STATE OF VERMONT
SUPERIOR COURT ENVIRONMENTAL DIVISION
}
In re Gilmore LLC 5-lot Subdivision }
Conditional Use Application } Docket No. 131-8-10 Vtec
(Appeal of McGee) }
(Cross-Appeal of Gilmore, LLC) }
}
Decision and Order
Appellants Jerry and Beverly McGee appealed from a decision of the
Planning Commission of the Town of Plymouth, Vermont granting conditional use
approval to Applicant Gilmore LLC for a five-lot residential subdivision. Appellee-
Applicant Gilmore LLC also filed a cross-appeal contesting whether any section of
the zoning ordinance or town plan relied upon by Appellants is sufficiently specific
to be enforceable.
Jerry and Beverly McGee are represented by C. Daniel Hershenson, Esq.,
Amy C. Ashworth, Esq., and Nathan H. Stearns, Esq.; Gilmore LLC is represented
by Lawrence G. Slason, Esq.; and the Town of Plymouth is represented by Frederick
M. Glover, Esq. In addition, Interested Persons Holly Ellis, Tom Ellis, and Randall
Shimp have entered appearances and represent themselves.; they participated fully
in the trial and in pre-trial telephone conferences, but did not file memoranda in this
matter.
An evidentiary hearing was held in this matter before Merideth Wright,
Environmental Judge. A site visit was taken at the end of the first day of hearing,
with the parties and their representatives. The parties were given the opportunity to
submit written memoranda and requests for findings. Upon consideration of the
evidence as illustrated by the site visit, and of the written memoranda and requests
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for findings filed by the parties, the Court finds and concludes as follows.
Procedural History
Gilmore LLC (Applicant) filed an application seeking conditional use
approval for the creation of a five-lot residential subdivision easterly of Gilmore
Road. The Town of Plymouth does not have subdivision regulations, but defines a
subdivision as requiring conditional use approval under § 4.16 of the 2007 Plymouth
Zoning Ordinance (Zoning Ordinance).1 The Planning Commission denied that
application on July 1, 2008. Applicant appealed the decision to this Court, which
remanded it pursuant to a stipulation between the parties to allow Applicant to file
an amended application. The amended application was filed on May 13, 2010 and
approved by the Planning Commission on July 6, 2010, with conditions that
Applicant now proposes to incorporate into its application. Neighbors Jerry and
Beverly McGee (Appellants) appealed; Applicant cross-appealed.
Factual Findings
Applicant seeks approval of a five-lot residential subdivision of a 93.43 acre
forested parcel of land with access to the end of Dix Hill Road in the Rural Densities2
Five-Acre zoning district of the Town of Plymouth. Dix Hill Road is a Class 3 town
highway (Town Highway #63) which extends northwesterly from existing public
roads uphill to the project property through an unrelated 26-lot existing residential
subdivision, the Dix Hill subdivision.
1 In re Gilmore Road, LLC Conditional Use Application, No. 194-9-08 Vtec, slip op.
at 13–14 (Vt. Envtl. Ct. Sept. 10, 2009) (Wright, J.) (describing the Town of
Plymouth’s regulation of subdivisions as a conditional use).
2 The Zoning Ordinance uses the plural term “Densities” throughout, even in
referencing a single zoning district; this decision follows the usage of the Zoning
Ordinance.
2
Appellants own a 12.57-acre roughly triangular parcel of land (the McGee
Parcel), numbered as Lot #20 (tax parcel # 100 as shown on Ex. J) in the Dix Hill
subdivision, with access at the southeast point of the triangle to the hammerhead
turnaround at the end of Dix Hill Road. A short driveway and parking area leads
from the end of Dix Hill Road to the location of Appellants’ house. The McGee
Parcel’s northwesterly boundary adjoins the portion of Lot 5 of Applicant’s project
property that is not proposed for development in the present application. The
northwestern corner of the westerly portion of Applicant’s project property adjoins
the southeastern corner of the property of Interested Person Shimp.
