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### STATE OF VERMONT SUPERIOR COURT ENVIRONMENTAL DIVISION Vermont Unit Docket No. 123

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- 13 Vtec

Moore 3 Lot Subdivision 

### DECISION ON THE MERITS

James and Mia Moore (the Moores) seek to subdivide the 6.27-acre parcel they own at 18 Leap Frog Hollow Road in the City of Montpelier, Vermont. The Moores’ subdivision application was approved by the Montpelier Developm ent Review Board (the DRB) by written decision dated August 19, 2013. Neighboring proper ty owner James Nagle (Mr. Nagle) timely appealed that decision to this Court and raised 15 questions for the Court’s review. In a July 28, 2014 decision we addressed the Moores ’ motion to dismiss and the parties’ cross-motions for summary judgment. We GRANTED judgment to the Moores on Questions 1– 11 and 13–15 of Mr. Nagle’s Statement of Questions. As to Question 12, we concluded there was a material dispute of facts regarding whether t he Moores’ application meets the requirements of the Montpelier Zoning and Subdivisi on Regulations related to the delineation of environmental resources, and thus we denied summ ary judgment on Question 12. Finally, we denied Mr. Nagle’s request that the application be remanded to the DRB. Thus, Question 12 remained for trial. The Court completed a site visit to the Property on the morning of December 16, 2014 immediately followed by a merits hearing at the Was hington County, Civil Division in Montpelier, Vermont. Appearing at the site visit an d merits hearing were James Moore and his attorney Daniel Burke, Esq., and James Nagle, parti cipating as a self-represented litigant. Based upon the evidence presented at trial, includi ng that which was put into context by the site visit, the Court renders the following Fin dings of Fact. Factual Background
1. James and Mia Moore purchased a 6.27-acre parcel of land on Leap Frog Hollow Road in the City of Montpelier in May 2012.2

2. The 6.27-acre parcel was once part of a larger parc el owned by Mr. Nagle. Mr. Nagle subdivided this larger parcel into three lots; Lot 1 was, and still is owned by Mr. Nagle; Lot 2 was owned by the Moores’ predecessor in inter est, Dejung Gewissler; and Lot 3 was then, and still is owned by Na An.
3. Mr. Gewissler further subdivided Lot 2 into Lots A and B, with Lot A being 1.04 acres and Lot B being 6.27 acres. Mr. Gewissler conveyed Lot B to the Moores and that is the subject lot they now seek to further subdivide (Pro ject Lands).
4. On June 18, 2013, the Moores submitted an applicati on for a subdivision permit with the City of Montpelier Development Review Board (th e DRB). The application is to subdivide Lot B into three lots: a new Lot B of 2.9 6 acres, Lot B1 of 2.04 acres, and Lot B2 of 1.27 acres. The plans accompanying the appli cation depict general locations of single-family residences, garages, driveways, wells , and water and sewer lines. With respect to this appeal, the Moores did not apply fo r any development or construction permits other than approval to subdivide their lot.
5. The Site Plan depicts Leap Frog Hollow Road which p rovides access to the subject parcel.
6. The DRB approved the subdivision application with c onditions by written decision dated August 19, 2013.
7. Mr. Nagle timely appealed that decision to this Cou rt.
8. The Project Lands do not contain wetlands; shorelin e management areas; rare, threatened or endangered plant and animal species; geological sites; historic sites; scenic roads; bodies of water; flood hazard areas; significant trees; significant wildlife habitats; wellhead protection areas (for public wat er supplies); or ridge lines.
9. The Site Plan depicting the Project Lands shows a w ater course as a “stream.” The stream and stream bank are or will be crossed by un derground utilities. Otherwise, the stream and stream banks are provided with a buffer area. 10. The Project Lands include agricultural soils, but t hese soils are not prime agricultural soils as they have an agricultural value of 7 out o f 12.
11. Project Land soils have a high water table; however , development can take place without adverse impacts.
12. The Project Lands contain limited open spaces as de picted on the Site Plan.3

13. There is a View Shed from the Project Lands looking to the southwest across a valley setting.
14. The Project Lands have some areas with slopes of gr eater than 20 percent. These areas are shown by shading on the Site Plan. The Project Lands can be developed without adverse impacts to the steep slopes.
15. A majority of the Project Lands are south facing sl opes. 16. Private well shield areas are shown on the Site Pla n. 17. The Project Lands and the surrounding hillside act as an aquifer recharge area. Subdivision and development should not adversely im pact aquifer recharge.
Discussion Mr. Nagle’s Question 12 asks: “Have appellees/appl icants accurately represented the streams, watercourses and other natural features on their survey for the proposed development?” This raises the issue of whether the application on appeal complies with the requirements of the City of Montpelier Zoning and S ubdivision Regulations (Regulations). The Regulations at Article 4, Subdivision and Planned D evelopment Procedures, establish the approval requirements for subdivisions. Specifical ly, Table 401 details the submission requirements for subdivisions in three sections of review: Sketch Plan, Preliminary Plan, and Final Plan. Every subdivision application must go through both preliminary and final plan review, but only the sketch plan and preliminary pl an must include the following information: ENVIRONMENTAL FEATURES INVENTORY: On a plan at the same scale as the base plans, delineate significant natural resources; wet lands, shoreline management areas; water courses; rare, threatened or endangere d plant and animal species; geological sites; historic sites; scenic roads; agr icultural lands; open spaces; view sheds; streams; bodies of water; woodlands; flood h azard areas; slopes with gradients greater than 20%; south-facing slopes; si gnificant trees; significant wildlife habitats, wellhead protection areas; and r idge lines. Regulations at Table 401. We therefore read Mr. Na gle’s Question 12 to ask whether the Moores have included this delineation, required by Table 401, in the application materials now before this Court. In considering a subdivision application, the Regul ations direct that the DRB, and therefore this Court on appeal, “may consider and i mpose appropriate conditions and safeguards with respect to the subdivision’s or pla nned development‘s conformance with the4

