1 STATE OF VERMONT

ENVIRONMENTAL COURT
} In re: Higgins - Jockey Lane subdivision final plat } Docket No. 200-8-06 Vtec (Appeal of Clark W. Hinsdale, III, and Monica Tup per) } }
Decision and Order on Renewed Motion for Summary Ju dgment

and Motion for Reconsideration Appellants Clark W. Hinsdale III and Monica M. Tupp er appealed from a decision of the Development Review Board (DRB) of the Town o f Monkton granting final plat approval to Appellee-Applicants John and Lesley Hig gins for a six-lot subdivision. Appellants are represented by Liam L. Murphy, Esq. a nd Pamela A. Moreau, Esq.; Appellee-Applicants are represented by Matthew T. D aly, Esq. The Town of Monkton is represented by David Rath, Esq., but has not taken an active role in the briefing of the pending motions. This Court granted summary judgment in favor of App ellee-Applicants with respect to Questions 5, 6, 8, 9 of Appellants’ Statement of Questions, and also with respect to those parts of Question 2 dealing with §§ 321(6), (9), an d (13) of the Subdivision Regulations. In re: Higgins-Jockey Lane Subdivision Final Plat, Docket No. 200-8-06 Vtec (Vt. Envtl. Ct. Sept. 28, 2007). Appellee-Applicants have renewed their motion for summary judgment on Questions 1, 3, 4, 7, and 10 of their Statement of Questions, and on the parts of Question 2 that refer to §§ 321(2), (7), (11), and (12) of th e Subdivision Regulations. The following facts are undisputed unless otherwise noted; as nec essary to understand the present decision, portions of the facts as stated in the Co urt’s September 2007 decision are repeated
here. All references to section numbers are to the Subdivision Regulations unless otherwise
noted.1 The complaint was filed on July 25, 2007 and was ass igned Docket No 197-7-07

Ancv. An answer has been filed and discovery is pr oceeding; as of January 15, 2008 the matter had not been scheduled by the Superior Court

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2 The application uses a numbering system beginning with Lot 7, possibly due to a prior subdivision having lots numbered 1 through 6, while Appellants’ Exhibit C shows the lots for the present proposal as numbered 1 thr ough 6. To avoid confusion, this decision uses the numbering system used in the appl ication at issue in the present case, referring to the lots as numbered 7 through 12.

2 Appellee-Applicants own an 85.83-acre parcel of lan d that they propose to subdivide into the six lots at issue in the present applicati on. The project property has frontage on the north side of Jockey Lane in the Town of Monkto n. Appellant Tupper owns a 10.2-acre parcel of land immediately to the north of and adjo ining Appellee-Applicants’ property. Appellant Hinsdale owns 78.5 acres of land in two p arcels north of Appellee-Applicants’ property, separated from it by another unrelated pro perty. Appellants claim rights of access to their property from Jockey Lane via private rights-of-way and/or by a so-called “pent” public r oad, over Appellee-Applicants’ property. Appellants have filed 1 a complaint for declaratory relief in the Addison Superior Court for a declaration that the pent road and the rights-of-way exist over the Higgins’ property giving access to Appellants’ properties fr om Jockey Lane. Appellee-Applicants propose to divide the 85.83-acr e parcel into six lots, numbered 2 as Lots 7 through 12, each proposed to have a build ing site for a single-family house. The relative locations of the proposed building envelop es and infrastructure in relation to the rights-of-way are the focus of Appellants’ Statemen t of Questions. Lots 7 through 11, the five southernmost of the six proposed lots, range fr om 5.1 acres to 7.9 acres in size. Proposed Lot 12 contains the remaining 53.8 acres a nd comprises the northern half of the project. Proposed Lot 7 has frontage on Jockey Lane. Access to the subdivision is proposed3 The term “pent road” is defined as “any town high way which, by written

allowance of the selectmen, is enclosed and occupie d by the adjoining landowner with unlocked stiles, gates and bars in such places as the selectmen designate.” 19 V.S.A. § 301(4). The legislative body of a municipality may discontinue any town highway under the procedures found in 19 V.S.A. §§ 708-11. 19 V. S.A. § 771(a).

