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### STATE OF VERMONT SUPERIOR COURT ENVIRONMENTAL DIVISION Docket No. 81-6-17 Vtec

Ledoux Zoning Permit 

### DECISION ON MOTION

Albert R. Ledoux received a zoning permit to build a replacement home on a pre-existing lot. William M. Bowman, III, challenges the permit , his principal argument being that the road used to access the lot is deficient. Mr. Bowman no w presents this argument in a motion for summary judgment. Mr. Bowman is represented by Jon Anderson, Esq. Th e Town of Fairfax (the Town), represented by Edward G. Adrian, Esq., filed an opp osition to the motion. Mr. Ledoux, permittee and would-be builder, is self-represented and has f iled a memorandum adopting much of the Town’s argument against the motion, with some addit ional details. 1
I. Standard of Review We grant summary judgment when the moving party “sh ows that there is no genuine dispute as to any material fact and the movant is e ntitled to judgment as a matter of law.” V.R.C.P. 56(a). When considering a motion for summ ary judgment, we give the nonmoving party the benefit of all reasonable doubts and inferences . Robertson v. Mylan Labs., Inc., 2004 VT 15, ¶ 15, 176 Vt. 356. Once the moving party meets the initial burden of showing no material facts are disputed, the burden shifts to the non-moving p arty to establish a triable issue of fact. Pierce v. Riggs, 149 Vt. 136, 138 (1987). To establish th at a fact is disputed or unsupported by the

1 After the Town filed its opposition and Mr. Bowman filed a response, the Town filed a motion for leav e to file a sur-reply, along with a sur-reply. Mr. Bowm an filed his opposition to this motion, along with a brief response. A party does not normally have a right to file a su r-reply to a motion. V.R.C.P. 78(b)(1). We may all ow a sur-reply, however, when new issues are raised in the moving p arty’s last filing. Champlain Parkway Wetland CU Determination, No. 123-10-16 Vtec, slip op. at 3 (Vt. Super. Ct. Envtl. Div. Apr. 14, 2017) (Durkin, J.) (citations omitted). That does not appear to be the case here ; nevertheless, in the interest of developing our u nderstanding of the parties’ positions, we will consider all of the arguments presented. The motion for leave to f ile a sur-reply is therefore GRANTED

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record, the non-moving party must cite to materials on the record or show that the materials cited by the moving party do not establish the abse nce of a genuine dispute. V.R.C.P. 56(c).
II. Factual Background We recite the following facts based on the record n ow before us, and solely for the purpose of ruling on the pending motion.
1. Potter Road is located in Fairfax, Vermont.
2. Potter Road does not currently comply with the road and driveway standards stated in § 7.6 of the Fairfax Development Regulations as ame nded September 19, 2016 (the 2016 Regulations).
3. Potter Road has existed as a right-of-way since at least 1930, predating any zoning regulations.
4. Potter Road is not a Class I, II, III, or IV public road. 17 Potter Road
5. 17 Potter Road is owned by Mr. Ledoux and is only a ccessible via Potter Road.
6. The zoning regulations in effect in 1981 provided, in part: No land development may be permitted on lots which do not have either frontage on a (Class I, II, or III) public road, or on publi c waters, or, with the approval of the Planning Commission, access to such a road or water s by a permanent easement or right-of-way of record at least twenty-five (25) feet in width. 1981 Regulations Section 405.
7. A mobile home was constructed at 17 Potter Road in 1981.
8. The mobile home was unoccupied from at least Octobe r 2014 until it was demolished in the summer of 2017.
9. In 2017, Mr. Ledoux filed a zoning permit applicati on for a “2 story colonial with attached 2-car garage [and] covered porch / back deck” at 17 Potter Road. The application specifies that the house will be 28’ tall, 25’ wide, and 60’ long, and will have three bedrooms and two and a half bathrooms.
10. The application is subject to the 2016 Regulations. 2

