1 Some of the questions in the Statement of Questio ns are framed in terms of

whether the application contains all the informatio n required by the regulations; other questions are framed in terms of whether the propos al satisfies certain sections of the regulations.

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 Motion for Summary Judgment 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.; and the Town of Monkton is represented by David Rath, Esq. Appellee-Applicants have moved for summary judgmenton all questions in the
Statement 1 of Questions. Appellants have only responded spec ifically with regard to Questions 1, 2, 8, 9, and 10. However, failure to r espond to a motion for summary judgment does not result in automatic summary judgm ent in favor of the moving party; the Court must nevertheless satisfy itself that the materials supporting the motion for summary judgment are “both formally and substantive ly sufficient to show absence of a fact question” and that the moving party is entitle d to judgment as a matter of law. Miller
v. Merchant’s Bank, 138 Vt. 235, 238 (1980); see also Milton Educ. & Support Ass’n v.
Milton Bd. of School Trustees , 171 Vt. 64, 74-75 (2000) (quoting Bacon v. Lascel les , 165 Vt.2 The complaint was filed on July 25, 2007 and was a ssigned Docket No 197-7-07

Ancv, but as it has not yet been served, it is not a public record, no answer has been filed, and it has not been scheduled by the Superior Court

.

3 Appellee-Applicants use a numbering system beginn ing with Lot 7, possibly due to a prior subdivision having lots numbered 1 throu gh 6, while Appellants’ Exhibit C shows the lots for the present proposal as numbered 1 through 6. To avoid confusion, this decision uses the numbering system used by Appellee -Applicants’ application at issue in the present case, referring to the lots as numbered 7 through 12.

2 214, 218 (1996)). In this de novo appeal, the Court must apply the substantive stand ards that were applicable before the DRB to determine wh ether there are any genuine issues of material fact and whether Appellee-Applicants are e ntitled to judgment as a matter of law. V.R.E.C.P. 5(g); 10 V.S.A. 8504(h).

The following facts are undisputed unless otherwise noted. 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 pr operty. Appellants claim rights of access to their property from Jockey Lane via priva te rights-of-way and/or by a so-called “pent” public road, over Appellee-Applicants’ prope rty. Appellants have filed 2 a complaint for declaratory relief in the Addison Sup erior Court for a declaration that the pent road and the rights-of-way exist over the Higg ins’ property giving access to Appellants’ properties from Jockey Lane. Appellee-Applicants propose to divide the 85.83-acr e parcel into six lots, numbered 3 as Lots 7 through 12, each proposed to have a build ing site for a single-family house. The4As further discussed with regard to Question 1, be low, the easement and right-ofway sheet of Appellee-Applicant’s application, Shee t C2, shows dotted-and-dashed lines in these locations, but lacks a legend or notes to explain what the dotted-and-dashed lines are intended to represent.

5 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 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. The southernmost five of the six proposed lots: Lots 7 through 11, range from 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 proposed 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 wholly on Lot 9. A thirty-thousand-gallon fire pond with a dry hydrant is proposed to be constructed wi thin the loop of the cul-de-sac, to provide water for fire fighting. Two additional fi fty-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 appear to agree 4that several rights-of-way cross the proposed subdivision and appear to agree as to their locations; they disagree as to the legal status of these rights-of-way and as t o whether the more westerly of these is a so-called “pent” or enclosed public road. 54

Two asserted rights-of-way extend northerly from Jo ckey Road, crossing into Lot 12 of the proposed subdivision at its southeasterly and southwesterly corners. The more easterly of these rights-of-way extends northerly f rom Jockey Lane along the proposed subdivision roadway to just past the driveway 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, a nd well shield envelopes on Lots 8 and 9. After extending onto Lot 12 at its southeasterly co rner, one branch of this right-of-way extends to the north across Lot 12 onto the propert y directly to the south of Appellant Hinsdale’s property. On Lot 12., the other branch o f the more-easterly right-of-way turns to the west and extends westerly across Lot 12, cro ssing the proposed driveway to the Lot 12 house site and crossing through the proposed sit e 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 the 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 to6 Although this settlement has been approved, if the revised plot plan has been filed,

a copy has not been provided to the Court.

5 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 6 depicting
these conditions.

DRB Checklists It is the practice of the DRB to maintain a checkli st, filled out by the DRB or its staff, listing the required submissions for each stage of the subdivision application process, which in Monkton comprises sketch plan review, foll owed by preliminary and then final subdivision plat review. See In re Appeal of Carro ll, 2007 VT 19, ¶¶ 13-14. As this is a de

novo appeal, the fact that an the applicant’s submissio ns were checked off by the DRB or its staff as meeting the requirements for each stag e of review is not dispositive of any issue on appeal, any more than any other portion of the D RB’s decision which is before the Court in this appeal.

