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### STATE OF VERMONT SUPERIOR COURT ENVIRONMENTAL DIVISION Vermont Unit Docket No. 53

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- 14 Vtec

Couture Subdivision Permit 

### DECISION ON MOTION

Before the Court on appeal is a decision by the Tow n of Ferrisburgh Planning Commission (“Planning Commission”) granting Jacquel ine Couture (“Applicant”) approval to reconfigure and further subdivide an existing two l ot subdivision at 70 Locust Lane in the Town of Ferrisburgh, Vermont (“the Project”). Barry Est abrook and Rux Martin (“Appellants”), who own and occupy property adjacent to the subject pro perty, timely appealed that decision to this Court and filed a Statement of Questions consi sting of seven Questions. Applicant filed a Motion seeking Summary Judgment in her favor or dis missal of all seven Questions. In a Decision dated February 23, 2015, this Court dismis sed Questions 2, 3, 4, 5, 6, and 7. Also by our Decision dated February 23, 2015, this Court di rected Appellants to clarify Question 1 and specifically state the provisions and criteria for which they seek review within 10 business days of the date of that Decision and indicated our inte nt to dismiss Question 1 in the event Appellants failed to clarify the Question by that d ate or if the issues presented were beyond the scope of this appeal.

**Discussion** On March 6, 2015 Appellants filed a clarification o f Question 1, containing seven sections, generally asking whether the Project comp lies with the Town of Ferrisburgh Subdivision Regulations (“Regulations”) §§ 250.5, 2 10, 410.5, 410.1, 420.3, 420.7, and 450. For ease of discussion, we consider each of these secti ons as a subsection of Question 1. In response to Appellants’ clarification, Applicant fi led a Motion for Judgment on April 3, 2015, asking that the Court dismiss Appellants’ clarified Question 1. We review this motion for judgment as a matter of law under Vermont Rule of C ivil Procedure 56.2

In ruling on Applicant’s motion, we must assume the factual allegations made by Appellants are true, view those facts in the light most favorable to Appellants, and can only grant judgment to Applicant if she has shown that b ased on those facts she is entitled to judgment as a matter of law. Robertson v. Mylan La bs., Inc., 2004 VT 15, ¶ 15, 176 Vt. 356 (internal citations omitted); V.R.C.P. 56(c) (layin g out summary judgment procedures). It is with these procedural guidelines in mind that we review the subsets of Appellants’ revised Question 1. **I. Question 1(1): Regulations § 250.5** Regulations § 250.5 requires review of the “practic ability of the preliminary plat” and provides that “[p]articular attention shall be give n to . . . the requirements of the Comprehensive Development Plan.” By their clarifie d Question 1(a), Appellants argue that Applicant has a burden to demonstrate how the Proje ct complies with requirements from the Town Plan discouraging development in the area of t he Project. (Appellants’ Clarification at 2, filed Mar. 6, 2015). Applicant asks this Court to dismiss Question 1(1) for several reasons. First Applicant states that Question 1(1) should be dismi ssed because Appellants’ clarification does little to clarify the Question as they have failed to cite a particular provision of the Town Plan, leaving both the Court and the parties without noti ce of what issues to prepare for trial. Second, Applicant argues that Appellants are incorr ect that the Town Plan discourages development in the area of the Property. Finally, Applicant argues that § 250.5 is too vague to be an enforceable standard applied in evaluating su bdivision applications. Any statement of questions informs the parties of t he issues being appealed and establishes the scope of the appeal. In re Frostbi te Mine , No. 12-1-11 Vtec, slip op. at 1-2 (Vt. Super. Ct. Envtl. Div. Nov. 3, 2011) (Durkin, J.). Furthermore, the Court and opposing parties “are entitled to a statement of questions that is n ot vague or ambiguous, but is sufficiently definite so that they are able to know what issues to prepare for trial.” In re Unified Buddhist Church, Inc., Indirect Discharge Permit , No. 253-10-06 Vtec, slip op. at 5 (Vt. Envtl. Ct. May 11, 2007) (Wright, J.). The Court agrees with Applican t that Appellants’ clarification in Question 1(a) does little to provide Applicant or this Court with notice of what issues to prepare for trial.3

