MAR ‘ 9 2012
STATE ()F VERMONT
SUPERIOR COURT - ENVIRONMENTAL DIVISION VERMONT
SUPEREOR COUHT
{ ENV|HONMENTAL DlVlSlON
'In Re LaFogg Subdivision { Docket No. 103-7-11 Vtec
Final Plat Approval {
Decision on CroSs-Motions for Sumrnarv ludgment
David Christie (”Appellant”) appeals the Town of l-lalifa)< Planning Commission's (”the
Commission”) approval of joan and Peter LaFogg’s (”Applicants”) permit to create a new
parcel on their property in the Town of Halifa><, Vermont. Currently pending before this Court
are the parties' cross-motions for summary judgment concerning whether Applicants’
application for a permit to create a new parcel should be approved
In this proceeding, Appellant is represented by Robin Stern, Esq. Applicants are
represented by Christopher D. Roy, Esq. The Town of Halifa)< filed an appearance in this matter
but did not participate in the motions.
Factual Backgi_:ound
For the sole purpose of putting the pending motions into context, the Court recites the
following facts, Which it understands to be undisputed unless otherwise noted:
l. Applicants own a 60.18i acre parcel of property in the Town of Halifax, Vermont (”the
Town”). Appellant owns land abutting Applicants’ property.
2. The current version of the Town of Halifax Zoning Regulations (”the Regulations”) was
adopted on l\/larch 6, 2007. Pursuant to the Regulations, Applicants’ property is located in the
Conservation District. `
3. A Single-family residence, constructed in approximately 2002, currently exists on
Applicants' property. The residence was constructed prior to the adoption of the current
Regulations.
4. Applicants’ property has 50 feet of road frontage on Old County Road, a public town
road.
5. Applicants Seel< to create a new parcel on their property so that the property will consist
of two Separate parcels. Lot l will consist of 32.54i acres and will include the 50 feet of road
frontage currently existing on Old County Road. Lot 2 will be a ”bacl< lot” consisting of 27.63i
acres and served by a 50-foot right-of~way.
6. On April 10, 2011, Applicants submitted an application to the Commission seeking a
permit to divide their property and create a new parcel. The Commission approved the
application on ]une 22, 2011.
’7. Appellant thereafter filed a timely appeal of the Commission's decision with this Court.
Discussion
ln his motion for summary judgment, Appellant asks the Court to deny Applicants'
request for approval to divide their property into two parcels. ln support of his motion,
Appellant argues that (1) ”[t]he proposed subdivision violates both local and state law”; (2) the
proposed property division will increase the nonconformity of Applicants' property; (3) the
proposed property division will result in merger of the parcels, thereby resulting in one
nonconforming lot; and (4) the applicable provisions of the Regulations conflict with the
applicable provisions of 24 V.S.A., Chapter 117.1
ln their cross~motion, Applicants contend that the Court should approve their
application to divide their property into two parcels. ln support of their motion, Applicants
argue that the Regulations permit division of their property, and, if their property is divided
into two lots, Lot l will remain a permissible preexisting nonconforming lot under the
Regulations and Lot 2 will be a conforming lot under both the Regulations and 24 V.S.A.,
Chapter 117.
For the reasons detailed below, we conclude as a matter of law that (l) although the
property is nonconforming, it can be divided into two lots pursuant to both the Regulations and
24 V.S.A., Chapter 117; (2) the proposed division of Applicants’ property will not increase the
property's nonconformity because Lot l will be a permissible preexisting nonconforming lot
and Lot 2 will be a conforming lot under the Regulations and 24 V.S.A., Chapter 117,' (3) the
Regulations contain sufficient standards regulating the process of property division; (4) the
proposed lots Will not merge,' and (5) the applicable provisions of the Regulations do not
conflict with the applicable provisions of 24 V.S.A., Chapter ll7.
1 Appellant also argues as part of his motion for summary judgment that the proposed property division
will defeat the purpose of the frontage requirements as well as the purpose of the Conservation District.
Appellant did not raise this issue in his Statement of Questions, however, and we therefore decline to
consider it. See V.R.E.C.P. 5(f) (”The appellant may not raise any question on the appeal not presented in
the [statement of questions].”).
I. Summarv judgment Standard
A court may grant summary judgment where ”the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any, . . . show that there is
no genuine issue as to any material fact and that any party is entitled to judgment as a matter of
law." V.R.C.P. 56(c)(3) (2011) (amended jan. 23, 2012).2 ln considering the parties’ cross-
motions for summary judgment, we give each party the benefit of all reasonable doubts and
inferences City of Burlington v. Fairpoint Commc’ns, 2009 VT 59, jj 5, 186 Vt. 332 (citing Toysl
lnc. v. F.l\/l. Burlington Co., 155 Vt. 44, 48 (1990)). We ”accept as true the jfactualj allegations
made in opposition to jeach] motion for summary judgment, so long as they are supported by
affidavits or other evidentiary material." Robertson v. l\/lVlan Labs., lnc., 2004 VT 15, jj 15, 176
Vt. 356.
II. Legalitv of PropertV Division Under State and Municipal Law l
ln his motion for summary judgment, Appellant contends that the division of
Applicants' property as proposed ”violates both local and state law." (Appellant's l\/lotion for
Summary judgment 4, filed l\lov. 21, 2011). Specifically, Appellant argues that division of the
subject property will increase the property's preexisting nonconformity under the Regulations
and will create a new nonconforming lot without the road frontage required by the Regulations
and 24 v.s.A., chapter 117.
Applicants argue in their cross-motion that, if their property is divided, the proposed
Lot 1 will remain a preexisting nonconforming lot and the proposed Lot 2 will be a conforming
lot under the Regulations and 24 V.S.A., Chapter 117.
We interpret a Zoning ordinance using the familiar rules of statutory construction l_nie
Im__h_ag, 2008 VT 90, jj 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.” l_d. lf the plain
language resolves the conflict, ”there is no need to go further, always bearing in mind that the
paramount function of the court is to give effect to the legislative intent.” Lubinsl