STATE OF VERMONT
ENVIRONMENTAL COURT
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In re: Kowalski Subdivision }
Preliminary Plat } Docket No. 50-3-07 Vtec
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Decision on Cross-Motions for Summary Judgment
This appeal arises out of a decision by the Marshfield Development Review Board
(“DRB”) to deny Wayne and Susan Kowalski’s application for a Planned Residential
Development (“PRD”) and preliminary plat subdivision approval of their property on Maple Hill
Road in Marshfield. Appellant-Applicants Wayne and Susan Kowalski are represented by
Oliver L. Twombly, Esq. The Town of Marshfield (“Marshfield”) is represented by Paul S.
Gillies, Esq. and Daniel P. Richardson, Esq.
Applicants and the Town of Marshfield have filed cross-motions for summary judgment
and supporting memoranda on all issues presented in Appellants’ Statement of Questions.
For the purposes of our review of the pending motions, we understand the following facts
to be undisputed unless otherwise noted.
Factual Background
1. Wayne and Susan Kowalski own a 77± acre parcel of land located at 2798 Maple Hill Road
in Marshfield that lies southwesterly of Maple Hill Road and northeasterly of the Marshfield-
Plainfield town line (“Town Line”). Applicants Ex. B-1.
2. On September 22, 2006, the Kowalskis submitted an application for preliminary plat and
PRD approval of a four-lot subdivision. Id. The application also contained a request for
approval of two single family residences on a single lot as a PRD.1 Applicants Ex. B-1.
3. Lot 1 of the proposed subdivision contains the Kowalskis’ existing single family home and
approximately 4.49 acres. Applicants Ex. B-2. It shares its easterly boundary with Lot 2; its
1
At the time the application was submitted, the Marshfield Zoning Regulations recognized both PRD’s and
“Planned Unit Developments” (“PUD”). Appellee’s Ex. 6 at 1 n.1; see also Appellee’s Ex. 4 (containing selections
from the Marshfield, Vermont Current Zoning Regulations) (“Zoning Regulations”). These Regulations have since
been revised to reflect certain changes mandated by statute. The Regulations no longer contain a provision for
PRDs. Appellee’s Ex. 5; see also 24 V.S.A. § 4417(f) (containing no PRD provision). Our discussion here focuses
on the pre-existing Regulations, since we are directed to apply the zoning standards in effect at the time the
Kowalskis’ application was filed, which was September 22, 2006. See In re Jolley Assocs., 2006 VT 132, ¶ 11
(citing Smith v. Winhall Planning Comm’n, 140 Vt. 178 (1981)).
northerly boundary is its frontage along Maple Hill Road. Marshfield Ex. 1. It shares its
westerly boundary with Lot 4, which has not been surveyed and will be retained by
Applicants. Applicants Ex. B-2. Lot 1 shares at least some of its southerly boundary with
Lot 4.2
4. Lot 2 is the largest proposed lot; it contains approximately 30.43 acres. Id. It separates Lot 1
from Lot 3 in the northerly half of the proposed subdivision.
5. Lot 2 is located partly in the Marshfield Agricultural/Rural Residential Zoning District
(“Ag/Res District”) and partly in the Marshfield Forestry & Conservation Zoning District
(F&C District”). Applicants Ex. B-2.
6. The Lot 2 northerly boundary runs along Maple Hill Road and its southerly boundary is the
Town Line that Marshfield shares with the Town of Plainfield. Marshfield Ex. 1. The Lot 2
easterly boundary begins at its northerly corner on Maple Hill Road and proceeds along that
right of way for about 622 feet. The Lot 2 boundary then proceeds southwesterly for
approximately 360 feet along the westerly border of Lot 3. Id. This common boundary line
then turns easterly for another 360 feet along the southern border of Lot 3. The Lot 2
boundary line then continues in a southwesterly direction for about 1,489 feet, along a former
town road. Id.
7. This former town road is three rods or about 49.5 feet wide. The easterly boundaries of Lots
2 and 3 run along the center line of the former town road. Marshfield Ex. 1. Applicants’
subdivision plan includes plans to grant a “perpetual right-of-way” for recreational purposes
along this former town road.
