STATE OF VERMONT 

ENVIRONMENTAL COURT 

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In re: Fowler Subdivision & CU Permit } Docket No. 211-10-07 Vtec 

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Decision on Motion for Summary Judgment

 Appellant Mary Power appealed from a decision of the Town of Warren Development 

Review Board (“DRB”) granting a subdivision and conditional use permit to Appellee-Applicant 

Bruce Fowler for the subdivision of Mr. Fowler’s property along Senor Road. 

 Appellant is represented in these proceedings by Richard Johnston King, Esq.; AppelleeApplicant is represented by David T. Olenick, Esq. The Town of Warren has not entered an 

appearance. 

 Appellant has moved for summary judgment on Questions 2 and 5 from her Statement of 

Questions and asserts that if the Court grants her summary judgment request on either of those 

two Questions, the Court must also deny Mr. Fowler’s pending subdivision and conditional use 

applications as a matter of law. Appellee-Applicant opposes Appellant’s motion. Our review of 

the pending motion starts, as it must, with a review of the undisputed facts.1

Factual Background

1. Appellee-Applicant Bruce Fowler (“Applicant”) owns a 4.9± acre parcel of land, located 

at 258 Senor Road in the Town of Warren. Applicant’s property contains a residential duplex 

and is located in the Rural Residential Zoning District (“Rural Res. District”), with the western 

portion of the property located in the Meadowland Overlay Zoning District (“Meadowland 

District).2

 

2. Applicant’s parcel has 247 feet of frontage on Senor Road. The existing duplex is 

accessed by a driveway leading from Senor Road. A man-made pond is located in the center of 

 

1

 All facts recited or referenced here are undisputed unless otherwise noted. For purposes of the motion for 

summary judgment only, we view the material facts in a light most favorable to the non-moving parties. V.R.C.P. 

56(c). We are not yet at the stage of making specific factual findings. Thus, our recitation here should not be 

regarded as factual findings. See Blake v. Nationwide Ins. Co., 2006 VT 48, ¶ 21, 180 Vt. 14, 24 (citing Fritzen v. 

Trudell Consulting Eng’rs, Inc., 170 Vt. 632, 633 (2000)(mem.)). 

2

 The parties provided the Court with a copy of the Town of Warren Land Use and Development Regulations

(“Regulations”), last amended January 31, 2006. 
2

the property. An un-named stream also crosses the property; it enters through a culvert in the 

northeastern section of the property, passes through a wooded section, passes over a meadow, 

and then exits at the southwestern corner of Applicant’s parcel. 

3. In March of 2007, Applicant submitted applications to the DRB for the permits necessary 

to subdivide his parcel into two lots. Applicant applied for a “minor” subdivision permit.3 

Because a portion of his property is located in the Meadowland District, Applicant concurrently 

applied for a conditional use permit. 

4. As proposed, one 2.5± acre lot will retain the existing duplex and will have 

approximately 133 feet of road frontage on Senor Road (“Southern Parcel”). The second lot will 

contain 2.4± acres and a new four bedroom house with attached garage and will have 

approximately 114 feet of road frontage on Senor Road (“Northern Parcel”). Both parcels will 

be accessed by a new shared driveway, which will require a new curb cut on Senor Road. 

5. Throughout April, May, July and August of 2007, the DRB held four duly warned 

hearings concerning Applicant’s proposal.4

 In September of 2007, the DRB granted subdivision

permit #2007-07-SD and conditional use permit #2007-07-CU. In the “Findings of Fact & 

Conclusions of Law” section, the DRB addressed, among other things, the issues of road 

frontage, the description and location of the interior stream, and the vegetative buffer along the 

stream. 

6. On the issue of road frontage, the DRB asserted “that frontage can be figured along both 

the road and a right-of-way” and thus concluded that because “[t]he frontage requirement of 200 

feet cannot be met entirely on Senor Road[, the road frontage] is being calculated using the 50-

foot right-of-way for the shared access in addition.”5 Findings of Fact and Notice of Decision at 

1-2. 

7. During the hearings, the DRB also discussed whether the stream was either a natural or 

an artificially created waterway. Applicant’s Engineer represented to the DRB that the water 

 

3

 The subdivision will be a “minor” subdivision because the subdivision will contain only two lots. Regulations 

§ 6.1(C)(1). 

4

 In the Statement of Questions, the Appellant disputes the adequacy of the warnings for the hearings but does not 

raise that issue in her pending motion. 