In addition to the 93.43-acre project property, Applicant owns3 a 50-foot-wide
strip of land shown as tax parcel # 101 on Ex. J, running along the McGee Parcel’s
easterly boundary between the McGee Parcel and the next lot in the Dix Hill
subdivision, tax parcel # 102. The 50-foot-wide strip of land connects the end of Dix
Hill Road to an unimproved trail sometimes referred to as Gilmore Road, which
extends in a northerly direction through Applicant’s project property, and through
an unrelated property to the north, to connect with Kingdom Road.4
All of the development proposed in the present application lies easterly of the
so-called Gilmore Road. That is, although Applicant’s representatives stated at trial
that it reserves the right to make a future application for development of the
approximately 52-acre portion of Lot 5 lying to the west of Gilmore Road, which
contains some areas identified as riparian buffer zones and Class 3 wetlands on Ex.
H2, no such development is proposed in the present application.
3 Any litigation over the ownership of this one-acre strip of land is in the jurisdiction
of the Civil Division of the Superior Court, not the Environmental Division.
4
An earlier subdivision proposal for the project property, denied by the Planning
Commission, had proposed access from Kingdom Road by way of improvements to
Gilmore Road; the present application incorporates a condition precluding access
from Kingdom Road.
3
Each of the proposed lots contains more than the minimum five acres in area
required by § 2.8 of the Zoning Ordinance for the Rural Densities Five-Acre zoning
district. As shown on Ex. H2, Lot 1 contains 6.59 acres, Lot 2 contains 5.06 acres, Lot
3 contains 5.74 acres, Lot 4 contains 6.01 acres, and Lot 5 contains the remaining
70.03 acres, of which approximately 18 acres lies easterly of Gilmore Road. The
property of Interested Persons Ellis adjoins the project property to the east of Lot 3.
Each lot is proposed to contain a single-family house and to be served by an
individual drilled well. All five lots are proposed to be served by individual septic
tanks and wastewater pretreatment systems, and by a community mound-type
wastewater system to be located on Lot 4. Limited areas of vista clearing are
proposed for Lots 1, 4, and 5; no vista clearing is allowed on Lots 2 or 3.
Applicant has incorporated into its present application, and proposes to
comply with, all six conditions imposed on it by the Planning Commission in the
approval on appeal. All six conditions are contained in full in Ex. FF. The
subdivision plat Applicant was required to produce by the sixth condition (a plat
combining into Lot 5 the lands lying on both sides of Gilmore Road) has been
prepared by Applicant and is the basis for the subdivision plans in evidence in this
appeal. The first five conditions impose the following requirements:
1. Clearing limits “shall be adjusted per conditions, reducing the area
for vista clearing from 3 acres to 1½ acres for the total five lots” as shown on
Ex. H5, with no clearing to occur on slopes greater than 25%.
2. Applicant shall comply with the requirements of § 3.15 of the
Zoning Ordinance as to outdoor lighting (quoted in full in Ex. FF). Section
3.15 requires, among other things, that lighting be directed downwards and
be shielded so that it does not shine into the night sky.
3. The subdivision shall have no access to or from Kingdom Road.
4. Applicant “will be required to obtain [a] driveway access permit.”
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5. The portion of Lot 5 that lies east of Gilmore Road, consisting of
approximately 18 acres, “will have only one residential dwelling and cannot
be further subdivided.”
The project property contains areas of moderate and steep slopes, and areas
of low to moderately erodible soils, typical of the Green Mountain area of Windsor
County. The physical characteristics of the portion of the property lying to the east
of Gilmore Road, that is, the area proposed for development in the present
application, are suitable for residential development at a density of not more than
one single-family house per five acres, as long as the sites on which the houses are
constructed avoid the areas of steeper slopes (greater than 25%) that run through the
property in a roughly north to south or southwest direction, as shown on Ex. H1.