8. Applicants and Marshfield differ regarding the length, orientation, and placement of the
remainder of the Lot 2 boundaries. Applicants describe the southerly boundary of Lot 2 as
extending just over 854 feet along the Town Line. Applicants Ex. B-2. Marshfield describes
the same boundary as extending just over 718 feet. Marshfield Ex. 1.
9. Applicants describe the Lot 2 westerly boundary as extending just over 838 feet from its
western most corner to the southerly boundary of Lot 1, from that point turning easterly for
an undetermined distance, and then running in a northeasterly direction along the Lot 1
eastern boundary. Applicants Ex. B-2. Marshfield describes the same boundary as extending
2
Marshfield Ex. 1 and Appellants Ex. B-2 depict Lot 2 in slightly different ways: Appellants Ex. B-2 shows that a
portion of Lot 2 makes up the southerly boundary of Lot 1 while Marshfield Ex. 1 shows that all of the Lot 1
southerly boundary is shared with Lot 4. Although notable, this does not appear to be a material difference of fact.
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over 875 feet from the western corner of Lot 2 and making no easterly turn before forming
Lot 1’s easterly boundary. Marshfield Ex. 1.3
10. Lot 2 contains two proposed house sites, both located near the eastern boundary of Lot 2,
approximately halfway between the Town Line and the southerly boundary of Lot 3.
Applicants Ex. B-2. These house sites and a majority of the acreage of Lot 2 are located in
the F&C District. Marshfield Ex. 1 and Applicants Ex. B-2.
11. Applicants represented that they chose the Lot 2 house sites based upon the layout of the
land. Marshfield Ex. 5. At a January 4, 2007 DRB meeting, Applicants represented that the
only reasonable place to build on the Lot 2 site was the place selected within the F&C
District, since the part of Lot 2 that sits in the Ag/Res District (estimated at less than 9 acres)
is too wet to install a septic system. Marshfield Ex. 6 at 3.
12. Lot 3 is located in the northeasterly corner of the proposed subdivision and contains 2.65±
acres. It is located wholly within the Ag/Res District. It shares its westerly and southerly
boundaries with Lot 2. A portion of its northerly boundary runs along Maple Hill Road; Lot
3 abuts property described as “Lands now or formerly of Catherine Elwert.” (“Elwert Lot”).
13. The Elwert Lot, which abuts the northeasterly corner of Lot 3, has frontage on Maple Hill
Road and contains an existing house. Applicants propose to convey their proposed Lot 3 to
the Elwert Lot owners, so as to bring the Elwert Lot into conformance with minimum lot size
requirements for the Ag/Res District. Marshfield Statement of Undisputed Facts at ¶ 5.
14. After a hearing on January 4, 2007, the DRB denied the Applicants’ preliminary plat and
PRD applications by written decision dated February 2, 2007. Marshfield Ex. 6. Applicants
thereafter filed a timely appeal with this Court.
Discussion
Both parties have moved for summary judgment, which “is appropriate when the material
facts are not in contest and the moving party is entitled to judgment as a matter of law.”
Hubbard v. Metro. Prop. And Cas. Ins. Co., 2007 VT 121, ¶ 6; see also V.R.C.P. 56(c)(3)
(“Judgment shall be rendered forthwith if [the pleadings and other evidence] show that there is
no genuine issue as to any material fact and that any party is entitled to a judgment as a matter of
law”). In this de novo appeal, we are directed to apply the substantive standards that were
3 These discrepancies do not appear to be material to our analysis here. In fact, each party’s Exhibits appear to be
photocopies of different drafts of site plans prepared by Brad M. Washburn, Applicants’ certified site technician.
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applicable before the DRB to see if either party is entitled to judgment as a matter of law.
V.R.E.C.P. 5(g); 10 V.S.A. § 8504(h). However, before considering whether summary judgment
is appropriate, we must consider whether we have jurisdiction to consider the issue raised in
Applicants’ Questions.
