1 STATE OF VERMONT

ENVIRONMENTAL COURT

} In re: Applications of Carusona – } Docket Nos. 21 -1-07 Vtec Concept Plan Approval for } and 55-3-06 Vtec Planned Residential Development } }

Decision and Order Appellant-Applicants Richard Carusona and Alicia Ca rusona (Applicants) appealed from two decisions of the Development Review Board (DRB) of the Town of Brattleboro, denying their applications for a Planned Residentia l Development (PRD) off Old Guilford Road. Appellant-Applicants are represented by Richa rd D. Perra, Esq.; Interested Persons Edward G. Bohline, Christopher A. Burroughs and Mela nie A. Burroughs (as trustees), Emma Jones-Higley, Kristian Higley, Alex Nislick, La wrence Speigel and Arlene Speigel are represented by Michael J. Hertz, Esq.; and the Town is represented by Robert M. Fisher, Esq. An evidentiary hearing was held in this matter befo re Merideth Wright, Environmental Judge, who also held a site visit wit h the parties and their representatives. The parties were given the opportunity to submit wr itten memoranda and requests for findings. Upon consideration of the evidence as il lustrated by the site visit, and of the written memoranda and requests for findings filed b y the parties, the Court finds and

concludes as follows. Applicants own a 3.79-acre parcel of land with acce ss from Old Guilford Road in the Rural Residential zoning district. Applicants’ par cel was Lot 4 of the so-called Mears subdivision and was conveyed to them in August of 2 005. Applicants’ parcel is located generally uphill and to the south of the Bohline an d the Burroughs property. Fort Dummer1 The parties’ stipulation of undisputed facts, whic h was filed in Court at trial, refers to

this right-of-way as “running southerly from Old Gu ilford Road,” but also refers to the Higley and the Nislick properties as being, respect ively, on the northerly and the southerly sides of this right-of-way, probably because the rig ht-of-way bends slightly to the west near Old Guilford Road. We have used the terms northeas terly and southwesterly for clarity in relation to the directional description of this right of way and the other relevant properties.

2 State Park adjoins Applicants’ parcel on its southe rly boundary. Interested Person Bohline owns an approximately two -acre parcel consisting of two

lots that were Lots 1 and 2 of the so-called Mears subdivision and were conveyed to him in 1999; the property is improved with his single-f amily residence. Interested Persons Burroughs, as trustees, own an approximately one-ac re lot that was Lot 3 of the so-called Mears subdivision and was conveyed to them in 1997; the property is improved with their single-family residence. The Bohline, Burroughs and Carusona lots have access to Old Guilford Road by a deeded thirty-foot-wide right-of-way also known as “Fort Dummer Heights,” which extends southerly from Old Guildford Road to the no rtherly boundary of the Carusona property. The Bohline property lies on the easterl y side of the thirty-foot-wide deeded right-of-way, the Burroughs property lies on the we sterly side of this right-of-way. Interested Persons Jones-Higley and Higley own a pa rcel of land improved with their single-family residence, with frontage on Old Guilf ord Road as well as on the northeasterly 1 side of the thirty-foot-wide deeded right-of-way . Interested Person Nislick owns a parcel of land improved with his single-fami ly residence, with frontage on Old Guilford Road as well as on the southwesterly side of the thirty-foot-wide deeded right-ofway. Applicants also claim access to their property from Old Guilford Road by a second2 This decision refers to this claimed access as “the eastern claimed right-of-way.” The

Environmental Court has no jurisdiction to adjudica te parties’ respective property rights to a claimed right-of-way; any such claims are inst ead within the jurisdiction of the Superior Court.

