1 STATE OF VERMONT ENVIRONMENTAL COURT

} In re Myers 2-Lot Subdivision Final Plat } Docket No. 121-6-09 Vtec }
Decision on Motion for Summary Judgment
John “Jeff” Fothergill has appealed a decision of t he Town of Calais Development Review Board (“DRB”), which granted John “J.C.” Mye rs’ (“Applicant”) application for final plan approval in a two-lot subdivision of property located at 283 West County Road in Calais, Vermont. Mr. Fothergill is represented by John P. Riley, Esq.; Applicant appears pro se; the Town of Calais (“Town”) is represented by its non-a ttorney Zoning Administrator, Dorothy O. Naylor. Mr. Fothergill has filed a motion for summary judgm ent, requesting that Applicant’s application be summarily denied because the propose d subdivision creates a lot that does not meet the minimum lot size requirements for the zoni ng district in which it lies. Applicant opposes the pending motion; it is now ripe for our consideration.
Factual Background For the sole purpose of putting the pending motion into context, we recite the following facts, which we understand to be undisputed unless otherwise noted:
1. Applicant owns a 3± acre lot located at 283 West Co unty Road in Calais, Vermont, which he purchased in January 2002. Applicant’s pr operty, identified as Lot #3, is located near Curtis Pond in the Maple Corner section of Town; it is currently improved with a three-bedroom residence and a one-bedroom attached apartment.
2. Prior to 2003, Lot #3 was zoned within the Shorelan d Zoning District. It was compliant with all of the applicable Town of Calais Land Use & Development Regulations (“Regulations”), including the three-acre minimum lot size requireme nt for properties within the Shoreland District. Regulations tbl. 2.4(E).
3. In 2003, the Town realigned the zoning districts, s pecifically relocating the boundary
between the Curtis Pond Shoreland District and the Maple Corner Village District. As a result of this realignment, Applicant’s property is no longer located exclusively within the Shoreland District; the district boundary now bisects Applica nt’s property. Lot #3 now consists of a 1.3±2

acre portion in the Shoreland District and a 1.9± a cre portion in the Village District. Despite this district boundary realignment, Lot #3 remains compl iant with all applicable Regulations.
4. On October 9, 2008, Applicant submitted to the DRB an application for preliminary plan approval to subdivide Lot #3 into two lots: Lots 3A and 3B.
5. Proposed Lot 3B, which is currently unimproved, wou ld consist of 0.83 acres and be located entirely within the Village District. Ther e is no minimum lot size for lots within the Village District. Regulations tbl. 2.1(E). Applic ant intends to retain ownership of Lot 3B, where Applicant hopes to construct a new three-bedroom re sidence.
6. Proposed Lot 3A, where the existing residence and a ttached apartment are located, would consist of 2.17 acres and would be partially locate d within the Village District and partially
within the Shoreland District. The minimum lot siz e requirement for lots within the Shoreland District is three acres. Regulations tbl. 2.4(E). Applicant ultimately intends to sell Lot 3A in its existing improved condition; no future development is planned or proposed on Lot 3A.
7. The DRB granted Applicant preliminary plan approval on February 10, 2009.
8. Applicant then applied for final plan approval on A pril 13, 2009. The DRB held a hearing on the application on April 28, 2009, and g ranted Applicant final plan approval in a written decision on June 2, 2009.
9. Mr. Fothergill, who is an adjoining landowner resid ing at 139 Camp Road, was present at the hearing and granted interested person status. He appealed the DRB’s June 2 Decision by filing with this Court a notice of appeal on July 8 , 2009, contending that Applicant’s proposed subdivision should be denied final plan approval.
10. The sole issue raised by Mr. Fothergill’s Statement of Questions is whether Applicant’s subdivision application must be denied because it c reates a nonconforming lot in the Shoreland
District.