Applicant proposes that not more than a total of 9.36 acres of land will be
cleared, as shown on Ex. H5, including the 1.5 acres of vista clearing. Applicant
proposes that not more than a total of 5.41 acres of soil will be disturbed for the
project, consisting of 2.96 acres for construction of the access road and the water
supply and wastewater disposal systems, and 2.45 acres for the individual
driveways and house sites. Applicant obtained coverage under the state
Construction General Permit 3-9020 for its stormwater discharge associated with its
construction activity. Ex. L, “Authorization of Notice of Intent #6316-9020.”
Coverage under that general permit requires a risk analysis. The project’s risk
mitigation factors (that stormwater will pass through an established vegetated
buffer, that not more than two acres of disturbed soils will be open at any time, and
that any disturbed area will be stabilized within seven days) balance its risk factors
that more than a total of two acres will be disturbed, and that more than an acre of
the disturbed soil has a slope greater than 15%. However, since the original notice
of intent only proposed stabilization within 14 days, Applicant must obtain
amended coverage under the Construction General Permit 3-9020 reflecting the
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seven-day-stabilization condition.
The project will also require a state operational stormwater discharge permit
or coverage under the stormwater general permit (#3-9015) to address stormwater
runoff from the houses, driveways, and other impervious areas once the project is
completed, as the project will have an impervious area of greater than one acre.
Nothing in the Zoning Ordinance appears to require this state permit to be obtained
in advance of applying for municipal approval of a subdivision. It would be
premature to obtain the operational stormwater permit before the impervious area
resulting from the house designs is known. The project is capable of qualifying for a
stormwater discharge permit by conveying rooftop drainage from each house to
areas in which it can infiltrate into the soil, and is likely also to qualify for the so-
called Environmentally Sensitive Rural Development Credit. If a stormwater
detention pond is necessary, there is room on Lot 5 for the construction of such a
pond.
Based on the state Wastewater System and Potable Water Supply permit
WW-3-1778 issued for the project, Ex. K, each house is restricted to a maximum of
four bedrooms with a design flow of 1575 gallons per day of wastewater. Each lot
has a septic tank and biofilter effluent pretreatment system from which the
wastewater flows to the community mound wastewater disposal system. The
community mound wastewater disposal system is proposed to be located in an area
on Lots 4 and 5 whose native soils have a slope of not more than 15%.
Access to and within the proposed subdivision is proposed to be by a 50-foot-
wide permanent easement or right-of-way from the end of Dix Hill Road, through
Lots 4 and 5 and ending at a cul-de-sac 75 feet in diameter on Lot 2. Applicant
proposes to construct a common access roadway 2,150 feet in length within the
right-of-way, and having a total width of 24 feet, consisting of a 20-foot-wide
traveled way with 2-foot-wide shoulders on either side. Within the project property
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the proposed roadway passes through areas of steep slope; however, it has been
designed and engineered with appropriate cutting and filling and slope stabilization
to avoid erosion of the areas of steep slope once the roadway has been constructed.
Another 50-foot-wide permanent right-of-way extends from the cul-de-sac
through Lot 2 to its boundary with Lot 1, and a right-of-way wider than 50 feet
extends from the cul-de-sac to the boundary of Lot 3. Individual driveways are
proposed to extend from the access road to the house site on each lot. Each
driveway is designed to have a 16-foot-wide traveled way and a sufficient apron
with a 35-foot turning radius to enable a fire truck to turn into each driveway safely.
The cul-de-sac serving lots 1, 2, and 3 is wide enough to allow a pumper fire truck to
maneuver back and forth to negotiate the acute turn into the Lot 3 driveway,
although the fire responders are expected to be able to reach the location of the Lot 3
house site by pumping water from a truck located in the cul-de-sac.