3 claimed 2 right-of-way of undefined width (“the easterly cl aimed right-of-way”), running south from Old Guilford Road along the easterly bou ndaries of the Bushey property and the Bohline property. Interested Persons Spiegel o wn a parcel of land, with their singlefamily residence, on the east side of the easterly c laimed right-of-way. No evidence was presented to establish that the easement for the ea sterly claimed right-of-way is at least twenty-five feet in width. Given the existing plac ement of structures along this right-ofway, its traveled width is approximately twelve feetin width in at least one location. Applicants’ propose a Planned Residential Developme nt of nine single-family houses on the property, with 1.3-acres of the prope rty designated on the plan as “common area.” Applicants propose that the houses and thei r surrounding land be in individual condominium ownership, with the areas designated as common land (and, presumably, the development roadways and infrastructure) to be owned by a homeowners’ association. Applicants’ first proposal, on appeal in Docket No. 55-3-06 Vtec (the 2006 proposal), is for a nine-house PRD having access only by the e asterly claimed right-of-way, with two segments of “common area” as shown on Exhibit 4. A pplicants’ second and preferred proposal, on appeal in Docket No. 21-1-07 Vtec (the 2007 proposal), is for a nine-house PRD of which five houses are proposed to have access by the easterly claimed right-of-way and of which four houses are proposed to have access by the western thirty-foot-wide deeded right-of-way. Both proposals depict 1.3 acres desi gnated as “common area,” largely around the perimeter of the property. In the 2007 proposal, the common area is proposed as a band ranging in width from approximately five feet to approximately eighty feet. In both proposals, the remainder of the land betwee n the houses is proposed to be3 Applicants presented evidence that the “internal property lines” could be “adjusted”

to provide more “common land,” but no such adjustmen t is before the Court in the present proposals.

4 Section 5430(c) of the Zoning Ordinance provides that approval of a concept plan for a PRD constitutes the classification of the projectas a major subdivision; §5430(f) requires subdivision approval even if the project is to be d eveloped without “actual subdivision” of the land into lots. Section 5452(a) requires PR D applications to be reviewed simultaneously under the subdivision regulations an d the zoning regulations.

5 All subsequent references to section numbers are to the Zoning Ordinance unless specifically cited to the Subdivision Regulations.

6 Section 5452(k) allows the perimeter setback requ irement to be waived upon certain determinations of the DRB, and hence this Court. N o request for waiver of the perimeter setback has been made in the present case.

4 assigned for the exclusive use of each house, as in dicated by the thinner red lines on the site plans in evidence as Exhibits 1 and 2. 3 Both applications are before the Court at the concept plan approval 4stage of the PRD process. Within the Rural Residential zoning district, the mi nimum lot area for residential uses is 1.5 acres; the minimum frontage is 150 feet, the minimum front yard setback is 40 feet, and the minimum side and rear yard setbacks a re 25 feet. Zoning Ordinance, 5 § 2342(c). For a PRD, these requirements are waived, b ut § 5452(k) requires a 50-foot-wide perimeter setback for the PRD as a whole 6 and requires structures on the perimeter to be screened. PRDs and single-family and two-family dw ellings are permitted uses in the district; three- and four-family dwellings are requ ired to obtain conditional use approval. The maximum coverage in a PRD is 40%, § 5452(b), as contrasted with the maximum coverage of 20% otherwise required in the Rural Res idential zoning district. § 2342(c). The term “coverage” is defined in Section 6 of the Zoni ng Ordinance as “that portion of a lot that is covered by building, structures and man-mad e improvements on the ground7In connection with this analysis it is important to distinguish this task from approval

of a PRD itself, which does not require separate co nditional use approval, even for its residential components which would require conditio nal use if proposed on their own

