of Questions, which
originally included 25 Questions, some of which with multiple subsections. Applicants and
Neighbors then attempted to reduce the number of legal issues that would need to be addressed
at trial by suggesting that some of the legal issues raised could be resolved by summary
judgment.
Applicants filed a motion for summary judgment, requesting either summary
judgment or dismissal of 24 of Neighbors’ 25 Questions; Neighbors filed a competing motion
for summary judgment as to some, but not all of the legal issues raised in their Statement of
Questions. Fourteen of Neighbors’ 25 questions were subsequently resolved through summary
judgment or dismissal. In re Bibby 5-Lot Final Plat, No. 189-11-10 Vtec, slip op. at 27 (Vt. Super
Ct., Envtl. Div. Mar. 2, 2012) (Durkin, J.). As a consequence of that pre-trial decision, the legal
issues remaining to be resolved at trial were the following:
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Question 2, which asks whether the proposed subdivision conforms to Section 220(2) of
the Town of St. Albans Zoning Bylaws and Subdivision Regulations (“Regulations”),
which directs that a “proposed development should demonstrate due regard for the
protection of existing trees, scenic points, brooks and water bodies and other natural and
cultural features of the area.” Id.
•
Question 3, which asks whether the proposed subdivision will be “compatible with
adjacent land uses,” as directed by the first portion of Regulations § 220(3).
•
Question 4, which asks whether the proposed subdivision will “provide sufficient open
space for recreation and . . . safeguard the privacy of area inhabitants,” as directed by the
second portion of Regulations § 220(3).
•
Question 5, which asks whether the proposed subdivision will conform to the
prohibition in Regulations § 220(4) that developments “not cause unreasonable
congestion or unsafe conditions;” Neighbors pose this Question with a specific reference
to the adjacent public road known as French Hill Road and Neighbors’ nearby private
logging road.
•
Question 6, which asks whether the proposed subdivision will comply with the directive
contained in Regulations § 221(1)(B) to “wherever feasible . . . [u]tilize common
driveways for adjacent lots.”
•
Question 7, which asks whether the proposed subdivision will comply with the directive
contained in Regulations § 221(1)(C) to “wherever feasible . . . [p]roduce the safest, most
healthful and attractive building sites for the topography, drainage, soils, vegetation,
and other natural features of the property.”
•
Question 10, which asks whether the proposed subdivision will comply with the
directive contained in Regulations § 221(6) to “retain [v]egetation such as trees and
shrubs . . . for reasonable screening and aesthetic purposes.”
•
Question 11, which asks whether the proposed subdivision will comply with the
directive contained in Regulations § 221(6) to “maintain[] or enhance[] . . . [v]egetated
buffers along stream banks . . . for filtration, erosion control, and aesthetic purposes.”
•
Questions 13 and 14, which ask whether the proposed shared access way for Lots 3 and
4 (neither of which have road frontage) conforms to Regulations § 400(1), and whether
each lot is entitled to the road frontage waiver requested by Applicants.
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•
Question 19, which asks whether the proposed subdivision will comply with the
directive contained in Regulations § 221(5) to “provide[] sufficient [d]rainage
[f]acilities . . . to accommodate . . . storm runoff from all roads, lots, and upstream
drainage areas, whether inside or outside the development.”
When the parties, despite their best efforts, were unable to resolve these remaining legal
issues by voluntary agreement, the matter was set for trial. The trial began on September 13,
2012; it had originally been scheduled to be completed in one day. However, during the course
of the afternoon of the first day of trial, the Court became aware that the courtroom recording
equipment had malfunctioned: while the recorder appeared to be registering recordings from
the individual microphones in the courtroom, no playback was available. Thus, the Court
concluded that there was no record of the proceedings during the first day of trial.
The
undersigned gave notice to the parties and requested their thoughts, after they conferred with
their respective legal counsel, on how the Court should respond to the lack of a record for the
first portion of the trial.
By separate letters, filed with the Court on September 21 and 24, 2012, Neighbors and
Applicants, through their respective attorneys, recommended that the Court proceed with the
trial, even though the first day of trial had no audio recording. The Court thereafter made
arrangements to complete the trial on two additional days that the host courtroom was
available. The trial was completed on January 16, 2013 at the Franklin County Superior Court –
Civil Division. Once the trial was completed, the Court afforded the parties an opportunity to
file and supplement their proposed Findings of Fact and Conclusions of Law.
The Court conducted a site visit with the parties prior to the first day of trial. 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, Conclusions of Law, and the Judgment Order
that accompanies this Decision.
Findings of Fact
I. Applicants’ Property and Subdivision Layout
1.
Applicants presently own a parcel of land on French Hill Road in the Town of St. Albans
that contains 29± acres. Their property includes a single family residence, with attached garage,
that Applicants occupy as their residence.
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2.
Applicants’ property is almost entirely wooded and is generally located at the peak of
the highest point of an elevated area. This general area is known as French Hill.
3.
Applicants propose to subdivide their property into five lots of various sizes:
•
Lot 1 includes 7.5± acres (approximately 3 acres of which is open land) and contains
Applicants’ residence; an existing driveway will continue to serve as the access to Lot 1;
•
Lot 2, containing 6.5± acres, lies easterly from Lot 1 and has its own proposed driveway
that will intersect with French Hill Road
•
Lot 3, 4, and 5, respectively containing 6.4±, 6.2±, and 2.4± acres, are proposed to share
an access way onto French Hill Road. These three lots are westerly of Applicants’ Lot 1.
4.
All of the proposed lots satisfy the minimum lot size requirements for the applicable
zoning districts.