Question 1(1) essentially rephrases Appellants orig inal Question 1, which asked whether the Project satisfies the Regulations, so that it n ow asks whether the Project satisfies the Town Plan. As in their original Question 1, Appellants do not cite any specific sections of the Town Plan; rather, they merely raise the issue of compli ance with the Town Plan generally. Furthermore, like the Applicant, the Court does not find a section of the Town Plan that discourages development in the area of the Project. In fact, the Town Plan designates the area in which the Property is located as a Rural Residen tial Land Use Planning area. Ferrisburgh Town Plan at 63. According to the Town Plan, the c haracter of the Rural Residential areas are “rural with relatively low to medium densities (for Ferrisburgh) or clustered development, typically close to town roads. . . . Year-round fa mily dwellings are the intended use for this district. . . .” Id. at 66. Without further expla nation, neither the Court nor the parties are able to determine what issues to prepare for trial. Que stion 1(1) is, therefore, **DISMISSED** . Having dismissed Question 1(1) for the above reasons, we n eed not address whether § 250.5 is too vague to be an enforceable. **II. Question 1(2): Regulations § 210** Regulations § 210 requires subdivision approval bef ore “grading, clearing, construction or other improvement is undertaken.” By their clar ified Question 1(2), Appellants argue that Applicant violated this section of the Regulations by proceeding with the excavation of two septic fields, a driveway, a foundation, and constr uction of a modular home prior to obtaining subdivision approval. (Appellants’ Clarification a t 2). Applicant asks this Court to dismiss Question 1(b) because matters concerning septic fie lds are outside this Court’s jurisdiction, as indicated in this Court’s February 23 Decision, and because the listed activities were conducted pursuant to Zoning Permit 13-101, issued by the Tow n of Ferrisburgh Zoning Administrator on October 15, 2013. We agree with Applicant that matters related to sep tic fields are outside this Court’s jurisdiction. Furthermore, whether Applicant’s con struction is or is not in compliance with Zoning Permit 13-101 is a matter of first instance for the Town of Ferrisburgh Zoning Administrator, and not this Court. 24 V.S.A. §§ 44 51, 4452. The sole issue in this de novo appeal is whether Applicant is entitled to a subdiv ision permit. Any alleged violations of the4

Regulations must come to the Court through a proper ly initiated enforcement action. For these reasons, Appellants’ clarified Question 1(2) is **DISMISSED**

. **III. Question 1(3): Regulations § 410.1** Regulations § 410.1 states that “[a]ll land to be s ubdivided shall be, in the judgment of the Commission, of such a character that it can be used for building purposes without danger to public health or safety, or to the environment. La nd subject to periodic flooding, poor drainage . . . shall not ordinarily be subdivided.” By thei r Question 1(3), Appellants argue that the Project should not be subdivided because the Property is “l ow, portions of it flood annually, and according to claims made by the engineer who instal led the septic mounds, nearly all of it has poor drainage.” Applicant argues that § 410.1 is t oo vague for this Court to apply to review of an application, that Appellants have no standing to raise this argument because the Property’s susceptibility to flooding has no impact on Appella nts’ land, and that regardless, the Property is free of hydric soils 1 and is not located in either wetlands or a FEMA Fl ood Hazard Area, as designated by the Town Plan. We first address whether § 410.1 is enforceable or unconstitutionally vague. When reviewing a municipal land use decision, we begin w ith the presumption that a zoning regulation is constitutional. In re Highlands Deve lopment Co., LLC, No. 194-10-03 Vtec, slip op. at 13 (Vt. Envtl. Ct. Feb. 2, 2010) (Wright, J.) (c iting Hunter v. State, 2004 VT 108, ¶ 31, 177 Vt. 339). Our approach to complaints of “standardless, arbitrary discretion focuses on the criteria for due process and equal protection.” In re Pierc e Subdivision Application, 2008 VT 100, ¶ 19, 184 Vt. 365 (citing In re Handy, 171 Vt. 336, 345-4 6 (2000)). We will consider two factors to determine whether a regulation is void for vaguenes s and thus unconstitutional. First, we consider whether the regulation is “sufficiently pr ecise that an ordinary person using the means available and ordinary common sense can understand the meaning and comply” and does not leave an applicant “uncertain as to what factors ar e to be considered by the [municipal panel].” Rogers v. Watson, 156 Vt. 483, 491 (1991) (citing B rody v. Barasch, 155 Vt. 103, 111 (1990); Town of Westford v. Kilburn, 131 Vt. 120, 124 (1973 ). Second, we consider whether the

