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STATE OF VERMONT

SUPERIOR COURT ENVIRONMENTAL DIVISION

Vermont Unit Docket No. 53-4-14 Vtec

Couture Subdivision Permit DECISION ON MOTION 

Before the Court on appeal is a decision by the Town of Ferrisburgh Planning 

Commission (“Planning Commission”) granting Jacqueline Couture (“Applicant”) approval to 

reconfigure and further subdivide an existing two lot subdivision at 70 Locust Lane in the Town 

of Ferrisburgh, Vermont (“the Project”). Barry Estabrook and Rux Martin (“Appellants”), who 

own and occupy property adjacent to the subject property, timely appealed that decision to 

this Court and filed a Statement of Questions consisting of seven Questions. Applicant filed a 

Motion seeking Summary Judgment in her favor or dismissal of all seven Questions. In a 

Decision dated February 23, 2015, this Court dismissed Questions 2, 3, 4, 5, 6, and 7. Also by 

our Decision dated February 23, 2015, this Court directed 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 intent to dismiss Question 1 in the event 

Appellants failed to clarify the Question by that date or if the issues presented were beyond the 

scope of this appeal. 

Discussion 

On March 6, 2015 Appellants filed a clarification of Question 1, containing seven 

sections, generally asking whether the Project complies with the Town of Ferrisburgh 

Subdivision Regulations (“Regulations”) §§ 250.5, 210, 410.5, 410.1, 420.3, 420.7, and 450. For 

ease of discussion, we consider each of these sections as a subsection of Question 1. In 

response to Appellants’ clarification, Applicant filed 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 Civil Procedure 56. 
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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 based on those facts she is entitled to 

judgment as a matter of law. Robertson v. Mylan Labs., Inc., 2004 VT 15, ¶ 15, 176 Vt. 356 

(internal citations omitted); V.R.C.P. 56(c) (laying 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 “practicability of the preliminary plat” and 

provides that “[p]articular attention shall be given to . . . the requirements of the 

Comprehensive Development Plan.” By their clarified Question 1(a), Appellants argue that 

Applicant has a burden to demonstrate how the Project complies with requirements from the 

Town Plan discouraging development in the area of the 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 dismissed 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 notice of what issues to prepare for trial. 

Second, Applicant argues that Appellants are incorrect 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 subdivision applications. 

Any statement of questions informs the parties of the issues being appealed and 

establishes the scope of the appeal. In re Frostbite 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 not 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 Applicant that Appellants’ clarification in Question 

1(a) does little to provide Applicant or this Court with notice of what issues to prepare for trial. 
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Question 1(1) essentially rephrases Appellants original Question 1, which asked whether 

the Project satisfies the Regulations, so that it now 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 compliance 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 Residential Land Use Planning area. Ferrisburgh 

Town Plan at 63. According to the Town Plan, the character 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 family dwellings are the intended use for this 

district. . . .” Id. at 66. Without further explanation, neither the Court nor the parties are able 

to determine what issues to prepare for trial. Question 1(1) is, therefore, DISMISSED. Having 

dismissed Question 1(1) for the above reasons, we need not address whether § 250.5 is too 

vague to be an enforceable. 

II. Question 1(2): Regulations § 210 

Regulations § 210 requires subdivision approval before “grading, clearing, construction 

or other improvement is undertaken.” By their clarified 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 construction of a modular home prior to obtaining 

subdivision approval. (Appellants’ Clarification at 2). Applicant asks this Court to dismiss 

Question 1(b) because matters concerning septic fields 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 Town of Ferrisburgh Zoning Administrator on 

October 15, 2013. 