Applicant-Cross-Appellant’s Statement of Questions
Applicant asks whether there are any legally enforceable standards, policies,
or provisions of the 2005 Plymouth Town Plan (Town Plan) or the 2007 Plymouth
Zoning Ordinance which prohibit Applicant’s proposed subdivision, or, conversely,
whether the provisions referenced in Appellants’ Statement of Questions are
sufficiently specific to be enforceable. This decision will address Applicant’s issues
in the context of each of the questions in Appellants’ Statement of Questions.
Required Frontage On, or Access to, Public Roads (§ 3.3) (Appellants’
Question 2)
Appellants ask whether the proposed subdivision has the required access to a
public road as required by § 3.3 of the Zoning Ordinance and 24 V.S.A. § 4412(3),
and whether the required findings can be made under § 3.3.1–3.3.3. The proposed
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subdivision has access to a public road, Dix Hill Road, by way of a 50-foot-wide
strip of land owned by Applicant. The project meets § 3.3 and the state statute
because the subdivision’s Declaration of Restrictive Covenants and Easements
provides that all of the lots have a “perpetual right-of-way and easement 50 feet in
width” over the access road from the end of Dix Hill Road to the boundary of each
lot. Ex. Z.
Conditional Use Review (§ 4.16.2)
In the Rural Densities Five-Acre zoning district, subdivisions require
conditional use approval under § 4.16. See § 2.8. The remainder of Appellants’
Questions ask whether the proposed five-lot subdivision satisfies the following four
criteria for conditional use approval.5
Access for Fire Equipment and On-Site Pedestrian Safety (§ 4.16.2.b)
(Appellants’ Question 1(a))
Appellants ask whether the design of the proposed subdivision will result in
an undue adverse effect on access for fire equipment and on-site pedestrian safety.
The project’s access road is designed to allow safe access for fire equipment, and it is
wide enough and will be lightly-enough traveled, with only a total of 18 vehicle
trips per day, to be safe for pedestrians. All five of the driveways are designed with
a 35-foot turning radius at their apron adequate for the fire trucks used by the
Plymouth volunteer fire department to negotiate the turn into each driveway,
although the acute turn into the Lot 3 driveway from the cul-de-sac serving Lots 1, 2,
and 3 may require back and forth maneuvering by the fire trucks in order to
5 Although Appellants ask generally whether the proposed subdivision complies
with the conditional use criteria, their Statement of Questions only raises issues
specific to the four criteria addressed in this decision.
8
negotiate the turn. Applicant’s engineer stated that the fire responders “probably
wouldn’t bring the truck above the cul-de-sac,” suggesting that water from a truck
at the location and elevation of the cul-de-sac could be pumped to the location of the
Lot 3 house site.
Accordingly, the Court will impose an additional condition to ensure both
that the fire equipment is capable of negotiating the turn into the Lot 3 driveway
and that water from a truck at the location and elevation of the cul-de-sac can be
pumped to the location of the Lot 3 house site. With the additional condition, the
project design will not result in an undue adverse effect on access for fire equipment
or on pedestrian safety on the project site.
Traffic (§ 4.16.2.h) (Appellants’ Question 1(d))
Appellants ask whether the proposed subdivision will result in an undue
adverse effect on traffic on roads and highways in the vicinity of the project. Access
to the project is by Dix Hill Road, a Class 3 town highway already maintained by the
Town. The project would add only 18 vehicle trip ends per day to the traffic using
Dix Hill Road, which will not have any adverse effect on traffic on that roadway or
on the roadways to which it connects.
Character of the Area (§ 4.16.2.g) (Appellants’ Questions 1(c) and 3–19)
The criterion for conditional use approval that is the focus of the majority of
questions in Appellants’ Statement of Questions is whether the proposed project will
result in an undue adverse effect on “[t]he character of the area affected as defined
by the purposes of the zoning district and the stated policies and standards of the
Plymouth Town Plan.” § 4.16.2.g. This criterion derives from the state enabling act,
which requires municipalities to include in their regulations for conditional use
approval that a project not result in an undue adverse effect on, among other things,
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“[t]he character of the area affected, as defined by the purpose or purposes of the
zoning district within which the project is located, and [by] specifically stated
policies and standards of the municipal plan.” 24 V.S.A. § 4414(3)(A)(ii).6
In Question 1(c) Appellants ask the general question of whether the proposed
project will result in an undue adverse effect on the character of the area as defined
in § 4.16.2.g. In Questions 3 through 19 Appellants ask more specifically whether
the project will result in an undue adverse effect on the character of the area as
defined by the purpose statement in § 2.2 of the Zoning Ordinance regarding the
three Rural Densities zoning districts (districts zoned respectively for a density of
two acres, five acres, or ten acres per dwelling unit) in connection with various
specific statements in the Town Plan.
