Vermont Superior Court 

Environmental Division 

State of Vermont 

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E N T R Y R E G A R D I N G M O T I O N 

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Linda C. Nordlund Docket No. 42-3-10 Vtec 

 v. 

Elizabeth M. Van Nostrand; Elizabeth M. Van Nostrand 2007 Trust; Mark L. 

 Van Nostrand and Nancy A. Van Nostrand 

 (private enforcement action of municipal zoning proceedings) 

Title: Motions for Summary Judgment, (Filing Nos. 4 & 5) 

Filed: May 28, 2010 and June 1, 2010 

Filed By: James C. Foley, Jr., Attorney for Defendants Elizabeth M. Van 

 Nostrand and the Elizabeth M. Van Nostrand 2007 Trust, and Defendants 

 Mark L. and Nancy A. Van Nostrand, representing themselves 

Response in Opposition filed on 06/28/10 by Karl W. Neuse, Attorney for 

 Plaintiff Linda C. Nordlund 

_x_ Granted ___ Denied ___ Other 

Plaintiff Linda Nordlund filed this action under 24 V.S.A. § 4470(b) to 

enforce a judgment order of this Court. In response, Defendants Mark and Nancy 

Van Nostrand and Elizabeth Van Nostrand, both in her personal capacity and in 

her capacity as trustee of the Elizabeth M. Van Nostrand 2007 Trust, have filed 

Answers,1 Counterclaims, and motions for summary judgment as to all of 

Plaintiff’s claims against all Defendants.2 Plaintiff has responded in 

opposition to both of the motions filed by Defendants and Elizabeth Van 

Nostrand, in both capacities, has replied in opposition. This Entry Order 

addresses Defendants’ respective claims that Plaintiff’s Complaint against them 

should be dismissed; a companion Entry Order addresses Plaintiff’s separate 

motion to dismiss Defendants’ counterclaims. 

Factual Background

 For the sole purpose of putting the pending motions into context we 

recite the following facts, which we understand to be undisputed unless noted 

otherwise: 

1. Plaintiff, Linda Nordlund, owns property on West Shore Road in Salisbury, 

Vermont. Defendant Elizabeth Van Nostrand owns and resides on a 1.1± acre 

 

1

 Although Defendants are referred to collectively, we note here that Defendant Elizabeth Van Nostrand and 

Defendants Mark and Nancy Van Nostrand have separate interests and, at times, separate defenses. We address in this 

Entry Order all arguments relevant to the claims raised by Plaintiff in her Complaint. 

2

 Elizabeth Van Nostrand, in both her individual and Trustee capacity, is represented in this enforcement proceeding 

by Attorney James C. Foley, Jr. Attorney Foley filed a motion for summary judgment on behalf of Mrs. Van Nostrand 

on May 28, 2010, seeking dismissal of all of Plaintiff’s claims against his client. On June 1, 2010, Mark and Nancy 

Van Nostrand, who represent themselves, filed their own summary judgment motion, seeking dismissal of all of 

Plaintiff’s claims against them. Each of Defendants’ respective filings was supported by statements of undisputed 

facts. By filings received June 25, 2010, Plaintiff responded to both sets of summary judgments motions and 

statements of undisputed facts. 
Nordlund v. Van Nostrand, et. al., No. 42-3-10 Vtec (Entry Order on Defendants’ sj motions)(07-07-10) Page 2 of 5. 

parcel (the “front parcel”) immediately north of Plaintiff’s property. 

Defendants Mark and Nancy Van Nostrand own and reside on a 24± acre parcel (the 

“back parcel”) which is separated from West Shore Road by Plaintiff’s parcel 

and the front parcel. 

2. Both the front and back parcels were once owned jointly by Ronald and 

Elizabeth Van Nostrand. In September 2007, Ronald Van Nostrand conveyed his 

interest in the parcels to Elizabeth Van Nostrand. Elizabeth Van Nostrand 

transferred her interest in the front parcel to herself, as trustee of the 

Elizabeth M. Van Nostrand 2007 Trust, reserving to herself a life estate and a 

power of sale. In March of 2009, Mrs. Van Nostrand then conveyed all interests 

in the back parcel to Mark and Nancy Van Nostrand. 