We agree with Applicant that matters related to septic fields are outside this Court’s 

jurisdiction. Furthermore, whether Applicant’s construction 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. §§ 4451, 4452. The sole issue in this de novo 

appeal is whether Applicant is entitled to a subdivision permit. Any alleged violations of the 
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Regulations must come to the Court through a properly 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 subdivided 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. Land subject to periodic flooding, poor drainage 

. . . shall not ordinarily be subdivided.” By their Question 1(3), Appellants argue that the Project 

should not be subdivided because the Property is “low, portions of it flood annually, and 

according to claims made by the engineer who installed the septic mounds, nearly all of it has 

poor drainage.” Applicant argues that § 410.1 is too 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 Appellants’ land, and that regardless, the Property is 

free of hydric soils1

 and is not located in either wetlands or a FEMA Flood 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 with the presumption that a zoning 

regulation is constitutional. In re Highlands Development Co., LLC, No. 194-10-03 Vtec, slip op. 

at 13 (Vt. Envtl. Ct. Feb. 2, 2010) (Wright, J.) (citing 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 Pierce Subdivision Application, 2008 VT 100, ¶ 19, 

184 Vt. 365 (citing In re Handy, 171 Vt. 336, 345-46 (2000)). We will consider two factors to 

determine whether a regulation is void for vagueness and thus unconstitutional. First, we 

consider whether the regulation is “sufficiently precise 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 are to be considered by the [municipal panel].” 

Rogers v. Watson, 156 Vt. 483, 491 (1991) (citing Brody v. Barasch, 155 Vt. 103, 111 (1990); 

Town of Westford v. Kilburn, 131 Vt. 120, 124 (1973). Second, we consider whether the 

 

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 As defined by the Town Plan, hydric soils are those “perpetually saturated with water such that the physical, 

chemical and biological properties reflected in the soil profile clearly demonstrates long periods of saturation.” 
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regulation provides standards that sufficiently guide municipal decisions and therefore do not 

allow for the “exercise of discretion in an arbitrary 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 and a landowner’s right to know what 

standards govern an application. See Rogers, 156 Vt. at 491; see also Handy, 171 Vt. at 349; 

Kilburn, 131 Vt. 124 (“On one hand the standards governing the delegation of such authority 

should be general enough to avoid inflexible results, 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 standards “accompanied by some ability of 

landowners to predict how discretion will be exercised.” Pierce Subdivision, 2008 VT 100, ¶ 20 

(quoting Kilburn, 131 Vt. at 125); Handy, 171 Vt. at 349. For this reason, we consider the 

regulation in the context of the entire ordinance so 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.” Rogers, 156 Vt. at 491; Pierce Subdivision, 2008 

VT 100 at ¶ 24 (“By providing both general and specific standards for [ ] review, the bylaw 

strikes an appropriate balance between providing guidance to the Commission and avoiding 

inflexible requirements which would defeat the creativity 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 requires 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 subdivision; it does not allow for arbitrary decision 

making, but rather for flexibility. 
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Addressing Applicant’s second argument, standing to appeal municipal zoning decisions 

is governed by 24 V.S.A. § 4465 and may not be judicially expanded. In re Verizon Wireless 

Barton Permit, 2010 VT 62, ¶ 7, 188 Vt. 262 (quoting 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 proceedings below. See 24 V.S.A. 

§ 4465(b)(defining interested person). An interested Person is defined in 24 V.S.A. § 4465(b)(3) 

as one “owning or occupying property in the immediate neighborhood of a property that is the 

subject of any decision or act” who can “demonstrate a physical or environmental impact” on 

their interest under the criteria reviewed. 

Applicant argues that whether the Property is subject 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 flooding of their property. This is sufficient for 

standing to raise the issue. 

Finally, as to Applicant’s argument that her property contains no hydric soils, in ruling on 

Applicant’s motion we must assume the factual allegations made by Appellants are true. 

Although Applicant attempts to controvert Appellants 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 cannot 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 subdivided.” 