Question 5 of the Statement of Questions Appellants’ Question 5 asks whether the proposed subdivision is consistent with certain 2006 amendments to 19 V.S.A. §§ 302 and 305 , the statute addressing the classification and inspection of town highways. No thing in the Monkton Subdivision Regulations incorporates by reference any provision s of Title 19, nor is Title 19 within the jurisdiction of the Court as defined in 4 V.S.A. § 1001(b). Accordingly, Question 5 is beyond the jurisdiction of the Court and Appellee-A pplicants’ motion to dismiss Question
5 is GRANTED.7Section 210 contains one set of numbered subsecti ons for minor subdivisions and

another set of numbered subsections requiring addit ional information to be submitted for major subdivisions. The both sets of information a re required for the present project as a “major” subdivision of more than three lots and requiring a new street.

6 Questions 1 and 6 of the Statement of Questions Appellee-Applicants have also moved to dismiss Ques tions 1 and 6 as beyond the jurisdiction of the Court. Appellants’ Question 1 addresses whether the propos ed subdivision plat contains certain information required to be included in the application. Question 1 asks whether the subdivision plat contained in the application accur ately shows and identifies existing accesses to Appellants’ parcels to the north of the subdivision property, pursuant to § 210(4) of the Subdivision Regulations. 7That section requires (in the first subsection (4 )) that the applicant submit information regarding “existin g 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.” While Appellee-Applicants are correct that this Cou rt is without jurisdiction to determine the extent of the property rights of the parties with respect to any claimed rightof-way or claimed pent public road, the Court does have jurisdiction to determine whether an application for subdivision has met all the requ irements for submission and for approval under the municipality’s regulations. See, e.g. , Appeal of Cole , Docket No. 174-10-01, slip op. at 1 (Vt. Envtl. Ct. May 12, 2003); In re: Appe als of Van Nostrand , Docket Nos. 209-11- 04 Vtec and 101-5-04 Vtec, slip op. at 4 (Vt. Envtl. Ct. Jan. 13, 2006). The Court has only been provided with reduced size versions of the subdivision 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 LAYOUT, RIGHT OF WAY, AND EASEMENT SHEET,” one dating from December o f 2005 and one dated May8 Compare Note 7 on the sheet of the application en titled “SUBDIVISION PLAT,”

referring to a different easement than those appare ntly shown on Sheet C2..

9 Moreover, even if the Subdivision Regulations did address the municipal burden on the roads within the Town of Monkton, they do no t address the upgrading and maintenance of roads in neighboring towns. In any event, the Town of Ferrisburgh had standing as an interested party in this matter, and entered into a settlement with Appellee7 23, 2006, with a revision date marked Final Permit Approval, dated 6/12/06. The final
version of Sheet C2 shows dotted-and-dashed lines e xtending from Jockey Lane towards the north (as well as an east-west line through pro posed Lot 12) in the locations asserted by Appellants to be either private rights-of-way or a pent public road. However, there is no legend or key on Sheet C2 to d efine whether these dotted-anddashed lines are claimed by Appellee-Applicants to be “existing restrictions on the use of land, including easements” or to be “streets which are . . . mapped,” under § 210, or whether Appellee-Applicants’ plan is simply showing them as disputed rights-of-way. Nor can the Court find within the application materials submitted with the present motions any
narrative or other indication of what the dotted-an d-dashed lines are intended to represent. Without such a key, legend, note 8 or narrative, material facts are in dispute as to whether Sheet C2 of the proposed subdivision plan meets the requirements of § 210. Therefore, Appellee-Applicants’ motion for summary judgment onQuestion 1 is DENIED.

Appellants’ Question 6 asks whether the applicationadequately addresses “the municipal burdens to Monkton and Ferrisburgh associ ated with the upgrading and maintenance of Jockey Lane and other municipal road s.” However, unlike the standards applicable to conditional use approval, compare 24 V.S.A. § 4414(3)(A)(i), (iii), nothing in the Subdivision Regulations appears to address the upgrading or maintenance of municipal
roads 9 beyond the boundaries of the subdivision parcel. To extent that the project’s effectApplicants, so that Question 6 as it pertains to th e Town of Ferrisburgh has also become

moot. In re Grievance of Vt. State Employees’ Ass’ n, Inc. , 2005 VT 135, ¶10, 179 Vt. 578, 581 (2005).