3 to be by a subdivision road having a fifty-foot-wid e right-of-way and extending northerly from Jockey Lane at the southwesterly corner of Lot7, through Lots 7 and 8, and terminating in a cul-de-sac located on Lot 9. A fire pond to provide water for fire fighting
is located within the cul-de-sac. Two additional fifty-foot-wide easements benefitting Lot 12 extend northerly from the cul-de-sac, one over Lo t 9 and one over Lot 11. Access to each house site is via a separate driveway from the subdivision road, except that access to the house site on Lot 12 is by an extension of the driveway serving Lot 11. Appellants and Appellee-Applicants agree that sever al traveled ways cross the proposed subdivision and appear to agree as to thei r locations; they disagree as to the legal status of these traveled ways and as to whether the more westerly of these is a so-called “pent” or enclosed public road. 3 Two asserted rights-of-way extend northerly from Jo ckey Lane, crossing into Lot 12 of the proposed subdivision at its southeasterly an d southwesterly corners. The more easterly of these asserted rights-of-way extends no rtherly from Jockey Lane along the proposed subdivision roadway to just past the drive way for the house site on Lot 7, and then extends northerly through proposed Lots 8 and 9, crossing through or very close to the proposed sites for the septic disposal fields, house sites, and well shield envelopes on Lots 8 and 9. After extending onto Lot 12 at its s outheasterly corner, one branch of this asserted right-of-way extends to the north across L ot 12 onto the property directly to the south of Appellant Hinsdale’s property. On Lot 12, the other branch of the more-easterly asserted right-of-way turns to the west and extends westerly across Lot 12, crossing the4

proposed driveway to the Lot 12 house site and cros sing through the proposed site for the primary disposal field for Lot 12. The more westerly of the two asserted rights-of-way is the one claimed by Appellants to be a “pent” public road. It extends northerly from Jockey Lane over unrelated land and enters the proposed subdivision along the westerly boundary of Lot 11 onto Lot 12 at its southwesterly corner, extending t o the north across Lot 12 onto or near Appellant Tupper’s property. Appellee-Applicants and the Town of Ferrisburgh ent ered into a settlement stipulation that was ratified by the Town of Ferris burgh on June 5, 2007, ratified by the Town of Monkton on July 9, 2007, and approved by th e Court on July 17, 2007. The stipulation provided that Ferrisburgh would agree t o approval of the subdivision if the traveled portion of the access drive is at least tw enty feet wide, if all other roads in the subdivision are at least fourteen feet wide, if the dry hydrant and fire pond are constructed to provide sufficient fire protection as determined by the Chief of the Ferrisburgh Fire Department, if Appellee-Applicants convey an easeme nt to the Town of Monkton at the southeast corner of the property for the constructi on of a separate cul-de-sac adjacent to Jockey Lane, if Appellee-Applicants provide by cove nant for the maintenance of the dry hydrant, fire pond, and subdivision roadway, and if they file a revised plot plan depicting these conditions. The revised plot plan referred t o in the settlement has not been filed with
the Court as of the date of this decision.

Question 10 of the Statement of Questions Question 10 asks whether the layout of the proposed subdivision protects and provides for forestry and recreational uses to cont inue on adjoining properties, specifically citing “Section 2, subsections E and F” of the Monk ton Town Plan. Section 305(2) of the Subdivision Regulations requires subdivisions to “b e in harmony with the Town Plan.”4Section 210 contains two sets of numbered subsect ions, both of which are required

for the present project as it is a “major” subdivis ion of more than three lots and requires a new street.

5 Appellee-Applicants’ response focused on the provis ions for forestry and recreational uses within the subdivision project property, rather thanthe adjoining property. The September 2007 decision denied summary judgmenton this issue because the Town Plan had not been provided. Appellee-Applican ts have now submitted a copy of a Municipal Development Plan dating from May of 1977, consisting (in full) of two pages of text and one map, with no numbered subsections. Ho wever, the citation to “Section 2, subsections E and F” of the Town Plan in Question 1 0 suggests to the Court that the parties dispute the edition of the Town Plan that is applic able to this proceeding. At the very least, the discrepancy between the municipal plan pr ovided by Appellee-Applicants and Question 10 as stated by Appellants precludes its r esolution on summary judgment. Therefore, Appellee-Applicants’ Renewed Motion for Summary Judgment remains DENIED regarding Question 10, as material facts are in dispute as to the applicable Town
Plan.

Question 1 of the Statement of Questions Appellants’ Question 1 addresses whether the propos ed subdivision plat contains certain information required to be included in the application, specifically whether it accurately shows and identifies existing accesses t o Appellants’ parcels to the north of the subdivision property, pursuant to § 210(4 4 ). Section 210 requires (in the first subsection ( 4)) that the applicant submit information regarding “ex isting restrictions on the use of land, including easements” and requires (in the second subsection (4)) that the applicant submit information regarding “streets which are proposed, m apped, or built.” This Court is without jurisdiction to determine the extent of the property rights of6