1 As defined by the Town Plan, hydric soils are thos e “perpetually saturated with water such that the p hysical, chemical and biological properties reflected in the soil profile clearly demonstrates long periods of saturation.”5

regulation provides standards that sufficiently gui de municipal decisions and therefore do not allow for the “exercise of discretion in an arbitra ry or discriminatory fashion.” Pierce Subdivision, 2008 VT 100 at ¶ 20 (quoting Kilburn, 131 Vt. at 124). Additionally, we must strike a balance between the flexibility a municipal panel must have in reviewing a specific development proposal a nd a landowner’s right to know what standards govern an application. See Rogers, 156 V t. at 491; see also Handy, 171 Vt. at 349; Kilburn, 131 Vt. 124 (“On one hand the standards go verning the delegation of such authority should be general enough to avoid inflexible result s, yet on the other hand they should not leave the door open to unbridled discrimination.”). Thus, while we must “invalidate ordinances that ‘fail to provide adequate guidance” and allow for “ad-hoc decision making that is essentially arbitrary,” we will uphold general stan dards “accompanied by some ability of landowners to predict how discretion will be exerci sed.” Pierce Subdivision, 2008 VT 100, ¶ 20 (quoting Kilburn, 131 Vt. at 125); Handy, 171 Vt. a t 349. For this reason, we consider the regulation in the context of the entire ordinance s o that “even if some of the bylaws' objectives are general,” it may be constitutional “as long as other provisions impose specific limits to guide and check the [decisionmaker's] discretion.” Roger s, 156 Vt. at 491; Pierce Subdivision, 2008 VT 100 at ¶ 24 (“By providing both general and spec ific standards for [ ] review, the bylaw strikes an appropriate balance between providing gu idance to the Commission and avoiding inflexible requirements which would defeat the crea tivity and flexibility required to effectuate the goals of the [bylaws].”)). Applicant argues that the requirement under § 410.1 that certain land prone to flooding and/or with poor drainage “shall not ordinarily be subdivided” is too ambiguous to be enforceable. We disagree. The preceding sentence of the Regulations informs the interpretation of this standard. That sentence req uires that land to be subdivided be “of such a character that it can be used for building purposes without danger to public health or safety, or to the environment.” Regulations § 410.1. Section 410.1 allows for discretion when considering whether land is suitable for subdivisio n; it does not allow for arbitrary decision making, but rather for flexibility.6

Addressing Applicant’s second argument, standing to appeal municipal zoning decisions is governed by 24 V.S.A. § 4465 and may not be judi cially expanded. In re Verizon Wireless Barton Permit, 2010 VT 62, ¶ 7, 188 Vt. 262 (quotin g Garzo v. Stowe Bd. Of Adjustment, 144 Vt. 298, 302 (1984)). Section 4471(a) extends standing to appeal a municipal panel's decision to “interested persons” who participated in the procee dings below. See 24 V.S.A. § 4465(b)(defining interested person). An interest ed Person is defined in 24 V.S.A. § 4465(b)(3) as one “owning or occupying property in the immedia te neighborhood of a property that is the subject of any decision or act” who can “demonstrat e a physical or environmental impact” on their interest under the criteria reviewed. Applicant argues that whether the Property is subje ct to periodic flooding or poor drainage has no physical or environmental impact on Appellant’s interest. We disagree. Appellants occupy property adjacent to the Project and it is possible that any flooding or exacerbation of drainage issues could result in flo oding of their property. This is sufficient for standing to raise the issue. Finally, as to Applicant’s argument that her proper ty contains no hydric soils, in ruling on Applicant’s motion we must assume the factual alleg ations made by Appellants are true. Although Applicant attempts to controvert Appellant s statement that the property fails to comply with § 410.1 by showing that her property is free of “hydric soils” and is not located in either wetlands or a FEMA Flood Hazard Area, we can not conclude based on these facts alone that the Project satisfies the requirement in § 410 .1 that “[l]and subject to periodic flooding, poor drainage . . . shall not ordinarily be subdivi ded.” We interpret a zoning ordinance using the familiar rules of statutory construction. In re Appeal of Trahan, 2008 VT 90, ¶ 19, 184 Vt. 262. W e will “construe words according to their plain and ordinary meaning, giving effect to the wh ole and every part of the ordinance.” Id. Where the plain meaning of the ordinance is clear, it must be enforced and no further interpretation is necessary. Vermont Alliance of N onprofit Orgs. v. City of Burlington, 2004 VT 57, ¶ 6, 177 Vt. 47 (citing Hill v. Conway, 143 Vt. 91, 93 (1983)). Regulations § 410.1 states that ““[a]ll land to be subdivided shall be, in the judgment of the Commission, of such a character that it can be used for building purposes without danger to7

