STATE OF VERMONT
ENVIRONMENTAL COURT
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Harvey & Symmes Final Plat Application } Docket No. 96‐5‐05 Vtec
(Appeal of Bevan) }
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Judgment Order
This matter came on for a hearing on the merits on February 2, 2006,
Environmental Judge Thomas S. Durkin presiding. There are two appeals pending of
the two lot subdivision approval issued by the Charlotte Planning Commission as of
May 5, 2005. The initial appeal was filed by Appellants John and Rosemary Bevan, who
are represented in this proceeding by Mark G. Hall, Esq. The Bevans own an
undeveloped parcel across a private road—White Birch Lane—from the proposed
development. A cross‐appeal was filed by the Applicants, Jason and Andrea Harvey
and William and Caroline Symmes, who are represented by Michael B. Clapp, Esq. The
Town of Charlotte (Town) entered an appearance through Will S. Baker, Esq.
Upon the close of the Applicants’ case in chief, Appellants and the Town
renewed their respective motions to dismiss and strike the Harveys’ and Symmes’
application and revised site plan. The Court granted these renewed motions, with an
explanation entered on the record and which is reproduced below. To the extent that
this Judgment Order differs in content from the explanation entered in the record on
February 2, 2006, this Judgment Order shall control.
By Order dated Sept 29, 2005, the Court addressed four specific issues that the
parties presented by way of cross motions for summary judgment. Relevant to the
discussion at the merits hearing is whether the Charlotte Subdivision Bylaws (Bylaws)
require the purported easement benefiting Appellants’ property to be shown on the
preliminary and final subdivision plats. By its September 29th Decision, the Court
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granted summary judgment to Appellants by interpreting Bylaws §§ 10 and 11 to
specifically require that the preliminary and final subdivision plats show “existing
easements.”
By that Decision, the Court directed Applicants to revise the plat they intended
the Court to consider so that it depicted the Bevans’ easement. In response, Applicants
filed a revised subdivision plat on November 30, 2005, that did not provide further
reference to Appellants’ purported easement. As with the prior plat, it contained the
following general reference in Note #11: “This property may be subject to rights‐of‐
ways [sic], easements, restrictions, and/or reservations that may or may not be found in
the Town of Charlotte Land Records.” The revised plat contained no specific reference
to Appellants’ septic easement.
The revised plat had several other material changes. It significantly expanded
the building envelopes on both Lots 1 and 2 from those presented to the Planning
Commission. It also deleted the hash mark reference to the area in which “R.O.W. #3”
was located on Lot 2.
In response to the Nov. 30th revised plat, both Appellants and the Town filed
additional motions to dismiss and to strike. The Court issued a Supplemental Order on
January 18, 2006. In response, on January 27th, (four business days before trial),
Applicants filed another revised plat. This final revision continued to show the
expanded building envelopes. It now showed “R.O.W. #3” in the same general manner
as the first plat, although Mr. Symmes testified that it may have been relocated slightly,
by sixty feet or so. Of interest to the Court is that the expanded building envelope on
Lot 2 now appeared to encroach upon the area delineated for the approximate location
of R.O.W. #3. The January 27th plat also included a new reference identified as “Area
A,” which is also referenced in a new Note 15.
Area A is shown as having a square dimension of 125 feet by 125 feet. Mr.
Symmes testified that the determination of the location and size of Area A was made
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without reference to deeds, prior site maps, or the easement deed that was the origin of
Appellants’ easement. Rather, according to Mr. Symmes, the “Area A” dimensions
were based upon what “may be best” for the siting of the Appellants’ septic system,
particularly from the perspective of Applicants’ future development. This is not a
proper foundation for compliance with Bylaws §§ 10 and 11.
Subdivision regulations often require identification of easements on subdivision
plats. The Charlotte Bylaws specifically require subdivision plats to show “existing
easements.” It appears to the Court that this requirement serves a very practical
purpose: to determine if the proposed development encroaches in any way upon rights
of other parties to the property.
It is unfortunate that the parties, and this comment is directed to all parties, have
been unable to come to a resolution of this apparent dispute concerning easements and
rights‐of‐way. In the absence of some foundation in the record, such as a deed,
recorded plats, or surveys that Applicants can reference, the Court is forced to conclude
that Applicants have not fulfilled their threshold burden of showing easements on their
revised site plat, as required by the Bylaws.
Of additional concern to the Court is the significant change to the size and
expanse of the building envelopes. In this regard, the Court finds merit in the Town’s
assertion that the application reviewed by the Town Planning Commission relied upon
preliminary and final site plats that showed first a building site and then a building
envelope that were significantly smaller than those Applicants presented at trial. The
Planning Commission, in Finding #5 of its May 5, 2005 Decision, specifically referenced
the importance of the envelopes once proposed by the Applicants:
The proposed envelopes are at opposite ends of the property. While the
Planning Commission usually seeks to cluster dwellings, the proposed
envelopes will result in both dwellings blending to the greatest degree
possible with the landscape. The dwelling on the northern lot will be
located in a mature planted forested area. The dwelling on the southern
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lot will be located adjacent to a wood line near the southern property line
and where the grade becomes somewhat more steep, allowing the house
to fit into the hillside and to be “backgrounded” by woods to the south.
Applicants’ Statement of Questions contains no basis for this Court to consider
an application on appeal with a significant change to the building envelopes from the
application that was first presented to the Town. It is regrettable that the result of this
determination is that the application, as presented at trial, is DENIED, but such a result
is necessary to respect the jurisdictional limits of this Court.
To the extent that Applicants wish to seek approval of a subdivision plan that
incorporates building envelopes as are now depicted on their January 27, 2006 plat, it is
improper for this Court to review that application without the Planning Commission
first reviewing it. And for those reasons, Appellants’ motion to dismiss Applicants’
application and cross‐appeal is GRANTED. In granting Appellants’ motion, the Court
specifically finds that the application, as currently presented, fails to comport with
Bylaws §§ 10 and 11 and is beyond the scope and significantly different from the
application first presented to the Planning Commission. Therefore, it is improper for
this Court to review and render a decision upon the application presented here.
As a result, the Planning Commission’s May 5, 2005 approval is VACATED.
Appellants’ appeal is GRANTED. In so doing, the Court has determined as a matter of
law that an application put forth for the subdivision of the subject property must depict
all encumbering easements in a specific manner that has some foundation in the chain
of title for the dominant and servient estates. The proceedings over which this Court
has jurisdiction are now concluded.
Done at Berlin, Vermont, this 22nd day of February, 2006.
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Thomas S. Durkin, Environmental Judge
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