5

 Regulations Table 2.2 requires a minimum lot frontage of 200 feet. 
3

course was depicted on a United States Geological Survey (“USGS”) map. It is therefore 

classified as a “stream” under Regulations § 10.2.6 

8. The DRB recognized that the proposed house on the Northern Parcel would encroach 

upon the stream’s fifty foot vegetated buffer, as set forth in Regulations § 3.13(A). Applicant’s 

Engineer invited the State Stream Alteration Engineer to survey the stream. The State Engineer 

purportedly represented during the DRB review that, regardless of the stream’s formation, the 

State “did not have any jurisdiction over [the stream] but that he would have no problem in 

moving it if [the State] did have jurisdiction.” Id. at 2. Subsequently, the DRB allowed 

Applicant to modify the site plans so that the stream was relocated in an arc to the north, away 

from the proposed house on the Northern Parcel, so that the proposed structure could respect a 

fifty-foot vegetated buffer from the relocated stream. The building envelope for the proposed 

house on the Northern Parcel was also reformatted to respect the vegetated buffer. Id. at 2-3. 

Neither party submitted any documentation from the State evidencing a jurisdictional or permit 

determination concerning the relocated stream. 

9. The DRB approved Applicant’s site plan, last revised on July 17, 2007, which depicted 

the relocated stream. The site plan illustrated the proposed new location for the stream, which 

will be repositioned by directing the water into a boulder-lined trough. Although no details on 

the work necessary to relocate the stream have been supplied to the Court, we presume that the 

existing stream bed would be disturbed, filled in and replaced with vegetation. The stream will 

be moved up to fifty feet from the existing channel so that it will arch to the north, away from the 

proposed house on the Northern Parcel. The relocation of the stream will place it within the 

Meadowland District. 

10. Once the relocated stream flows beyond the envelope of the proposed house, it will 

separate into two branches. One branch will flow into the pre-existing, man-made pond that will 

now traverse the border between the Northern and Southern Parcels; the other branch will reconnect to the existing stream channel, north of the pond. 

11. The site plan depicted the footprint of the proposed house on the Northern Parcel as being 

at least fifty feet from the relocated stream. However, the site plan also depicts two septic tanks 

on the Northern Parcel, approximately thirty feet from the relocated stream, within the fifty foot 

 

6

 Regulation § 10.2 defines a stream as “[a]ny surface water course in the Town of Warren as depicted by the U.S. 

Geological Survey on topographic maps.” 
4

vegetated buffer. In addition, the mounds for the septic system—which will service the homes 

on both the Northern and Southern parcel—are depicted in the western section of the Northern 

Parcel, within the Meadowland District. 

12. The DRB found that there will be no development taking place within the designated 

Meadowland District. Findings of Fact and Notice of Decision at 3. 

13. Appellant owns residential property which abuts the northeasterly boundary of the 

Northern Parcel. Appellant’s attorney, representing her interests, attended and participated in 

several of the DRB hearings concerning Applicant’s proposed development. Following the DRB 

approval, Appellant timely appealed the DRB decision to this Court. 

Discussion

 Applicant’s conditional use and subdivision permit applications arrive at this Court after 

several changes to the project were suggested and then approved by the DRB. These changes 

involve relocating the stream, reformatting and moving the proposed house, including portions of 

the waste disposal systems inside the stream buffer, and calculating the road frontage by 

including the frontage on the shared driveway. In this de novo appeal, our rules of procedure 

direct our Court to apply the substantive standards that were applicable before the tribunal 

appealed from. V.R.E.C.P. 5(g); 10 V.S.A. § 8504(h). Thus, we will apply the laws and 

Regulations that were in effect during the DRB review, but will evaluate the applications now 

under appeal, including any site modifications, based upon the evidence the parties now present 

to this Court. 

 In this de novo appeal, summary judgment is appropriate only “when there are no 

genuine issues of material fact and, viewing the evidence in a light most favorable to the nonmoving party, the moving party is entitled to judgment as a matter of law.” In re Carter, 2004 

VT 21, ¶ 6 (citation omitted); V.R.C.P. 56(c). “[B]ecause of its severe consequences, summary 

judgment should be granted cautiously so that no one will be improperly deprived of a trial of 

disputed factual issues.” Margison v. Spriggs, 146 Vt. 116, 118 (1985) (citation omitted). We 

review the pending motion in this light. 