2 The Regulations went into effect 21 days after ado ption. Regulations § 1.2; 24 V.S.A. § 4442(c)(1).3

11. The Zoning Administrator approved the application, and Mr. Bowman appealed that decision to the Fairfax Development Review Board (D RB). The DRB concluded that the zoning permit was properly issued, and Mr. Bowman subseque ntly appealed that decision to the Environmental Division.
12. In the 2017 application review process, the DRB did not expressly approve access to the lot via Potter Road. 46 Potter Road
13. Mr. Bowman owns and resides at 46 Potter Road which is accessible via Potter Road.
14. In August 2012, Mr. Bowman received a zoning permit to build a single-household dwelling at 46 Potter Road.
15. The Road Standards set out in the regulations at th at time are identical to those currently in effect.
III. Discussion Mr. Bowman moves for summary judgment on the theory that Potter Road fails to meet certain road standards and frontage requirements se t out in the 2016 Regulations. The Town and Mr. Ledoux counter that Potter Road and the lot at 17 Potter Road predate, and are therefore exempt from, these requirements. We adhere to rules of statutory construction when r eading zoning regulations, our objective being to implement the intent of the draf ters. In re Bove Demolition/Const. Application, 2015 VT 123, ¶ 8, 200 Vt. 452 (citatio ns omitted). We first rely on the plain language of the regulation, consider the regulations as a wh ole, and “try to give effect to every part.” In re Burlington Airport Permit, 2014 VT 72, ¶ 7, 197 Vt. 203 (quoting In re Curtis, 2006 VT 9, ¶ 2, 179 Vt. 620). We generally construe zoning regulat ions “narrowly in favor of the property owner,” and resolve ambiguity “in favor of the land owner.” In re Application of Lathrop Ltd. P’ship I, 2015 VT 49, ¶ 29, 199 Vt. 19. 2016 Regulations Article 9 define “land development ” as: The division of a parcel into two or more parcels; the construction, reconstruction, conversion, structural alteration, relocation, or e nlargement of any building or other structure; any mining or earth resource extra ction; and any change in the use of any building or other structure, or land, or extension of use of land.4

The home that Mr. Ledoux proposes to build is a lan d development under this definition. 3 2016 Regulations § 2.3.C provides that: No land development may be permitted on lots withou t either:
1. Frontage on: a) Class I, II III, or IV public road b) Town approved private road c) Public waters 2. Access by right-of-way approved by the DRB. Access by right-of-way requires DRB approval. DRB approval shall happen co ncurrently with any other DRB approvals required. If no other DRB approvals are required, such approval shall require Site Plan Rev iew. a) Access by right-of-way shall be at least thirty (30 ) feet in width to serve up to two lots, units or principal uses (a dr iveway) and at least fifty (50) feet to serve three or more lots, units or principal uses (a road). b) Access by right-of-way shall comply with the road a nd driveway standards (as applicable) in Section 7.6. c) The DRB shall consider the intended use of the prop erty, safety, traffic, and road and site conditions in granting, conditioning, or denying approval. The motion for summary judgment asserts that Potter Road does not fall into any of the categories set out in § 2.3.C.1, and that it also c annot be approved as a right-of-way under §
2.3.C.2.

a. Section 2.3.C.2: Whether Potter Road can be approve d in this process The motion argues that the standards and requiremen ts in §§ 2.3.C.2 and 7.6 (via § 2.3.C.2.b) apply to Mr. Ledoux’s application, and t hat Potter Road fails to comply with these standards and requirements. 4 The parties agree that Potter Road does not compl y with some requirements in § 7.6; however, they disagree as to whether those requirements apply here. Generally, when land development is proposed on a l ot without frontage on either a public road or a town-approved private road, the DR B can approve access via a right-of-way pursuant to 2016 Regulations § 2.3.C.2. The right- of-way must comply with standards set out in § 7.6. Id. § 2.3.C.2.b. Where no other DRB approv al is required, as is the case here, this right-of-

3 Question 2 asks whether Mr. Ledoux proposes land d evelopment, as defined in the Regulations. We answer this question in the affirmative.

4 Question 5 asks whether the proposed access compli es with design standards under §§ 2.3.C.2 and 7.6.5

way access approval is done through site plan revie w. 5 Id. Site plan review requires compliance with the entirety of Article 7. Id. § 7.A (“ Applicability. The Planning and Design Standards in this Article are intended for use by the DRB during the evaluation of applications for . . . Site Plan . .

