1

STATE OF VERMONT

ENVIRONMENTAL COURT

} Appeal of Prudence L. Kelley and } Wayne Stearns, Sr. } Docket No. 34-3-04 Vtec } }

Decision and Order Appellants Prudence L. Kelley and Wayne Stearns, Sr ., appealed from a decision of the Zoning Board of Adjustment (ZBA) of the Town of Ferrisburgh, granting conditional

use 1 approval for the construction of a house and on-si te water supply and septic system, on the so-called Bookstaver lot. Appellants repres ent themselves, through their respective sons Peter J. Tomasi and Wayne Stearns, Jr., who ho ld their powers of attorney.

Interested Persons Charles and Linda Piasecki also appeared and represent themselves. Appellee-Applicants Dwight Hyde, Ellen Flanders, Jo hn C. Bookstaver and Jane M. Orebaugh, are represented by James H. Wick and Jose ph F. Obechowski, Jr. The Town of Ferrisburgh did not enter an appearance in this appeal. An evidentiary hearing was held in this matter before Merideth Wright, Environmenta l Judge. A site visit was taken at the conclusion of the hearing with the parties and thei r representatives. The parties were given the opportunity to submit written memoranda and req uests for findings. Upon consideration of the evidence, as illustrated by th e site visit, and of the written memoranda and requests for findings filed by the parties, the Court finds and concludes as follows.

1 We note that the Shoreland Zoning District sectio n of the Zoning By-Laws, in ' 4.6(A), final sentence, requires site plan review for camps and single-family residences, A in regard to sewage, water, access, frontage and scenic consi derations. @ However, no separate site plan review procedures or standards in fact appear in the Zoning By-Laws, and no separate standards other than the conditional use s tandards were applied by the ZBA.2

Appellant Stearns owns a farm property near Lake Ch amplain on Schoolhouse Road in the Town of Ferrisburgh, improved with an e xisting farmhouse. The Stearns property is separated from Lake Champlain by a row of small existing lakeshore lots that were part of a 7-acre parcel of lakeshore land conv eyed by the Stearns = predecessors in 1887. The lakeshore lots, created between 1895 and 1915, are located in the Shoreland zoning district. The southernmost of those lakeshore lots ( A the Bookstaver lot @ ) is the .72-acre parcel that is the subject of the application on ap peal. It is exempt from the minimum lot size requirements of the district as an existing sm all lot under ' 5.8. The southerly line of the Stearns property, extended to the lake, is the southerly line of the Bookstaver lot. An area in the southwest corner of the Stearns propert y and the southeast corner of the

Bookstaver lot tends to be wet 2 ; that area drains across the property line onto ad jacent property to the south and then in a small channel o r swale across the southeasterly corner

of the Bookstaver lot to the lake. Other lakeshore lots to the south of the Bookstaver lot have access by another road to the south. Adjacent to the north of the Bookstaver lot is an a pproximately one-third-acre lot owned by Appellant Kelley (also referred to in evid ence as the Kelley/Tomasi lot). The Kelley/Tomasi lot is approximately 108 feet wide at its easterly boundary, tapering to 48 feet wide at the lake. The Kelley/Tomasi lot is im proved with a small house. Its water supply is drawn from the lake; it is served by a se ptic holding tank rather than an on-site disposal system.

2 No evidence was presented as to whether any state wetlands regulations limit development in this area of either the Stearns or t he Bookstaver properties. Adjacent to the north of the Kelley/Tomasi lot is a n approximately half-acre lot owned by Linda and Charles Piasecki. The Piasecki lot is improved with a house served by a mound-type on-site septic system. The locatio n or type of the Piasecki water supply was not presented in evidence. Based on the eviden ce of Appellee-Applicants = consultant, the location of the mound septic system on the Pias ecki lot is likely already to preclude the3