general development standards of Article 7.” Regul ations § 407.E. Section 715(A) of Article 7 of the Regulations requires consideration of impact s on natural resources. To the extent that the subdivision layout could impact these natural r esources, the proper delineation and description of the resources is material to determi ning whether the application should be approved. Our review on appeal is limited to ensur ing that the Table 401 Environmental Features Inventory information is provided in the M oores’ application and we do not further consider potential impacts to these features as to do so is beyond the Statement of Questions in this matter. V.R.E.C.P.5(f) (“The appellant may not raise any question on the appeal not presented in the statement as filed.”) The parties provided considerable testimony regard ing what streams, watercourses, and other natural features exist on the site and whethe r the Moores’ application accurately delineates those resources. A few examples are as follows: During his cross examination of the Moores’ Profess ional Engineer, Don Marsh, 1 who developed the Moores’ application and site plans, M r. Nagle elicited testimony that the ANR on-line Natural Resource Atlas identified a wetland advisory area on the Project Lands. Wetlands, however, were not depicted in the Moores’ application or on any site plans. Mr. Marsh subsequently credibly testified on re-direct that based upon site visits, there are no wetlands, and more specifically, no hydric soils or plants associated with wetlands, on the Project Lands. During his examination of Julie Moore, a water res ources engineer and environmental consultant, Mr. Nagle elicited testimony that based upon two site visits, Ms. Moore believed there were slopes in excess of 15% on the Project L ands south of the Moores’ house location and that these slopes were not shown on the Site Pl an. Ms. Moore testified to her professional opinion regarding her concerns of development on sl opes of 15% or more. Even if true, these facts would not cause the Site Plan to be non-compl iant with Table 401 as this provision of the Regulations only requires showing slopes with gradi ents greater than 20%. Mr. Nagle and his witnesses also testified to envi ronmental features located outside of the Project Lands and he asserted that off-site fea tures, such as steep slopes and wetlands,

1 We note that Mr. Nagle had retained Mr. Marsh a fe w years earlier and used Mr. Marsh for the Nagles’ development of their property.5

should be material to the Moores’ application and s hown on plans. Again, we find no requirements within the Regulations for depicting o ff-site environmental features. 2
Conclusion We therefore conclude that the Moores’ application on appeal complies with the requirements of the City of Montpelier Zoning and S ubdivision regulations related to the delineation of environmental resources. Judgment i s GRANTED to the Moores on Mr. Nagle’s Question 12. As our July 28, 2014 decision GRANTED judgment to the Moores on Questions 1– 11 and 13–15 of Mr. Nagle’s Statement of Questions, this matter is now complete. We remind the parties that each house site will req uire additional zoning and building permits, some of which may have been already acquir ed.

Electronically signed on March 20, 2015 at 04:17 PM pursuant to V.R.E.F. 7(d).

_________________________________________ Thomas G. Walsh, Judge Superior Court, Environmental Division

2 Article 7, General Development Standards, of the R egulations applies to subdivisions. Regulations § 701, Purpose and Applicability. Relevant to this appeal, the Mo ores do not apply for any development or constructi on permits other than approval to subdivide their lot. Regul ations §715.A, titled “Site Protection and Design,” requires that any development plans “make appropriate provision f or protection of the following items: streams and stream banks, steep slopes, wetlands, soils unsuitable for development, agricultural lands and primary agricu ltural soils, unique natural and manmade features, significant hi storic and archaeological sites, wildlife habitat a nd sensitive environmental features as identified in the Montpel ier Municipal Plan, aquifer recharge area and wellh eads, and scenic features, including roads and major ridgelin es as delineated in the Montpelier Municipal Plan.” Regulations § 715.A. These provisions could be at issue during subdivision review. The Regulations require that efforts be made to protect or preserve these areas with buffer s while allowing reasonable development of an appli cant’s property. Id. These issues, however, were not rai sed by Mr. Nagle within his Statement of Questions. As such, they are outside of our review. We do note, howeve r, that at trial, the Moores provided some concluso ry evidence asserting compliance with §715.A, and Mr. Nagle provided no credible evidence that the subdiv ision failed to comply with § 715.A.