Justiciability of Questions 1 and 3
Applicants preserved 11 issues for our review in their Statement of Questions.
Marshfield argues that we need not consider Questions 1 and 3 because these issues are either
uncontested or immaterial to this appeal. Applicants contend that these Questions, which they
characterize as relating to the creation and disposition of Lot 3, are integral to their subdivision
plans and ought to be considered.
Question 1 asks whether the Zoning Regulations allow Applicants to subdivide their 77±
acre parcel into four lots. The Town responds that it does not dispute that the Zoning
Regulations allow Applicants to subdivide their property into four lots; the Town contends that
the disputed issue here is whether the specific four-lot subdivision Applicants propose comports
with the Zoning Regulations.
In short, the Town argues that this Question asks us to render an advisory opinion. We
agree, at least in part. We lack authority to issue advisory opinions on hypothetical permitting
questions. In re Appeal of 232511 Investments, Ltd., 2006 VT 27, ¶ 19, 179 Vt. 409, 417
(2006). To the extent Applicants’ Question 1 asks whether there is any situation under which a
four-lot subdivision or PRD would be permissible, we decline to give such an advisory opinion
because that would be improper under 232511 Investments. However, this broadly phrased
Question could be read to ask whether the present application is permissible under the
subdivision and zoning regulations. We note that the remainder of the Questions in Applicants’
Statement of Questions raise clear-cut issues specific to this application. To the extent that
Question 1 is broadly duplicative of the more precise issues contained in the remaining
Questions, we will address the specific issues in the context of the remaining Questions.
Question 3 asks whether the Zoning Regulations permit the Applicants to reserve Lot 3
and merge it with the Elwert Lot. The Town argues that “[the DRB] below did not rule that this
portion of the application was not allowed or created any intrinsic problems . . .” and that the
DRB “acknowledged that such a development alone would be permissible within the confines of
the Town’s zoning and subdivision regulations.” Marshfield Mot. For Summ. J. at 2-3. In short,
the Town argues that it does not dispute Applicants’ ability to subdivide and transfer a portion of
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their property to the owners of the Elwert Lot because the DRB “did not rule that this portion of
the application was not allowed or created any intrinsic problems.” Id. at 2. Applicants respond
by arguing that the proposed merger of Lot 3 with the Elwert Lot requires approval of their entire
application, and therefore is part of the controversy between the parties. We agree with the
Applicants, in part. Although the DRB decision primarily discussed the PRD, and even
mentioned that merging Lot 3 with the Elbert lot may be beneficial, it ultimately denied the
entire application as outside the bounds of the existing Zoning Regulations. See Marshfield Ex.
6 at 1 (“Upon careful deliberation, the Marshfield [DRB] . . . finds that the proposal . . . is not
consistent with the purpose of either [PRDs or PUDs.] Therefore, the DRB denies authorization
. . . .”)
In this regard, we note that we are charged with reviewing the application presented to us,
not a mere portion of it and not a hypothetical amendment to it not yet presented by an applicant.
See In re Jolley Assocs., 2006 VT 132, ¶ 9 (noting that, generally, the Environmental Court may
only consider those issues contained in the original notice of appeal); see also Appeal of 232511
Investments, 2006 VT 27, at ¶ 19, 179 Vt. at 417 (disallowing consideration of hypothetical
permits). We cannot say, as the Marshfield urges, that the issue raised in Question 3 is wholly
undisputed, since Applicants have implicitly given notice that the merger of their proposed Lot 3
with the Elwert Lot is conditioned upon approval of their entire subdivision. We therefore
decline to dismiss Question 3.
Planned Residential Development
As noted above, we are directed to apply the zoning standards that were in effect at the
time the applicant submitted a complete application. Jolley Assocs., 2006 VT 132, at ¶ 11.
Applicants here submitted their application on September 22, 2006; a copy of their application
has been presented to the Court as Applicants Ex. B-1. Thus, the PRD provisions from the now
former Zoning Regulation are applicable here. See supra, n.1. In addition, the enabling statute,
former 24 V.S.A. § 4407(3) (2000) (repealed 2004), is applicable here. 24 V.S.A. § 4481; see
also In re: Armour Siding Application, Docket No. 134-7-05 Vtec slip op. at 6, n.3 (Vt. Envtl.
