Application of Severance

• Court: Vermont Superior Court
• Decided: July 24, 2009
• Docket: 10-1-08 Vtec
• Status: Published

Opinion

STATE OF VERMONT

ENVIRONMENTAL COURT

} In re: Application of Severance } Docket No. 10-1-08 Vtec } }

Decision and Order

Appellant Timothy Severance appealed from a decision of the Planning

Commission of the Town of Hartford, denying his application for a four-lot subdivision.

Appellant is represented by Thomas Hayes, Esq.; the Town of Hartford is represented

by William F. Ellis, Esq.

The sole issue on appeal is whether the application meets the requirements for

subdivision approval with regard to the standards for access to a state highway.

An evidentiary hearing was held in this matter before Merideth Wright,

Environmental Judge. A site visit was taken with the parties’ representatives. The

parties were given the opportunity to submit written memoranda and requests for

findings, and extended the time for these filings briefly, by agreement. Upon

consideration of the evidence as illustrated by the site visit, and of the written

memoranda and requests for findings filed by the parties, the Court finds and

concludes as follows.

Appellant owns a 13.56-acre parcel of property on the west side of U.S. Route 4

in Hartford. It is located in an RL-1 zoning district, in which single-family lots must be

at least one acre in area. Appellant purchased the property in late June of 2005, two

months after its former owner had obtained a permit from the Vermont Agency of

Transportation (VTrans) to remove a section of guard rail and establish a driveway

access onto Route 4 for a single-family residential use.

1 On August 15, 2005, Appellant initially applied to VTrans to use the access for a

four-lot subdivision. The application form asked three questions as to whether permits

were required for the project. Appellant checked the box for “no” on the questions of

whether a “Zoning Permit” and an Act 250 permit were required for the project. On the

third question of whether “[o]ther permit(s) required?” Appellant checked the box for

“yes” but only listed “driveway” permit as the other required permit. While neither

party has provided the zoning regulations, from the text of Condition 1 of the Planning

Commission’s written decision, see Town’s Ex. D, it appears that a zoning permit as

well as subdivision approval is in fact required for a subdivision, but that an application

for a zoning permit would not necessarily be submitted until after subdivision approval

would have been obtained.

After an initial denial in January of 2006, VTrans granted the access permit for a

four-lot subdivision on October 11, 2006. The statute under which VTrans grants access

permits prohibits it from denying a permit for “reasonable” entrance to or exit from

property abutting state highways, using “safety, maintenance of reasonable levels of

service on existing highways, and protection of the public investment in the existing

highway infrastructure as the test for reasonableness.” 19 V.S.A. § 1111(b). However, it

allows such denial “as necessary to be consistent with the planning goals of 24 V.S.A.

§ 4302 and to be compatible with any regional plan, state agency plan or approved

municipal plan.” Id. VTrans also “may, as development occurs on land abutting the

highway, provide as a condition of any permit for the elimination of access previously

permitted . . . .” 19 V.S.A. § 1111(f). The VTrans Access Management Program

Guidelines allow VTrans to allow private direct access to “continue until such time that

some other reasonable access to a lower function category street or highway is

available.” Town’s Ex. H at 14–15. In such a case, “[t]he access permit should specify

under what circumstances the change would be required, . . .” Id. at 15.

2 On October 19, 2006, a VTrans District Technician issued an inspection report

stating that final inspection of the driveway was completed and that “[t]he driveway

appears to have been constructed in accordance with the conditions of the permit.”

Appellant’s Ex. 9.

The project property as a whole is roughly a quarter circle in shape, bounded on

the northwest by land of the Quechee Lakes Landowners’ Association (marked on the

survey as “Polo Field”), on the southwest by land of the United States of America, and

on the curve by Route 4. Proposed Lot 1 is 4.02 acres in area, proposed Lot 2 is 4.32

acres in area, proposed lot 3 is 2.77 acres in area, and proposed Lot 4 is 2.45 acres in

area. Three of the proposed lots (Lots 1, 3, and 4) are bounded by the Route 4 right-of-

way; the fourth lot (Lot 2) lies to the west of the other three.

The topography is such that the project property is located down a steep

embankment, approximately 14 feet below the elevation of Route 4, and slopes more

gently down from there, towards the north and west. The configuration of lots and

building envelopes for the project has been designed to avoid wet areas identified on

the project plans. Appellant obtained approval from the state Agency of Natural

Resources for the water supply and wastewater disposal systems for the proposed lots.

Appellant’s Ex. 10.

Access to Route 4 for all of the lots is proposed to be via a single curb cut, with a

‘landing’ area at the elevation of Route 4 where vehicles can wait, oriented at a 90°

angle to Route 4, to enter onto Route 4. The curb cut and landing area have been

constructed. After obtaining VTrans approval of the use of the curb cut for access to

four lots rather than to a single lot, Appellant applied under the subdivision regulations

to the Planning Commission of the Town of Hartford for a subdivision permit.

