STATE OF VERMONT
ENVIRONMENTAL COURT
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Appeal of Denizot, et al } Docket No. 91-6-03 Vtec
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Decision and Order
Appellants Lee Buik Denizot, David and Janice Bartley, John and Regina Meigs,
and Alan and Lynne Fletcher appealed from a decision of the Development Review Board
(DRB) of the Town of Fairfax, approving Appellee Brian Burnor=s subdivision application.
Appellants represent themselves; Appellee-Applicant Brian Burnor is represented by Joseph
F. Cahill, Jr., Esq. The Town did not enter an appearance in this appeal.
Of the eight issues raised in Appellants= statement of questions, all but Question 6,
a portion of Question 4, and a portion of Question 7 were addressed on summary
judgment. An evidentiary hearing was held on the remaining issues in this matter before
Merideth Wright, Environmental Judge. The parties were given the opportunity to submit
written memoranda and requests for findings. Upon consideration of the evidence, and the
written memoranda and requests for findings filed by the parties, the Court finds and
concludes as follows
Appellee-Applicant=s property is located on the north side of Rood Mill Road, which
runs east and west in this location. The property is located in the Agricultural and Forest
Resources zoning district; a portion of the property constituting the 100-year flood plain
surrounding the stream is also located in the Shoreland (flood plain) overlay zoning
district.
In an earlier four-lot subdivision Appellee-Applicant created three two-acre lots
proposed for single-family residences (Lots 2 through 4 as shown on the present
subdivision plan), and retained the large parcel of remaining land as Lot 1, with one house
site. In the present appeal he proposes to further subdivide the 59.81-acre parcel retained
in the previous subdivision into a total of six parcels. Five of the parcels are building lots,
each in the two- to three-acre size range (denominated Lots 5 through 9 on the present
subdivision plan) intended for single-family residences (one of which already exists on Lot
5). The remaining land of approximately 48 acres is denominated as Lot 1, and includes
a house site near the subdivision roadway. The property as a whole also contains areas
of land suitable for agriculture, areas of ledge, wetlands, a stream, and areas of land with
steep (over 25%) slopes unsuitable for building, most of which is located on the retained
Lot 1. All six of the house sites are located to the southwest of the stream on the
property. Small portions of Lots 6 and 8 and a large portion of Lot 1 are located to the
northeast of the stream. The plan provides three means of access onto different portions
of Lot 1: one via a right of way from Rood Mill Road running between the Bartley/Allen
property and existing Lot 4, one via the subdivision roadway onto the house site for Lot 1,
and one from the northwest end of the subdivision roadway onto the northwesterly portion
of Lot 1.
Question 4
The revised proposed subdivision plan as presented at trial (Exhibit A) now meets
not only the two-acre density requirement, after the undevelopable land is deducted for the
subdivision as a whole, but also meets the two-acre minimum lot size after easement
areas are deducted from specific lots. Most of the area containing the soils 1[1] most
suitable for agriculture, as shown on Exhibit B, is not affected by the proposed building
lots.
Question 6
Question 6 claims that the subdivision is proposed for a parcel of >productive
agricultural land= and that it therefore fails to meet the applicable subsections of ''703 and
704 (that is, ''703(A), 703(F), and 704(G)). While the term Aagricultural use@ is
defined in the ordinance as Aland used for cultivating the soil and producing crops or
raising livestock, for the purpose of economic gain, . . .@ neither the term Aagricultural
land@ nor the term Aproductive agricultural land@ is defined in the ordinance. Appellant
Denizot claims that, as she hayed a portion of Lot 1 in the past, it constitutes >productive
agricultural land= that should not be allowed to be converted to residential use. However,
as appears on Exhibit B, the portions of the overall property most suitable for agriculture
1[1]
In any event, unlike Act 250 (10 V.S.A. Chapter 151), the Fairfax ordinances do not
regulate on the basis of categories of Aagricultural soils.@
are largely located in the retained land on Lot 1, so that they are adequately preserved in
this subdivision plan. Access to those areas from both sides of the stream has also been
preserved by the plan.
Section 703(A) requires the proposal to Agive due regard for@ the preservation of
existing site features, including Aagricultural lands.@ Section 703(F) requires
subdivisions to be designed to Aminimize adverse [e]ffects@ upon Aproductive2[2]
agricultural . . . []land.@ Section 704(G) mandates the Planning Commission, and hence
this Court in this de novo appeal, to encourage (and allows it to require) a subdivision lot
layout that will conserve and/or maintain Aaccess to open areas in blocks large enough
for productive agriculture and forestry.@ The subdivision layout shown in Exhibit A
provides the means of access to the 48 acres of remaining lands in Lot 1, and allows
access to the Lot 1 areas, including to the largest block of land in the northwesterly portion
of Lot 1 potentially suitable for use as pasture or hayfield.
2[2]
The use of the term Aproductive@ in '703(F) and not in '703(A) suggests that
'703(F) may provide a more limited protection. However, as the proposed subdivision meets the
requirements of the ordinance under either formulation, we need not resolve whether '703(F) is
meant to apply only to land currently in agricultural use as opposed to land potentially suited for
agricultural use, or whether, as in '704(G), the economics of the parcel size is to be taken into
account.
Question 7
The portion of Question 7 remaining after summary judgment is whether the five
additional single-family house lots will place an Aunreasonable burden on the ability@ of
the Town to provide police services to cope with the potential for noise and vandalism to
be generated by those five households. '703(D). Nothing was presented in evidence to
suggest that the subdivision of five additional lots, or the houses to be constructed on
those lots, or the residents who will occupy those lots, will place any burden, much less
an unreasonable one, on the ability of the Town to provide the police services necessary
to address any potential noise or vandalism that may be generated by the use or
occupants of those five lots.
Based on the foregoing, it is hereby ORDERED and ADJUDGED that Appellee-
Applicant=s revised subdivision application, as shown in Exhibit A, is hereby APPROVED,
subject to the conditions imposed by the DRB and found in Exhibit D.
Done at Berlin, Vermont, this 9th day of August, 2005.
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Merideth Wright
Environmental Judge