Appellant avers two general grounds in support of her request that we enter a summary 

judgment that Mr. Fowler’s applications cannot be approved as a matter of law: first, Appellant 

contends that the proposed house and septic system in the Northern Parcel will encroach upon 

the fifty foot vegetated buffer for the stream and that the proposed stream relocation is prohibited 
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by Regulations § 3.13. Second, Appellant asserts that the subdivided parcels do not meet the 

required minimum road frontage as set forth in the Regulations. We will take each issue in turn. 

Relocated Stream

 In the memoranda filed with this Court and during the course of the DRB hearings,7 it 

was undisputed that the water course that crosses Applicant’s property is defined as a “stream” 

under the Regulations. Therefore, it appears undisputed before this Court that the Regulations 

that pertain to development in or near a stream apply to Applicant’s proposal. 

 Through its Zoning Regulations, the Town of Warren has expressed a desire to prevent 

soil erosion, protect wildlife habitat, and maintain water quality by requiring that “a vegetated 

buffer strip shall be maintained for a minimum of 50 feet from all . . . streams. . ..” Regulations 

§ 3.13(A). The vegetated buffer strip is to be measured from the top of the stream-bank and 

“[n]o development, excavation, landfill or grading shall occur within the buffer strip, and 

vegetation shall be left in an undisturbed state . . ..” Id. This language establishes mandatory 

restrictions in clear and unambiguous language. Such regulatory language cannot be ignored. 

See In re John A. Russell Corp., 176 Vt. 520, 523 (2003) (mem.). While there are several 

exceptions to the restriction on clearing and site development within the vegetated buffer, they 

are specifically limited to site work that will provide site access and recreation paths or that will 

stabilize the stream-bank. Id. Thus, we conclude that Regulations § 3.13(A) applies to 

Applicant’s site plans. 

As the DRB concluded, Applicant’s original site plan—which depicted the proposed 

house in the Northern Parcel located several feet from the stream and within the vegetated 

buffer—did not comply with this Regulation. Thereafter, rather than relocating the proposed 

house, Applicant proposed to relocate the offending stream to the north and to modify his site 

plans to so reflect. 

Before determining whether the location of the proposed house sufficiently respects the 

vegetated buffer for the relocated stream, we must first determine whether the Regulations 

authorize Applicant to relocate a stream for the purpose of respecting a fifty-foot buffer from it. 

Our review of the Regulations finds no authority for relocating a stream and, in fact, includes 

specific prohibition of the activities necessary to relocate a stream. 

 

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 Initially, the Applicant’s Engineer asserted that the water course was man-made in 1996 when the pond on the 

property was created. However, the Engineer later discovered that a USGS map had a blue line—which represents a 

stream—in the vicinity of the water course. 
6

Applicant contends that the relocation of the stream is permitted under the municipal 

Regulations and the state statutes. We decline to consider the applicability of state statutes that 

may authorize or exempt from state regulation the stream relocation Applicant proposes, since no 

determination under state law has been preserved for our review in this appeal. We must 

consistently exert the discipline of declining to render opinions on legal questions not yet 

brought before us, as such opinions would be advisory only. In re Appeal of 232511 Invs., Ltd., 

2006 VT 27, ¶ 19, 179 Vt. 409, 417. This caution is, in part, a practical one, since deciding a 

case not squarely before it causes a court to rely upon an undeveloped record. Id. at ¶ 18. Thus, 

while the DRB below discussed the need (or not) for a state stream alteration permit, we decline 

to address that issue, as we are not aware of any such determination having been made and have 

no such determination on appeal now pending in this Court. 

What has been preserved for our review in this appeal, via Appellant’s Question 2, is 

whether Regulation § 3.13(A) specifically prohibits the stream relocation Applicant now 

proposes. That Regulation specifically prohibits “development, excavation, and fill or grading . . 

. within the [50-foot stream] buffer strip . . ..” Regulation § 3.13(A). Applicant has not provided 

us with details on the specific site work to be performed in relocating the stream, but from what 

limited information can be gleaned from Applicant’s revised site plan, we conclude that the 

stream relocation will include the following work, all within the existing stream or its fifty foot 

buffer: excavation, filling in of the existing stream bed, digging the new stream bed and lining it 

with rock and other material, constructing a new channel for some of the stream water to flow 

into the pre-existing pond, and grading and seeding of the area where the stream once ran. We 

conclude that all of these activities are prohibited by the specific and mandatory language of 

Regulations § 3.13(A). 