3. Prior superior court litigation, finalized in an appeal to the Vermont 

Supreme Court, established that a right of way (the “Nordlund right of way”) 

exists between the back parcel and West Shore Road, thereby providing access 

for the benefit of the back parcel. This right of way crosses over both 

Plaintiff’s property and Mrs. Van Nostrand’s front parcel; where it crosses 

over Plaintiff’s property, it is no more than eighteen feet wide. See Nordlund 

v. Van Nostrand, No. 56-3-06 Ancv (Ad. Sup. Ct. Dec. 14, 2006) (Katz, J.), 

aff’d., No.2007-027, slip op. (Vt. Aug. 17, 2007) (unpub. mem.). 

4. In 2004, Ronald and Elizabeth Van Nostrand applied for a zoning permit to 

construct a residence on the back parcel. The Zoning Administrator granted the 

permit, but the Town of Salisbury Development Review Board (“DRB”) reversed the 

granting of that permit application when Ms. Nordlund appealed, finding that 

access to the property did not comply with the 50-foot minimum width 

requirement of the Town of Salisbury Zoning Regulations (“Regulations”). The 

Van Nostrands appealed the DRB determination to this Court. 

5. In 2005, Ronald and Elizabeth Van Nostrand also applied for a variance to 

access the back parcel through the undersized Nordlund right of way. The DRB 

denied the variance and the Van Nostrands appealed to this Court. The right of 

way and permit appeals were consolidated for trial by this Court. 

6. On appeal, this Court ruled that the building permit should be reinstated. 

In re Van Nostrand, Nos. 209-11-04 & 101-5-05 Vtec, slip op. (Vt. Envtl. Ct. 

May 18, 2007) (Durkin, J.). Plaintiff appealed this ruling to the Vermont 

Supreme Court, which reversed that determination and remanded the pending 

variance and permit applications to this Court. In re Van Nostrand, 2008 VT 77. 

7. While these appeals were pending, Mark and Nancy Van Nostrand applied for a 

zoning permit to construct their house on the back parcel and for approval of 

an alternate 50-foot wide right of way for the back parcel through the front 

parcel (the “Van Nostrand right of way”). The DRB approved this alternate 

right of way and building permit.3 

8. On remand of the consolidated zoning applications from the Supreme Court, 

this Court conducted a trial and thereafter denied the Van Nostrands’ variance 

request, due to the undersized width of the Nordlund right of way. Having 

denied the variance request, this Court concluded that it must also deny the 

2004 zoning permit application that relied upon the Nordlund right of way. In 

re Van Nostrand, Nos. 209-11-04 & 101-5-05 Vtec, slip op. (Vt. Envtl. Ct. Oct. 

21, 2009) (Durkin, J.). Those determinations were not appealed by either party 

and have therefore become final. 

9. In support of Mark and Nancy Van Nostrand’s second permit application, 

Elizabeth Van Nostrand conveyed to them an alternate, fifty-foot-wide easement 

 

3

 The first zoning permit for construction was granted in 2007. Construction was not begun on the parcel and the 

permit lapsed after two years. A second zoning permit was applied for and granted in 2009. 
Nordlund v. Van Nostrand, et. al., No. 42-3-10 Vtec (Entry Order on Defendants’ sj motions)(07-07-10) Page 3 of 5. 

over her front parcel, to serve as an alternate access for the back parcel. 

Defendants Mark and Nancy Van Nostrand have since completed construction of a 

house on the back parcel. In the course of occupying and using their new home, 

Mark and Nancy Van Nostrand and their invitees have used both rights of way 

over the Nordlund and Van Nostrand properties to access their back parcel home. 

10. Elizabeth Van Nostrand has on occasion traveled over Plaintiff’s property 

in the course of accessing her front parcel property. Mrs. Van Nostrand does 

not have a lawful right to access her property via Plaintiff’s property, having 

conveyed the right of way that partially travels over Plaintiff’s property to 

her son and daughter-in-law when she conveyed the back parcel to them. 

11. On occasion, Elizabeth Van Nostrand has parked her vehicle in such a 

manner, and allowed her guests to park their vehicles in such a manner, that 

the only available access to the back parcel is over the right of way that 

partially travels over Plaintiff’s property. 

Discussion 

Plaintiff Nordlund filed this enforcement action against all three named 

Defendants, premised upon the following: (a) the October 21, 2009 Judgment 

Order (“Order”) of this Court; (b) various permit determinations by the DRB 

relating to the back parcel; and (c) applicable provisions of the Regulations. 

Plaintiff relies upon 24 V.S.A. § 4470(b) and V.R.E.C.P. 3(3) for the 

jurisdictional authority to prosecute her claims. Defendants have filed 

motions for summary judgment, challenging the jurisdictional authority of all 

of Plaintiff’s claims. For the reasons stated below, we GRANT Defendants’ 

summary judgment requests. 

