State of Vermont Superior Court—Environmental Division

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E N T R Y R E G A R D I N G M O T I O N

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In re Natural Environments, LLC 3-Lot Subdivision Docket No. 58-4-11 Vtec (Appeal from Town of Thetford Development Review Bo ard decision)

Title: Motion for Partial Summary Judgment (Filing No. 2)

Filed: December 23, 2011

Filed By: Applicant/Appellee Natural Environments, LLC

Response in opposition filed on 2/28/12 by Appellan ts Daniel F. Grossman, Dana Grossman, and

Melissa L.H. Thaxton

Reply filed on 4/25/12 by Natural Environments, LLC

___ Granted X Denied ___ Other

Daniel F. Grossman, Dana Grossman, and Melissa L.H. Thaxton (“Appellants”) appeal a decision by the Town of Thetford Development Review Board (“the DRB”) granting approval of a subdivision application submitted by Natural Enviro nments, LLC (“Applicant”) concerning an 118± acre tract of land Applicant owns in the Town of Thetford, Vermont. Applicant proposes to subdivide its property into three lots of 28± acres , 29± acres, and 62± acres. As part of their appea l, Appellants submitted a Statement of Questions conta ining 18 Questions. Now pending before this Court is Applicant’s motion for partial summary jud gment addressing five of these Questions.

A court may grant summary judgment where “the plead ings, depositions, answers to interrogatories, and admissions on file, together w ith the affidavits, if any, . . . show that there i s no genuine issue as to any material fact and that any party is entitled to judgment as a matter of law.” V.R.C.P. 56(c)(3) (2011) (amended Jan. 23, 2012). 1 We will “accept as true the [factual] allegations made in opposition to the motion for summary judgme nt, so long as they are supported by affidavits or other evidentiary material,” and we w ill give the non-moving party the benefit of all reasonable doubts and inferences. Robertson v. Myl an Labs., Inc., 2004 VT 15, ¶ 15, 176 Vt. 356.

Applicant seeks summary judgment on Appellants’ Que stions 12, 13, 14, and 15, contending that the provisions of the Town of Thetf ord Subdivision Regulations (“the Regulations”) pertaining to major subdivisions are inapplicable here. Applicant also seeks summary judgment on Appellants’ Question 3, arguing that a state wastewater permit issued in

2008 for a different subdivision of its 118± acres is sufficient to show that the currently proposed subdivision complies with state and municipal law.

1 We note that an updated version of V.R.C.P. 56 to ok effect on January 23, 2012. However, we analyze the pending motions under the previous version of the r ule because that version was in effect at the time the motions were filed and the change does not affect o ur analysis here.In re Natural Environments, LLC 3-Lot Subdivision, No. 58-4-11 Vtec (EO on Partial MSJ) (06-27-12) Pg. 2 of 4.

Minor and Major Subdivisions

Because the parties do not dispute that Applicant’s proposed subdivision is a minor subdivision as defined in the Regulations, Applican t argues that this Court should grant summary judgment to Applicant on all of the Questions in Ap pellants’ Statement of Questions relating to the provisions of the Regulations that apply only to ma jor subdivisions. Specifically, Applicant argues that Section 3.03, which regulates minor subdivisio ns, does not require compliance with Sections 6.08 and 6.09, which regulate major subdivisions. 2 Applicant therefore appears to seek summary judgment on Appellants’ Questions 12, 13, 14, and 1 5, which address Sections 3.03, 6.08, and 6.09.

We interpret a zoning ordinance using the familiar rules of statutory construction. In re Appeal of Trahan, 2008 VT 90, ¶ 19, 184 Vt. 262. W e will “construe words according to their plain and ordinary meaning, giving effect to the whole an d every part of the ordinance.” Id. If the plain language resolves the interpretive conflict, “there is no need to go further, always bearing in mind that the paramount function of the court is to give effect to the legislative intent.” Lubinsky v. Fa ir Haven Zoning Bd., 148 Vt. 47, 49 (1986).