installation of a well on the Kelley/Tomasi lot, wi thout regard to the disposal system proposed by Appellee-Applicants, although actual me asurements of the 100-foot separation distance from that system were not prese nted in evidence. A private gravel drive known as Sunset Lane extends from Schoolhouse Road across the Stearns farm fields to the easterly line of the lakeshore lots approximately in the middle of the Piasecki lot, where it makes a T and extends both to the north and to the south to provide access for all the lakeshore lots. To the south, it extends across the Piasecki lot and the Kelley/Tomasi lot onto the Boo kstaver lot. An apparent footpath continues across the Bookstaver lot onto the next p roperty to the south. Appellee-Applicants propose to place a house with a footprint of 1728 square feet on the Bookstaver lot, with an associated on-site m ound or engineered septic system, meeting the required 25-foot side and rear setbacks and the required 80-foot lakeshore setback. The house is proposed to be located on a slab or on piers, to avoid creating any problems with the proposed septic system. The hous e is proposed to be located on the southerly side of the lot and the septic disposal f ield is proposed to be located on the northerly (Kelley/Tomasi) side of the lot, so as to be able to place an on-site well in the southeasterly corner of the property and meet a 100 -foot separation distance 3 between the well and the on-site septic system. The well is p roposed to be drilled by a technique that allows for the installation of a proper casing and for it to be sealed so as to exclude any influences from lake water, surface water, or septi c systems. As conditional use standard

' 9.4(A)(4) requires a finding that the proposal will not adversely affect municipal A bylaws in

3 This separation distance is found in ' 440.6(D)(a) of the Subdivision Regulations, and not in the Zoning By-Laws. The Subdivision Regulat ions, which are not directly applicable to this project as no subdivision of land is propos ed, also require that individual septic systems A meet the requirements of the municipal health regul ations. @ ' 440.6(C). AppelleeApplicant = s consultant = s water and wastewater design package, in evidence as Exhibit 1, states in paragraph A that the project = s A on-site water and wastewater disposal systems . . . comply with the Vermont Environmental Protection Ru les in accordance with the Town of Ferrisburgh = s Subdivision Regulations @ and in paragraph J that the Town = s A Conditional Use Regulations . . . reference the Vermont Environ mental Protection Rules, @ However, the Court has not found (and the parties have not o therwise cited) any reference to or incorporation of the state Agency of Natural Resour ces (ANR) Environmental Protection Rules in the Zoning By-Laws.4

effect, @ if the Town does incorporate the State standards i n other bylaws not provided in evidence, such as municipal health regulations or o n-site sewage regulations, such additional municipal bylaws would be applicable to the present proposal through ' 9.4(A)(4). The proposal meets all the setback requirements of the zoning ordinance. 4

Appellee-Applicants propose to limit tree cutting a nd to preserve the older trees, but have not stated this limitation or marked the specific o lder trees on any site plan in connection with their proposal. If most of the trees are pres erved, because of the small area proposed to be disturbed, there is little danger of erosion during or after construction, and little danger of increased stormwater runoff. The upgradi ent agricultural use on the Stearns property is well-managed so as not to place undue d rainage or erosion onto the

Bookstaver lot.

4 Appellants argue that the well location is so cl ose to the Stearns boundary as to fail to meet a 50-foot setback from agricultural croplan d required by the ANR Environmental Protection Rules. However, nothing in the Zoning B y-laws (or any other bylaws provided to the Court) requires a well to meet the state ANR wa ter supply rules in order for a property to qualify for a zoning permit. See footnote 3, ab ove. Appellants argue that the proposed development will adversely affect the appropriate use or development of both the adjacent Kelly/Tomasi property and the adjacent Stearns property, and therefore fails to c omply with ' 9.4(A)(6). Appellant Kelley is concerned that the placement of the proposed sep tic system will make it impossible to place a well anywhere on the Kelley/Tomasi lot for future year-round use of that property. Appellant Stearns is concerned that the placement o f the proposed well will limit the potential future uses for the Stearns property upgr adient of the well.5

While the proposal will not affect any existing imp rovements on any adjacent property, that is not the standard in the zoning by laws. Rather, to grant conditional use approval, the ZBA, and hence this Court, must find that the proposal will not adversely affect the appropriate use or development of adjace nt property. Under ' 9.4(B), the Court may impose any conditions necessary to protect the best interests of the surrounding property, including but not limited to 5 the specific listed conditions.

5 The language is that the A conditions may include, among others, @ the listed specific conditions. The location of the proposed on-site septic system does impair potential development of an on-site well for the neighboring Kelley/Tomasi property, even though the suitable sites for a well on the Kelley/Tomasi property may already be impaired by the location of the Piasecki on-site disposal system. Appellee-Applicants did not prove that the potential for locating a well on the Kelley/Tomasi property was entirely precluded by the location of the Piasecki mound system, and did not present evidence on the location of that system with reference to the Kelley/Tomasi property line. Accordingly, to protect the best interests of the Kelly/Tomasi property, the Court w ill add a condition that AppelleeApplicants have the well installed on their propert y properly sized and equipped so that it could potentially serve the Kelley/Tomasi property in addition to the Bookstaver property, if in some future permit proceeding the Kelley/Tomasi property was shown to qualify for such future permit but for the ability to locate a drill ed well on the Kelley/Tomasi lot due to the improvements on the Bookstaver lot. The parties sh ould note that this is not a requirement at the present time for Appellee-Applicants to prov ide a water supply for the Kelley/Tomasi lot. Rather, it is a requirement that they develop the well so as to make it possible to do so in the future, if in some future proceeding the Kel ley/Tomasi applicants can show that they would have qualified for their permit in every resp ect except for the ability to install a drilled well on their property, and that their inability to install a well was due to the location of the septic system on the Bookstaver lot.