As has been often stated, a trial court may only grant a motion for 

summary judgment when “the pleadings, depositions, [and] answers to 

interrogatories, ... together with the affidavits, if any, ... show that there 

is no genuine issue as to any material fact and that any party is entitled to 

judgment as a matter of law.” V.R.C.P. 56(c)(3). As we review a motion for 

summary judgment, we “must consider the facts presented in the light most 

favorable to the nonmoving party.” Madkour v. Zoltak, 2007 VT 14, ¶ 12, 181 Vt. 

347. With this standard in mind, we review the pending motions. 

A private individual is authorized to bring an action against another 

individual or municipality under 24 V.S.A. § 4470(b) to enforce a decision of 

“a zoning board of adjustment (ZBA), planning commission, or development review 

board (DRB).” Whitmore v. Phillips, No. 18-1-09 Vtec, slip op. at 3 (Vt. 

Envtl. Ct. Mar. 12, 2009) (Wright, J.). Such actions may also be brought when 

based upon municipal land use determinations made by this Court on appeal. 

City of Burlington, v. Richardson, No. 188-10-03 Vtec, slip op. at 12 (Vt. 

Envtl. Ct. June 27, 2006) (Wright, J.). We therefore review Plaintiff’s 

Complaint to determine what claims are presented that may lawfully be presented 

under § 4470(b). 

Plaintiff seeks to enforce this Court’s Order which denied a zoning 

permit and variance for approval of the access via the Nordlund right of way. 

However, we have searched in vain for the provision of that Order that 

Defendants have violated. The Order has no specific provision prohibiting the 

use of the Nordlund right of way; Plaintiff argues that the Order contains such 

a directive, but we find none. In fact, this Court specifically concluded that 

“it does not have the jurisdictional authority to determine the nature and 

limits of the use and enjoyment by either party of their respective properties, 

including easements that encumber or benefit those properties.” Order at 4. 

Plaintiff appears to interpret our denial the variance request concerning 

the Nordlund right of way as a rejection of the Van Nostrand’s right to use the 
Nordlund v. Van Nostrand, et. al., No. 42-3-10 Vtec (Entry Order on Defendants’ sj motions)(07-07-10) Page 4 of 5. 

right of way that partially traverses Plaintiff’s property. We rejected such a 

claim as beyond the scope of the permit applications we considered over the 

last several years, and must now reject Plaintiff’s assertion that the 2009 

Order contains such a prohibition on the Van Nostrand’s easement rights. 

Plaintiff wishes to enjoin Defendants from using the right of way over 

her property to access the Van Nostrand residences. In order for such relief 

to be awarded under 24 V.S.A. § 4470(b) there must be a decision, either from 

an appropriate municipal panel or this Court, specifically stating that 

Defendants’ use is prohibited. In our search of our record of all municipal 

land use determinations relating to the Van Nostrand property, we find no such 

directive from an appropriate municipal panel, or this Court. 

In her complaint, Plaintiff references the DRB zoning permit which 

approved access to the back parcel through the Van Nostrand right of way. This 

brief mention does not refer to any specific permit condition to be enforced. 

We find no specific provision that limits or bars Defendants’ use of the 

Nordlund right of way. In the absence of a clear and specific prohibition 

contained as a permit condition, we must conclude that Plaintiff has failed to 

identify a zoning permit condition that can be enforced under 24 V.S.A. 

§ 4470(b). 

For a zoning permit to be the subject of an enforcement action, the 

permit condition “must be expressed with sufficient clarity to give notice” of 

possible enforcement. In re Farrell & Desautels, Inc., 135 Vt. 614, 617 (1978) 

(citing Suburban Club of Larkfield, Inc. v. Town of Huntington, 294 N.Y.S.2d 4, 

8 (N.Y. Sup. Ct. 1968) aff'd., 297 N.Y.S.2d 893 (N.Y. 1968) (unpub. mem.)). We

must be mindful that zoning permits and the zoning ordinances upon which such 

permits rely “are in derogation of common law property rights and that ‘in 

construing land use regulations any uncertainty must be decided in favor of the 

property owner.’” In re Weeks, 167 Vt. 551, 555 (1998) (citing In re Vitale, 

151 Vt. 580, 584, (1989)). If a provision is to be enforced, fair notice must 

be given to the party against whom enforcement is sought. Id. 