As to the three Rural Densities zoning districts generally,7 § 2.2 states in full
that the purpose of those three districts is:
[t]o relate and guide density of rural settlement to the physical
limitations imposed by the land, thus minimizing potential health
problems and costs to taxpayers for the provision of public services
and utilities; and to create a pattern of settlement which is compatible
with the rural and natural character of the town.
Appellants’ Questions 3, 4, 5, 7, 8, 11, 12, 14, 15, 16, 17, 18 and 19 relate various
statements in the Town Plan to the purpose statement in § 2.2 that all three Rural
6 The 2004 amendments to Chapter 117 recodified the minimum required
conditional use standards in §4414(3)(A), and further defined the “character of the
area affected” as being “defined by the purpose or purposes of the zoning district
within which the project is located, and [the] specifically stated policies and
standards of the municipal plan.” The added definitional language makes clear that
the character of an area refers to its character as it is intended to be, if the specifically
stated policies and standards of the municipal plan are carried out.
7
With regard to the purpose statement, Section 2.2 does not distinguish among the
two-acre, five-acre, and ten-acre Rural Densities zoning districts, even though the
introductory language of the section states that the “specific purpose of each Zoning
District shall be as follows.”
10
Densities zoning districts are intended to “create a pattern of settlement which is
compatible with the rural and natural character of the town.” Appellants’ Questions
6, 9, 10, and 13 relate various statements in the Town Plan to the purpose statement
in § 2.2 that all three Rural Densities zoning districts are intended to “relate and
guide density of rural settlement to the physical limitations imposed by the land.”
As to each of Appellants’ Questions, Applicant argues that no legally
enforceable standards, policies, or provisions of the 2005 Plymouth Town Plan or the
2007 Plymouth Zoning Ordinance prohibit Applicant’s proposed subdivision, and
that, in any event, the provisions referenced in Appellants’ Statement of Questions
are not sufficiently specific to be enforceable.
Unlike the regulatory provisions struck down in In re Appeal of JAM Golf,
LLC, 2008 VT 110, ¶¶ 14, 16–17, 185 Vt. 201, the reference to the Town Plan in
§ 4.16.2.g does not purport to require that a conditional use must conform with the
municipal plan. That is, the reference does not have a regulatory effect, and
therefore resolving the argument over whether statements in the Town Plan would
be sufficiently specific to be independently enforceable is unnecessary.8
Rather, § 4.16.2.g and 24 V.S.A. § 4414(3)(A)(ii) simply refer the Planning
Commission, and hence this Court, to the purpose statement of the zoning district,
8
A regulatory provision must be specific enough to allow the decisionmaker both
“clearly to identify the resources or features to be protected” and “to discern the
degree or level of protection that must be achieved for each identified resource or
feature.” In re Highlands Development Co., LLC & J.A.M. Golf, LLC Master Plan
Application, No. 194-10-03 Vtec, slip op. at 15 (Vt. Envtl. Ct., Feb. 2, 2010) (Wright, J).
Applicant and the Town both argue that the provisions of the Town Plan are too
vague to provide a legally enforceable standard by which the proposed subdivision
could be judged; however, because those provisions are not made directly applicable
to the proposed project by any provision of the zoning ordinance, it is not necessary
to reach the constitutional question. See State v. Patnaude, 140 Vt. 361, 368 (1981)
(constitutional issues “will not be considered by [the] Court unless disposition of the
case requires it.”).