Ct. Dec. 18, 2006) (noting that § 4407 remains in effect with respect to provisions adopted
before its amendment.).
Many of the issues raised in Applicants’ Statement of Questions deal with the broad
question of whether their application comports with Marshfield’s PRD scheme. These questions
specifically ask whether the Zoning Regulations permit Applicants to develop one of the four
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lots for the construction of two new single family residences (Question 2); whether the
subdivision application proposal is consistent with the purpose of either PRDs or PUDs
(Question 4); whether the subdivision application proposal may be approved as a PRD or PUD
under applicable municipal ordinances or state statutes (Question 5); whether the plan is
approvable in that it would establish a residential use in the F&C District that would not be
approvable without a PRD authorization (Question 6); whether the plan to convey Lot 3 to the
owners of the Elwert Lot “further[s] the desirability [of the proposal] within the meaning of
[applicable law]” (Question 7); whether the plan to grant a perpetual right-of-way along the
former town road located easterly of the Elwert Lot and Lots 2 and 3 “render[s] [the proposal] as
desirable for approval as a PRD or PUD within the meaning of [applicable law]” (Question 8);
whether the application ought to be approved considering the advice of a state engineer that a
portion of the land lying within the Ag/Res District is not suitable for any type of construction
(Question 9); and whether the proposal is consistent with Marshfield’s land use objectives as
articulated in the Marshfield Town Plan (Question 10).
Each of these seven questions implicates one larger question: whether the proposed PRD
comports with Marshfield’s PRD scheme. See Jolley Assocs., 2006 VT 132, at ¶ 9 (“The literal
phrasing of [the Statement of Questions] cannot practically be considered in isolation from the . .
. action that prompted the appeal); see also In re: Hamm Mine Reclamation Act 250
Jurisdictional Opinion #2-241, Docket No. 271-11-06 Vtec slip op. at 8 (Vt. Envtl. Ct. Sept. 27,
2007) (consolidating multiple questions in a Statement of Questions where only a few issues are
raised). The parties, through their cross-motions for summary judgment, have broken this global
issue into three parts: (1) whether the application meets the procedural requirements of a PRD
application; (2) whether the proposed project meets density requirements; (3) and whether the
proposed project comports with the Marshfield Town Plan. We consider each of these issues in
turn.
Procedural Requirements
The applicable Zoning Regulations require a PRD application to include several pieces of
information. These include a site plan depicting the proposed PRD “with a preliminary
subdivision application showing the location, height, and spacing of buildings, open spaces and
their landscaping, streets, driveways, and off-street parking spaces, unique natural or manmade
features, and physical conditions of the site . . . .” Zoning Regulations § 260. The application
must also include “a statement setting forth the nature of all proposed modifications, changes, or
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supplementations of existing zoning regulations.” Id. These requirements are announced under
the heading “Application Procedure,” and are followed by a description of the Standards for
Review to be followed by the DRB in the first instance and this Court in the event of an appeal.
Id. The Town argues that Appellants’ application is deficient, insisting that the application does
not contain the necessary information regarding the height of proposed buildings, landscaping,
driveways, off-street parking, and unique natural or manmade features.
Appellants submitted a subdivision site plan that indicates the location of their existing
single family home, the two proposed house sites on Lot 2, the location of driveway that would
serve the houses on Lot 2, the subdivision boundary lines, and some of the natural contours of
the land. Appellants Ex. B-2. Mr. Kowalski represents through his affidavit that neither of the
two proposed houses on Lot 2 will exceed 35 feet in height. Aff. of Wayne Kowalski at 1.
Appellants’ application indicates that the land not developed by this proposed project “will [be]
conserved in [perpetuity] with requirements of ordinance,” with “legal consideration” to be
determined. Appellee’s Ex. 2.
