STATE OF VERMONT

 ENVIRONMENTAL COURT

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Appeal of Teeter } Docket No. 195-11-03 

Vtec

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 Decision and Order on Appellees' Motion to Dismiss and for Summary Judgment

Appellant Stanley Teeter appealed from a decision of the Planning Commission[1] of 

the Town of Norwich approving a three-lot subdivision of property of Appellee-Applicants 

Edwin and Joyce Childs. Appellant is represented by Brad W. Wilder, Esq.; AppelleeApplicants Edwin and Joyce Childs are represented by C. Daniel Hershenson, Esq.; and 

the Town of Norwich is represented by Frank H. Olmstead, Esq. Appellee-Applicants have 

moved to dismiss Questions 1, 2 and 3 of the Statement of Questions as moot or beyond 

the scope of the Environmental Court's jurisdiction, and have moved for summary judgment 

in their favor on Questions 4 and 5 of the Statement of Questions.

The following facts are undisputed unless otherwise noted. Appellee-Applicants 

own an approximately rectangular 85.94-acre parcel of land, bounded on its northeasterly 

truncated corner by Turnpike Road, a town road. An existing fifty-foot-wide non-exclusive 
right-of-way (the "fifty-foot-wide right-of-way") runs southerly from Turnpike Road on 

Town land along an existing parcel owned by Jorgensen[2], and continues on Town land 

along or near the easterly boundary of Appellee-Applicants' property. Appellee-Applicants' 

property is bounded both on its easterly and its southerly sides by land now owned by the 

Town, on its westerly side by land of the Barbara G. Britton Revocable Trust, and on its

northerly side by Appellant's land.

In October of 1978, Allen H. Britton, Jr., conveyed to the Town of Norwich a 7.3-

acre triangular parcel of land bounded on its westerly side by the Childs parcel at issue in 

the present appeal and extending some 70 feet onto the Town land lying to the south of 

the Childs parcel, bounded on its northeasterly side by Turnpike Road, and bounded on its 

southerly side by then-retained lands[3] of Britton. In that conveyance to the Town, Britton 

reserved the fifty-foot-wide right-of-way running from Turnpike Road to what was then 

Britton's retained land. The deed also provided that "[i]t is further expressly a condition 

of this conveyance that:"

1. Edwin S. Childs and Joyce B. Childs, contig[u]ous land owners along 

the westerly boundary of the parcel herein conveyed shall use a part of the 

reserved right-of-way for access to the lands of the Childs.

* * *

5. That the land is not to be used for any over night activities.
Appellee-Applicants propose to subdivide their property into three parcels containing 

18.08, 6.00, and 61.86 acres, respectively, and to deed the 61.86-acre parcel to the 

Town, with conservation restrictions being held by the Upper Valley Land Trust. 

After the subdivision approval had been appealed to this Court, but before the 

briefing of these motions, in March of 2004, in contemplation of and conditioned on this 

subdivision and the conveyance to the Town of the 61.86-acre parcel, the Town granted 

to Appellee-Applicants a non-exclusive easement over the fifty-foot-wide right-of-way, plus 

an easement of an additional narrow triangle of land to filling in the small area between 

the existing fifty-foot-wide right-of-way and the easterly boundary of the 61.86-acre parcel, 

with the right to locate and the duty to maintain a private driveway or road within that 

right-of-way for vehicular and pedestrian access to the 6-acre parcel and to the 61.86 

parcel, and for underground residential utility lines to the 6-acre parcel. In the 2004 rightof-way easement deed, Appellee-Applicants relinquished to the Town any claim to use the 

portion of the fifty-foot-wide right-of-way continuing southwesterly of the end of that 

additional triangle. In the 2004 right-of-way easement deed, the Town may (but has no 

duty to) improve, repair, or maintain any driveway or road located within the easement 

area. On land owned by the Town, the Town maintains a hiking trail known as the Gile 

Mountain Trail, extending towards Gile Mountain at least from the end of the 2004 rightof-way deeded to Appellee-Applicants.
The proposed 18-acre parcel has frontage on Turnpike Road, is bounded on the 

north by Appellant's property, and contains Appellee-Applicants' existing residence.

Access to it is by an existing driveway directly from Turnpike Road. No issues are raised 

in this appeal with respect to the proposed 18-acre parcel.

The proposed 6-acre parcel has frontage only on the fifty-foot-wide right-of-way on 

Town land. It is proposed to have access to Turnpike Road by a private road or driveway 

running along the fifty-foot-wide right-of-way. The proposed 6-acre parcel is intended to 

be developed in the future for single-family residential use; the subdivision plan shows a 

building envelope for such future development.