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as well as to any “specifically9 stated policies and standards” for the area of the
project in the Town Plan, in order to define what is the character of the area
potentially affected by the project. The reference to the Town Plan is solely as the
source of specific information, if any, to determine the character of the affected area.
The character of the affected area must be determined before it is possible to
determine whether a proposed project will result in an undue adverse effect on that
character.
Because the Zoning Ordinance does not distinguish among the three
categories of Rural Densities zoning districts—two-acre, five-acre, and ten-acre—the
Zoning Ordinance’s general purpose statement in § 2.2 about the Rural Densities
districts is of only limited utility in defining the character of the area potentially
affected by the project, because it refers to the “rural and natural character of the
town” as a whole rather than to the character of a more limited and specific area. By
contrast, § 2.11 defining the Coolidge Homestead Historic Area does specifically
describe the extent and the nature of the Plymouth Notch village and the Coolidge
Homestead area, and specifically states the purpose and goal of that district.
Similarly, § 3.13.1 establishes specific requirements for the protection of the scenic or
natural beauty of a ridge or hillside with regard to applications for wireless
communication towers, and § 2.9(C) limits the cutting of shoreline vegetation to
protect the view of the shoreline when viewed from the lakes and ponds making up
the Shoreland Overlay zoning district. § 2.4. There are no equivalent provisions in
the Zoning Ordinance protecting or regulating the hillsides of the project area when
viewed from Echo Lake or from a public road within the town.
Nor does the Town Plan provide any specific description of the area
9 Although § 4.16.2.g does not use the word “specifically,” the statutory section is
mandatory and therefore the specificity requirement is applicable. In re White, 155
Vt. 612, 618–20 (1990).
12
potentially affected by the project, or of the character of that area, unlike the Town
Plan’s specific identification of named scenic areas on pages 30–31, or its specific
identification of historic landmarks and sites on pages 33–34. The Town Plan
describes rural and natural characteristics of the town as a whole, stating that the
Town’s “landscape is defined by the contrast between steep wooded mountains and
narrow open valleys.” Town Plan at 10. The Town Plan identifies several scenic
features, including Amherst Lake and Echo Lake which are “recognized for their
beauty,” and Colby Pond and Kingdom Road, which “seem like they are at the top
of the world.” Id. at 31. The Town Plan describes Chapman Road as a “rural road . .
. bordered by large maples and old farmsteads.” Id. At best, it provides municipal
policies applicable to the upland areas of the town as a whole.10
Therefore, this decision proceeds to analyze the questions in Appellants’
Statement of Questions in two groups: those that relate various statements in the
Town Plan to the purpose statement in § 2.2 that the Rural Densities zoning districts
are intended to “create a pattern of settlement which is compatible with the rural
and natural character of the town,” and those that relate various statements in the
Town Plan to the purpose statement in § 2.2 that the Rural Densities zoning districts
are intended to “relate and guide density of rural settlement to the physical
limitations imposed by the land.”
Character of the Area: Pattern of Settlement Compatible with
Rural & Natural Character of Town (Appellants’ Questions 3, 4,
5, 7, 8, 11, 12, 14, 15, 16, 17, 18 and 19)
One of the general purposes of the three Rural Densities zoning districts is to
10 As nothing in the Town Plan or the Zoning Ordinance adopts by reference any
policies of the regional plan, the regional plan cannot be used to assist in defining
the character of the area.
13
“create a pattern of settlement which is compatible with the rural and natural
character of the town.”
The rural and natural character of the town as a whole, and its contrast
between steep wooded mountains and narrow open valleys, including the view of
the project’s hillside from across Echo Lake, is preserved by the Town Plan’s policy
that roads leading into remote areas not planned for development not be improved,
so as to encourage development only in the areas where the Town believes it is
appropriate. Town Plan at 16. The Rural Densities Five-Acre zoning district is by its
terms an area planned for development at a five-acres-per-dwelling-unit density.