We interpret a zoning ordinance using the familiar rules of statutory construction. In re 

Appeal of Trahan, 2008 VT 90, ¶ 19, 184 Vt. 262. We will “construe words according to their 

plain and ordinary meaning, giving effect to the whole 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 Nonprofit 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 to 
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public health or safety, or to the environment. Land 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 overall 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 is subject to periodic flooding and/or poor 

drainage based on the facts that it is free of “hydric soils” and is not located in either wetlands 

or a FEMA Flood Hazard Area alone. Because the issue of whether the Property is subject to 

periodic flooding and/or poor drainage is a question of fact, we must take evidence on the issue 

and cannot now dismiss Question 1(3). For this reason, 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 points . . . .” By their Question 1(4), Appellants 

argue that Applicant has the burden of demonstrating that the Project is designed so as to 

minimize its impact on scenic points. Applicant asks 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 planning in Ferrisburgh, we are at a loss to 

determine what standards are established to guide us in making sure that ‘due regard’ is shown 

by the proposed subdivision.” In re Couture Subdivision 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 how the Court should address compliance 

with that section. Id. As understood by this Court, 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. (Appellants’ Motion at 2, filed Mar. 6, 2015). 

Appellants further argue that “[d]ue regard puts the burden on the applicant to demonstrate 

that the project is designed in such a way as to minimize the impact of the subdivision.” Id. 

This clarification does not, however, provide guidance to the parties or the Court other than to 
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provide an equally vague synonym for “due regard.” The Court therefore maintains the 

conclusion announced in our February 23 Decision that 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 zoning ordinance using the familiar rules of 

statutory construction and will “construe words according to their plain and ordinary meaning, 

giving effect to the whole and every part of the ordinance.” In re Appeal of Trahan, 2008 VT 90, 

¶ 19, 184 Vt. 262. 

As defined by the Regulations, a street is any “road, 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 driveway is considered to be “commonly used by 

the public.” Although the Regulations do not define “public use,” we consider the term under 

its plain meaning to mean open to use by the general public without unreasonable restriction. 

While “street” would therefore include privately owned roads, it would be limited to those 

privately owned roads open to use by the public without restriction; a privately owned 

driveway providing access to an individual residence is not open to use by the public and is 

therefore not a street under the Regulations. Because the Regulations do not require 

driveways to be at a right angle to streets or to other driveways, the Court GRANTS Applicant 

judgment as a matter of law under Appellants’ Question 1(5). 

VI. Question 1(6): Regulations § 420.7 

Regulations § 420.7 limits the length of dead-end streets, 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), Appellants summarize the Regulation. Applicant 

asks that this Court dismiss Question 1(6) because a gravel driveway is not a street, and 
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furthermore, the Regulations contain no requirements 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 is 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 surface 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 provided a drainage easement of such width to 

encompass the 25-year flood area of such water course, such easement shall be indicated on 

the final plat.” By their Question 1(7), Appellants 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 to determine a “25-year flood area” and is 

therefore not an enforceable standard. 

By its plain language, § 450 requires a drainage easement where “a subdivision is 

traversed by a water course or drainage way.” Although 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 water course or drainage way. This is a question 

of fact that must be resolved through a trial. Because the provision specifically requires a 

drainage easement when a subdivision is traversed by 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 enforceable 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 area,” the Court reiterates that we begin with 

the presumption that a zoning regulation is constitutional. In re Highlands, No. 194-10-03 Vtec, 

slip op. at 13 (Vt. Envtl. Ct. Feb. 2, 2010) (Wright, J.) (citing Hunter v. State, 2004 VT at ¶ 31). 
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Considering the factors listed above, the Court disagrees with Applicant’s assertion that 

§ 450 is standardless. First, a 25-year flood is defined within the Vermont Stormwater 

Management Manual and therefore the Regulations inclusion of reference to a 25-year flood 

provides adequate standards. Second, requiring that a stormwater system be adequate to 

address such a flood event does not open the door to arbitrary decision making, but rather 

provides flexibility to the municipal panel to determine 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’ clarified 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