3 The Planning Commission denied subdivision approval; that denial has been

appealed in the present case.1 All other criteria for approval of a minor four-lot

subdivision are met by the proposal and are not at issue in this appeal, other than

criteria to do with the configuration of the project driveway on the property, and access

onto Route 4 from the property.

Conflict Between the Planning Commission’s Written Decision and Meeting Minutes

Before addressing the merits of the application, it is necessary to note an

anomalous practice of the Planning Commission that could have resulted in remand of

this matter, except that the parties both agreed that the Court should instead proceed to

address the merits of the application. The “Conclusions of Law” section at page 6 of the

written decision of the Planning Commission “concludes that the proposed subdivision

meets the requirements of the Town of Hartford Regulations for a Minor Subdivision.”

Town’s Ex. D. The “Decision” section at pages 6–7 of the written decision states that the

Planning Commission denies the application, but in the same sentence goes on to

impose four conditions (including the redesign of the access road to include a guard

rail) before a zoning permit is issued and before certificates of compliance are issued for

the dwellings on the four lots. The final sentence of the written decision document, just

above the signature of the Commission chairperson, states in bold print: “[t]he

Commissioners’ reasons for opposing the motion to approve the application are

outlined in the minutes of the meeting.” The minutes of the Planning Commission’s

1 VTrans issued a Notice of Permit Violation on December 21, 2007, primarily based on the Planning Commission’s denial of the subdivision permit at issue in the present appeal and secondarily because the driveway for Lot 4 was shown as located within the state highway right-of-way. Appellant has presented an alternative access road design for the property that has cured any issue of intrusion into the state highway right-of- way. VTrans has not revoked its issuance of the access permit for the four-lot subdivision. 4 December 17, 2007 meeting are attached after a list of the exhibits that were submitted

to the Planning Commission. See Town’s Ex. D.

Apparently, it is the practice of the Hartford Planning Commission to leave

positive findings, conclusions, and permit conditions from a draft decision in the text of

the final written decision, even when the Planning Commission has actually voted to

the contrary, and instead to rely on the minutes of the meeting to state the “reasons” for

the contrary denial. Leaving aside the adequacy of any findings, conclusions or reasons

reflected in the comments of the Commissioners as stated in the minutes, this practice

creates an unacceptable level of confusion for parties and for any reviewing court as to

what decision the Planning Commission has made, as well as to the Commission’s

rationale or reasoning supporting that decision.

The final sentence of 24 V.S.A. § 4464(b)(1) allows the minutes of the meeting to

suffice as the written decision required by that section, provided that the required

“factual bases and conclusions relating to the review standards” are reflected in the

written minutes. However, nothing in § 4464(b)(1) suggests that a municipal panel may

proceed to issue a written decision that by its terms conflicts with the decision voted on

by the panel members and expressed in the written minutes.

Subdivision Application

Route 4 is the major local and regional east-west travel corridor in the area. It is

used by long-distance truck traffic as well as by local traffic and is classified for

transportation planning purposes as a “principal arterial” roadway. It carries

approximately 4,415 vehicles eastbound and 4,510 vehicles westbound per day, of

which approximately seven to eight hundred are carried in the peak hour.2 It is

2 The single-family use would generate approximately ten vehicle trip ends (one-way trips) through the vehicle driveway per day, of which three (two outbound and one inbound) could be expected to be made during the morning peak hour of traffic on 5 considered a Category 3 highway for the purposes of the VTrans Access Management

Program Guidelines. The principles of access management and the VTrans Access

Management Program Guidelines discourage the intersection of a new driveway

directly with a principal arterial roadway. See Town’s Ex. H at 14–15.

In the present case at the present time, there is no alternative access to the

property other than by Route 4, and Appellant is entitled to use the driveway to access

at least one single-family use. The access also meets the state standards for a four-lot

use; the only issue regarding the VTrans approval of the four-lot use is whether all

required municipal approvals have been obtained. Therefore, in the present case the

only question for the Court is whether to approve a subdivision that would create three

additional lots, due to issues related to that driveway, including the layout of the access

road on the property.

The VTrans access permit granted for Appellant’s four-lot subdivision contains

the following general condition: “As development occurs on land abutting the

highways, the Agency may revoke a permit for access and require the construction of

other access improvements such as the combination of access points by adjoining

owners.” Appellant’s Ex. 5 at 2. No evidence was presented in the present case

regarding the use of either adjoining property, or whether either adjoining property is

served by a local road, or whether potential future access to a local road over either

adjoining property is technically feasible.