Discussion Applicant proposes to subdivide his 3± acre lot int o two separate lots, a subdivision that creates a 0.86-acre lot (Lot 3B) within the Village District and a 2.17-acre split lot (Lot 3A) partially located within both the Shoreland and Vil lage Districts. 1 Mr. Fothergill opposes Applicant’s two-lot subdivision and argues that pro posed Lot 3A does not conform to the

1 A lot that lies in more than one zoning district is sometimes referred to as a “split lot.”3

minimum lot size required for lots in the Shoreland District. Mr. Fothergill has moved for summary judgment on that issue. As we have said before, summary judgment is only ap propriate “when the record clearly shows that there is no genuine issue of material fa ct and that the movant is entitled to judgment
as a matter of law.” Madkour v. Zoltak , 2007 VT 14, ¶ 12, 181 Vt. 347 (quoting Bacon v.
Lascelles , 165 Vt. 214, 218 (1996); see also V.R.C.P. 56(c)( 3). In applying this standard, we consider the facts presented in the light most favo rable to the nonmoving party, giving them the
benefit of all reasonable doubts and inferences. I d .; In re Miller Subdivision Final Plan , 2008 VT 74, ¶ 8, 184 Vt. 188 (citing Peerless Ins. Co. v . Frederick , 2004 VT 126, ¶ 10, 177 Vt. 441). With these standards in mind, we turn to the sole i ssue on appeal, guided by the Regulations relating to subdivision review. Applicant’s proposed two-lot subdivision is subject to review under Article 6 of the Regulations, which states that a subdivision must c onform to the Town Plan and “all other municipal bylaws, ordinances, and regulations curre ntly in effect.” Regulations § 6.9(B). More specifically, “[l]ot sizes and densities set forth in Article 2 are a minimum standard” for subdivisions. Regulations § 6.9(D)(2). The minimu m standard for lots within the Shoreland District is three acres. Regulations tbl. 2.4(E). In order to satisfy subdivision review, Applicant’s proposal must therefore not create any lots within the Shoreland District that are
smaller than three acres. 2 It matters not that Applicant’s lot lies only par tially within the Shoreland District; split lots must conform to the requirements for each district occupied. See e.g., In re Windjammer Hospitality , 172 Vt. 560, 561 (2001) (mem.). In Windjammer , the applicant sought approval for a two-lot subdi vision, which resulted in a split lot partially located within the residen tial district and partially within the commercial
district. Id . The subdivision was ultimately denied because th e proposed lot did not conform to the requirements for a lot within the commercial di strict; the lot did not have adequate road frontage on Williston Road. Id . at 562. In affirming the subdivision denial, the Court noted that

2 The Regulations provide a means by which a zoning district boundary may be extended up to fifty feet into the adjoining district, where the district boundary lin e dissects a single lot. Regulations § 2.3(E). It would seem that this provision may afford relief for Applicant here , by extending the Village District and its standar ds fifty feet further into Applicant’s lot, thereby allowing for the less onerous lot size requirements for a lot en tirely in the Village District. However, the last sentence of § 2.3(E) provides that this fifty foot extension is n ot available to “the district boundary that separates the Curtis Pond sh oreland and Maple Corner Village districts,” at lea st where the boundary line extension would be moved closer to th e shoreland. Thus, § 2.3(E) is not applicable and does not afford relief to Applicant and his subdivision prop osal.4

the applicant sought a subdivision that “render[ed] one of the resulting lots noncompliant” with the commercial zoning district requirements. Id . Accordingly, the Windjammer Court
established that a subdivision must be denied if it creates a split lot that fails to comply with the dimensional requirements for either of the zoning d istricts in which it lies. There is no dispute that Applicant proposes to crea te a lot that does not conform to the minimum lot size requirements. Proposed Lot 3A is a 2.17-acre lot that is partially located within the Shoreland District, where lots are requi red to contain at least three acres. To approve Applicant’s subdivision, we are required to authori ze the creation of an undersized lot. No provision in the Regulations authorizes us to do so