The remaining 61.86-acre parcel is proposed to be conveyed to the Town after

conservation easements and use restrictions have been conveyed to be held by the Upper 

Valley Land Trust. Access to it is proposed to be over the fifty-foot-wide right-of-way and 

the new easement triangle. It is not proposed for development of any structures.

The proposed three-lot subdivision qualifies to be considered as a minor subdivision 

under §2.1(B) of the Subdivision Regulations, and to proceed directly to final plan approval 

as the total density does not exceed one unit per twenty acres. §2.3(A)(1). Two of the 

conditions imposed in the Planning Commission's approval of the proposed subdivision 

addressed the issue of the access for the 6-acre lot: that no building permit be issued for 

a residential structure until a town access permit has been issued for the intersection of 
the driveway with Turnpike Road, and until a permanent right-of-way has been granted 

and recorded by the Town for the portion of that driveway located on Town land. It is not 

necessary to the present motions to determine whether these conditions have been 

satisfied by the March 2004 right-of-way easement (Exhibit E) and the access permit 

attached to the affidavit of Edwin S. Childs.

In the present appeal the Court only has jurisdiction to determine whether the 

proposal complies with the requirements of the subdivision regulations. The Court cannot 

otherwise resolve private property disputes as between the parties, and cannot interpret 

deed language unrelated to the requirements of the subdivision regulations. See, e.g., 

Appeal of Keough, Docket No. 244-11-02 Vtec (Vt. Envtl. Ct., March 11, 2003).

In Questions 1 and 2 of the Statement of Questions, Appellant challenges whether 

the language in condition 1 in the 1978 deed from Britton to the Town, conditioned on 

allowing the Childs to use "a part of the reserved right-of-way for access to" their land, 

was adequate to provide Appellee-Applicants with rights of access from the proposed 6-

acre parcel and the proposed 61.86-acre parcel to Turnpike Road. Because the Town 

owns the land lying under the fifty-foot-wide right-of-way, and there is no dispute that the 

Town has deeded directly to the Childs a new easement for driveways to serve the 6-acre 

parcel and the 61.86-acre parcel over that fifty-foot-wide right-of-way, the question of 

whether Appellee-Applicants already held sufficient rights of access over the fifty-foot-wide 
right-of-way has become moot. Accordingly, Appellee-Applicants' motion to dismiss 

Questions 1 and 2 as moot is GRANTED. 

In Question 3 of the Statement of Questions, Appellant claims that the language in 

condition 5 in the 1978 deed of the 7.3-acre triangular parcel from Britton to the Town, 

that the then-granted "land is not to be used for any over night activities," prevented the 

Town from later granting the 2004 right-of-way over that land to be used for access to 

Appellee-Applicant's land.

The Court has jurisdiction to determine whether the 2004 right-of-way was deeded 

as a permanent easement or right-of-way and whether it is at least twenty feet wide,[4] a 

prerequisite under the state statute to development of land with access to a public road via 

a private road or right-of-way. The Court does not have jurisdiction to interpret language 

in the 1978 deed unrelated to the requirements of the subdivision regulations[5] and the 

state statute, nor to determine whether Appellant would have standing in superior court to 

obtain a declaration or interpretation of the deed from Britton to the Town, nor to 

determine whether any rights reserved to Britton in the 1978 deed may have since 

transferred to the Town or been extinguished by the Town's acquisition of any additional 

Britton property benefitted by that right-of-way. Accordingly, Appellee-Applicants' motion to 

dismiss Question 3 as beyond the jurisdiction of the Environmental Court is GRANTED. 
Appellee-Applicants have moved for summary judgment on Question 4 of the 

Statement of Questions, arguing that the 6-acre lot and the 61.86-acre lot meet the 

requirements for access to a public road. As of the date of their application, the state 

statute required that a developable lot without frontage on a public road (or waters) have 

access to such a public road, approved by the planning commission, by a permanent 

easement or right-of-way at least twenty feet in width. 24 V.S.A. former §4406(2); and 

see current §4412(3). The Norwich subdivision regulations do not require a greater width 

for such an access right-of-way than that required by the state statute. As discussed 

above, Appellee-Applicants have access from a public road (Turnpike Road) to the 6-acre 

lot and to the 61.86-acre lot over the 2004 deeded right-of-way. It is a permanent 

easement or right-of-way, and is fifty feet in width. It is therefore adequate to satisfy the 

minimum requirements for access to a public road. 24 V.S.A. former §4406(2).