5.
Each of the proposed lots and their access ways are depicted on Applicants’ site plan, a
copy of which was admitted as Exhibit B. Applicants also depicted their proposed lots on an
enlarged copy of an aerial photo of the area that also shows neighboring properties, including
Neighbors’ property. That augmented aerial photo was admitted at trial as Exhibit A.
6.
Most of Applicants’ property is located in the Rural Zoning District (“Rural District”);
only Lot 4 has lands located in the Conservation Zoning District.
7.
Applicants’ property generally occupies the top portion of French Hill. The topography
of the proposed to-be-subdivided land is gently undulating, with a slope towards the east.
8.
There can be beautiful views enjoyed from Applicants’ property to the northeast, east
and southeast, especially from the open area near their existing home and from some portions
of the wooded undeveloped areas, especially in the winter months, when the leaves are off the
trees.
9.
The shared access way for Lots 3, 4, and 5 will travel from French Hill Road and across
Lot 5, which has frontage on French Hill Road. The shared access way will then continue onto
Lot 3. Applicants’ site plan (Exhibit B) includes a depiction of the proposed location for the
shared access way. The right of way for this shared driveway will be twenty feet wide with a
travel lane of about sixteen feet.
10.
Once the access way leaves Lot 5 and travels onto Lot 3, it continues into a circular travel
area that will allow traffic, including delivery and emergency vehicles to turn around and travel
out the access way to French Hill Road. There will also be two driveway spurs off of the
circular travelled area; each of these spurs will serve as a separate driveway for Lots 3 and 4.
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11.
Lots 3 and 4 do not have frontage on a town road.
12.
Lots 1, 2, and 5 each have frontage on French Hill Road that exceeds the minimum road
frontage required for single family dwellings located in the Rural District (175 feet).
13.
The proposed shared access way for Lots 3, 4, and 5 parallels and is located within 10 to
15 feet of the property boundary line that Applicants share with Neighbors. When Applicants
or their successors in interest develop the shared access way, trees within the access way will be
removed and trees adjoining the access way will remain. Because of the proximity of the
proposed shared access way to Neighbors’ property, Neighbors will have a nearly unobstructed
view of the shared access way from the edge of Neighbors’ property.
14.
Development of this shared access way, particularly the circular travel area, may cause
construction vehicles to cross the parties’ shared boundary and enter onto Neighbors’ property,
due to the close proximity of the shared drive to Neighbors’ property. If these construction
vehicles do enter onto Neighbors’ property, which the Court considers likely, the construction
activities are likely to disturb or destroy an historical stone wall that generally follows the
parties’ shared boundary line.
15.
Applicants plan to complete the subdivision of their land and, if they are granted a
permit for their proposed subdivision, to sell the individual lots to others who will complete the
driveways, access ways and residential development of the individual lots. Applicants do not
intend to complete any site development.
16.
Applicants do not intend to develop the subdivided lots themselves, but rather suggest
that the buyers of the individual lots will perform the construction and development work,
including the shared driveway for Lots 3, 4, and 5 and the separate driveway for Lot 2. While
Applicants’ proposal appears to be allowed by the Regulations, we have some concerns, since
Applicants’ site plan only identifies the location and width of the shared driveway and right-ofway, but does not provide construction details, including the depth of the road bed and
materials to be used, and what, if any, culverts will be installed in wet areas. Applicants’
engineer testified that such details could be determined when the future developers of the lots
begin construction.
II. Surrounding Neighborhood
17.
Neighbors own a parcel of land that adjoins Applicants’ property along the easterly
boundary of Applicants’ property.
Neighbors’ land contains approximately 190 acres that
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includes open fields, wooded lands (including areas that Neighbors use to harvest firewood and
timber for other uses), and Neighbors’ principal residence.
18.
The area between Neighbors’ home and Applicants’ boundary line is almost entirely
wooded. Neighbors’ home lies downslope from Applicants’ property. Neighbors have no view
of Applicants’ property from their home, but they can view the westerly portion of Applicants’
property from the easterly portion of their (Neighbors’) property.
19.
Neighbors maintain a logging road on their property, near the boundary line with
Applicants’ property. Neighbors’ logging road travels from its intersection with French Hill
Road, parallels and then abuts the parties’ common boundary line until the logging road then
branches off in a westerly direction, away from Applicants’ property.
Where Neighbors’
logging road branches off is just prior to the location of Applicants’ proposed circular portion of
the shared access way on Lot 3.
20.
After Neighbors’ logging road branches away from the parties’ common boundary, the
road reaches a log staging area that Neighbors and their forestry contractors use to stage and
store timber harvested from Neighbors’ property. Neighbors store and process harvested logs
in this staging area during their annual harvests for firewood.
21.
Neighbors also harvest timber from their property for sale to others, in conformance
with their forestry management plan. To complete their timber harvest (both for firewood and
logging), Neighbors and their forestry contractors will bring several pieces of equipment onto
their property, including chainsaws, tractors, skidders, a bulldozer, and an excavator.
22.
Neighbors’ firewood harvests generally occur each year. Their timber harvests occur
less frequently, perhaps only every four or five years, and sometimes even less frequently.
23.
Neighbors or their logging contractors conducted only two timber harvests in the last
thirteen years, and neither timber harvest lasted for longer than two weeks.
24.
Often, especially when their timber harvests are occurring, Neighbors will store timber
logs, some as long as sixteen feet, in piles at their staging area. Some of these log piles will
reach a height of six feet or more.
25.
