State of Vermont 

Superior Court—Environmental Division 

====================================================================== 

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

====================================================================== 

In re Natural Environments, LLC 3-Lot Subdivision Docket No. 58-4-11 Vtec 

(Appeal from Town of Thetford Development Review Board 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 Appellants 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 Environments, 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 appeal, 

Appellants submitted a Statement of Questions containing 18 Questions. Now pending before this 

Court is Applicant’s motion for partial summary judgment addressing five of these Questions. 

A court may grant summary judgment where “the pleadings, depositions, answers to 

interrogatories, and admissions on file, together with the affidavits, if any, . . . show that there is 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 judgment, so long as they are supported by 

affidavits or other evidentiary material,” and we will give the non-moving party the benefit of all 

reasonable doubts and inferences. Robertson v. Mylan Labs., Inc., 2004 VT 15, ¶ 15, 176 Vt. 356. 

Applicant seeks summary judgment on Appellants’ Questions 12, 13, 14, and 15, 

contending that the provisions of the Town of Thetford 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 took effect on January 23, 2012. However, we analyze the 

pending motions under the previous version of the rule because that version was in effect at the time the 

motions were filed and the change does not affect our 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, Applicant argues that this Court should grant summary 

judgment to Applicant on all of the Questions in Appellants’ Statement of Questions relating to the 

provisions of the Regulations that apply only to major subdivisions. Specifically, Applicant argues 

that Section 3.03, which regulates minor subdivisions, 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 15, 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. We will “construe words according to their plain 

and ordinary meaning, giving effect to the whole and 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. Fair 

Haven Zoning Bd., 148 Vt. 47, 49 (1986). 

The plain language of Section 6.08, which governs preliminary plat layouts, and Section 

6.09, which governs final plats, specifically states 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 part, that “[t]he [Planning] Commission may 

require where necessary for the protection of the public health, safety, and welfare, that a Minor 

Subdivision comply with all or some of the requirements specified for Major Subdivisions.” 

Regulations § 3.03. Thus, the plain language of Section 3.03 makes clear that Sections 6.08 and 6.09 

may be applicable to minor subdivisions when the evidence 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, filed on February 28, 2012, contains more 

references to the applicable regulatory provisions than specific factual allegations that allege public 

health, safety or welfare concerns. Appellants’ factual 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 facts are in dispute as to whether the proposed 

minor subdivision is required to comply with Sections 6.08 and 6.09 by virtue of Section 3.03. 

Applicant argues that Appellants have not shown that the proposed subdivision will affect 

public health, safety, and welfare. However, Appellants allege that the proposed subdivision 

would be located on lands designated as wildlife habitat, lands that contain wetlands, and steep, 

sloping lands with erodible soils. In support of these allegations, Appellants have submitted 

several ANR Environmental Interest Locator maps which allegedly indicate that wetlands, critical 

wildlife habitat, and steep and sloping erodible land 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 trial, where the parties may present their factual 

allegations and the Court may determine their appropriate 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 issues relating to Regulations Sections 1, 2, 3, 4, and 6. 

Applicant does not appear to dispute that Sections 1, 2, 3, 4, and portions of Section 6 regulate review of 

minor subdivisions, and thus those Questions are not before this Court. The Statement of Questions also 

raises issues under the Town of Thetford’s municipal plan and the Town of Thetford Zoning Ordinance, but 

Applicant’s motion does not express concerns with respect 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 subject 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, Applicant also contends that a state 

wastewater permit issued by the Vermont Agency of Natural Resources (“ANR”) is sufficient to 

show that the proposed subdivision satisfies Question 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 by the state of Vermont regulations, town 

[sic] of Thetford municipal regulations, and the requirements 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 and potable water supply permit (“the 

2008 wastewater permit”) for the construction of eight 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 creates a presumption that Applicant has 

satisfied the sewage disposal requirements of the State of Vermont and Sections 4.05(B)(1) and 6.14 

of the Regulations. Appellants respond that the 2008 wastewater permit addresses an entirely 

different project than that which is currently proposed because the current proposal includes only 

two new housing units.3 In reply, Applicant contends that the prior permit unquestionably 

satisfies the sewage requirements for the current two-unit proposal because the prior permit was 

issued for eight housing units. 

As of July 1, 2007, the provisions of 10 V.S.A., Chapter 64 and the Wastewater System & 

Potable Water Supply Rules supersede “those provisions of municipal ordinances and zoning 

bylaws that regulate potable water supplies and wastewater 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 municipalities can continue to impose regulations that 

address wastewater systems as development generally (for instance, by imposing setbacks), the 

state regulations establish a comprehensive technical 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 will serve each proposed lot. 10 V.S.A. 

§ 1973(a)(1). Thus, the submission to this Court of an ANR wastewater permit for the specific 

subdivision being proposed creates a rebuttable presumption 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 employ a 

pre-existing septic system rather than the proposed septic system. 

4

 The submission of an ANR wastewater permit does not create a rebuttable presumption that an applicant 

has complied with those municipal regulations applicable to the proposed development that are not 

superseded by 10 V.S.A., Chapter 24 and the Wastewater 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, slip op. at 14-15 (Vt. Super. Ct. Envtl. Div. June 

6, 2012) (Durkin, J.); see also In re Bibby 5-Lot Final 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 Court 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 subdivision.”). 

Here, Applicant has not submitted an ANR wastewater permit for the project as currently 

proposed. Nor has Applicant alleged that its project as currently proposed is one portion of the 

prior proposed subdivision for which ANR granted the 2008 wastewater permit. Applicant has 

also not submitted site plans or other documents providing a basis for this Court to determine 

whether the currently proposed subdivision is a first step toward completion of the subdivision it 

proposed to ANR in 2008. The Court is left to wonder whether the current three-lot subdivision is 

a different project altogether. If Applicant wishes to benefit from a rebuttable presumption that its

proposed septic systems are adequate under state law 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 ANR 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 wastewater permit is sufficient to show that 

the proposed subdivision satisfies Question 3 of Appellants’ 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 Appellants’ Statement of Questions remain pending before 

this Court for resolution at trial. Per the attached Notice, the Court will conduct a pre-trial 

conference with the parties to discuss future scheduling.

_________________________________________ June 27, 2012 _ 

 Thomas S. Durkin, Judge Date 

=============================================================================== 

Date copies sent to: ____________ Clerk's Initials _______ 

Copies sent to: 

Daniel C. Hershenson, Attorney for Appellants Daniel F. Grossman, Dana Grossman, and Melissa L.H. Thaxton 

Paul S. Gillies, Attorney for Applicant/Appellee Natural Environments, LLC 

Interested Person Town of Thetford