. Applicant attempts to distinguish Windjammer by contending that his two-lot subdivision does not create a nonconforming lot in the Shorelan d District. He argues that the nonconformity preexists the subdivision proposal. According to A pplicant, the nonconformity was created when the Town realigned the zoning districts in 200 3 and relocated the Shoreland and Village District boundaries to bisect Lot #3, leaving a 1.3 ± acre portion of Applicant’s property in the Shoreland District. Applicant argues that the resu lting lot does not conform to the three-acre minimum size requirement. Applicant misconstrues the import of a zoning distr ict boundary. The 2003 district boundary realignment did not subdivide Applicant’s property; the realignment did not divide Applicant’s property into separate lots in separate zoning districts. Rather, Applicant’s property remained as one lot, which now occupies area within two separate zoning districts. As currently configured, Applicant’s lot continues to comply wit h all applicable Regulations: his property consists of a single three-acre lot, a portion of w hich is in the Shoreland District. Even though the lot spans two zoning districts, it meets the di mensional requirements for both districts. 3 See e.g., Tofias v. Butler , 523 N.E.2d 796, 799 (Mass. 1988) (allowing landow ner of a split lot to aggregate property in both zoning districts to meet minimum lot size requirements), cited in Windjammer , 172 Vt. at 560. Lot #3 is therefore a conforming lot, not a preexisting nonconforming lot, as argued by Applicant. We similarly reject any argument by Applicant that the subdivision should be approved because it does not involve any development within the Shoreland District. Even though Applicant proposes no development on Lot 3A, the ac t of subdividing constitutes development

3 There is no minimum lot size for lots within the Village District. Regulations tbl. 2.1(E).5

under the Regulations. 4 Further, Applicant is required to satisfy the sta ndards set forth in the subdivision review provisions of the Regulations, w hich provide in part that lots created by any proposed subdivision “shall . . . conform to lot an d yard requirements” for the district in which it is located. Regulations § 6.9(D)(2); see also Regu lations § 3.6(C) (“No lot shall be so reduced in area that it cannot meet dimensional requirements f or its district . . . .”). In sum, to approve Applicant’s subdivision would require us to disrega rd multiple applicable provisions of the Regulations. Finally, we find unpersuasive Applicant’s argument that the proposed subdivision should be approved because the subdivision of Lot #3 furth ers the Town’s development goals. Even though the Town encourages dense development within the Village District, there is no indication that the Town has authorized a disregard of the applicable requirements for development of land within the Shoreland District. Were we to authorize Applicant’s subdivision and creation of a separate Lot 3A, we w ould sanction the creation of an immediately non-complying lot within the Shoreland District. T he Regulations make clear that “[n]o lot shall
be so reduced in area that it cannot meet dimension al requirements for its district.” Regulations § 3.6(C). Subdivisions in the Shoreland District m ay not result in a lot less than three acres is size. Regulations § 6.9(D)(2). In light of the cl ear mandate that lots within the Shoreland District must contain at least three acres, we fail to see how Applicant’s proposed subdivision can be granted. Accordingly, we must DENY Applicant’s application for final plan approval fo r the proposed two-lot subdivision of Lot #3. The subdiv ision creates a nonconforming lot because it results in a 2.17-acre lot (Lot 3A) that is smaller than the three-acre minimum lot size for lots within the Shoreland District. Mr. Fothergill’s mo tion for summary judgment is therefore
GRANTED

. Conclusion For all the reasons more fully discussed above, we GRANT Mr. Fothergill’s motion for summary judgment and DENY Applicant’s application for final plan approval fo r a two-lot subdivision of Lot #3, located at 283 West County R oad in Calais, Vermont. Proposed Lot 3A

4 The Regulations define a “subdivision” as a “type of development in which a parcel of land is divide d into two or more parcels, for the purpose of immediate or futur e sale, transfer, lease or development.” Regulatio ns § 9.2.6

does not conform to the minimum size requirement fo r lots within the Shoreland District. Therefore, Applicant’s proposed subdivision must be denied as a matter of law. A Judgment Order accompanies this Decision. This co mpletes the current proceedings before this Court concerning this appeal.

Done at Berlin, Vermont, this 28th day of April 201 0.

___________________________________ Thomas S. Durkin, Environmental Judge