STATE OF VERMONT
ENVIRONMENTAL COURT
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In re: Palmer Lane (Lavanway) Development } Docket Nos. 219‐10‐05 Vtec
(Appeals of Rowe and Banschbach) } and 249‐11‐05 Vtec
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Decision and Order on Motion to Dismiss and Cross‐Motions for Summary Judgment
Appellants James Rowe and Valerie Banschbach appeal from two decisions of the
Development Review Board (DRB) of the Town of Jericho, approving Cross‐Appellant‐
Applicants (Applicants) Michael and Janet Lavanway1’s applications for development of
two new house lots and to improve an existing thirty‐foot‐wide access right‐of‐way serving
the proposed house lots on property at 90 Palmer Lane. Appellants are represented by
David W.M. Conrad, Esq.; Cross‐Appellant‐Applicants are represented by Roger E. Kohn,
Esq.; and the Town is represented by Gregg H. Wilson, Esq.
Renewed Motion to Dismiss
Applicants have renewed their motion to dismiss the appeal as untimely, because
Appellants filed their appeal from the Zoning Administrator’s decision at the Town offices
instead of directing it to the “secretary of the development review board,” as required by
24 V.S.A. §4465(a). We need not reach Appellants’ estoppel argument that it was the
Zoning Administrator who directed them to file the appeal at the Town offices, as filing a
timely appeal in the incorrect location does not render it untimely.
Uniformly, the procedural rules adopted by the Supreme Court for appeals to it
1
We use the spelling used in Applicants’ memoranda and affidavit; the name also
appears in some other documents as LaVanway.
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(V.R.A.P. 4), for appeals to Superior Court from decisions of administrative agencies
(V.R.C.P. 74(b)), and for appeals to Environmental Court (V.R.E.C.P. 5(b)(1)) provide that
if a notice of appeal is mistakenly filed in an incorrect location within the appellate system,
the receiving clerk is directed to note the date the notice was received and to forward the
notice to the tribunal or court at which it should have been filed. Such an incorrectly‐filed
notice is deemed to have been filed on the date on which it was first received at the
incorrect location. See also, Mohr v. Vill. of Manchester, 161 Vt. 562, 563 (1993) (mem.)
(applying the V.R.A.P. 4 rule to a zoning appeal to superior court, prior to the addition of
the rule to V.R.C.P. 74(b)). These rules are consistent with the preference of the judicial
system that cases should be decided on their merits if possible. See, e.g., Shahi v. Ascend
Financial Servs., Inc., 2006 VT 29, ¶3, n.1; Desjarlais v. Gilman, 143 Vt. 154, 158‐159 (1983);
and V.R.E.C.P. 1 (“a full and fair determination.”). To the extent that we even reach the
question of the timeliness of the appeal from the Zoning Administrator to the DRB (see
entry order dated December 23, 2005), its filing at the Town offices did not render it
untimely.
Motions for Summary Judgment
The following facts are undisputed unless otherwise noted. Applicants own an 89‐
acre parcel of land in the Agricultural zoning district. Its easterly boundary is the Jericho‐
Underhill town line. Appellants own a five‐acre parcel of land bounded on the west by
Palmer Lane, a town road, and on the east by Applicants’ property. A six‐acre parcel of
land, property of Connelle, is located northerly of Appellants’ property, also bounded on
the west by Palmer Lane and on the east by Applicants’ property. Palmer Lane turns in a
northerly direction along the westerly boundary of the Connelle property, ending at
Applicants’ property.
Applicants have potential access to their property by Palmer Lane, although that
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access is not developed with a driveway and would not be as convenient for their present
purposes as the developed driveway that is disputed by the parties. Applicants have
developed a driveway or roadway over a disputed thirty‐foot‐wide right‐of‐way running
along the easterly boundary of Appellants’ property, between parallel stone walls. This
right‐of‐way is the subject of litigation2 between Appellants and Applicants that was
decided in Applicants’ favor by the Chittenden Superior Court in Docket No. S1159‐02 CnC
and at present is on appeal to the Vermont Supreme Court as Docket No. 2005‐043.
Applicants intend to provide a house lot divided from their land to each of their
three children for the construction of residences. Two of these proposed lots (shown as Lot
1 and Lot 3 on the reduced‐size diagram of the proposed subdivision filed with the Court
by Applicants on January 4, 2006) are the subject of the present application and appeal.
Proposed Lot 1 is 3.26 acres in area; proposed Lot 3 is 1.89 acres in area. Both proposed lots
are proposed to be served by the disputed right‐of‐way; however, access to the proposed
lots from the end of Palmer Lane is also possible, if necessary. Applicants propose
conveying each lot to one of their children in good faith for that child’s use as a primary
residence for the foreseeable future.
Article I, §3(21) of the Subdivision Regulations provides that the definition of
“subdivision” does not apply in the case of “a subdivider or applicant who conveys a
parcel of land from a larger parcel owned by the subdivider or applicant to his child or
children or parent(s) for their own residence in accordance with Section 104(2) of the
Jericho Zoning Regulations.” By this language, the Subdivision Regulations incorporated
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That litigation addresses questions of which of the parties owns the land lying
under this right‐of‐way; what is the extent of Applicants’ allowed use of this right‐of‐way,
if any; and whether those rights had been terminated or extinguished by adverse
possession.
