Appeal of Noble

STATE OF VERMONT

ENVIRONMENTAL COURT

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Appeal of Noble } Docket Nos. 118-7-03 Vtec and
24-2-03 Vtec
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Decision and Order

Appellants Denise Noble, Chris Wasser, Gail Connors, Steven Connors, Melinda

Cobb, Douglas Cobb, George Trendle, Martha Trendle, Ken Mitchell, Diana Mitchell,

Suzanne Braunegg, William Braunegg, Deanna Dahlgren, Sean Jordan and Lauren Jordan

appealed from a decision of the Planning Commission of the Village of Essex Junction

granting site plan approval for a development of seven single-family homes off Hubbell=s

Falls Drive and Beech Street. The project proposal as appealed in Docket No. 118-7-03

Vtec superseded that proposed in Docket No. 24-2-03 Vtec, and the two appeals were

consolidated. The parties did not address Questions 1 or 2 of the original Docket 24-2-

03 Vtec Statement of Questions in the evidence at trial or in their memoranda, and did not

state in writing whether those issues had simply been superseded by the second appeal.

Those issues will not be further discussed in this decision.
 Related Superior Court litigation concluded with a decision in October of 2004. A

related Act 250 permit was appealed to the Environmental Board, which issued a stay of

construction in May of 2004, and issued its decision granting the Act 250 permit with

certain conditions on March 4, 2005. On March 9, 2005, Appellee-Applicants and the

Village submitted a stipulation to change the application in three respects to conform with

the conditions imposed by the Environmental Board=s decision. Appellants submitted their

objection to this stipulation in electronic form on March 29, 2005 and filed it on March 30,

2005. As all three changes to the application address factual concerns raised at trial, and

could equally have been imposed by this Court as conditions in the present appeals, they

are not beyond the scope of this proceeding and will be considered in connection with the

analysis of the municipal requirements for site plan approval.

Appellants are represented by Stephanie J. Kaplan, Esq.; Appellee-Applicants

William and Maryjean Kalanges are represented by Vincent A. Paradis, Esq.; the Village of

Essex Junction is represented by David A. Barra, Esq. An evidentiary hearing was held

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 of the written memoranda and requests for findings filed by the parties,

the Court finds and concludes as follows. All citations are to the Village of Essex Junction

Land Development Code.
 Appellee-Applicants William and Maryjean Kalanges own a 13.8-acre parcel of land

with frontage on Hubbell=s[1] Falls Drive and on Beech Street in the Residential-1 (R-1)

and Flood Plain zoning districts of the Village of Essex Junction. The project property is

located on both sides of Hubbell=s Falls Drive. The approximately ten acres southerly[2] of

Hubbell=s Falls Drive, now containing Appellee-Applicants= residence, is a heavily wooded

area now proposed for this development. The approximately three to four acres northerly

of Hubbell=s Falls Drive are proposed to remain undeveloped. All of the proposed

development is located within the R-1 zoning district.

Appellee-Applicants have applied for site plan approval to develop the portion of the

property southerly of Hubbell=s Falls Drive for seven additional single-family house sites to

be sold in land condominium ownership, for the purchasers to construct houses of up to

five bedrooms and up to two stories in design. The houses may be constructed with

garages which are anticipated to resemble the Kalanges three-car garage in size. The

organizational and management documents governing the condominium association (which

will include the Kalanges residence as well), including any limitations on land clearing

beyond the house sites or any maintenance obligations for the proposed streets,

infrastructures, or existing trees or other vegetation on site, have not been presented to

the Court and were not yet in existence at the time of trial.
 The proposed seven house sites are proposed to be developed in two phases.

Phase I consists of four house sites with access over an extension of the existing private

driveway from Hubbell=s Falls Drive which now serves Appellee-Applicants= residence. As,

after development, that former driveway would serve more than three houses, the segment

of it from Hubbell=s Falls Drive to the intersection with the driveways to serve those new

house sites would qualify under '906.G as a private street and not as a private driveway.

Appellee-Applicants have requested a waiver of the twenty-foot-wide pavement width

required for a private street and propose that the Phase I private street be paved to a

width of fifteen feet.

Phase II consists of three additional house sites with separate access from Beech

Street. Appellee-Applicants have implicitly requested a waiver of the requirement of a

single curb cut, see '705.D.1, 3, and 7, as well as for the twelve-foot-wide pavement

width required for a driveway. '906.C.5. They propose that the driveway serving Phase

II be paved to a width of fifteen feet. The driveway for the Phase II houses is proposed to

run within the fifty-foot-wide area (between the Braunegg property and the Wasser/Noble

property) subject to an existing easement for a paved pathway that provides pedestrian,

bicycle, and emergency and maintenance vehicular access to the pool and tennis courts at

the Countryside Homeowners= Association=s community recreation area.
 The site plan shows the building envelope for each proposed 5-bedroom house site

and shows the clearing limits for the house sites, the two access roads, the driveways to

the house sites, and the natural gas and municipal water and sewer lines and

connections. It does not show the portion of the property on the north side of Hubbell=s

Falls Drive that is proposed to remain undeveloped. It does not show the easement for

the Countryside recreation area access, but Appellee-Applicants propose to add that

easement to any final site plan, as a condition of approval.