Some additional work that Appellant proposes within the stream buffer provides an 

independent basis for our conclusion that his revised site plan is in conflict with Regulations 

§ 3.13(A). Specifically, Appellant proposes to locate the septic tanks on the Northern Parcel 

within the fifty foot vegetated buffer—even when measured from the relocated stream. In the 

site plan, last revised on July 17, 2007, the two septic tanks for the proposed new house are 

located approximately thirty feet from the relocated stream, which is within the fifty foot 

vegetated stream buffer. The placement of septic tanks within the vegetated buffer will 
7

necessarily require excavation, grading, and will disturb the existing vegetation, all of which is 

contrary to the mandates of Regulations § 3.13(A). 

The revised site plan also depicts the septic mound8 for both parcels as being located 

within the Meadowland District, in the western corner of the Northern Parcel. The construction 

of a septic mound will necessarily require soil disturbance, excavation and grading, and will 

constitute development9

 within a primary conservation area10 of the Town. This proposed 

activity conflicts with the directive in Regulations Table 2.13 that for lands within the 

Meadowlands District, “[n]o land development or land use, other than agriculture or forestry, 

may be issued a zoning permit . . . until the [DRB] grants conditional use approval in accordance 

with Article 5.” We note that Applicant has not submitted any evidence upon which we can 

assess his proposed development’s compliance with the conditional use review standards of 

Regulations § 5.13. Thus, we have no foundation in the record before us for compliance with the 

applicable regulatory standards. 

Lastly, we note that the revised site plan depicts the proposed house on the Northern 

Parcel as being located within 100 feet from the stream—in its original or relocated position. 

Under the Regulations, “[n]o building or structure is allowed within 100 feet of any stream . . . 

without conditional use approval” by the DRB, which shall also find that the structure will not 

have an undue adverse impact upon the water carrying capacity, the water quality and the natural 

beauty of the stream. Regulation § 3.13(B). Our review of the record provides no evidence that 

the DRB considered this issue. 

Although the proposed house will be located within 100 feet of the stream—in its original 

or relocated position—Appellant has also failed to provide us with any evidence upon which we 

could conduct a conditional use review of his proposed new home and its impact upon this 

stream. When we review an application prior to trial, due to an opponent’s filing of a motion for 

summary judgment, an applicant has a duty to respond with some evidence upon which this 

Court could base a conclusion that the application conforms with the applicable zoning 

 

8

 We understand that a septic mound is usually constructed from off-site sand and other material, so that an 

acceptable leach field may be installed in an area that would otherwise not meet minimum percolation requirements. 

9

 Article 10 of the Regulations defines “development” (with reference to the term “Land Development”) as 

including “any mining, excavation or . . . changes in the use of any . . . land or extension of the use of land . . ..” 

Thus, we cannot mirror the DRB’s conclusion that the installation of a mound-based waste disposal leaching system 

does not constitute “development.” 

10 Regulations § 7.3(B) provides that “primary conservation areas shall include all lands within the . . . meadowland 

overlay districts . . ..” 
8

provisions. In re Rivers Dev. Con Use Appeal, et al., Docket Nos. 7-1-05, 68-3-07, 183-8-07, 

248-11-07 Vtec, slip op. at 8 (Vt. Envtl. Ct. Jan. 11, 2008). One who fails to do so runs the risk 

of having their application summarily denied. Id. at 9–10. Because we have no evidence before 

us upon which we could base a conclusion that either the septic mound or new house location 

conforms with the conditional use review standards, we must conclude that the pending 

applications must be denied as a matter of law. 

Road Frontage

While our above conclusions are dispositive of the pending applications, we believe it 

important and necessary for our review to include an analysis of the legal issue of how the road 

frontage minimum may be satisfied. 

 The proposed subdivision will be located in the Rural Res. District, which has a 

minimum lot frontage requirement of 200 feet. Regulations Table 2.2. The existing parcel 

complies with this Regulation, as it has approximately 247 feet of frontage on Senor Road. 

However, the subdivided parcels will have only 133 feet and 114 feet, respectively, of frontage 

on Senor Road. The fact that the subdivided parcels did not meet the minimum frontage 

requirement is an impediment to permit approval because “[n]o lot shall be so reduced in area 

that it cannot conform to . . . frontage . . . and other dimensional requirements as prescribed in 

these regulations....” Regulations § 3.7(C). 