public health or safety, or to the environment. La nd subject to periodic flooding, poor drainage . . . shall not ordinarily be subdivided.” By its plain language, § 410.1 requires consideration of an areas potential to flood in the context of the o verall character of an area to be subdivided. The Regulations themselves do not define “periodic flooding” or “poor drainage,” and we cannot now determine whether Applicant’s property i s subject to periodic flooding and/or poor drainage based on the facts that it is free of “hyd ric soils” and is not located in either wetlands or a FEMA Flood Hazard Area alone. Because the iss ue of whether the Property is subject to periodic flooding and/or poor drainage is a questio n of fact, we must take evidence on the issue and cannot now dismiss Question 1(3). For this rea son, we **DENY** Applicant’s motion for judgment on Question 1(3). **IV. Question 1(4): Regulations § 410.5** Regulations § 410.5 requires that “due regard shall be given to the preservation and protection of existing features, trees, scenic poin ts . . . .” By their Question 1(4), Appellants argue that Applicant has the burden of demonstratin g that the Project is designed so as to minimize its impact on scenic points. Applicant as ks the Court to dismiss Question 1(4) because Appellants have already raised, and this Court has already addressed, the enforceability of § 410.5. In this Court’s February 23 Decision, we addressed § 410.5, stating that although the provision “states an admirable goal for land use pl anning in Ferrisburgh, we are at a loss to determine what standards are established to guide u s in making sure that ‘due regard’ is shown by the proposed subdivision.” In re Couture Subdiv ision Permit, No. 53-4-14 Vtec, slip op. at 6 (Vt. Super. Ct. Envtl. Div. Feb. 23, 2015) (Durkin, J). We directed that Appellants clarify the challenge they sought to bring under § 410.5 and ho w the Court should address compliance with that section. Id. As understood by this Cour t, Appellants’ now argue that “due regard” requires consideration of the criteria within § 410 .5 as they apply to the Project’s impacts on existing features of the subject property. (Appell ants’ Motion at 2, filed Mar. 6, 2015). Appellants further argue that “[d]ue regard puts th e burden on the applicant to demonstrate that the project is designed in such a way as to mi nimize the impact of the subdivision.” Id. This clarification does not, however, provide guida nce to the parties or the Court other than to8

provide an equally vague synonym for “due regard.” The Court therefore maintains the conclusion announced in our February 23 Decision th at there are no meaningful standards for review under § 410.5; for this reason, Question 1(4 ) is **DISMISSED**

. **V. Question 1(5): Regulations § 420.3** Regulations § 420.3 states that “[i]ntersection of streets shall be 90 degrees.” Appellant argues that Applicant’s driveway does not intersect with the street at 90 degrees. Applicant argues, however, that the Project’s gravel driveway is not a street, as defined in Article V of the Regulations. As stated above, we interpret a zonin g ordinance using the familiar rules of statutory construction and will “construe words acc ording to their plain and ordinary meaning, giving effect to the whole and every part of the or dinance.” In re Appeal of Trahan, 2008 VT 90, ¶ 19, 184 Vt. 262. As defined by the Regulations, a street is any “roa d, highway, avenue, street, land or other way between right-of-way lines, commonly used by the public for traffic.” The question before the Court is, therefore, whether the drivewa y is considered to be “commonly used by the public.” Although the Regulations do not defin e “public use,” we consider the term under its plain meaning to mean open to use by the genera l public without unreasonable restriction. While “street” would therefore include privately ow ned roads, it would be limited to those privately owned roads open to use by the public wit hout restriction; a privately owned driveway providing access to an individual residenc e is not open to use by the public and is therefore not a street under the Regulations. Beca use the Regulations do not require driveways to be at a right angle to streets or to o ther driveways, the Court **GRANTS** Applicant judgment as a matter of law under Appellants’ Quest ion 1(5). **VI. Question 1(6): Regulations § 420.7** Regulations § 420.7 limits the length of dead-end s treets, cul-de-sacs, and turn-arounds to 1200 feet, with an exception for temporary dead- end streets, and requires that dead-end streets and cul-de-sacs terminate in a turn-around with a radius of 100 feet and a minimum paved area of 20 feet. By their Question 1(6), App ellants summarize the Regulation. Applicant asks that this Court dismiss Question 1(6) because a gravel driveway is not a street, and9