10 Of course, if Appellants show that some requiremen t of the Subdivision Regulations is not met by the application, and if A ppellee-Applicants therefore later determine that they wish to request a waiver, the Co urt would then have to consider whether to remand the application to the Developmen t Review Board for it to consider the waiver in the first instance.

8 on Jockey Lane is addressed by the project’s curb c ut permit, if it is the Selectboard that granted the curb cut permit, an appeal of that deci sion is also beyond the jurisdiction of this Court. 4 V.S.A. § 1001(b). Accordingly, Question 6 is beyond the jurisdiction of the Court and Appellee-Applicants’ motion to dismiss Question6 is GRANTED.

Questions 8 and 9 of the Statement of Questions Appellants’ Question 8 asks whether the applicationaccurately identifies “requested waivers of road frontage and other district plannin g standards.” While § 140 of the Subdivision Regulations allows the Development Revi ew Board, and hence this Court in
this de novo appeal, to waive the provision of otherwise-requir ed improvements, subject to appropriate conditions, the portion of the appli cation provided to the Court contains no indication that Appellee-Applicants have requested any waivers of any of the requirements of the Subdivision Regulations. It is up to Appell ee-Applicants to determine whether they wish to request any waivers 10 in their application. Accordingly, Appellee-Appli cants’ Motion for Summary Judgment as to Question 8 is GRA NTED.

Appellants’ Question 9 asks whether the septic disp osal facilities for the subdivision are “properly sited” vis-à-vis the “existing access es to adjoining properties.” The issue raised by Question 9 is not whether the proposed lo cations of the septic disposal facilities9

meet the state or local requirements for approval o f septic facilities; they have received state approval which has not been appealed, and only stat e approval is required under §256 of the Subdivision Regulations. Rather, the issue rais ed by Question 9 is whether the location of the septic systems for some of the lots interfer es with the rights of Appellants to the use of certain of the claimed rights-of-way. Because the Subdivision Regulations do not require the DRB, and hence this Court in this de novo appeal, to approve the location of septic systems, Question 9 is beyond the jurisdiction of t his Court. Accordingly, AppelleeApplicants’ Motion for Summary Judgment as to Quest ion 9 is GRANTED.

Questions 2, 3, and 7 of the Statement of Questions Appellants’ Question 2 asks whether the proposed subdivision meets the requirements of § 321(2), (6), (7), (9), (11), (12), and (13) regarding the issues of access to adjoining parcels, fire protection, and provision for utilities. Section 321(7) is addressed below in the discussion of Question 3. Section 321(2) requires that subdivision streets “s hall be arranged as to cause no undue hardship to adjoining properties, and shall be coordinated so as to compose a convenient system.” Section 321(11) requires that the “[a]rrangement of streets shall provide for continuation of existing streets betwee n adjacent properties where necessary for convenient movement of traffic, fire protection [,] or efficient provision of utilities.” Until the status of the asserted rights-of-way (inc luding the asserted “pent” public road) is resolved, this Court cannot determine whether th e 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 continuation of any project roadways is necessary for convenient mo vement of traffic, for fire protection, or for the efficient provision of utilities to thos e adjoining properties. Accordingly, summary judgment must be denied as to §§ 321(2) and (11).10

Section 321(6) requires that “[w]here a tract is subdivided into lots much larger than the minimum size required in the Zoning District inwhich a subdivision is located” the DRB may require that streets be laid out to permit future subdivision. The minimum lot size in the RA 5 zoning district has not been provi ded to the Court, but assuming from the
name of the district that the minimum lot size is five acres, only lot 12 is “much larger” than
the minimum lot size. As the easement for the subdi vision roadway has been extended onto Lot 12 in two locations, the subdivision meets this requirement. Accordingly, summary judgment must be granted in favor of Appell ee-Applicants as to § 321(6). Section 321(9) states that “[h]alf streets and pri vately owned reserve strips controlling access to streets or adjacent property shall be prohibited.” The proposal does not appear to propose any half streets or privately -owned reserve strips. Accordingly, summary judgment must be granted in favor of Appell ee-Applicants as to § 321(9). Section 321(12) states that “[i]f the adjacent prop erty is undeveloped and the street must be a dead-end temporarily, right[s] of way and improvements shall be extended to the property line.” Until the development status of adjacent property and the status of the asserted rights-of-way (including the asserted “pen t” public road) is resolved, this Court cannot determine whether the asserted rights-of-way would qualify as extension of rightsof-way to the property line under this section. Ac cordingly, summary judgment must be denied as to § 321(12). Section 321(13) states that “[n]o dead-end streets shall be permitted except when topographic or physical conditions make it impossib le, at the time, to extend it or connect it with another proposed or existing street.” No p roposed or existing streets have been claimed to exist on any adjoining property. Accord ingly, summary judgment must be granted in favor of Appellee-Applicants as to § 321 (13). Therefore, because the issue of whether rights-of-w ay and a pent road exist on the proposed subdivision, Appellee-Applicants’ motion f or summary judgment on Question11