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by reference into Article I, §3(21) the then‐existing text of §104(2) of the Zoning Regulations.
McLaughry v. Norwich, 140 Vt. 49, 52‐53 (1981). At the time that this section was adopted,
§104(2) of the Zoning Regulations provided in full that:
If the owner of a parcel of 25 acres or more lawfully divides the same
into two or more lots of at least 1 acre each, any such lot will be exempt from
the applicable dimensional requirements provided: (a) it is acquired by one
or more of the owner’s children or parents (or is retained by the owner) in
good faith for the purpose of using it for their own residence for the
foreseeable future, (b) the new (or retaining) owner does not develop such
lot for any other purpose, and (c) any development for such purpose shall be
subject to the applicable minimum front yard depth requirement and – to
the extent that it adjoins land not constituting part of the original parcel –
shall be subject to the applicable minimum side and rear yard requirements.
The fact that the Zoning Regulations have since been amended has no effect on this
incorporation by reference. McLaughry v. Norwich, 140 Vt. at 52; and see Erie County v.
Flacke, 80 A.D.2d 954, 955, 438 N.Y.S.2d 18, 20 (3d Dept. 1981).
In any event, the text of this section has been carried forward essentially intact in
§302 of the present Zoning Regulations, entitled “Dimensional Controls.” Present §302.1.4
exempts certain family subdivisions from the otherwise‐applicable dimensional
requirements. Section 302.1.4 contains a statement of the policy behind its adoption, as
well as restating the three criteria that an applicant must meet to obtain the exemption. It
provides in full that:
Originally an effort to help preserve family farms, this section exempts
certain parcels (those 25 acres or larger) from subdivision dimensional
requirements (but not subdivision review), allowing smaller than minimum
lot sizes in order to preserve agricultural land and open space. If the
owner(s) of record on the effective date of these regulations, or a surviving
co‐owner, of a parcel of 25 acres or more[,] lawfully divides the same into
two or more lots of at least one acre each, any such lot will be exempt from
the applicable dimensional requirements provided: (a) it is acquired by one
or more of the owner’s children or parents (or is retained by the owner) in
good faith for the purpose of using it for their own residence for the
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foreseeable future, (b) the new or retaining owner does not develop such lot
for any other purposes, and (c) any development for such purpose conforms
to the applicable minimum front yard depth requirement and, to the extent
that it adjoins land not constituting part of the original parcel, shall be subject
to the applicable minimum side and rear yard requirement.
Zoning and subdivision ordinances are to be interpreted using the general rules of
statutory construction, looking first to the plain meaning of the ordinance and bearing in
mind that the paramount goal is to give effect to the legislative intent. In re Casella Waste
Mgmt., Inc., 2003 VT 49, ¶6. Like statutes, municipal regulations that are part of the same
overall scheme must be construed in pari materia. In re McCormick Mgmt. Co., 149 Vt.
585, 592 (1988).
Appellants argue that §302.1.4 of the Zoning Regulations conflicts with Art. I, §3(21)
of the Subdivision Regulations. However, these two sections easily can be harmonized so
that both can be given effect in the overall regulatory scheme, especially in light of the
explanation of the underlying purpose of these sections found in §302.1.4 of the Zoning
Regulations. Section 302.1.4 of the Zoning Regulations merely imposes certain
requirements on family subdivisions for them to be exempt from the stated dimensional
zoning requirements, while Art. I, §3(21) of the Subdivision Regulations may also exempt
such family subdivisions from further review under the Subdivision Regulations.
Compare In re Taft Corners Assocs., 171 Vt. 135, 137‐38 (2000).
It is possible for a family subdivision proposal to meet the exemption from the
Subdivision Regulations, and yet to fail to meet the exemption from dimensional
requirements in the §302.1.4 of the Zoning Regulations. For example, a family subdivision
proposal could be made in good faith at the time the subdivision itself is approved, and
nevertheless could fail to meet the exemption from dimensional requirements in §302.1.4
of the Zoning Regulations when zoning permits are later sought for the house construction,
if by that time the property has passed out of the family or is proposed to be used for other
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than the exempt purposes.
In the present appeal, Applicants’ parcel is greater than 25 acres in area. Applicants
propose to convey, to each of two of their children, a greater‐than‐one‐acre lot in good faith
and for the purpose of using it for that child’s own residence for the foreseeable future.
Each of the proposed lots contains enough area to allow a building envelope that conforms
to the applicable minimum 35‐foot front yard setback requirement and to the minimum 25‐
foot side and rear yard setback requirement on the sides of the lots adjoining land not
constituting part of Applicant’s original parcel (prior to the proposed subdivision). Zoning
Regulations §302.8.