Accordingly, Summary Judgment is GRANTED to Appellee-Applicants on Question 4 of the 

Statement of Questions.

Appellee-Applicants have moved for summary judgment on Question 5 of the 

Statement of Questions. Appellant argues that subdivision should not be approved 

because the access "would likely be over a legal trail." The only reference in the 

Subdivision Regulations to the term "legal trail" is found in Table 3.2, Note 2, which 

refers to the "Norwich Trails Ordinance" for the information that a "Legal Trail, although 
a Town right-of-way, may not be used for vehicle access to a newly created parcel."

Neither party has provided the Trails Ordinance, and it is not incorporated by reference in 

any regulatory provision of the Subdivision Regulations. All that the Subdivision 

Regulations require is that any access to a town road be approved by the Selectboard.

Even if the 2004 right-of-way were a >trail' as defined by the state highway statute, 19 

V.S.A. §301(8), nothing in the Subdivision Regulations precludes Selectboard approval of 

a private driveway over a town trail, with appropriate conditions for private maintenance of 

that driveway.

However, the present case is not an instance of the Town holding a right-of-way 

for public use as a roadway or footpath over other owners' lands. Rather, the land lying 

under the fifty-foot-wide right-of-way is owned by the Town; and as owner, the Town has 

granted a non-exclusive right-of-way easement to Appellee-Applicants for their purposes of 

placing a driveway for access to the 6.1-acre parcel and the 61.86-acre parcel. Even if 

that deeded right-of-way also provides pedestrian access to a hiking trail extending to the 

south and west of that deeded right-of-way, that fact does not transform the land lying 

under the deeded right-of-way into a legal trail under 19 V.S.A. §301(8). Therefore, 

Summary Judgment is GRANTED to Appellee-Applicants on Question 5 of the Statement 

of Questions.
Accordingly, based on the foregoing, it is hereby ORDERED and ADJUDGED that 

Appellee-Applicants' Motion to Dismiss Questions 1, 2, and 3 of the Statement of 

Questions as moot or beyond the jurisdiction of the Court is GRANTED; and Summary 

Judgment is GRANTED in Appellee-Applicants' favor as to Questions 4 and 5 of the 

Statement of Questions.

All the issues raised in the Statement of Questions have been addressed in this 

decision and order, suggesting to the Court that no issues remain to be heard on the 

merits of the appeal. However, Appellant's Memorandum, at page 8 (top paragraph) and 

in the "conclusion" section on pages 8-9, argues that if the proposed subdivision were to 

be approved, additional restrictions and conditions should be imposed. Accordingly, we 

will hold a telephone conference on March 3, 2005 (notice enclosed) to determine 

whether any issues remain or whether a judgment order should be entered concluding the 

appeal.

Done at Berlin, Vermont, this 22nd day of February, 2005.
_________________________________________________

Merideth Wright 

Environmental Judge

[1] Appellee-Applicant Edwin Childs was the Chair of the Planning Commission at 

the time of the final hearing on this application, but recused himself during the 

consideration of his application. In any event, this is a de novo appeal and the parties do 

not raise any issue regarding this recusal.

[2] The Jorgensen parcel, formerly part of the Childs' land, is not at issue in this 

appeal. It lies westerly of and has frontage on the existing fifty-foot-wide right-of-way, but 

access to it is by a driveway directly from Turnpike Road.

[3] It appears from a comparison of Exhibit B and Exhibit F that at least some of 

the then-retained land owned by Britton at the time the reserved right-of-way was created 

has since also been conveyed to the Town. The parties have not presented documents in 

this proceeding sufficient to determine whether the grantor's and grantee's rights to the 

1978 right-of-way have both come into possession of the Town, and, if so, what are the 

consequences for the purposes of the proposed subdivision.

[4] The Court would also have jurisdiction to determine whether any roadways 

proposed to be constructed on the right-of-way met the requirements of §3.7 of the 

Subdivision Regulations; however, compliance of the proposed driveway for the 6.1-acre lot 

with the requirements of §3.7 is not at issue in this appeal. The 2004 right-of-way deed 

allows the driveways to be located within the right-of-way at a width up to that consistent 

with the private highway specifications in place at the time of development, or such 

specifications approved by the Selectboard at the time of development. 
[5] We note that all that is before the Court is the subdivision of the property, not 

any application under the zoning ordinance to make any proposed use of the property.