When Neighbors contract to sell or have the harvested timber removed from their
property, 10-wheel logging trucks, sometimes with trailers, and 18-wheel tractor-trailers will set
up in the staging area to remove the harvested logs.
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26.
The neighborhood surrounding Applicants’ property is sparsely settled with residential
properties. While several lots on French Hill Road across from Applicants’ property have been
developed with single family homes, none of the homes on these nearby lots will have a view of
Applicants’ proposed subdivided lots. Subdivision of Applicants’ property will not cause a
material change in the view shed from all portions of nearby properties, with the exception of
the logging road and log staging area on Neighbors’ property.
27.
All of the properties in the general neighborhood of Applicants’ and Neighbors’ homes
consist of either vacant land or lots occupied by single family residences. The area properties
vary in size from one acre (or less) to much larger in size. Neighbors’ property, containing over
190 areas, appears to be the largest parcel in the general area.
28.
The five lots Applicants propose to create by their subdivision, varying in size from 2.4±
acres to 7.5± acres, are similar in size to the majority of properties in their general
neighborhood.
III. Traffic
29.
French Hill Road is a town highway. While through traffic regularly uses this public
roadway, it principally serves the residential properties in the neighborhoods through which
the road passes. The traffic on this public highway is mostly rural in nature.
30.
The highest point on French Hill Road aligns with the boundary line shared by the
parties. Travelling easterly from the point where French Hill Road intersects with the parties’
common boundary line, the Road travels through a generally level, straight area for several
hundred feet, past the proposed boundary line between Lots 1 and 5. French Hill Road then
follows a downhill slope and turns in a southeasterly direction, past Applicants’ existing
driveway and past their proposed Lot #2. See Exhibit B.
31.
Applicants decided not to design their subdivision with a driveway that was shared
with the existing driveway to their home on what will become Lot 1, because they have
experienced difficulty in roadway visibility from their driveway due to the westerly uphill
slope of French Hill Road in the vicinity of their driveway and the fact that the Road levels off
just to the west of their driveway, restricting their view of traffic coming from the west.
32.
Applicants’ property hosts several Class III wetlands, particularly in the area designated
as Lot 5. One of the wetlands on Lot 5 straddles the parties’ common boundary line, with wet
areas existing on both Neighbors’ and Applicants’ property.
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33.
Applicants and their engineer originally designed a shared driveway for Lots 3, 4, and 5
that avoided the wetlands on Lot 5 and was closer to the common boundary line between Lots 1
and 5. They revised their site plan by moving the shared driveway to the west, closer to the
boundary shared with Neighbors.
34.
Applicants’ original shared driveway plan (shown on Exhibit 4) does not employ a
circular driveway turn around, but rather employs a “hammerhead” design for vehicles to use
when reversing direction on the drive. A “hammerhead” turn around is as effective as a
circular traffic lane for turning vehicles. The “hammerhead” design employed by Applicants in
their original shared driveway design, as well as the drive’s alternate location, appears to
require less cutting of trees and less disturbance of vegetation.
35.
Town officials requested that Applicants relocate the shared driveway to the revised
location, described above, believing that the site distances from the driveway/roadway
intersection would be improved. Our trial evidence revealed that the sight distances were not
significantly different.
More importantly, both the original and revised locations for the
proposed shared driveway provide sight distances that comply with the guidelines adopted by
the American Association of State Highway and Transportation Officials, commonly referred to
as the “ASHTO Guidelines.”
36.
Neighbors suggest that Applicants revise their shared driveway plan further, so that the
shared driveway aligns with the existing driveway for Applicants’ home (Lot 1) and thereby
allowing for four lots (Lots 1, 3, 4, and 5) to share that driveway.
37.
Relocating the shared driveway to Lot 1 would make for a less safe intersection with
French Hill Road, since the intersection sight distances to the east would be lowered
significantly. See Exhibit J.1
38.
French Hill Road provides for the regular, safe travel of vehicles. No accidents have
been reported to town or state authorities within the last five years along the portion of the
Road that abuts the proposed subdivision.
39.
The posted speed limit for French Hill Road is 30 MPH and is in keeping with the rural
character of this neighborhood.
40.
The proposed subdivision will generate little additional traffic on French Hill Road.
Even during the peak hour of traffic generation, less than five one-way vehicle trips will be
generated to and from the shared driveway on the proposed subdivision. No new traffic will be
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generated to or from Lot 1, since that portion of Applicants’ property already hosts their
residence. Lot 2 will contribute little additional traffic, since the driveway on Lot 2 will only
serve a single residence.
IV. Aesthetic Impacts
41.
All land within the proposed subdivision is wooded; there are no open fields or
significant cleared areas within the proposed subdivision, other than near the pre-existing
residence on Lot 1.
42.
Neighbors’ concerns focus on the area to be developed as Lots, 3, 4, and 5, particularly
the areas of Lots 3 and 5 that adjoin Neighbors’ boundary and logging road.
43.
The brush and trees that populate Lots 3, 4, and 5 provide sufficient cover to screen all
views of lands within the subdivision, except for views in the immediate vicinity of Neighbors’
adjoining boundary.
44.
Applicants do not propose to cut any tress or remove vegetation from any areas of the
subdivision. They propose that trees and vegetation will be removed, if their subdivision plan
is approved, by those to whom they sell the individual lots. Applicants do not seek approval
for any development of the individual lots by the subdivision application they have presented.
Rather, any future owner or developer of any of the individual lots will be required to submit a
further application concerning such future development, and no such development may occur
until such an application has received final approval.
45.
Applicants do not propose by this subdivision application to clear any of the individual
building sites on any of the proposed lots.