Although Route 4 is generally referred to as an east-west travel corridor, it runs

basically in a north-south orientation in the area from Exit 1 of Interstate 89 to just

southwest of the project property. It has one lane in each direction at the project

Route 4, and four (one outbound and three inbound) could be expected to be made during the afternoon peak hour. These generation rates would be multiplied by four for the proposed subdivision. However, unlike the standards for conditional use review, see 24 V.S.A. § 4413(3)(A)(iii), the Subdivision Regulations do not provide for assessing the effect of the proposed subdivision on traffic on adjacent roadways. 6 property. The project property is located on the westerly side of a shallow inside curve

of Route 4. A guard rail is in place along Route 4 adjoining the property, limiting the

available space for drivers to take evasive action. At the location of the intersection of

Route 4 with the project driveway, the posted speed limit is 40 miles per hour.

The posted speed limit changes from 50 miles per hour to 40 miles per hour

approximately 500 feet to the north of the project driveway. However, speed studies

show that 92% of the vehicles are traveling at (or below) an actual speed of about 55

miles per hour rather than at the posted speed of 40 miles per hour; accordingly, 55

miles per hour has been used to analyze the available sight distances. The posted speed

limit is further reduced from 40 miles per hour beyond the project driveway to the

southwest; it is 30 miles per hour as Route 4 enters the Quechee Gorge commercial area

farther to the west.

As initially proposed and shown on Appellant’s Exhibit 6, the access road for the

subdivision ran sharply northwards from the landing area, sloping downwards parallel

to Route 4. A portion of the access road and of the driveway to serve Lot 4 were shown

on the proposed plan as being located within the Route 4 right-of-way rather than on

Appellant’s property. At the lower elevation, separate driveways for all four lots then

branched off from the common access road.

An alternate proposal, presented at trial and shown on Appellant’s Exhibits 7

and 8, avoids placing the access road or a lot driveway in the right-of-way by extending

the common access road westerly into the property, before the individual driveways for

Lots 1 and 2, and a common driveway for Lots 3 and 4, branch off from it. The

alternative proposal meets the Town road standards, which in turn reference the state’s

so-called “A-76” road design standards, except that the alternative proposal will require

a hammerhead turnaround not yet shown on Exhibits 7 or 8, to allow emergency

vehicles to safely access and leave the project property.

7 “Stopping sight distance” is the distance needed for a motorist who is driving on

the roadway to perceive an obstruction ahead (such as a car turning out of the project

driveway) in time to come to a stop prior to reaching the obstruction. The minimum

stopping sight distance is a transportation engineering requirement to determine the

safety of a proposed intersection location. The required stopping sight distance for

vehicles traveling at 55 miles per hour is 495 feet.

The sight distance to or from the north of the project driveway is at least 640 feet

(and may be as much as 680 feet as measured by the Town’s consultant). The sight

distance to or from the south of the project driveway is 610 feet. As at least 640 feet is

provided for vehicles approaching the project driveway from the north, and 610 feet is

provided for vehicles approaching the area of the project driveway from the southwest,

the project driveway is safe, despite the planning preference for avoiding new

intersections of private driveways with an arterial roadway.

“Intersection sight distance,” also referred to as “corner sight distance,” is the

distance needed for a motorist who is stopped at an intersection (that is, who is driving

a car waiting to turn out of the project driveway) to pull out in front of a vehicle

approaching on the roadway and to accelerate to driving speed without affecting the

speed of the approaching motorist. The intersection sight distance will be different

depending on whether the stopped motorist is making a right turn into the near lane of

traffic or is making a left turn across a lane of traffic to the far lane of traffic. Adequate

intersection sight distance is necessary to avoid causing delay or reduction in the flow

of traffic on the adjacent roadway.

The adequate intersection sight distance for a vehicle stopped at the project

driveway to turn right towards the south and west, into the near lane of traffic, is 530

feet. As at least 640 feet is provided from the project driveway to look to the north to

see whether it is safe to pull out in front of a vehicle approaching the project driveway

from the north, the intersection sight distance at the project driveway is adequate to 8 make safe turns to the right (to the south or westbound) from the project driveway

without causing delay on Route 4, as long as the sight lines are kept clear of vegetation

and of snow above three feet in height.

The adequate intersection sight distance for a vehicle stopped at the project

driveway to turn left towards the north, across the westbound lane and into the far

(eastbound) lane of traffic, is 605 feet (according to the Town’s consultant) and is 610

feet (according to Appellant’s consultant). The intersection sight distance at the project

driveway is therefore also met; that is, it is adequate to make safe turns to the left (to the

north or westbound) from the project driveway without causing delay on Route 4, as

long as the sight lines are kept clear of vegetation and of snow above three feet in

height.