In the absence of a decision of an appropriate municipal panel or this 

Court clearly restricting the use of the Nordlund right of way, we cannot 

provide the relief Plaintiff requests under 24 V.S.A. § 4470. Id. 

The Environmental Court is a court of limited jurisdiction and, as such, 

only possesses the authority granted to it by the Legislature; the power of 

this Court is limited to cases arising under specific statutes. See 4 V.S.A. 

§ 1001. “There is no presumption of jurisdiction as to courts of special and 

limited powers.” Barber v. Chase, 101 Vt. 343, 305 (1928) (citing Barrette v. 

Crane, 16 Vt. 246 (1844)). 

The Environmental Court’s authority is narrowly defined; we must be 

diligent in refusing to address matters not within our jurisdiction. “It has 

long been the law of this State that a court will dismiss a cause at any stage, 

whether moved by the party or not, when it is discovered that it [lacks subject 

matter] jurisdiction.” Gerdel v. Gerdel, 132 Vt. 58, 65 (1973) (citing In re

Bellows Falls Hydro-Elec. Corp., 114 Vt. 443, 445 (1946)). “This Court has a 

duty to dismiss legal issues ‘[w]henever it appears by suggestion of the 

parties or otherwise that the court lacks jurisdiction of the subject matter.’” 

In re Champlain Marina, Inc., Dock Expansion, No. 28-2-09 Vtec, slip op. at 9 

(Vt. Envtl. Ct. July 31, 2009) (Durkin, J.) (quoting V.R.C.P. 12(h)(3)). 

Plaintiff’s claims fall outside of the jurisdiction of this Court. 

Plaintiff asks for Defendants to be enjoined from using the Nordlund right of 

way and from blocking the Van Nostrand right of way. Plaintiff also asks the 

Court to allow her to install signage and a gate to restrict access to the 
Nordlund v. Van Nostrand, et. al., No. 42-3-10 Vtec (Entry Order on Defendants’ sj motions)(07-07-10) Page 5 of 5. 

Nordlund right of way. Without a prior decision from an appropriate municipal 

panel or this Court authorizing these requests, we have no jurisdictional 

authority to address them. See In re Van Nostrand, Nos. 209-11-04 & 101-5-05 

Vtec, slip op. at 9 (Vt. Envtl. Ct., Jan. 13, 2006) (Durkin, J.) (“[T]he 

Environmental Court is not vested with the jurisdiction to determine the 

parties' respective private property rights to land or easements that benefit 

or encroach upon their property.”); In re Kelley, No. 34-3-04 Vtec, slip op. at 

6 (Vt. Envtl. Ct. Aug. 19, 2005) (Wright, J.) (“[T]his Court cannot resolve 

disputed property rights as between the parties.”). Indeed, the Order states 

that “the Court noted from the bench that it does not have the jurisdictional 

authority ... to determine the nature and limits of the use and enjoyment by 

either party of their respective properties, ‘including easements that encumber 

or benefit those properties.’” In re Van Nostrand, Nos. 209-11-04, 101-5-05 

Vtec, slip op. at 4 (Vt. Envtl. Ct. Oct. 21, 2009) (Durkin, J.). To act upon 

Plaintiff’s requests, as well as her request to render void an agreement 

between Defendants Mark and Nancy Van Nostrand and Elizabeth Van Nostrand, 

would require us to ignore our jurisdictional limitations. This we cannot do. 

Absent a clear decision of a municipal panel or this Court, the relief 

Plaintiff seeks would require an independent determination of property rights 

and contract rights, neither of which is within the jurisdiction of this Court. 

Because these issues are outside of our jurisdiction, we declined to address 

them in our prior trial and, therefore, cannot address them through an action 

brought to enforce that Order. 

After review of this action by the Court, we find that, even when viewing 

all material facts in a light most favorable to Plaintiff, we must conclude 

that this Court lacks subject matter jurisdiction over all the claims Plaintiff 

raises in her Complaint. As such, we are required to DISMISS Plaintiff’s 

action and GRANT Defendants’ motions for summary judgment. 

___________________________________________ ___July 7, 2010______ 

 Thomas S. Durkin, Judge Date 

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Date copies sent to: ____________ Clerk's Initials _______ 

Copies sent to: 

 Karl W. Neuse, Attorney for Plaintiff Linda C. Nordlund 

 James C. Foley, Jr., Attorney for Defendants Elizabeth M. Van Nostrand and 

 the Elizabeth M. Van Nostrand 2007 Trust 

 Defendant Mark L. Van Nostrand 

 Defendant Nancy A. Van Nostrand