46.
Even with the clearing anticipated for the proposed on-site waste disposal systems and
driveways, including the driveway to be shared by Lots 3, 4, and 5, the subdivided lots will
retain much of their vegetative cover and their aesthetic characteristic of a wooded area.
47.
Once developed, the subdivided lots are not likely to interfere with the views or
aesthetic settings of the adjoining properties, due in particular to the trees, vegetation, and other
natural screening that will remain on the proposed subdivision.
48.
The subdivision as proposed will cause four residences to be added to the immediate
neighborhood. Such a minimal addition will be common to and in keeping with the established
uses of nearby properties.
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V. Impacted Wetlands; Stormwater Runoff
49.
Applicants’ property consists of mostly dry, well-draining lands. There are no wetlands
on the property classified for protection by state or federal authorities (i.e., no Class I or Class II
wetlands have been identified on the property).
50.
There are, however, several Class III wetlands on Applicants’ property, including in the
area where Applicants propose the shared driveway for Lots 3, 4, and 5. The shared driveway,
as currently proposed, will encroach upon some portions of these wetlands, including with
unspecified amounts of fill that will be brought in to some of the wet areas for the shared
driveway and underground utility lines.
The development of the shared driveway and
installed utilities will impede the flow of water in and through these wetlands, including
stormwater and groundwater that collect in these wet areas and flows through Applicants’
property. One wetland in particular, near French Hill Road, straddles the parties’ common
boundary; water currently flows from Neighbors’ property onto Applicants’ property through
this wetland. See Exhibit B.
51.
Applicants and their expert offered scant details of how the shared driveway would be
built and what measures would be employed during and after construction to limit possible
erosion of soils during and after construction. Applicants’ expert explained that their theory
was that such design and construction details could be created and revealed at the time of
construction.
52.
The current plan to fill in certain wetlands to accommodate Applicants’ current plan for
the shared driveway does not include a culvert or culverts that would allow for the natural flow
of storm- and groundwater. Without one or more culverts, the shared driveway Applicants
proposed at trial is likely to create a dam effect in these areas and increase the impoundment of
storm- and groundwater. Some of this ground- and stormwater impoundment could back up
onto Neighbors’ property. Thus, this shared driveway is likely to impact and impede the flow
of stormwater and groundwater across Neighbors’ land, Lots 5 and 3.
53.
A narrow, intermittent stream flows from one of the Class III wetlands on Lot 5 and in a
general westerly direction over Lot 3 and then crosses onto Lot 2. Another stream flows from
the wetlands located on Lot 2 (noted below) and in a general northeasterly direction over Lot 2,
where it eventually meets the stream flowing from Lot 3. The stream wholly on Lot 2 is also
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intermittent; it and the Lot 3 stream often are dry and do not host flowing water during several
months of the year.
54.
An additional Class III wetland straddles the boundary between Lots 3 and 4; a fourth
wetland is located wholly on Lot 3. Neither of these additional wetlands will be impacted by
the driveways or on-site wastewater treatment systems proposed for this subdivision.
55.
An additional Class III wetland lies on Lot 2, westerly of the areas proposed to be
disturbed for that Lot’s driveway, building site and on-site wastewater treatment system. No
portions of the developments proposed for Lot 2 will impede the storm- and groundwater that
flows through this wetland.
56.
Applicants originally secured a permit from the Vermont Agency of Natural Resources,
Division of Environmental Conservation (“DEC”) for their proposed on-site wastewater
treatment and potable water supply systems. A copy of that permit, Permit #WW-6-2242, was
admitted at trial as Exhibit H. This Permit was based upon plans that included Applicants’
original shared driveway plan that did not impact the wetlands on Lot 5, but rather was located
closer to the boundary between Lots 1 and 5. The location of Applicants’ original shared
driveway is depicted upon their original site plan, prepared by their expert in connection with
their application for Permit #WW-6-2242; a copy of that site plan was admitted at trial as
Exhibit 4.
57.
Once Applicants relocated the shared driveway, at the suggestion of one or more Town
officials, they submitted revised plans to DEC and obtained Amended Permit #WW-6-22-1,
which is referenced on their revised site plan (Exhibit B).
58.
No party appealed Applicants’ wastewater and water supply permits, which have now
become final.
59.
Applicants’ planned subdivision development, including the shared driveway in its
revised location, calls for less than one acre of land to become impervious surfaces (i.e.,
driveways, etc.). Because of this, Applicants need not obtain a state stormwater discharge
permit.
60.
It is unclear from the evidence presented whether Applicants’ original design for the
shared driveway would create more than one acre of impervious surfaces.
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61.
As proposed, neither the original nor relocated shared driveway, nor any other
development work proposed in this subdivision application, calls for any material disturbance
of the vegetated buffers along streams located on Applicants’ property.
62.
The Class III wetland that straddles the boundary line between Neighbors’ and
Applicants’ property allows for the flow of ground- and storm water from Neighbors’ land onto
Applicants’ land. However, no credible evidence was offered at trial of ground- or stormwater
flowing from Applicants’ property onto the adjoining properties.
This characteristic of
Applicants’ property is principally due to the gentle sloping of the property and the trees and
other vegetation throughout the property. Principally because of the limited clearing of trees
and vegetation that is proposed in the pending application, the proposed subdivision is
unlikely to increase the flow of ground- and stormwater off of Applicants’ property.