the parties with respect to any claimed right-of-wa y or claimed pent public road; that matter is before the Addison Superior Court. This Court does have jurisdiction to determine whether an application for subdivision ha s met all the requirements for submission and for approval under the Subdivision R egulations. In the September 2007 decision, the Court noted tha t the plans provided with the
motions were reduced size versions of the subdivisi on plans, at a reduction of approximately one-quarter of the size of the plans submitted with the application, including two versions of Sheet C2, entitled “LOT LA YOUT, RIGHT OF WAY, AND EASEMENT SHEET.” The September 2007 decision denie d summary judgment on Question 1 due to the lack of a legend or key on Sh eet C2 to define whether the dotted-anddashed lines shown as extending from Jockey Lane to wards the north (as well as the eastwest line through proposed Lot 12) in the locations asserted by Appellants to be either private rights-of-way or a pent public road are cla imed by Appellee-Applicants to be “existing restrictions on the use of land, includin g easements” or to be “streets which are . . . mapped,” under § 210. The September 2007 dec ision concluded that without a key, legend, note or narrative, material facts were in d ispute as to whether Sheet C2 of the proposed subdivision plan meets the requirements of § 210. With their Renewed Motion, Appellee-Applicants have submitted a revised version
of Sheet C2 that labels the dotted-and-dashed lines as “Existing Logging Trails, Typical as Shown,” and have also submitted an affidavit from Ap pellee-Applicant John Higgins explaining that the dotted-and-dashed lines were pl aced on Sheet C2 based on aerial photographs showing what the affidavit characterize s as “actual trails” on the property. Mr. Higgins’ affidavit states his lack of knowledge of whether or not these “trails are reflected in any recorded instruments that apply to the property.” This evidence does not resolve the dispute between the parties regarding the adequacy of the application, that is, whether the a pplication properly reflects existing5 The Vermont Supreme Court aptly described the “co nundrum” of such “known

unknown roads” by quoting former Secretary of Defen se Donald H. Rumsfeld’s “existential musings” that: “there are known knowns. There are things we know we know. We also know there are known unknowns. That is to say we kn ow there are some things we do not know. But there are also unknown unknowns, the ones we don't know we don't know.” McAdams v. Town of Barnard , 2007 VT 61, ¶ 13 n. 5 (citations omitted).

7 restrictions on the use of the land and proposed or mapped streets, deeded or otherwise. While the parties appear to agree as to the locatio ns of the actual traveled ways, they fundamentally dispute whether the traveled ways rep resent “existing restrictions on the use of land” or “streets which are proposed, mapped or built,” or whether they are instead a category of traveled way that does not have to be shown on a subdivision application. Therefore, Appellee-Applicants’ Renewed Motion for Summary Judgment on Question 1 is DENIED, as material facts are in dispute.

Questions 2 and 7 of the Statement of Questions with respect to §§ 321(1), (2), (11) and (12) Appellants’ Question 2 asks in part whether the pro posed subdivision meets the requirements of §§ 321(2), (11) and (12) regarding the issues of access to adjoining parcels, fire protection, and provision for utilities. The September 2007 decision denied summary judgment due to the as-yet-unresolved (or “known un known 5 “ ) status of the asserted rights-of-way and asserted “pent” public road. Ap pellants’ Question 7 also relates to whether the fire department can provide fire protec tion to the proposed subdivision. In Appellants’ opposition to the Renewed Motion for Su mmary Judgment, they argue as to Question 7 that, as well as implicating §445 (discu ssed below), the proposed subdivision does not meet the requirement of § 321(1) that “[s] treets shall be suitably located to . . . afford satisfactory access to fire fighting . . . e quipment.” For the same reasons as discussed in the September 2007 decision, and construing all doubts and inferences in favor of the nonmoving party, Collins v. Thomas , 2007 VT 92,6 The fact that it is the Town of Ferrisburgh that maintains Jockey Lane (by

agreement with the Town of Monkton) does not assignresponsibility to the Town of Ferrisburgh for the potential widening or realignme nt of that street within the Town of Monkton.

8 ¶ 6, until the status of the asserted rights-of-way (including the asserted “pent” public road) is resolved, this Court cannot determine whether the design of the subdivision or the relative locations of the subdivision roadway and those rights-of-way cause any hardship to adjoining properties or compose a convenient sys tem, or whether the project roadways or their continuation to the property lines are nec essary for convenient movement of traffic, for fire protection, or for the efficient provisionof utilities to those adjoining properties or
to the subdivision. Therefore, because the issue remains unresolved as to whether or where rights-ofway and/or a pent public road exist on the proposed subdivision, Appellee-Applicants’ Renewed Motion for Summary Judgment on Question 2 a nd on Question 7 is DENIED as to §§ 321(1), (2), (11) and (12)

Questions 2 and 3 of the Statement of Questions with respect to § 321(7) Appellants’ Question 3, and a portion of Question 2, asks whether the proposed subdivision meets the requirements of § 321(7) of the Subdivision Regulations with regard to provisions for widening the existing public stre et. Section 321(7) requires that, “[w]here the subdivision borders on an existing street and the Town Plan or Official Map indicates plans for realignment or widening of the street tha t would require reservation of some land of the subdivision,” the final plat must mark those areas as “Reserved for Street Realignment (or Widening) Purposes.” The September 2007 decision considered the “existing street” to be Jockey Lane, 6 as the only street “border[ing] on” the proposed subdivision, and denied summary judgment on this is sue because the parties had not7See discussion at Question 10, above.