The proposed project does not involve the improvement of a town road in a remote
area not planned for development. Rather, the project is served by an access road
that connects to an existing town road in an existing subdivision.
In the Rural Densities Five-Acre zoning district, maintenance of this density
allows for continued appreciation, generally, of “the beauty of clustered village
houses, isolated farms, and scenic mountain vistas” by both the residents of and
visitors to the Town. Id. at 8. The condition limiting the vista cut areas to only 1.5
acres of the project, and to only where proposed on Lots 1, 4, and 5, will minimize
any effect on the view of the project property’s hillside from Route 100 and Echo
Lake, consistent with the character of the area as a wooded hillside.11
Although the lots in the Dix Hill Subdivision average just over ten acres in
area, because they are long narrow lots, houses on those lots placed conveniently to
the road are of necessity located closer to one another than the size of the lots would
11
Appellants and Interested Persons expressed concern about the enforcement of
these limitations. The enforcement of any limitations that are part of the approved
plans or are made conditions of a permit, whether by the municipality or by
interested persons under 24 V.S.A. § 4470(b), or by the municipality under 24 V.S.A.
§ 4451, is beyond the scope of this decision.
14
suggest. The five lots in Applicant’s project are compatible with the character of the
area as defined by the five-acre density established by the zoning district, as well as
with the appearance of the houses and lots in the neighboring Dix Hill Subdivision.
Character of the Area: Density Related to Physical Limitations
of Land (Appellants’ Questions 6, 9, 10, and 13)
The other general purpose of the three Rural Densities zoning districts is to
“relate and guide [the] density of rural settlement to the physical limitations
imposed by the land, thus minimizing potential health problems and costs to
taxpayers for the provision of public services and utilities.”
The physical limitations which the Planning Commission must consider
when evaluating the character of the area are clarified by the Town Plan, which
focuses primarily on the “capacity of soils to accommodate safe septic systems.”
Town Plan at 9. At the time of the 2005 Town Plan, the state had not yet fully
assumed responsibility for regulating on-site wastewater disposal systems, and the
Town of Plymouth then had its own septic system regulations.12 Id. The Town Plan
explains that the suitability of any lot for an on-site septic system should be
evaluated on a site-by-site basis, based on “factors such as soil type, steepness of
slope, depth to bedrock or other impervious material, high ground water table, and
flooding hazard.” Id. Nevertheless, it notes that three different rural densities: two
acres per dwelling unit, five acres per dwelling unit, and ten acres per dwelling unit,
were identified based on the suitability of the soils, and states that the zoning
12 In 2002, the state assumed responsibility for regulating potable water supplies
and wastewater systems, and established a five-year phase-out period for municipal
regulation of such systems. 2001, No. 133 (Adj. Sess.); codified as 10 V.S.A., Chapter
64. The statute provided that municipal ordinances (including zoning bylaws)
regulating potable water supplies and wastewater systems would be superseded by
the state statute and rules as of July 1, 2007. 10 V.S.A. § 1976(b).
15
ordinance establishing the three Rural Densities districts “is compatible with” the
rural densities as described in the Town Plan. Id. The Town Plan states that the
five-acre medium density “should be maintained where suitability ranges from fair
to poor” and that areas zoned for this density “have 10% to 15% slopes and soils
with moderate limitations.” Id.
Thus, as discussed in the Town Plan, by virtue of being located within the
Rural Densities Five-Acre zoning district, the project property is presumptively
suitable for residential development at a density of five acres per dwelling unit,
subject to an evaluation of the project property’s suitability for septic disposal. In
fact, a previous proposal for this property that featured separate on-site wastewater
disposal systems was rejected by the Planning Commission. The present proposal
for a community mound-type disposal system, with individual septic tanks and
pretreatment filtration, has received state approval. Therefore, the density of the
proposed subdivision will not result in an undue adverse effect on the character of
the area as defined by the density of the zoning district and the physical limitations
of the project parcel.