furthermore, the Regulations contain no requirement s that driveways must have a turn-around with a radius of 100 feet and a minimum paved area of 20 feet. As stated above, the Court agrees that a driveway i s not a street, as defined by the Regulations, and that furthermore, the Regulations do not require that driveways comply with § 420.7. For this reason, the Court **GRANTS** Applicant judgment as a matter of law on Appellants’ clarified Question 1(f). **VII. Question 1(7): Regulations § 450** Regulations § 450 states that “[a]n adequate surfac e storm water drainage system for the entire subdivision area shall be provided” and that “[w]here a subdivision is traversed by a water course or drainage way, there shall be provid ed a drainage easement of such width to encompass the 25-year flood area of such water cour se, such easement shall be indicated on the final plat.” By their Question 1(7), Appellant s argue that “the subdivision is traversed by a watercourse and this requirement has not been met.” In response, Applicant reiterates that the Property is not a wetland or FEMA flood hazard area and is essentially free of hydric soils. Additionally, Applicant argues that § 450 provides no guidance as to how to determine whether a stormwater drainage system is “adequate” or how t o determine a “25-year flood area” and is therefore not an enforceable standard. By its plain language, § 450 requires a drainage ea sement where “a subdivision is traversed by a water course or drainage way.” Alth ough Applicant offers that the Project is not a wetland or FEMA flood hazard area and is free of hydric soils, they have not indicated whether the Project is or is not traversed by a wat er course or drainage way. This is a question of fact that must be resolved through a trial. Bec ause the provision specifically requires a drainage easement when a subdivision is traversed b y a water course or drainage way, the Court does not find Applicant’s argument persuasive

. As to Applicant’s argument that § 450 is not an enf orceable standard because it provides no guidance as to how to determine whether a stormwater drainage system is “adequate” or how to determine a “25-year flood are a,” the Court reiterates that we begin with the presumption that a zoning regulation is constit utional. In re Highlands, No. 194-10-03 Vtec, slip op. at 13 (Vt. Envtl. Ct. Feb. 2, 2010) (Wrigh t, J.) (citing Hunter v. State, 2004 VT at ¶ 31).10

Considering the factors listed above, the Court dis agrees with Applicant’s assertion that § 450 is standardless. First, a 25-year flood is d efined within the Vermont Stormwater Management Manual and therefore the Regulations inc lusion of reference to a 25-year flood provides adequate standards. Second, requiring tha t a stormwater system be adequate to address such a flood event does not open the door t o arbitrary decision making, but rather provides flexibility to the municipal panel to dete rmine whether the system is adequate to handle a certain amount of stormwater or not. For this reason, we **DENY** Applicant’s motion for judgment on Appellants’ clarified Question 1(7). **Conclusion**

We **DENY** Applicant’s motion for judgment on Appellants’ cla rified Questions 1(3) and 1(7), but **GRANT** Applicant’s motion on Questions 1(1), 1(2), 1(4), 1(5), and 1(6). Questions 1(1), 1(2), 1(4), 1(5), and 1(6) are therefore resolved in Applicant’s favor. Questions 1(3) and 1(7) remain for trial.

Electronically signed on June 17, 2015 at Newfane, Vermont, pursuant to V.R.E.F. 7(d).

________________________________ Thomas S. Durkin, Judge Environmental Division