Discussion
By the pending application, Applicants propose to subdivide the 29-acre property on
which they now live into five lots, with their existing home to occupy their proposed Lot 1 and
four additional homes occupying the four other lots. Applicants only seek approval for their
proposed subdivision plan; they do not seek approval for the tree and vegetation clearing or the
construction that will be necessary to develop the four new house sites. Rather, Applicants
intend, if they obtain final approval for their proposed development, to only secure subdivision
approval and leave it to the future owners to secure any additional approvals for the actual
construction of their proposed development.
Thus, we begin our analysis with this recognition of what Applicants seek by their
pending application; we limit our analysis to the potential impacts from the land uses proposed
in the pending application.
This subdivision application seeks approval merely for the
subdivision of land. When such an application does not provide the specifics on how the
individual lots will be developed, that future development is not the domain of the subdivision
application process, but rather of construction applications that must be submitted and
reviewed in the future before any actual clearing or construction may begin. See In re Appeal of
Baker and Johns, No. 2006-364 (Vt. Sup. Ct. May Term, 2007) (unpub. mem.), citing In re Taft
Corners Assocs., 171 Vt. 135, 141 (2000). We therefore review the possible impacts of the
proposed subdivision within the context of the applicable provisions of the Town of St. Albans
Zoning Bylaws & Subdivision Regulations (2009) (“the Regulations”). We do not consider how
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the development on each of the four new lots will occur, what impacts that construction and
development will cause, or whether that construction and development conforms to all
applicable Regulations; we leave that review to the proceedings where full disclosure is made of
that construction and development.
Our review in a de novo appeal from a municipal land use determination is limited to
the legal issues presented by an appellant in its statement of questions. V.R.E.C.P. 5(f). When
one or more parties file pre-trial motions, we often narrow the legal issues to be addressed at
trial by a pre-trial decision or entry order. Pre-trial motions can help focus the trial time of the
parties and the Court to the factual and legal issues that are truly in dispute.
By our pretrial decision on the parties’ cross-motions for summary judgment and
dismissal,1 we narrowed the factual and legal issues that remained to be addressed at trial to 11
of Neighbors’ 25 Questions, as noted above on pages 2 and 3. We believe that the remaining
eleven legal issues fall into three categories and therefore organize our legal analysis into the
following three categories:
I.
Compatibility of the Proposed Subdivision (Neighbors’ Questions 3, 4, 7, and 10)
The Regulations contain specific provisions that control review of subdivision
applications. Since Part II of the Regulations includes the applicable criteria, review procedure,
and development standards that govern subdivisions, we focus our review of the legal issues
raised in Neighbors’ remaining Questions to the applicable provisions of Part II of the
Regulations.
By their Question 3, Neighbors challenge whether Applicants’ proposed subdivision
complies with the general planning standard contained in Regulations § 220(3) that the
proposed development shall be “‘compatible with adjacent land uses’ . . . given that the size of
the proposed lots is less than existing surrounding lots.” (Applicants’ Clarified Statement of
Questions at 1, filed March 15, 2011.) We address this Question in short order, since the
credible evidence presented at trial showed that the proposed lots are of a size similar to many
of the properties in the area near Applicants’ proposed subdivision. While it is true that one of
Applicants’ proposed lots—Lot 5—is of a relatively small size (2.4± acres), several of the lots
near the proposed subdivision are of a similar or even smaller size, as evidenced by a portion of
See In re Bibby 5-Lot Final Plat, No. 189-11-10 Vtec slip op. at 27 (Vt. Super. Ct. Envtl. Div. Mar. 2, 2012)
(Durkin, J.).
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the area municipal tax map, a copy of which Applicants submitted as Exhibit G. Certainly there
are larger parcels of land in the parties’ neighborhood, including Neighbors’ property (which is
the largest area parcel at 190 acres) and the remaining lots in Applicants’ proposed subdivision
(ranging in size from 6.2± to 7.5± acres), but all of Applicants’ proposed lots conform to the
range of sizes for area land parcels. For this reason, we conclude that the subdivision as
proposed does not conflict with this compatibility provision from Regulations § 220(3).
In their Question 4, Neighbors challenge whether Applicants’ proposed subdivision
conforms to the second portion of Regulations § 220(3), which requires that the “development
scheme . . . shall provide sufficient open space for recreation and to safeguard the privacy of the
area inhabitants.” Applicants have designed their proposed subdivision with the privacy of
area inhabitants in mind. They have proposed lots that conform to the densities that exist in
their neighborhood and that are much larger than the minimum lot sizes allowed in the
applicable zoning districts. The subdivision itself and the access ways proposed for each lot
limit the cutting of trees and clearing of vegetation; this plan continues the wooded character of
Applicants’ property and other neighboring properties.
The suggested locations of the
individual residential house sites and on-site wastewater and water supply systems maintain
the wooded character of the land as well. As designed, the undeveloped areas on each lot
provide for on-site recreation that will likely avoid disturbances to the privacy of residents of
nearby properties.
We therefore conclude that the proposed subdivision conforms to this
second portion of Regulations § 220(3).
Regulations § 221(1)(C) is part of the “Required Improvements and Design Standards”
specified in Part II of the Regulations. By their Question 7, Neighbors assert “that the proposed
lots do not produce the safest, most healthful and attractive building sites considering the
topography, drainage, soils, vegetation, and other natural features on the property” and
therefore do not conform to Regulations § 221(1)(C).
Regulations § 221(1)(C) provides that the “[l]ayout of lots . . ., wherever feasible shall . . .
produce the safest, most healthful and attractive building sites for the topography, drainage,
soils, vegetation, and other natural features on the property.” In considering this required
improvement and design standard, our review is limited by the limited development that
Applicants propose; they do not seek approval for actual construction on the individual sites
and concede that future developers will be required to disclose and obtain approval for their
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construction plans. Nonetheless, Applicants’ plans exhibit limited building envelope areas and
provide a design layout that maintains nearly all of the natural features of their property.