Similarly, the fact that the project’s access road connects to an existing town
road, and does not represent any increased cost to the taxpayer for the provision of
public services, means that the proposed project will not result in an undue adverse
effect on the character of the area as defined by that aspect of the purpose statement
of the zoning district.
Adequacy of Landscaping, Screening and Setbacks (§ 4.16.2.c)
(Appellants’ Question 1(b))
Lastly, Appellants ask whether the design of the proposed subdivision will
result in an undue adverse effect on the adequacy of landscaping, screening, and
setbacks to achieve maximum compatibility with, and protection of, other properties
16
in the area.
Given the heavily wooded nature of the project property and the distance
from the proposed house sites to any neighboring property, the natural screening
and setbacks of the 93-acre project property achieves the maximum compatibility
with and protection of other properties in the area.
However, no landscaping or screening has been proposed for the project’s
access roadway as it passes adjacent to the McGee driveway within view from the
McGee house—that is, between the end of Dix Hill Road and the beginning of the
tree line on the McGee property (at approximately elevation 1748). Although
Appellants do not specifically request any findings or conditions related to the
screening of this access roadway, in order to meet the standards of “maximum
compatibility” and “protection” in § 4.16.2.c, Applicant must install screening or
landscaping in the stretch of access roadway from the end of Dix Hill Road to the
beginning of the tree line on the McGee property (at approximately elevation 1748),
between the access roadway and the McGee property line, so as to shield the McGee
house as much as possible from the lights and noise of cars passing along the access
roadway. With the addition of whatever landscaping or other screening is possible
in that location to accomplish that result, given the limited available space within
the fifty-foot-wide strip, the proposed project meets the requirements of § 4.16.2.c.
Accordingly, based on the foregoing, it is hereby ORDERED and ADJUDGED
that, conditional use approval is hereby GRANTED to Applicant’s subdivision,
subject to the following conditions. As discussed above, Conditions 1 through 5 are
derived from those imposed by the Planning Commission and restated by the Court;
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Conditions 6 through 8 are the three additional conditions required by this decision.
1. Clearing limits are limited to those shown on Ex. H5, so that areas allowed
for vista clearing shall not exceed a total of 1.5 acres for the project as a whole, with
no clearing to occur on slopes greater than 25%.
2. Applicant and its successor lot owners shall comply with the requirements
of § 3.15 of the Zoning Ordinance as to outdoor lighting, including as to downward-
directed lighting and shielding.
3. The subdivision shall not have access to or from Kingdom Road, that is,
the so-called Gilmore Road shall not be used for access to Kingdom Road.
4. Applicant shall obtain a driveway access permit for the project access road
onto Dix Hill Road.
5. The portion of Lot 5 that lies east of Gilmore Road, consisting of
approximately 18 acres, may be developed with not more than one single-family
dwelling, and shall not be further subdivided.
6. Prior to commencing site work, Applicant shall obtain amended coverage
under the Construction General Permit 3-9020 reflecting the seven-day-stabilization
condition.
7. The turn into the Lot 3 driveway from the cul-de-sac serving Lots 1, 2, and
3 shall be designed so that, with such maneuvers as are necessary within the cul-de-
sac, a pumper fire truck will be able to negotiate the turn into the Lot 3 driveway.
Applicant shall also verify that a pumper fire truck located in the cul-de-sac will be
able to pump water to the location and elevation of the Lot 3 house site.
8. Applicant shall install screening or landscaping in the stretch of access
roadway from the end of Dix Hill Road to the beginning of the tree line on the
McGee property (at approximately elevation 1748), between the access roadway and
the McGee property line, so as to shield the McGee house as much as possible from
the lights and noise of cars passing along the access roadway, given the limited
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available space within the fifty-foot-wide strip.
Done at Berlin, Vermont, this 9th day of February, 2012.
_________________________________________________
Merideth Wright
Environmental Judge
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