9 provided either the Town Plan or the Official Map, or an appropriate affidavit, to show that the Town Plan and Official Map do not indicate plan s for its realignment or widening. Appellee-Applicants have not submitted a copy of or affidavit regarding the Official Map, but have submitted a copy of the 1977 Municipa l Development Plan. 7The 1977 Plan does not contain any plans for any street widening or realignment, and accordingly does not refer to any such plans with regard to Jockey L ane. However, material facts are in dispute as to whether the 1977 Plan is the applicab le Town Plan. If the 1977 Plan is the applicable town plan, and if the applicable Town Plan and Official Map do not indicate any plans for the wide ning or realignment of Jockey Lane, Appellee-Applicants are not required to mark areas as reserved for such purposes on their final plat, and therefore Appellee-Applicants’ Rene wed Motion for Summary Judgment would be granted on Question 3 and that part of Que stion 2 dealing with Subdivision Regulations § 321(7). It must be denied, however, un til the issue of the applicable Town Plan is resolved and until the Official Map (or an appropriate affidavit regarding the Official Map) is also provided (or provided as an a greed or undisputed fact).

Question 4 of the Statement of Questions Question 4 of the Statement of Questions asks wheth er the application meets the requirements of § 340, which gives the DRB discreti on to require the subdivider to set aside fifteen percent of the land to be subdivided for pa rks, playgrounds, or other recreational purposes or, in the alternative, to require paymentof an amount not to exceed fifteen percent of the project parcel’s fair market value i f a park, playground, or other recreational use cannot be practically sited on the land. The C ourt, in this de novo appeal, applies the standards applicable before the DRB; that is, it mu st exercise its discretion as provided in10

§ 340. Appellee-Applicants have submitted the affidavit of the Zoning Administrator to the effect that the DRB has never required land to be set aside under § 340 and that it recently discontinued its “policy” of requiring the alternative fee. While this is informative of the DRB’s past or current practices, material fa cts are in dispute on the merits of whether
a recreational set-aside or alternative fee should be considered by the Court under § 340 for this proposed subdivision. Accordingly, Appellee-Ap plicants’ Renewed Motion for Summary Judgment is DENIED as to Question 4.

Question 7 of the Statement of Questions Appellants’ Question 7 asks whether the proposed subdivision application adequately demonstrates that the Monkton Fire Depar tment can provide fire protection to the proposed subdivision. The September 2007 decis ion treated this question as addressing whether the subdivision proposal meets § 445 of the Subdivision Regulations and determined that material facts are in dispute, or a t least have not been provided to the Court, as to whether the Monkton Fire Chief is sati sfied with the adequacy of the water storage facilities for fire protection provided by the subdivision plan, as required by § 445, and as to whether the dry hydrant to be installed i n connection with that fire pond meets the requirements of § 445 for the installation of fire hydrants in the subdivision. Appellee-Applicants’ have submitted a letter from the Monkton Fire Chief that the proposed dry hydrant and fire pond in the subdivisi on would provide adequate fire protection. Therefore to the extent that Question 7 relates to § 445, Appellee-Applicants’ Renewed Motion for Summary Judgment is GRANTED.

Accordingly, based on the foregoing, it is hereby O RDERED and ADJUDGED that Appellee-Applicants’ Renewed Motion for Summary Jud gment is GRANTED with respect11

to the portion of Question 7 addressing § 445; it i s otherwise DENIED with respect to Question 1, with respect to the portions of Questio n 2 addressing §§ 321(2), (7), (11), and (12), with respect to Question 3, with respect to Q uestion 4, with respect to Question 7 so far it relates to § 321(1), and with respect to Que stion 10, as material facts remain in dispute. A telephone conference has been scheduled (see encl osed notice) to discuss the appropriate next scheduling for this matter, includ ing whether this matter should be placed in an inactive status until the superior court proc eedings have resolved the status of the asserted rights-of-way at issue in this appeal.

Done at Berlin, Vermont, this 23 rd day of January, 2008.

_________________________________________________ Merideth Wright Environmental Judge