Although the application, site plans and Mr. Kowalski’s affidavit do not provide great
detail regarding Appellants’ plans, we cannot say that the application is incomplete. In this
regard, we note that while the evidence thus far submitted may be sufficient to deem an
application complete and thus withstand a pre-trial dismissal motion, it may not be sufficient at
trial, without more, to support a conclusion that Applicants have fulfilled their burden of
persuading this Court that their proposed PRD and subdivision plans conform to the applicable
Regulations. See In re: Rivers Dev. Conditional Use Appeal, Docket No. 7-1-05 Vtec slip op. at
10 (Vt. Envtl. Ct. Jan. 11, 2008) Therefore, we decline to render summary judgment in the
Town’s favor at this time on the issue of completeness of Appellants’ application.
Density Requirement
The Marshfield PRD Regulations were enacted pursuant to former 24 V.S.A. § 4407(3).
Zoning Regulations § 260. Under § 4407(3), the purpose of a PRD was to “enable and
encourage flexibility of design and development of land in such a manner as to promote the most
appropriate use of land, to facilitate the adequate and economical provision of streets and
utilities, and to preserve the natural and scenic qualities of the open lands of the state.” 24
V.S.A. § 4407(3) (2000) (repealed 2004). Section 4407(3) permitted a DRB or planning
commission to modify zoning regulations simultaneously with the approval of a subdivision
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plan, subject to five conditions. Id. One of these conditions related to increasing dwelling unit
density limitations if authorized by the zoning bylaws. Id. at § 4407(3)(B).
Marshfield’s PRD Regulations add several additional requirements to PRD approval.
The Regulations require that “[t]he overall density of the project does not exceed . . . one unit per
ten acres in the Forestry & Conservation District.” Zoning Regulations § 260. Appellants argue
that the density provision does not require that density be judged only based upon the acreage
that lies within the F&C District, and suggest that the proper method of measurement should
include all land within their proposed Lot 2, including that land outside of the F&C District.
We will construe zoning regulations and bylaws using the familiar canons of statutory
construction, giving effect to the plain meaning of the regulation where a plain meaning is
present, and avoiding absurd results and surplus language. See In re Casella Waste
Management, 2003 VT 49, ¶6 (outlining construction of zoning regulations) and In re: Stowe
Club Highlands, 164 Vt. 272, 279-80 (1995) (citations omitted).
The plain language of the Regulations indicates that only one unit may be allowed for
every ten acres within the F&C District. We cannot accept the interpretation offered by
Appellants that would allow us to consider land outside the F&C District. Such an interpretation
is not within the plain meaning of the language in Zoning Regulations § 260. We will therefore
consider whether the proposed project meets PRD density requirements considering only that
land of Lot 2 within the F&C District.
In its motion, the Town advances a mathematical formula for calculating the area of Lot 2
within the F&C District. We commend the Town for its mathematical expertise, but are
reluctant to rely upon acreage calculations that would result in a dismissal of Appellants’
application, unless offered by an expert in the field and of a more exact result.
Moreover, even if the mathematical formula is appropriate here, the dimensions of Lot 2
appear to be in contest. As noted it our recitation above of the factual background, the parties
have submitted site plan maps that do not agree regarding the placement, orientation and length
of the Lot 2 dimensions. The dimensions of Lot 2 are material to the issue of whether the lot
contains sufficient acreage for Appellants’ proposed project. Appellants direct our attention to
an affidavit by Mr. Brad Washburn, the Appellant-Applicants’ surveyor, to support the assertion
that the area that lies within the F&C District is at least 20 acres. However, our search of the
record has not yielded this affidavit.
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For these reasons, we conclude that it is not appropriate to enter summary judgment for
either party on the issue of adequate acreage within the F&C District. Genuine issues of material
fact remain regarding whether there is adequate acreage in the portion of Lot 2 that lies within
the F&C District.
Agreement with the Town Plan
In order to be approved, a PRD application must be “consistent with the goals of the
Town Plan.” Zoning Regulations § 260. In general, the “abstract intentions” of a Town Plan,
while helpful in understanding a Town’s goals and desires for future land use and development,
may not have restrictive or regulatory effect, unless they are incorporated into zoning regulations
and bylaws. See Houston v. Town of Waitsfield, 162 Vt. 476, 480 (1994) (citing Kalakowski v.