Therefore, under Art. I, §3(21) of the Subdivision Regulations, Applicants’ proposal
is exempt from subdivision review, and, under §302.1.4 of the Zoning Regulations,
Applicants’ proposal is also exempt from the subdivision dimensional requirements. It is
exempt from the minimum ten‐acre lot size that would otherwise be applicable in the
Agriculture zoning district, and from the double‐minimum lot size that would otherwise
be required for a back‐land lot under §302.6 of the Zoning Regulations.
Section 302.6 of the Zoning Regulations prescribes standards for the development
of so‐called back‐land lots, that is, lots without the amount of frontage on a public road
otherwise required by §302.8 of the Zoning Regulations. While Applicants’ proposed lots
are exempt from the lot size requirements, they must nevertheless meet the other
requirements of §302.6 that they either have a minimum of 50 feet of frontage on a public
road, or that they have access to a public road “by means of a 30‐foot [wide] right‐of‐way
that serves as the required access to no more than four lots without frontage.” As provided
in §302.5.1 and the state statute (now 24 V.S.A. §4412(3)), that right‐of‐way must be a
“permanent easement or right‐of‐way;” it must be at least thirty feet wide under the
Zoning Regulations (and at least twenty feet wide under the state statute). There is no
specific requirement for the width of the traveled way within that right‐of‐way. Nothing
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in the municipal regulations or the state statute requires the owners of land burdened by
a right‐of‐way to be co‐applicants for or otherwise consent to the application for a
subdivision to be served by the right‐of‐way. See Zoning Regulations §§ 703 and 704;
Subdivision Regulations Art. I, §3(20); and see, e.g., In re: Appeal of O’Rear, et al., Docket
No. 2‐1‐00 Vtec (Vt. Envtl. Ct., May 15, 2001).
Material facts are in dispute, or at least have not been provided to the Court,
regarding whether the public right‐of‐way of Palmer Lane is at least fifty feet wide where
it meets the boundary of Appellants’ retained land parcel. If it is, and if Applicants were
to provide a thirty‐foot‐wide alternate3 right‐of‐way to the two proposed lots over their
retained land, then we would not need to reach the question of the width of, or rights to,
the disputed right‐of‐way along the southerly side of Appellants’ property.
However, until their argument on summary judgment, in the present application
Applicants have proposed to provide access to the two proposed lots only over the
disputed right‐of‐way. The present appeal must therefore address whether Applicants
have met or will be able to meet their burden to show that the two proposed lots are served
by a permanent easement or right‐of‐way at least thirty feet in width.
The mere fact that the parties have disputed the existence and scope of the right‐of‐
way all the way to the Vermont Supreme Court does not preclude Applicants from
applying for approval of the proposed subdivision. On the other hand, the mere fact that
Applicants won before the Superior Court, does not in and of itself conclude the question
of whether Applicants can meet their burden in this Court to show that the proposal has
the access as required by the municipal regulations and the state statute. Summary
judgment must be denied to both parties; material facts are disputed regarding the access
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We do not here address whether actual driveways to the two proposed lots may
be established or maintained on the disputed right‐of‐way, if Applicants were to reserve
the requisite legal right‐of‐way from the end of Palmer Lane over the retained land.
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from the proposed lots to Palmer Lane.
We note that this Court has no jurisdiction to determine the width of, or the parties’
respective rights to, the disputed right‐of‐way. Rather, we will determine from the
evidence presented de novo in this appeal only whether Applicants have met their burden
to show they have the requisite access to the two proposed lots. See, e.g., Appeal of Cole,
Docket No. 174‐10‐01 Vtec (Vt. Envtl. Ct., May 12, 2003 and Sept. 16, 2002); Appeal of
Monty, Docket Nos. 7‐1‐04 Vtec and 47‐3‐04 Vtec, slip op. at 6‐7 (Vt. Envtl. Ct., Jan. 24,
2006).
Accordingly, based on the foregoing, it is hereby ORDERED and ADJUDGED that:
1) Applicants’ cross‐motion for summary judgment in Docket No. 219‐10‐05
Vtec and motion to dismiss in Docket No. 249‐11‐05 Vtec are DENIED, as
Appellants timely filed their notice of appeal from the zoning administrator’s action.
2) In Docket No. 219‐10‐05 Vtec, both motions for summary judgment are
DENIED in part and GRANTED in part, in that proposed Lots 1 and 3 are exempt
from subdivision review pursuant to Subdivision Regulations Art. I, §3, ¶21 and are
exempt from the minimum lot size imposed by Zoning Regulations §302.1.
Proposed Lots 1 and 3 must satisfy the requirements of Zoning Regulations §302.6,
but are exempt from the minimum lot size requirement of that provision.
3) In Docket No. 249‐11‐05 Vtec, Applicants’ motion for summary judgment on
the merits of the present application is DENIED, as material facts are in dispute as
to the disputed right‐of‐way. This denial is without prejudice to the parties’
submission of evidence on the merits of the disputed right‐of‐way or as to any
alternate right‐of‐way claimed to satisfy the requirements of the regulations.
A telephone conference has been scheduled for June 19, 2006 (see enclosed notice), to
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discuss the remaining issues in these appeals and their scheduling for trial.
Done at Berlin, Vermont, this 30th day of May, 2006.
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Merideth Wright
Environmental Judge
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