The plain language of Section 6.08, which governs p reliminary plat layouts, and Section 6.09, which governs final plats, specifically state s that those provisions apply only to major subdivisions. Regulations §§ 6.08, 6.09. However, Section 3.03, which sets forth the procedure for minor subdivision review, provides, in pertinent pa rt, that “[t]he [Planning] Commission may require where necessary for the protection of the p ublic health, safety, and welfare, that a Minor Subdivision comply with all or some of the requirem ents specified for Major Subdivisions.” Regulations § 3.03. Thus, the plain language of Se ction 3.03 makes clear that Sections 6.08 and 6.09 may be applicable to minor subdivisions when the ev idence presented shows that a more intensive review of the proposed subdivision is necessary to protect public health, safety, or welfare.

Here, Appellants’ Statement of Material Facts, file d on February 28, 2012, contains more references to the applicable regulatory provisions than specific factual allegations that allege publi c health, safety or welfare concerns. Appellants’ fa ctual allegations are more in the order of highlighting Applicant’s omissions in evidencing a lack of public health, safety or welfare
concerns. Nonetheless, we conclude that material f acts are in dispute as to whether the proposed minor subdivision is required to comply with Sectio ns 6.08 and 6.09 by virtue of Section 3.03.

Applicant argues that Appellants have not shown tha t the proposed subdivision will affect public health, safety, and welfare. However, Appel lants allege that the proposed subdivision would be located on lands designated as wildlife ha bitat, lands that contain wetlands, and steep, sloping lands with erodible soils. In support of t hese allegations, Appellants have submitted several ANR Environmental Interest Locator maps whi ch allegedly indicate that wetlands, critical wildlife habitat, and steep and sloping erodible la nd exist on the proposed subdivision site. (Appellants’ Statement of Material Facts, Exs. C-F, filed Feb. 28, 2012.) There does not appear to be an allegation that the subdivision as proposed will somehow adversely impact these site attributes.

The resolution of these issues is best left to tria l, where the parties may present their factual allegations and the Court may determine their appro priate weight and credibility, particularly in relation to the proposed subdivision. Accordingly, we conclude that material facts are in dispute

2 Appellants’ Statement of Questions also raises iss ues relating to Regulations Sections 1, 2, 3, 4, an d 6. Applicant does not appear to dispute that Sections 1, 2, 3, 4, and portions of Section 6 regulate revi ew of
minor subdivisions, and thus those Questions are no t before this Court. The Statement of Questions al so raises issues under the Town of Thetford’s municipa l plan and the Town of Thetford Zoning Ordinance, b ut Applicant’s motion does not express concerns with r espect to those Questions.In re Natural Environments, LLC 3-Lot Subdivision, No. 58-4-11 Vtec (EO on Partial MSJ) (06-27-12) Pg. 3 of 4.

as to whether such conditions exist on the subject property and whether they pose a threat to public health, safety, and welfare.

We must therefore DENY Applicant’s motion for partial summary judgment on the issue of whether the proposed minor subdivision may be subje ct to those provisions of the Regulations governing major subdivisions, namely, Sections 6.08 and 6.09 by virtue of Section 3.03. Questions
12, 13, 14, and 15 remain before the Court.

Septic System

In its motion for partial summary judgment, Applica nt also contends that a state wastewater permit issued by the Vermont Agency of N atural Resources (“ANR”) is sufficient to show that the proposed subdivision satisfies Questi on 3 of Appellants’ Statement of Questions. Question 3 asks whether the “proposed subdivision’s on-site sewage disposal systems meet the minimum standards and design requirements imposed b y the state of Vermont regulations, town [sic] of Thetford municipal regulations, and the re quirements of the Subdivision Regulations in accordance with Sections 4.05(B)(1) and 6.14 of the Subdivision Regulations.” (Appellants’ Statement of Questions, at 1, filed May 18, 2011.)

In 2008, ANR issued Applicant a wastewater system a nd potable water supply permit (“the 2008 wastewater permit”) for the construction of ei ght residential housing units on Applicants’ 118± acre parcel, each unit containing a maximum of three bedrooms. (Motion for Partial Summary Judgment, Ex. 3, filed Dec. 23, 2011.) In its motion for partial summary judgment, Applicant argues that the 2008 wastewater permit cr eates a presumption that Applicant has satisfied the sewage disposal requirements of the S tate of Vermont and Sections 4.05(B)(1) and 6.14 of the Regulations. Appellants respond that the 20 08 wastewater permit addresses an entirely different project than that which is currently prop osed because the current proposal includes only two new housing units. 3 In reply, Applicant contends that the prior permi t unquestionably satisfies the sewage requirements for the current t wo-unit proposal because the prior permit was issued for eight housing units.