5 surface, such as paving, crushed stone and gravel, th at prevent the absorption of storm water.” Evidence was presented that the area not u sed for buildings and roads in the 2007 proposal is 2.55 acres; however, the evidence did n ot reflect whether that area also included all impervious areas. Assuming that it does, the pr oposed lot coverage is 32.7%, which would meet the lot coverage limitations for a PRD ( but not for a conventional subdivision). Under Section 435(1) of the Subdivision Regulations , the easement or right-of-way for utilities, drainage and access must be at leasttwenty-five feet in width. While the thirty-foot-wide deeded right-of-way meets this requirement, evidence was not presented to support a finding regarding the easement for the easterly claimed right-of-way and it therefore fails to meet this requirement. Section 5452(c) of the Zoning Ordinance calculates density for a PRD by first subtracting from the total acreage the amount of la nd provided for the PRD’s streets, and then determining the maximum number of dwelling uni ts that could be built on the remaining land under the zoning district regulation s. Although the measurement of the amount of land devoted to the streets was not provi ded in evidence, Applicants’ engineer did testify that the total area of the property min us the streets is at least three acres in area. This decision therefore uses three acres as the fig ure for this calculation. Under the regulations for the Rural Residential dis trict, disregarding the issues of lot size and frontage, the maximum number of dwelli ng units that could be built on those lots as a permitted use would be four units (two du plexes). The district regulations would not allow any more than four units to be built (tha t is, up to eight units in two buildings of up to three or four units each) unless those three- unit or four-unit buildings were to qualify

for conditional use 7approval. Applicants did not demonstrate at trial that eight units, or,under the district regulations. Rather, the task un der this section is to determine the

number of units allowed to be considered in a PRD o n the same property by determining the maximum number that “could be built” under the applicable district regulations.

6 indeed, any three-unit or four-unit buildings, coul d qualify for conditional use approval on this property under the conditional use standard s. § 1413(a). Rather, the evidence suggested that eight units in two four-unit buildin gs would notbe able to meet the conditional use standards relating to their effect on the character of the area, traffic, or on other bylaws in effect, specifically the subdivisio n bylaw requiring at least a twenty-fivefoot-wide right-of-way for an access roadway. In t he absence of a showing that the property could qualify for two four-unit buildings, the total number of units for which a PRD may be considered on this property is four. Even if the property were to have the potential for the full eight units under the district regulations, the evidence did not support any density bonus under § 5452(d), which allows density increases of up to 15%. To qualify for a density bonus, the DRB (and hence this Court in this appeal) must find that the devel oper has made a “substantial contribution to the objectives of Planned Residential Developmen t.” The proposals make no contribution to any of the objectives, as stated inthe “purpose” statement of § 5410, other than by providing “greater opportunities for housin g and development” than the 3.79-acre parcel would have provided as a conventional subdiv ision. As well as failing to qualify for a density bonus, the proposals therefore also do not meet the requirements for concept plan approval in § 5430(b)(ii), which reiterates the objectives of § 5410. The proposals do not promote creative and efficient use of the land, creative design, an improved level of amenities, or a more attractive environment, because they do not propose clustering of the proposed unit s and consequent preservation of more open space than would be provided in a conventional subdivision. Rather, each proposal resembles a conventional subdivision, only with und ersized lots for the district7

requirements. The area of the property proposed as common open space is more or less congruent with the required fifty-foot setback or b uffer around the project as a whole, which would have to be kept as open space in any ev ent and, therefore, does not provide any additional open space. Moreover, it is steep, an d a substantial portion of it is in excess of a 25% slope. Under § 5452(f), the area counted a s open space in a PRD, which is required by § 5452(e) to be available for the “individual an d collective use and benefit of the occupants of the development,” may only include slop es in excess of 25% (as well as stream areas, bodies of water, and drainage easements) if the DRB (and hence this Court in this appeal) so determines after considering the extent of these areas in relation to the total area of the PRD and the degree to which these areas cont ribute to the quality, livability and amenity of the PRD. Even if the jogging path withi n the perimeter setback could be used safely on so steep a slope, it does not contribute materially to the amenity of the PRD already provided by the required perimeter setback.

Based on the foregoing, it is hereby ORDERED and AD JUDGED that AppellantApplicants’ application for concept plan approval i s DENIED as to both proposals, concluding this appeal.

Dated at Berlin, Vermont, this 15 thday of January, 2008.

______________________________________ Merideth Wright Environmental Judge