The use of the project driveway for four single-family lots, is therefore safe and

will not cause delay on Route 4, although it is not preferable from a transportation

planning perspective. It would be better to provide access to the new subdivision from

a local roadway if such access were to become available. VTrans Access Management

Program Guidelines at 14; Town of Hartford Master Plan at 198–99; Town’s Ex. F at 5;

Town’s Ex. J at 2.

Under the Hartford Subdivision Regulations, approval of a subdivision is to be

based upon certain “broad considerations” in § 5-1-2 as well as with the specific

planning and design standards found in §§ 5-4-1 et seq. Section 5-1-2(1) requires

subdivision approval to be based on “[c]onformance with the various parts of the

Municipal Development Plan and zoning regulations.” Neither party has presented the

court with the zoning regulations nor argued that the proposed subdivision fails to

comply with any section of the zoning regulations.

The Hartford Master Plan, at 198–99, recognizes that access management onto

Route 4 is a “top priority,” and lists several “access management strategies” that the

9 Town “can implement through its planning and public[-]works[-]related ordinances

and policies.”

Of those strategies, the traffic engineering analysis in the present case already

uses “sight-distance standards based on the actual travel speeds and not the posted

speed limits,” and uses “State of Vermont design standards” for the configuration of the

access road. Another strategy listed in the Master Plan is the use of “access or an access

easement from a local road rather than a State highway,” however, in the present case

at the present time the property has no such access to a local road. The Master Plan also

presents as a strategy: “[w]hen practical, approve subdivisions with private and public

road designs that allowed shared access with other adjacent subdivisions and/or have

the private rights-of-way reserved so an access may be built to connect to existing and

future development.”3 This section is carried out by § 5-4-2.1 of the Subdivision

Regulations, discussed below.

Within the Subdivision Regulations, § 5-4-1.1 requires that the land to be

subdivided shall be of such a character that it can be used for building purposes

without danger to public health, safety, or the environment. The land contained in this

property is not subject to flooding or poor drainage, and in fact Appellant has obtained

approval for water supply and wastewater disposal for structures on all four lots.

There is nothing inherent in the land that would cause a danger to public safety; the

proposal meets this requirement of the Subdivision Regulations.

The first sentence of § 5-4-2.1 of the Subdivision Regulations, regarding street

layout, requires that “[t]he arrangement of streets in the subdivision shall provide for

the continuation of principal streets in any adjoining subdivision[,] or for their proper

3 This decision need not address whether the strategies in the Master Plan are sufficiently specific to make this requirement independently enforceable under the Vermont Supreme Court’s decision in In re Appeal of JAM Golf, LLC, 2008 VT 110, ¶¶ 16–17, as this requirement is echoed specifically in § 5-4-2.1 of the Subdivision Regulations. 10 projection when adjoining property is not subdivided[,] in order to create a logical

system.” This requirement is particularly important in the present case, to allow use of

the private driveway onto Route 4, as that driveway should be required to be

discontinued if any alternative access via a local road becomes available. The layout of

the four lot subdivision’s access road and driveways has failed to provide for the

reservation or continuation of a right-of-way towards either the northwest or the

southwest boundary, to retain the potential for these subdivision lots to have access in

the future via a local roadway. Such layout must be provided, or Appellant must

obtain a waiver of that requirement under § 5-6-2 from the Planning Commission in the

first instance.

The proposed alternative access road meets the requirements of §§ 5-4-2.5 and 5-

4-2.7 requiring construction of new streets or the access road to municipal highway

construction standards, except that a hammerhead needs to be provided for emergency

vehicle turnaround.

Accordingly, based on the foregoing, it is hereby ORDERED and ADJUDGED

that although the approved access onto Route 4 can be used safely to serve four single-

family residential lots, direct access of a private driveway onto Route 4 should be

discontinued if alternative access via a local roadway becomes available. The proposed

plan for the four-lot subdivision is therefore DENIED, but only because it fails to

provide for a lot layout or rights-of-way that would allow future access to the project

over its northwest or southwest boundaries rather than directly onto Route 4.

Appellant may apply to the Planning Commission for approval of an alternative layout

for the subdivision, or a waiver of this requirement, that addresses the reason for which

this subdivision was denied. See In re Jolley Assocs., 2006 VT 132, ¶ 12, 181 Vt. 190

(citing In re Carrier, 155 Vt. 152, 157–58 (1990)) (explaining the successive application

11 doctrine); In re Armitage, 2006 VT 113, ¶ 4, 181 Vt. 241 (citing Carrier, 155 Vt. at 158)

(same).

Done at Berlin, Vermont, this 24th day of July, 2009.

_________________________________________________ Merideth Wright Environmental Judge