Applicants’ expert credibly testified that their design and lot layout, including driveways,
wastewater, and water supply systems, would cause tree and vegetation clearing on less than
five percent of the total area of their property. The building envelopes are spaced adequately
apart and provide sufficient isolation distances between each building area and neighboring
properties. With the exception of the drainage concerns expressed below regarding the location
Applicants proposed at trial for the shared driveway, we find that no drainage issues will result
from Applicants’ proposed subdivision. Neighbors provided little evidence of alternate layout
and design plans, and we conclude that Applicants’ subdivision layout provides for the safest,
most healthful and attractive building sites in light of the natural features on their property. We
therefore conclude that Applicants’ proposed subdivision conforms to Regulations § 221(1)(C).
II.
Proposed Driveways and Traffic Impacts (Neighbors’ Questions 5, 6, 13, and 14)
By their Question 5, Neighbors assert that Applicants’ proposal of a shared access for
Lots 3, 4, and 5 will fail to comply with the planning standard of Regulations § 220(4) because
“unsafe conditions” will result, both as to the public roadway known as French Hill Road and
the neighbors’ private logging road. We review Neighbors’ assertions of unsafe conditions on
each road separately.
We see no merit in Neighbors’ assertions that the proposed subdivision will cause
unsafe conditions on French Hill Road. This subdivision will cause only a small increase in
traffic on that public highway. We found Applicants’ expert’s assessment of the safety of both
the original and revised shared driveway most credible, including his assertion that his analysis
of the traffic impacts was somewhat unique because traffic analysis of such a small subdivision
rarely occurs. Ironically, the alternative that Applicants presented —a shared driveway on Lot
1—would likely be less safe than either of the alternatives proposed by Applicants, because of
less safe sight distances of oncoming traffic. Both of the options for a shared driveway on Lot 5
that Applicants presented provide safe intersections with French Hill Road. This subdivision
will generate little additional traffic for that public highway.
We therefore conclude that
Applicants’ proposed subdivision will not cause unsafe conditions on French Hill Road.
We must clarify one part of the driveway designs proposed by Applicants’ expert.
When challenged by Neighbors and their expert, Applicants’ expert conceded that each new
15
driveway will have a level area just prior to its intersection with French Hill Road. A level area
on a driveway just prior to its intersection with a public roadway provides for a safer
opportunity for vehicles to enter the highway from the roadway. Applicants’ expert offered
that the driveways, when constructed, would conform to the recommendations of the Vermont
Agency of Transportation (“VTrans”) for residential driveways, as depicted in the guidelines
commonly known as the VTrans “B-71 Standards,” a copy of which was admitted as Exhibit 9.
We will condition our approval of Applicants’ subdivision on conformance to the B-71
Standards, so that Applicants’ commitment on this point is memorialized in our approval.
We similarly do not believe that the proposed development will cause unsafe conditions
on Neighbors’ adjacent logging road, for the very same reasons stated in the preceding
paragraph.
Neighbors’ concerns here were premised not upon unsafe conditions on their
logging road that will directly result from the subdivision; they are more concerned that the
proximity of their logging road will create an “attractive nuisance” for those travelling on the
shared driveway. Since we decide below for other reasons to require a relocation of the shared
driveway, we do not analyze Neighbors’ concerns here further. The relocation of the shared
driveway to the location originally proposed by Applicants minimizes or negates Neighbors’
concerns, to the extent that they can be characterized as safety concerns that are protected by
Regulations § 220(4). For all these reasons, we conclude that the proposed subdivision, as
modified and conditioned below, conforms to Regulations § 220(4).
By their Question 6, Neighbors suggest that the proposed subdivision does not comply
with the required improvements and design standard of Regulations § 221(1)(B) by not,
“wherever feasible, . . . utiliz[ing] common driveways for adjacent lots.” Id. The credible facts
presented cause us to conclude otherwise. Applicants have proposed two alternatives for a
shared driveway for three of their five proposed lots. “Utilizing” a more extensive common
drive would have led to a less safe intersection with French Hill Road; comingling the shared
driveway with the existing driveway on Lot 1 would have led to less safe sight distances and
unnecessary tree clearing for internal driveways that would have increased the impervious
surfaces within the proposed subdivision. Applicants have presented a thoughtful plan for
sharing the access way for lots 3, 4, and 5.
We conclude that the proposed subdivision,
incorporating the shared driveway that Applicants originally proposed, conforms with
Regulations § 221(1)(B).
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Lots created by a subdivision normally must conform to the minimum road frontage
requirements for their host zoning district. An applicant may receive a waiver from the district
road frontage requirement if his or her plan satisfies the requirements of Regulations § 401. By
their Questions 13 and 14, Neighbors assert that the proposed subdivision does not comply
with some of the Regulation provisions concerning access to land development (Regulations
§ 400(1)) and that Applicants are not entitled to a waiver for the two lots in their subdivision
that will not have road frontage.2 For the following reasons, we conclude otherwise.
Two of Applicants’ proposed lots (Lots 3 and 4) do not have frontage on a public road.
Further, while Neighbors initially challenged Applicants’ assertion about the right-of-way
dimensions, they did not specifically dispute Applicants’ presentation that the shared driveway
Applicants initially proposed will be twenty feet wide, with a gravel travelled lane of about
sixteen feet. Neighbors’ concerns may have been piqued by the lack of specifics on Applicants’
plans, in regards to both the construction of the shared driveway and how the right of way will
be established in the conveying documents. However, those concerns were eliminated, at least
for the Court, by suggested conditions for approval that are incorporated into our Conclusions
below.