Although the subdivided parcels apparently did not meet the road frontage requirement, 

Applicant adopts the DRB’s assertion “that frontage can be figured along both the road and a 

right-of-way.” Applicant asks that we adopt this conclusion, since he does not dispute the 

DRB’s conclusion that “[t]he frontage requirement of 200 feet cannot be met entirely on Senor 

Road[, but that the Regulations allow for road frontage to be] calculated using the 50-foot rightof-way for the shared access in addition.” Findings of Fact and Notice of Decision at 1-2. Our 

review of the Regulations leads us to an opposite conclusion: that the edges of the shared 

easement for a new common driveway does not constitute “road frontage” for purposes of 

satisfying the minimum frontage requirements for the subdivided lots. 

 “Frontage” is defined as “[t]he distance of the portion of a lot line abutting a road rightof-way.” Regulations § 10.2. Here, the only proximate road is Senor Road. Thus, without 

another measuring stick—or in this case another road right-of-way—it is undisputed that the 

subdivided parcels do not comply with the minimum frontage requirements. 
9

Applicant asserts that the Regulations provide some leeway in § 3.1(D), which states that 

“[f]rontage requirements for parcels served by private rights-of-way that are a minimum of 50 

feet in width shall be the same as the requirements for parcels served by public rights-of-way.” 

Therefore, the Applicant contends that the Regulations also authorize frontage to be measured 

along a private right-of-way, so long as the private right-of-way is at least fifty feet wide. 

However, when read alongside the definition of “frontage,” § 3.1(D) does not provide for 

frontage to be measured along any access to the property—such as a driveway—unless the 

access is also a road right-of-way. The issue we must now determine then is whether the shared 

driveway Applicant proposes can be considered a “road right-of-way” for purposes of calculating 

frontage in the Town of Warren. We conclude that it cannot. 

The site plan for the subdivision depicts a shared driveway to serve as access for both 

parcels, a small portion of which travels over a common easement; the shared portion of the 

easement will be approximately thirty to thirty-five feet in length before the driveway branches 

to each residence; the shared easement is about fifty feet in width where it abuts Senor Road. 

Here, this short shared access is a driveway, which is defined in the Regulations as “[a] minor, 

private travel way serving up to three adjoining parcels, which provides access for vehicles to a 

parking space, garage, dwelling or other structure.”

11 Regulations § 10.2. Thus, the shared 

driveway is not included in any definition contained in the Regulations for a “road right-of-way.” 

We therefore cannot see a basis for counting the short length of Applicant’s shared driveway 

easement when calculating road frontage. 

 Applicant has not directed the Court to any authority from the Regulations sanctioning 

the inclusion of frontage along a driveway in any calculation of road frontage. Frontage is 

defined as the distance of a lot line measured along a “road right-of-way.” We also note that 

Applicant has not presented the Court with the resulting measurements for frontage along the 

driveway. That is, there is no indication of where the asserted “road frontage” would start or end 

along the shared easement or driveway. Were we to adopt Applicant’s interpretation, we fear 

that it would lead to a nullification of the minimum road frontage requirement for subdivided 

lots, as any shortage could be made up with a design that incorporates one or more shared 

 

11 The various definitions for “road” in Regulations § 10.2 do not include driveways. A “private road” is defined as 

“[a]ny road or street, and associated right-of-way, which is not publicly owned and maintained”; a “public road” is 

defined as “[a] road or street which is constructed within the boundaries of an officially deeded or dedicated and 

accepted public right-of-way”; and a “development road” is defined as “[a] private road that provides access to four 

or more parcels.” 
10

driveways. When challenged to interpret zoning regulations, we are directed to read the 

regulations as a whole and so that no material portion is nullified. Murdoch v. Town of 

Shelburne, 2007 VT 93, ¶ 5. We therefore conclude that the Regulations do not allow for the 

length of a shared driveway easement to be counted as road frontage. 

Conclusion

For all the reasons more fully discussed above, we GRANT Appellant’s motion for 

summary judgment and, in doing so, DENY Applicant’s application for subdivision and 

conditional use approval, as we have concluded that, even when viewing the material facts in a 

light most favorable to Applicant, he is lacking a factual foundation for the legal conclusion that 

his applications can conform with the applicable Regulations. 

This concludes the proceedings before this Court in this appeal. A Judgment Order 

accompanies this Decision. 

Done at Berlin, Vermont this 22nd day of July, 2008. 

______________________________________ 

 Thomas S. Durkin, Environmental Judge