2 is DENIED as to §§ 321(2), (11) and (12) and is G RANTED in favor of Appellee-Applicants as to as to §§ 321(6), (9) and (13).

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, that is, Jockey Lane. 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 wid ening of the street that would require reservation of some land of the subdivision,” the fi nal plat must mark those areas as “Reserved for Street Realignment (or Widening) Purp oses.” Appellee-Applicants have not provided either the Town Plan or the Official Map, nor have they provided an affidavit of an appropriate Town official, to show that the TownPlan and Official Map do not indicate plans for realignment or widening of Jockey Lane. As material facts have not been provided to support the granting of Appellee-Applic ants’ motion for summary judgment on Question 3, it is DENIED, without prejudice to its renewal at or before trial.

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. We treat this question a s addressing whether the subdivision proposal meets § 445 of the Subdivision Regulations , rather than addressing the capacity of the Monkton Fire Department (as in the case of Q uestion 6). Material facts are in dispute, or at least have not been provided to the C ourt, as to whether the Monkton Fire Chief is satisfied with the adequacy of the water s torage facilities for fire protection provided by the subdivision plan, as required by § 445, nor as to whether the dry hydrant to be installed in connection with that fire pond m eets the requirements of § 445 for the installation of fire hydrants in the subdivision. If it does not, that requirement could be the12

subject of a waiver request, but no such waiver request appears to have been made. As material facts have not been provided to support th e granting of Appellee-Applicants’ motion for summary judgment on Question 7, it is DEN IED, without prejudice to its
renewal at or before trial.

Question 4 of the Statement of Questions Appellants’ Question 4 asks whether the proposed subdivision meets the requirements of § 340 of the Subdivision Regulation s, which addresses the reservation of land for recreation, or payment in lieu of such res ervation. Appellee-Applicants are correct that § 340 is discretionary with the DRB, and hence this Court, however, they have not provided sufficient undisputed facts for the Court to make a determination that the
reservation of land for recreation should not be re quired under § 340. As material facts have not been provided to support the granting of A ppellee-Applicants’ motion for summary judgment on Question 4, it is DENIED, witho ut prejudice to its renewal at or
before trial.

Question 10 of the Statement of Questions In their Statement of Questions, Appellants ask whe ther the proposed subdivision protects and provides for continuing forestry and r ecreational uses of the adjoining properties, referring to the Monkton Town Plan Sect ion 2(E) and (F). Section 305(2) of the Subdivision Regulations requires subdivisions to “b e in harmony with the Town Plan.” Appellee-Applicants argue that the “Forest Stewards hip Plan” to be created by the Declaration of Covenants goes well beyond what is r equired by the Town Plan. However, neither party has provided a copy of the Town Plan from which the Court could determine whether the subdivision is in harmony with those To wn Plan requirements. As material facts regarding the Town Plan have not been provide d to support the granting of Appellee-13

Applicants’ motion for summary judgment on Question10, it is DENIED, without prejudice to its renewal at or before trial.

Accordingly, based on the foregoing, it is hereby O RDERED and ADJUDGED that Appellee-Applicants’ Motion for Summary Judgment is GRANTED with respect to the portion of Question 2 addressing §§ 321(6), (9), and (13) and with respect to Questions 5, 6, 8 and 9; it is otherwise DENIED, as to the porti on of Question 2 addressing §§ 321(2), (7), (11), and (12) and with respect to Questions 1, 3, 4, 7 and 10, as material facts are in dispute, or at least have not been provided to the Court, as to those questions.

A telephone conference has been scheduled (see encl osed notice) to discuss the appropriate next scheduling for this matter, includ ing whether the parties wish to proceed to schedule the trial or whether, if Appellants wil l be serving the complaint and otherwise pursuing the declaratory judgment action, the parti es wish to wait until the superior court proceedings have been resolved.

Done at Berlin, Vermont, this 28 thday of September, 2007.

_________________________________________________ Merideth Wright Environmental Judge