. approval.”). Article 7, however, does not apply to Mr. Ledoux’s application for two reasons. First, Article 7 states that “[t]hese Planning and Design Standards shall not apply to lots, or uses, having prior DRB approval, unless the prop osed use is different than that which the DRB approved.” 2016 Regulations § 7.A. Here, the lot at 17 Potter Road was created either by approval from the Town, or prior to the need for su ch approval. 6 A single-family residence was approved to be built on the lot, and was built in 1 981. The use and the lot therefore have prior approval. The proposed use is a single-family resi dence, which is not different than the use that the DRB approved. Mr. Ledoux is seeking approval f or a replacement home. Thus, the standards in Article 7 do not apply. Second, compliance with Article 7 is not required w hen the proposed land development is for a single-household dwelling on a lot “create d prior to the requirement for DRB approval [i.e. a pre-existing lot],” provided the “structure meets the Dimensional Standards in” § 2.3. Id. § 7.A. 7 If the creation of the lot at 17 Potter Road was not approved by the Town, then it was created prior to the requirement for DRB approval. The application therefore does not need to comply with the standards in Article 7. For this reason, the summary judgment motion on thi s issue, and on Question 5, is
DENIED

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5 Mr. Bowman submits that 2016 Regulations § 2.3.C.2 specifies two separate approvals by the DRB: acces s approval requiring compliance only with § 7.6, and site plan approval. We disagree. Under this inter pretation, access approval would involve review of compliance with only § 7.6; however, a separate site plan revi ew would then involve compliance with all of Article 7, incl uding § 7.6. We decline to interpret regulations i n a way that leads to absurd results. See Bergeron v. Boyle, 2003 VT 8 9, ¶ 11 n. 1, 176 Vt. 78 (stating the courts will av oid interpretations that would lead to absurd results) (citation omitted).

6 The record is unclear on this point.
7 We note that while § 2.3 is titled “Dimensional St andards for Structures and Lots,” § 7.A only calls for compliance with dimensional standards for structure s, not for lots.6 b. Section 2.3.C.1: Whether Potter Road is a Town-appr oved private road. The motion for summary judgment submits that Potter Road is neither a public road nor a town-approved private road. 8 It is undisputed that Potter Road is not a Class I, II, III or IV public road. It is less clear, however, whether Potter Road is a town-approved pri vate road under § 2.3.C.1.b. The motion relies in part on the DRB decision below , which, according to Mr. Bowman’s affidavit, “indicates that Potter Road is not a tow n-approved private road.” Bill Bowman Aff. ¶ 7. Because we sit in the place of the DRB in this de n ovo proceeding, we do not consider the factual findings or legal conclusions of the DRB, including any conclusion the DRB may have drawn regarding whether Potter Road is a town-approved pr ivate road. S. Vt. Beagle Club, No. 142-9- 11 Vtec, slip op. at 7 (Vt. Super. Ct. Envtl. Div. Jan. 17, 2013) (Walsh, J.). The 2016 Regulations do not define “Town approved p rivate road,” and nothing in the Regulations explicitly identifies the process for s uch approval. Article 7 of the 2016 Regulations is titled “Planning and Design Standards.” Section 7.B.2 states that “[a]n engineering certificate is required to certify satisfactory completion of a ll private roads.” While this could be a way for the Town to approve a private road, this is not exp licitly stated. Even if this is one way to gain approval, it is unclear whether this would be the o nly way. Construing the facts in favor of the nonmovant and the ambiguity within the Regulations in favor of the landowner, Potter Road could be con sidered a town-approved private road because the Town has approved construction on multi ple lots that are only accessible by Potter Road. In 1981, the Town approved construction of a mobile home on 17 Potter Road. At that time, land development was only allowed on lots on Class I, II, III public roads, waters, or private roads approved by the Planning Commission. The rec ord indicates Potter Road was not a public road, and 17 Potter Road is not accessible by water . We can therefore assume for purposes of