Regulations § 401 allows for a road frontage waiver to be granted when a subdivision
creates land-locked parcels, provided that “a permanent right-of-way, of at least twenty feet in
width . . ., provides access to not more than two single-family dwellings that do not have
adequate road frontage.” Id. Applicants’ subdivision plan satisfies these requirements and
thereby conforms to Regulations § 401. With this criteria met, we GRANT Applicants a waiver
from the road frontage requirement for their proposed Lots 3 and 4. With that waiver in hand,
Applicants conform to the land development access requirements of Regulations § 400 because
their Lot 5 has adequate road frontage and the waiver granted above allows for easement access
for their Lots that do not have road frontage. We therefore conclude that Applicants’ proposed
subdivision conforms to Regulations §§ 400 and §401.
III.
Protection of Trees, Water Bodies, and Other Natural Features (Questions 2, 11, and 19)
State and federal laws provide for protection of significant wetlands, lakes, and streams
and because of the magnitude of those regulations, any discussion of wetland protections often
begins with the classification of wetlands under federal or state law, based upon their
2
Road frontage waivers are governed by Regulations § 401.
17
significance. But one would be mistaken to limit an interpretation of protections afforded by
municipal regulations to only those wetlands and other natural resources that are deemed
significant under federal or state law. In fact, the Town here has chosen to require some
appreciation, if not outright protection, for “existing trees, scenic points, brooks and water
bodies and other natural and cultural features of the area” of a proposed development.
Regulations § 220(2).
Neighbors suggest by their Question 2 that Applicants’ proposed
subdivision fails to provide “due regard” for these natural features. For the reasons detailed
below, we agree with Neighbors, but conclude that with certain conditions, Applicants’
proposed subdivision may be approved.
We next summarize Neighbors’ Questions 11 and 19, since they raise similar concerns.
By their Question 11, Neighbors question whether the proposed subdivision conforms to the
Regulation § 221(6) requirement that “[v]egetated buffers along stream banks . . . be maintained
or enhanced . . . for filtration, erosion control, and aesthetic purposes.” By their Question 19,
Neighbors ask whether the proposed subdivision provides sufficient drainage facilities
pursuant to Regulations § 221(5), which states:
Drainage Facilities shall be provided sufficient to accommodate the two and ten
year return period storm runoff from all roads, lots and upstream drainage areas,
whether inside or outside the development. Post-development runoff/drainage
(volume & rate) shall not exceed Pre-development runoff/drainage (volume &
rate). The Development Review Board shall not approve a drainage system that
would overload downstream drainage facilities or cause flooding on other lands
or results in increased public expenditure, until proper provision has been made
for the improvement of such conditions. Adequate provision shall be made to
minimize erosion during and after construction. All drainage system easements
shall be shown on the plat.
We first address Applicants’ challenges in their Question 11, since it presents the least
dispute and concerns. The parties do not dispute the number and location of the streams
located on Applicants’ property. While they seemed to dispute the significance of those streams
(Applicants’ expert refers to those streams as intermittent; Neighbors’ expert afforded more
significance to those streams), we do not concern ourselves with defining how significant these
streams are, since the Regulations do not provide less protection for streams that only run
intermittently. Even intermittent streams provide valuable functions in the flow of ground- and
stormwater over property and the regulations appear to respect this characteristic by not
limiting its buffer protection to only “significant” streams.
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We conclude, however, that Applicants’ subdivision plan does not provide for
disturbances of streams, their banks, or their buffers. Neighbors’ concerns appear to be focused
upon the disturbances that may occur when actual development of the individual lots occurs.
But, as we note above, the pending application does not seek approval for the actual
construction or development of the individual lots, and Applicants or their successors cannot
build on or develop the individual lots until they apply for and receive the necessary
construction permit.
Because the development that may cause Neighbors’ concerns about
interference with streams is not the subject of the pending application, we do not consider it
here.3
We therefore conclude that the proposed subdivision conforms to that portion of
Regulations § 221(6) that Neighbors cite in their Question 11.
Neighbors’ Questions 2 and 19 raise some overlapping concerns, so we address these
final two Questions together. First, we note that Applicants’ subdivision design offers due
regard and respect for the existing trees and scenic points both on their property and on
adjoining properties. Applicants have carefully limited the cutting and clearing necessary to
install the on-site wastewater treatment and water supply systems and either of their proposed
shared driveways for Lots 3, 4, and 5. The lay of their land helps in their efforts to minimize the
adverse impacts to adjoining property owners, since their land slopes to the east, which is away
from the closest residences. The future owners and developers of these lots will need to
exercise caution in their development plans, particularly as to the amount of trees and
vegetation that they propose to clear, since the existing vegetation provides adequate screening
for Applicants’ property as it exists today. Little notice appears to have been taken of the
limited development already on Applicants’ property, and the proposed subdivision is unlikely
to change the attention that Applicants’ property will draw from neighbors in the future.
We are concerned, however, with the lack of detail provided for how the shared
driveway Applicants now propose will encroach upon the wet areas on Lot 5 that host the flow
of ground- and stormwater from Neighbors’ through Applicants’ property. We find troubling
the suggestion by Applicants’ expert that the design details of the driveway construction and
general erosion control measures can be devised when actual construction occurs.
