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STATE OF VERMONT

SUPERIOR COURT ENVIRONMENTAL DIVISION

Vermont Unit Docket No. 123-9-13 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 Development Review Board (the DRB) by written 

decision dated August 19, 2013. Neighboring property 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 the Moores’ application meets the 

requirements of the Montpelier Zoning and Subdivision Regulations related to the delineation 

of environmental resources, and thus we denied summary 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 Washington County, Civil Division in 

Montpelier, Vermont. Appearing at the site visit and merits hearing were James Moore and his 

attorney Daniel Burke, Esq., and James Nagle, participating as a self-represented litigant. 

Based upon the evidence presented at trial, including that which was put into context by 

the site visit, the Court renders the following Findings 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. 
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2. The 6.27-acre parcel was once part of a larger parcel 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 interest, 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 (Project Lands). 

4. On June 18, 2013, the Moores submitted an application for a subdivision permit with 

the City of Montpelier Development Review Board (the DRB). The application is to 

subdivide Lot B into three lots: a new Lot B of 2.96 acres, Lot B1 of 2.04 acres, and Lot 

B2 of 1.27 acres. The plans accompanying the application 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 for any development or construction 

permits other than approval to subdivide their lot. 

5. The Site Plan depicts Leap Frog Hollow Road which provides access to the subject parcel. 

6. The DRB approved the subdivision application with conditions by written decision dated 

August 19, 2013. 

7. Mr. Nagle timely appealed that decision to this Court. 

8. The Project Lands do not contain wetlands; shoreline 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 water supplies); or ridge lines. 

9. The Site Plan depicting the Project Lands shows a water course as a “stream.” The 

stream and stream bank are or will be crossed by underground utilities. Otherwise, the 

stream and stream banks are provided with a buffer area. 

10. The Project Lands include agricultural soils, but these soils are not prime agricultural 

soils as they have an agricultural value of 7 out of 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 depicted on the Site Plan. 
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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 greater 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 slopes. 

16. Private well shield areas are shown on the Site Plan. 

17. The Project Lands and the surrounding hillside act as an aquifer recharge area. 

Subdivision and development should not adversely impact aquifer recharge. 

Discussion

 Mr. Nagle’s Question 12 asks: “Have appellees/applicants 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 Subdivision Regulations (Regulations). The 

Regulations at Article 4, Subdivision and Planned Development Procedures, establish the 

approval requirements for subdivisions. Specifically, 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 plan must include the following information: 

ENVIRONMENTAL FEATURES INVENTORY: On a plan at the same scale as the base 

plans, delineate significant natural resources; wetlands, shoreline management 

areas; water courses; rare, threatened or endangered plant and animal species; 

geological sites; historic sites; scenic roads; agricultural lands; open spaces; view 

sheds; streams; bodies of water; woodlands; flood hazard areas; slopes with 

gradients greater than 20%; south-facing slopes; significant trees; significant 

wildlife habitats, wellhead protection areas; and ridge lines. 

Regulations at Table 401. We therefore read Mr. Nagle’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 Regulations direct that the DRB, and 

therefore this Court on appeal, “may consider and impose appropriate conditions and 

safeguards with respect to the subdivision’s or planned development‘s conformance with the 
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general development standards of Article 7.” Regulations § 407.E. Section 715(A) of Article 7 

of the Regulations requires consideration of impacts on natural resources. To the extent that 

the subdivision layout could impact these natural resources, the proper delineation and 

description of the resources is material to determining whether the application should be 

approved. Our review on appeal is limited to ensuring that the Table 401 Environmental 

Features Inventory information is provided in the Moores’ 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 regarding what streams, watercourses, and 

other natural features exist on the site and whether the Moores’ application accurately 

delineates those resources. A few examples are as follows: 

During his cross examination of the Moores’ Professional Engineer, Don Marsh,1

 who 

developed the Moores’ application and site plans, Mr. 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 resources 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 Lands south of the Moores’ house location 

and that these slopes were not shown on the Site Plan. Ms. Moore testified to her professional 

opinion regarding her concerns of development on slopes of 15% or more. Even if true, these 

facts would not cause the Site Plan to be non-compliant with Table 401 as this provision of the 

Regulations only requires showing slopes with gradients greater than 20%. 

 Mr. Nagle and his witnesses also testified to environmental features located outside of 

the Project Lands and he asserted that off-site features, such as steep slopes and wetlands, 

 

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 We note that Mr. Nagle had retained Mr. Marsh a few years earlier and used Mr. Marsh for the Nagles’ 

development of their property. 
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should be material to the Moores’ application and shown on plans. Again, we find no 

requirements within the Regulations for depicting off-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 Subdivision regulations related to the 

delineation of environmental resources. Judgment is 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 require additional zoning and building 

permits, some of which may have been already acquired. 

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 

 

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 Article 7, General Development Standards, of the Regulations applies to subdivisions. Regulations § 701, Purpose 

and Applicability. Relevant to this appeal, the Moores do not apply for any development or construction permits 

other than approval to subdivide their lot. Regulations §715.A, titled “Site Protection and Design,” requires that 

any development plans “make appropriate provision for protection of the following items: streams and stream 

banks, steep slopes, wetlands, soils unsuitable for development, agricultural lands and primary agricultural soils, 

unique natural and manmade features, significant historic and archaeological sites, wildlife habitat and sensitive 

environmental features as identified in the Montpelier Municipal Plan, aquifer recharge area and wellheads, and 

scenic features, including roads and major ridgelines 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 buffers while allowing reasonable development of an applicant’s 

property. Id. These issues, however, were not raised by Mr. Nagle within his Statement of Questions. As such, 

they are outside of our review. We do note, however, that at trial, the Moores provided some conclusory 

evidence asserting compliance with §715.A, and Mr. Nagle provided no credible evidence that the subdivision 

failed to comply with § 715.A.