Aside from the issue of whether the location of the proposed well is within a right-of-6

way (discussed below) Appellant Stearns did not sho w that the location of the proposed well impairs or affects the potential development o f the neighboring farm field, either for farming or for any other purpose. Even if Appellan t Stearns sought to develop the farm field for residential lots, which would need on-sit e septic systems, there was no evidence that there would be any problems designing such a d evelopment in compliance with the subdivision regulations, that is, to comply with t he 100-foot separation distance between a well and a septic system. Appellants also claim that, contrary to (or as well as) the location on the ground of the traveled way of Sunset Lane across the Stearns property, the deeded right-of-way runs along or near what is now the Stearns southerly lin e, so that the deeded access for all the lakeshore lots would actually turn to the north and run across the Bookstaver property along or near the Bookstaver easterly lot line, ove r the area proposed for the well location. Appellants argue that Appellee-Applicants therefore should be precluded from installing a well within that claimed deeded right-of-way. Appellee-Applicants first argue that neither Appell ant Stearns nor Appellant Kelley were granted or reserved rights-of-way over the Boo kstaver parcel. They argue further that, in any event, the actual use of Sunset Lane, which runs through the middle of the Stearns field rather than along its southerly line, has superseded the lakeshore lot owners = claims to use a right-of-way along the Stearns sout hern boundary and over the Bookstaver

lot. As explained to the parties several times prior to the trial, this Court cannot resolve disputed property rights as between the parties; su ch matters must be filed in superior

court. At least based on the Court = s inquiries of the parties in pretrial conferences and as of the time of trial, none of the parties had chose n to file a declaratory judgment or a quiet title action in superior court. All that this Cour t has jurisdiction to do in the present appeal is to determine whether project applicants have met their burden of proof that a proposed project meets the requirements of the applicable zo ning regulations. The parties should note that this decision does not in any way rule on the question of whether there is a deeded right-of-way running a long the southerly edge of the Stearns field to the Bookstaver lot, or whether such a deed ed right-of-way turns and continues7

northerly, either on the easterly edge of the Books taver lot or on the Stearns property immediately adjacent to the Bookstaver lot. If suc h a deeded right-of-way exists and has not been extinguished, it may affect the parties = property rights with respect to the proposed development. The fact that this decision has granted conditional use approval to Appellee-Applicants does not determine whether the claimed right-of-way location precludes this proposed development; if that issue is to be litigated, it must be litigated in superior court. Therefore, this decision specifica lly has no collateral estoppel effect on any potential superior court litigation to establish th e parties = respective property rights with respect to the deeded right-of-way.

Based on the foregoing, it is hereby ORDERED and AD JUDGED that AppelleeApplicants = application for conditional use approval to place a single-family residence on the so-called Bookstaver lot is hereby approved, su bject to the conditions imposed by the ZBA and the following additional conditions: Condition 3 is amended to add the following require ment at the beginning of Condition 3, before the existing language: 3. A tree preservation and removal plan shall be p repared to be incorporated in the approved permit, to identify the trees marked for p reservation as they were shown to the ZBA during its site visit; those trees speci fically to be preserved shall also be marked on the property prior to construction to ide ntify them for preservation during

construction. The trees to be removed shall be als o marked and the removal approved as provided in the existing language of Co ndition 3.

An additional Condition 8 is imposed as follows: 8. Appellee-Applicants shall have the well install ed on their property properly sized and equipped so that it could potentially be connec ted to serve the Kelley/Tomasi property in addition to the Bookstaver property, if in some future municipal permit proceeding the Kelley/Tomasi property is shown to q ualify for such future permit, but for the ability to locate a drilled well on the Kel ley/Tomasi lot as a result of the improvements on the Bookstaver lot that are the sub ject of the present permit.8

Dated at Berlin, Vermont, this 19 th day of August, 2005.

______________________________________ Merideth Wright Environmental Judge