Our
concerns on this point are increased by Applicants’ suggestion that they will not be involved in
Applicants conceded at trial that a pipe leading to or from an on-site sewage treatment or water supply
systems may cross a stream on Lot 3. To the extent that that pipe will cross a stream, we conclude that
the encroachment into the stream, its bank and buffer will be insignificant.
3
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this site development, but rather will leave that work to successive owners, none of whom are
now known or are parties to these permit proceedings. For these reasons, we condition our
approval upon Applicants providing a revised site plan that provides clear direction that the
actual construction must conform to the accepted field standards employed for erosion control
and earth disturbances. Both parties’ experts agreed that for this site, a commitment must be
made to conform to two guidelines: (1) the Vermont Standards and Specifications for Erosion
Prevention and Sediment Control and (2) the Low Risk Site Handbook. We include these
conformance requirements in the conditions of approval that we impose below.
Of greater concern to the Court is the planned encroachment and filling of the wetlands
adjacent to the parties’ common boundary. The proposed shared driveway has no respect in its
design for the current flow of ground- and stormwater. This design deficiency could be easily
remedied, perhaps, by incorporating one or more drainage culverts under the proposed
driveway. While Neighbors made this and other suggestions at trial, Applicants chose not to
incorporate culverts in the driveway design they presented, instead deferring to whatever
might be consider warranted at the time of construction. We find Applicants’ suggestion
unacceptable, as a driveway designed without culverts is likely to cause the impounding of
water on their own or Neighbors’ property, or both.
Of additional concern, although not directly related to water flow, is the proximity of the
proposed shared driveway to the parties’ shared boundary. In some sections, particularly
where Applicants have proposed a circular turn around, the driveway structure nearly abuts
the parties’ common boundary line. An historic stone wall generally runs along this common
boundary line and will likely be damaged or destroyed during construction of the shared
driveway. This historic stone wall is a scenic feature to both Neighbors’ and Applicants’
property.
While Neighbors’ home is some distance from this common boundary line,
Neighbors frequent this portion of their property regularly to harvest and process firewood and
to walk along their logging road. With little distance between the proposed shared driveway
and the common boundary line, there will be little or no natural screening remaining after
Applicants’ subdivision is developed. We therefore conclude that this location of the shared
driveway conflicts with Regulations § 220(2) because it does not pay due regard and respect for
the scenic and natural features of the areas along the parties common boundary.
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Applicants are to be commended for including a shared driveway in the design of their
five-lot subdivision. Shared driveways, after all, are encouraged by Regulations § 401. But
there’s a certain irony here, since Applicants originally located their shared driveway on the
opposite side of Lot 5, away from Neighbors’ boundary. That original location, shown on
Exhibit 4, was to be several hundred feet to the east, along French Hill Road. This original
location and design also avoided encroaching into the wetland near Neighbors’ boundary. But
Town officials suggested that Applicants move their shared driveway closer to Neighbors’
boundary, in an attempt to improve the sight distances from the proposed shared driveway.
Trial testimony confirmed that the original location for the shared driveway may cause
the intersection sight distances to be reduced to the east, but not below the recommended sight
distances for a rural road with a 30 MPH speed limit, such as French Hill Road. The Town
chose not to offer trial testimony on this point and we have concluded that the intersection sight
distances from the original shared driveway location will not cause the “unsafe conditions” that
Regulations § 220(4) directs that future developments protect against.
For these reasons, we condition our approval of Applicants’ proposed subdivision on
the relocation of the shared driveway for Lots 3, 4, and 5 to the original location Applicants
proposed, as depicted on Exhibit 4, conditioned upon conformance with the site and erosion
control guidelines mentioned above.
With this condition in place, we conclude that Applicants’ proposed subdivision, as
revised, will pay due regard and respect for the “existing trees, scenic points, brooks and water
bodies and other natural and cultural features of the area” and therefore conform to Regulations
§ 220(2).
We further conclude that the proposed subdivision, as conditioned below, will
provide for adequate drainage and satisfy the requirements of Regulations § 221(5).
Conclusion
For all the reasons detailed above, we conclude that Applicants’ proposed subdivision of
their 29± acre parcel of land on French Hill Road into five lots, with Lot 1 including their
existing residential structures and driveway and one additional residence on each of the
remaining four lots, conforms to the applicable provisions of Part II of the Town of St. Albans
Zoning Bylaws and Subdivision Regulations, subject to the following conditions:
1. Applicants shall revise their subdivision site plan to reflect the relocation of the
shared driveway for Lots 3, 4, and 5, as reflected on their original plan (Exhibit 4)
21
and incorporate into the Notes section of the revised site plan the additional
conditions listed below.
2. All site work must conform to (1) the Vermont Standards and Specifications for
Erosion Prevention and Sediment Control and (2) the Low Risk Site Handbook.
3. All driveway intersections with French Hill Road shall conform to the VTrans B71 Standards for residential driveways.
4. No sale of the individual lots or site construction may occur until Applicants
have submitted this revised site plan to the Town of St. Albans Zoning
Administrator and that officer has confirmed conformance of the revised site
plan to these conditions, in writing affixed to the revised site plan.
5. Applicants shall cause the easement language and shared maintenance
agreements for the shared driveway for lots 3, 4, and 5 to be drafted, provided to
the Town Zoning Administrator and any purchaser prior to entering into a
purchase and sale contract for those Lots. No site construction or title transfer
may occur until these draft easements and road maintenance agreements are
received by the Zoning Administrator.
This completes the current proceedings before this Court concerning this subdivision
application. A Judgment Order accompanies this Merits Decision.
Done at Newfane, Vermont this 30th day of May, 2013.
Thomas S. Durkin, Environmental Judge
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