As of July 1, 2007, the provisions of 10 V.S.A., Ch apter 64 and the Wastewater System & Potable Water Supply Rules supersede “those provisi ons of municipal ordinances and zoning bylaws that regulate potable water supplies and was tewater systems.” 10 V.S.A. § 1976(b); see also Envtl. Protection Rules, Chp. 1, Wastewater System & Potable Water Supply Rules (“Wastewater Rules”) § 1-501 (Sept. 29, 2007). While municipali ties can continue to impose regulations that address wastewater systems as development generally (for instance, by imposing setbacks), the state regulations establish a comprehensive technic al review and permitting process for wastewater systems that has state-wide uniformity. 10 V.S.A. §§ 1971, 1976(b); Wastewater Rules
§ 1-501.

Anyone who wishes to subdivide property in Vermont must first obtain an ANR wastewater permit for the wastewater systems that w ill serve each proposed lot. 10 V.S.A. § 1973(a)(1). Thus, the submission to this Court o f an ANR wastewater permit for the specific subdivision being proposed creates a rebuttable pre sumption that an applicant has complied with all applicable technical standards and criteria for wastewater systems. 4 See In re Freimour &

3 According to Applicant, the existing home, which will use one of the three proposed lots, will emplo y a pre-existing septic system rather than the proposed septic system.

4 The submission of an ANR wastewater permit does n ot create a rebuttable presumption that an applican t has complied with those municipal regulations appli cable to the proposed development that are not superseded by 10 V.S.A., Chapter 24 and the Wastewa ter Rules.In re Natural Environments, LLC 3-Lot Subdivision, No. 58-4-11 Vtec (EO on Partial MSJ) (06-27-12) Pg. 4 of 4.

Menard Conditional Use Permit, No. 59-4-11 Vtec, sl ip op. at 14-15 (Vt. Super. Ct. Envtl. Div. June 6, 2012) (Durkin, J.); see also In re Bibby 5-Lot F inal Plat Subdivision & Waiver Application, No. 189-11-10 Vtec, slip op. at 6 (Vt. Super Ct. Envtl. Div. Mar. 2, 2012) (Durkin, J.) (“Essentially, the submission of [the ANR wastewater permit] to the Co urt establishes a rebuttable presumption that, if Applicants construct their septic systems in compliance with that permit, there will be adequate on-site sewage disposal for the proposed s ubdivision.”).

Here, Applicant has not submitted an ANR wastewater permit for the project as currently proposed. Nor has Applicant alleged that its proje ct as currently proposed is one portion of the prior proposed subdivision for which ANR granted th e 2008 wastewater permit. Applicant has also not submitted site plans or other documents pr oviding a basis for this Court to determine whether the currently proposed subdivision is a fir st step toward completion of the subdivision it proposed to ANR in 2008. The Court is left to wond er whether the current three-lot subdivision is a different project altogether. If Applicant wishe s to benefit from a rebuttable presumption that its proposed septic systems are adequate under state la w and Sections 4.05(B)(1) and 6.14 of the Regulations, it must submit to this Court evidence indicating that the development covered by the 2008 wastewater permit is the same as or similar to the proposed development currently before us. In the alternative, Applicant could seek another AN R wastewater permit for the subdivision as currently proposed.

Based on the facts presently before us, we must DENY Applicant’s motion for partial summary judgment on the issue of whether the 2008 w astewater permit is sufficient to show that the proposed subdivision satisfies Question 3 of Ap pellants’ Statement of Questions. Question 3 remains pending before this Court.

Conclusion

For the reasons stated above, we DENY Applicant’s motion for partial summary judgment in its entirety. All of the Questions in Appellant s’ Statement of Questions remain pending before

this Court for resolution at trial. Per the attach ed Notice, the Court will conduct a pre-trial conference with the parties to discuss future sched uling.

_________________________________________ June 27, 2012 _ Thomas S. Durkin, Judge Date

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Date copies sent to: ____________ Clerk's Initials _______

Copies sent to:

Daniel C. Hershenson, Attorney for Appellants Danie l F. Grossman, Dana Grossman, and Melissa L.H. Thax ton
Paul S. Gillies, Attorney for Applicant/Appellee Na tural Environments, LLC

Interested Person Town of Thetford