Brisson Subdivision Application

• Court: Vermont Superior Court
• Decided: October 4, 2007
• Docket: 198-09-05 Vtec
• Status: Published

Opinion

STATE OF VERMONT

ENVIRONMENTAL COURT

} In re: Brisson Subdivision Application } Docket No. 198-9-05 Vtec (Appeal of Call) } }

Decision and Order on Pending Motions

Appellant Elizabeth Call appealed from a decision of the Planning Commission of

the Town of Weybridge, granting approval to Appellee-Applicants Armond and Ramona

Brisson of an 8-lot1 subdivision. Appellant is represented by Andrew Jackson, Esq.;

Appellee-Applicants Brisson are represented by Eben Punderson, Esq. The Town of

Weybridge did not enter an appearance in this matter. or ck if it was in through ZA

This appeal was placed on inactive status by agreement of the parties while litigation

proceeded in Addison Superior Court regarding the scope of an easement also at issue in

the present subdivision appeal. The Addison Superior Court case was resolved in favor

of Appellee-Applicants Brisson, and has been appealed to the Supreme Court. On June 1,

2007, trial was scheduled in the above-captioned appeal for Thursday, November 8, 2007,

at the Addison Superior Court, in the Mahady Courthouse in Middlebury. A revised

stipulated discovery and trial preparation schedule was entered as a scheduling order by

the Court.

Appellant had initially filed a Statement of Questions containing four questions cast

in terms of whether the Planning Commission had acted properly or within its authority.

After a telephone conference in early 2007 at which the parties discussed with the Court

1 The proposal consists of seven building lots, labeled as Lots 8 through 14 on the plans, and the remaining land, labeled as Lot 1, which appears to include the project roadway and utility easements. All of the proposed development is located in the Town of Weybridge, some of Lot 1 is located in the Town of New Haven.

1 the de novo nature of these proceedings, Appellant filed a revised Statement of Questions

reading in full as follows:

1) Does the specific application for subdivision submitted by [Appellee- Applicants], which proposes a multi-unit residential housing development without road frontage, meet the requirements of the Weybridge zoning and planning ordinances or regulations with no direct access to a town highway and which claims only access over a right of way on the property of [Appellant].

2) Does the application for subdivision submitted by [Appellee- Applicants], which proposes a multi-unit residential housing development without road frontage provide adequate protection for safety, visual and auditory issues created by approval of the right of way?

Appellee-Applicants moved in limine that the Court’s review of the subdivision

application be limited to the right-of-way and not to the subdivision generally. The Court

ruled orally that Question 2 is limited to the effect of the right-of-way for the subdivision

on the “safety, auditory and visual” issues stated in that question, but that because

Question 1 was cast in terms of whether the application meets the requirements of the

regulations, it potentially went beyond issues related to the right of way. However,

Appellant was required to provide a more definite statement of Question 1, as it was not

possible to tell from that Question what defects Appellant asserted in the application.

V.R.E.C.P. 5(f)

In this de novo proceeding, the Court sits in place of the Planning Commission to

consider this subdivision application, but only on the issues properly raised by the

Appellant in the Statement of Questions. V.R.E.C.P. 5(f) (“a statement of the questions that

the appellant desires to have determined”); 10 V.S.A. § 8504(h) (“on those issues which

have been appealed”). It has been difficult to determine what issues Appellant seeks to

contest in this matter, based on Appellant’s various filings.

Appellant’s April 30, 2007 filing after the Court required a more definite statement

of Question I provided an extensive list of deficiencies in the application asserted by

2 Appellant. That is, Appellant’s revised Question I continues to challenge whether the

application materials (including the proposed subdivision plat) are adequate under many

listed sections of the Subdivision Regulations relating to the preliminary application (§ 300)

and final plat (§ 310) for the subdivision, and the planning and design standards applicable

to the subdivision from Article IV.

Appellant’s Question 1 originally related to Appellant’s asserted deficiencies in the

subdivision application; as revised it continues to be stated in terms of asserted lack of

information and asserted deficiencies in the application materials, including in the

proposed subdivision plat itself. Accordingly, Appellee-Applicants’ Motion to Dismiss

those portions of revised Question 1 unrelated to deficiencies in the application is

GRANTED. On or before October 11, 2007, the parties shall file with the Court either an

agreed redacted version of Question 1 or, if they cannot agree, shall each file their own

proposed redacted version of Question 1. Appellee-Applicants’ renewed Motion in Limine

to limit Question 1 only to the right-of-way is DENIED.

Of course, because the application is being considered de novo by the Court, we do

not yet have before us the application materials and the final subdivision plat for which

Appellee-Applicant is seeking approval. If they had been submitted in connection with a

motion for summary judgment, it is possible that many of the subsections of Question I

could have been determined prior to trial.

Therefore, under the circumstances, the trial will commence as usual with Appellee-

Applicant’s presentation of the application to the Court, including any cross-examination

of Appellee-Applicant’s witnesses. At the close of Appellee-Applicant’s case, we will

expect the parties to confer and report to the Court as to whether any of the subsections of

Question I are no longer at issue, based on the application and subdivision plan as

presented at trial, and to make any related motions orally on the record, before proceeding

to hear the remainder of the evidence to be presented by Appellants’ witnesses.

3 From the materials provided by the parties in connection with their motions, it

appears that the Planning Commission had before it, during its hearings on the subdivision

application, a “sketch plan,” dated February 11, 2005, and, later, a revised “preliminary

plat,” dated April 11, 2005, and that all it considered was the application for the proposal

as a “major subdivision.” Although Appellee-Applicant referred to the proposal, in the

narrative attached to the subdivision application, as a “PRD-style” subdivision, the parties

have not claimed that the Planning Commission ruled on the application as a PRD, or that

it conducted site plan approval analysis as a PRD. See, generally, §305 of the Zoning

Regulations. Moreover, the original subdivision application represents that the project will

also require Act 250 approval and a permit for the water supply and wastewater disposal

systems from the Agency of Natural Resources. Although many if not most applicants

prefer to have a single trial in Environmental Court covering all appeals of all necessary

state and local approvals, it is entirely up to the applicant whether to proceed first on only

a single required local application.

The trial remains scheduled for November 8, 2007. Accordingly, in the pretrial

conference now scheduled for October 18, 2007 (see enclosed notice), the parties should be

prepared to discuss their understanding that the trial will only cover the application for

subdivision approval as a major subdivision, and that the Court does not now have

jurisdiction of any appeals of applications for PRD approval, site plan approval, Act 250

approval or ANR permit approval.

Done at Berlin, Vermont, this 4th day of October, 2007.

_________________________________________________ Merideth Wright Environmental Judge