8 Mr. Bowman’s Question 2 asks whether “the applican t’s lot ha[s] frontage on a Class I, II, III or IV P ublic Road or a Town approved private road as required by ” § 2.3.C.1? Mr. Bowman suggests in his response t o Mr. Ledoux’s sur-reply that whether Potter Road is a to wn-approved private road is not raised by the summa ry judgment motion. However, the motion does rely on the Court concluding that Potter Road is not a town-approved private road. For this reason, the motion, at page 3, stat es that “Potter Road is not a . . . town approved p rivate road,” citing to the statement of material facts, which cite in t urn Mr. Bowman’s affidavit.7

ruling on this motion that the Planning Commission approved access via Potter Road at that time, either explicitly, or implicitly by granting a perm it for construction of the mobile home. In 2012, the Town issued a permit to Mr. Bowman to build a home at 46 Potter Road. Again, that lot is only accessible via Potter Road, and the regulations in effect at that time required town approval of the road in order to perm it construction on a lot. It is unclear whether any explicit approval was given. Even if there was no explicit approval, however, we assume for purposes of ruling on this motion that issuing the building permit implicitly approved Potter Road as an acceptable way to access the lot. Because it is possible that Potter Road is a town-a pproved private road by these prior permit approvals, Mr. Bowman’s motion for summary j udgment on this issue, and Question 2, is
DENIED

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c. Whether further approval of Potter Road is required We take the implicit or explicit approval of Potter Road as an accessway for prior construction at 17 and 46 Potter Road as evidence e ither that Potter Road is a town-approved road; or that the Town has already approved Potter Road under § 2.3.C.2 for 17 Potter Road. In either case, no further approval of Potter Road is required for Mr. Ledoux’s application to be approved. We are therefore inclined to conclude th at Potter Road satisfies § 2.3, and grant judgment to Mr. Ledoux on this issue. Because ther e is no cross-motion requesting such judgment, we invite the parties to file briefs, if they wish to, on this issue pursuant to V.R.C.P. 56(f).
IV. Remaining Questions We answer Question 1, above, in the affirmative. Q uestions 2–5 focus on whether 17 Potter Road has appropriate access. 9 Question 5 asks “Does the project comply with the” 2016 Regulations? This question is extremely broad. A party appealing a decision to the Environmental D ivision must file a Statement of Questions to be determined on appeal. V.R.E.C.P. 5 (f). The Statement of Questions “functions like a pleading to limit the issues that are to be heard on appeal.” Id. Advisory Notes. The

9 Question 4 asks whether the proposed access is a p rivate road or driveway.8

Statement of Questions also serves to put the parti es, and the Court, on notice as to the issues to be litigated. In re Unified Buddhist Church, In c., Indirect Discharge Permit, No. 253-10-06 Vtec, slip op. at 5 (Vt. Envtl. Ct. May 11, 2007) (Wright , J.) (explaining that the Court and opposing parties “are entitled to a statement of questions t hat is not vague or ambiguous, but is sufficiently definite so that they are able to know what issues to prepare for trial”). If a Statement of Questions is vague or ambiguous, the Court can orde r the appellant to clarify its Questions. In re Atwood Planned Unit Dev., 2017 VT 16, ¶¶ 13–14 (Mar . 17, 2017). Question 5 is vague in that it fails to put the Cou rt or the other parties on notice as to what issues—apart from the question of access addre ssed in this motion—are to be litigated. For this reason, we order Mr. Bowman to clarify thi s question by adding specificity. Order For the forgoing reasons, Mr. Ledoux’s motion to f ile a sur-reply is GRANTED , and Mr. Bowman’s motion for summary judgment is DENIED

. Pursuant to V.R.C.P. Rule 56(f), parties may file briefs on our intended conclusion that Potter Road satisfies § 2.3 because it is either a town-approved private road, or because it has already been approved under § 2.3.C.2. Those brief s shall be filed no later than February 5, 2018. Mr. Bowman is further ORDERED to clarify Question 5 with specificity no later tha n February 5, 2018.

Electronically signed on January 04, 2018 at 03:34 PM pursuant to V.R.E.F. 7(d).

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