John A. Russell Corp., 137 Vt. 219, 225-26 (1979)).
The Marshfield Town Plan has been incorporated into the Zoning Regulations so that any
PRD modification of the Regulations must adhere to the goals of the Town Plan. Zoning
Regulations § 260. As the Appellants correctly assert, a Town Plan alone has no regulatory
effect. In re Appeal of Wesco, Inc., 2006 VT 52, ¶ 33 (noting that municipal plans are abstract
and advisory). However, Marshfield has decided to incorporate the Town Plan into its Zoning
Regulations by means of § 260, giving it regulatory effect. Therefore, we consider the Town
Plan in our review to this PRD application.
The application proposes to place two new houses in Lot 2, with both houses situated in
the F&C District. According to the Marshfield Town Plan, that District “contains the most
important forestry resources and some of the most important natural areas in the town.” Town
Plan at 56.4 The Town Plan asserts that “[b]ecause of the many natural/ecological resources . . .
and physical limitations,” including soils, slope, and topography, “within this district, even small
scale, limited development can be problematic.” Id. at 56–57. Addressing the Town’s goals, the
Plan announces that the F&C District should be devoted primarily to resource production,
recreational and ecological uses, keeping prominent landscape features free or nearly free of
visible development. Id. at 57. The Town Plan also asserts that “new development in this zone
should be considered with great care, limited in scope, and closely monitored.” Id. Regarding
4 A copy of the Town Plan has been submitted as Marshfield Ex. 3
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existing conditions in the F&C District, the Town Plan also announces the goal of addressing
non-conforming uses, using the authority granted in 24 V.S.A. § 4414(7).5 Id. at 59.
The Town argues that this PRD application cannot comply with the Town Plan and that
this Court should therefore summarily deny the pending application, making a bench trial
unnecessary. In support of its argument, the Town first asserts that Appellants’ proposed PRD
development would compromise the goals for this District announced in the Town Plan by
reducing open, natural space, without providing an adequate benefit to the Town to justify the
development. The Town also argues that this development does not fit the purposes expressed in
the PRD Regulations, which is to promote design and development flexibility, while protecting
important natural resources.
Determining consistency with a town plan often involves subjective determinations.
Some may argue that a proposed development represents an improper encroachment on green
spaces; others may argue that the same development represents a reasoned and appropriate use of
the land. In re: Pierce Woods PRD and Subdivision Application, Docket No. 33-2-06 Vtec slip
op. at 11 (Vt. Envtl. Ct. Feb. 28, 2007). However, the Town Plan and the Zoning Regulations
relating to PRDs in this specific case provide clear instruction regarding development in the F&C
District. The Town Plan, as discussed above, stresses the importance of non-development in the
F&C District and the value of the natural resources in that District. Section 260 itself warns
applicants to avoid environmentally sensitive areas in the design of PRDs and further speaks of
safeguarding prime agricultural and forestry soils. Section 260 also notes that PRDs are intended
to preserve open spaces and scenic vistas. Appellants have made provisions for the preservation
of some open spaces on their property, such as providing a right-of-way along the former town
road and providing private land use restrictions. However, their proposal to put two residences
on one Lot in the F&C District is not consistent with Marshfield’s strong and oft-stated goal of
conserving these same forested lands. The PRD proposal would open a section of the F&C
District to residential use, including the placement of a common drive within the District that
would be used to access the two house sites. Although clustered together, we cannot see how the
proposal to place two houses on Lot 2 conforms to any of the goals stated in the Town Plan,
particularly the expressly stated goal of preserving the land in this District from this very type of
development.
5
The Town Plan refers to the present version of 24 V.S.A. § 4417, which enables municipalities to regulate and
prohibit expansion and undue perpetuation of nonconformities.
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We recognize that review of land use goals is often a subjective exercise and therefore
not amenable to a determination on summary judgment. But we conclude that where, as here,
proposed development is of a nature that the Town Plan seeks to protect the District against, we
conclude that a trial is not necessary; nonconformance with the PRD Regulations and the
sections of the Town Plan referenced therein is a necessary conclusion, even when viewing the
materials facts in a light most favorable to Appellants. On the issue of conformance with the
Zoning Regulations, we conclude that summary judgment against Appellants’ proposed
development is required.
Question 3
Appellants’ Question 3, as we already discussed above, asks whether the Zoning
Regulations permit their subdivision plan to reserve Lot 3 and merge it with the Elwert Lot. The
Town represents that it “does not presently dispute [Appellants’] ability to subdivide and
sell/give a portion of their land to a neighbor to bring his/her adjoining lot into conformance with
existing zoning.” Marshfield Mot. for Summ. J. at 3; see also Marshfield Statement of
Undisputed Facts at ¶ 5 (stating that the Elwert Lot would conform to minimum size
requirements after merger).
The Regulations governing preliminary subdivision review permit a deciding tribunal to
approve a preliminary plan with modifications. Town of Marshfield Subdivision Regulations
§ 2020(C) (“Subdivision Regulations”). Here, the parties do not contest the issue of the
subdivision and merger of Lot 3. While our prior determinations, expressed above, will result in
the denial of Appellants’ application, we believe it important and proper to note that no provision
of the Subdivision Regulations prohibits that portion of Appellants’ proposal that would result in
the creation of Lot 3, including for the purpose of merging Lot 3 with the Elwert. While
§ 2020(C) authorizes this Court to approve a modified subdivision plan, allowing solely the
creation of Lot 3, we decline to do so here unless and until Appellants specifically request such
an approval of only a portion of their proposed subdivision.
Question 11
Appellants’ Question 11 asks broadly whether the subdivision application conforms to
the Zoning Regulations. For the reasons expressed above, we conclude that the PRD element of
Appellants’ application cannot be held to conform with the Zoning Regulations. We therefore
conclude that a summary denial of Appellants’ PRD proposal is appropriate. However,
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Appellants’ plan to subdivide their property remains. The parties, through their motions, have
not thoroughly addressed the question of whether the subdivision alone of Appellants’ property
is allowed under the Subdivision Regulations, save for the uncontested creation and merger of
Lot 3. Moreover, the parties have not submitted all materials related to the subdivision of the
source lot, including complete copies of the applicable Zoning Regulations and a site plan that
gives a complete description of the largest lot, Lot 4. For these reasons, summary judgment must
be DENIED to both parties on the portion of Question 11 that asks whether the proposed
subdivision alone is entitled to preliminary plat approval under the Zoning and Subdivision
Regulations.
CONCLUSION
For the forgoing reasons, summary judgment is DENIED to Appellants and GRANTED
to the Town on Questions 2 and 4 through 10. Question 1 is DISMISSED as outside of our
jurisdiction. Summary judgment is DENIED to the Town on Question 3. Summary judgment is
DENIED to both parties on Question 11 on the issue of the conformance of Appellants’
subdivision proposal with the Marshfield Subdivision Regulations, but is GRANTED to the
Town on the issue of the inability of Appellants’ PRD proposal to comply with the Marshfield
Zoning Regulations.
Appellants are directed to notify the Court and the Town within thirty (30) days of this
Decision (i.e.: no later than Friday, February 15, 2008) whether they wish to proceed to trial,
solely on the remaining question of whether their proposed four lot subdivision should be
approved. Such approval would only govern subdivision of their property, not development.
See In re: Chipman Hill Estates PUD Amendment, Docket No. 39-2-06 Vtec, slip op. at 5–7 (Vt.
Envtl. Ct. May 15, 2006) (aff’d sub nom. In re Appeal of Baker and Johns, Docket No. 2006-364
(Vt. Sup. Ct. May 5, 2007)). Absent notification from Appellants that they wish to proceed
solely with their request for preliminary plat subdivision approval, this Court will thereafter issue
its Judgment Order, thereby concluding the current proceedings before this Court.
Done at Berlin, Vermont this 16th day of January, 2008.
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Thomas S. Durkin, Environmental Judge
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