The existing conditions shown on the site plan show the existing tree line and three

specific large pine trees, but do not otherwise show >tree groupings= or other specific

existing plant materials, and does not show the location of specific existing mature trees

proposed to be saved. The site plan indicates the limits of proposed clearing for the

house sites and for the driveway and private street; beyond those limits the existing trees

are proposed to be saved. The site plan does not propose the planting of any street trees

on the Hubbell=s Falls Road frontage. Appellee-Applicants have implicitly requested a

waiver of the requirements for planting street trees and for planting added landscaping

beyond the maintenance of the trees outside the clearing limits. '719.

The site plan shows distances from the proposed house sites to the nearest

property lines, although only by scale. All distances from the proposed building envelopes

to the nearest property lines meet the setback requirements for the district.
 The project site is surrounded by large residential developments. To the east is

the >Countryside in the Village= (Countryside) development of 253 single-family houses

located on lots of approximately a third of an acre each in area, with addresses on Beech

Street, Tamarack Drive, Countryside Drive, and Aspen. None of the houses in the

Countryside development is as large as the five-bedroom houses with three-car garages

anticipated to be constructed on the house sites in the proposed project. The entire

neighborhood surrounding the Beech Street access is served by sidewalks on both sides

of the public street. Individual driveways make a curb cut with the public street over the

sidewalks.

To the south is Essex Park, composed of residential condominium units in multiple-

unit buildings, with several buildings on a single lot. To the north, located off Locust Lane,

is a development of carriage-style single-family units, with eighteen buildings on a single

lot. To the west is the Fairview Farms development, consisting of 99 single family homes

located on lots of approximately a third of an acre each in area, with addresses on

Fairview Drive, Juniper Ridge Road, Hawthorn Circle and Sycamore Lane. All of the

surrounding properties are in residential use, most of which are single-family or carriage-

style houses, and some of which are in condominium or similar ownership.

During the construction of the project, Appellee-Applicants propose to limit the

hours of construction to the hours of 7:00 a.m. to 6:00 p.m. Monday through Friday and
8:00 a.m. to 5:00[3] p.m. on Saturday. No construction activity will be conducted on

Sundays or holidays.

The intersection of the Phase I private street with Hubbell=s Falls Drive will contain

no obstructions such as fences, walls, screens, signs, structures or foliage between the

heights of 30 inches and 8 feet, within the thirty-foot visibility triangle area, measured for

a distance of thirty feet along the street and along the Phase I private street, as defined

by '710.B[4], if the foliage is cut as required by that section and the ATV Pedestal@ shown

in the plans is moved outside the visibility triangle or if it falls within one of the exceptions

in '710.D.

The intersection of the proposed Phase II driveway with Beech Street will

contain no obstructions such as fences, walls, screens, signs, structures or foliage between

the heights of 30 inches and 8 feet, within the ten-foot visibility triangle area, measured

for a distance of ten feet along the street and along the driveway, as defined by '710.C.

However, due to the curve of Beech Street to the south of that intersection and due to the

heavy use of the adjacent pathway to the recreation area, especially by children, visibility

from that driveway will not be adequate unless on-street parking is prohibited on the

westerly side of Beech Street for twenty feet on both sides of the new Phase II driveway.

The Beech Street driveway to serve the three house sites proposed for Phase II

of the development is proposed to be located adjacent to the relocated paved access path
serving the pool, tennis courts, and recreation area of the Countryside Homeowners

Association, Inc., within the fifty-foot-wide easement benefitting the recreation area. The

existing recreation area access path is used primarily by pedestrians, including those using

roller skates, skateboards, scooters, and strollers as well as by bicyclists and presumably

for those traveling by wheelchair. It is heavily used by children, both with and without

parental supervision. Even with parental supervision, children often run ahead of their

parents in this recreational context. The degree of use on any given day of course

depends on the weather, day of the week, and school schedule. The present recreation

area access path is primarily designed for pedestrian use but is also used occasionally for

access to the pool and tennis courts by maintenance vehicles and is accessible if

necessary by emergency vehicles. The present access path is chained off to prevent

other vehicular use; children often play on or about the chain, and ride their bicycles and

use skateboards, skates and scooters on the path.

The recreation area is used year-round for walking and playing; is more heavily

used from the late spring into the fall for walking and playing, as well as tennis; and is

most heavily used between the Memorial Day and Labor Day weekends of each year

when the pool is also open for use. Although the pool is supervised by a lifeguard from

noon to 8:00 p.m., it is available for use in the mornings without lifeguard supervision.
 Appellee-Applicants propose to relocate the pathway serving the recreation area

within the easement area as a ten-foot-wide paved pathway located five feet from and

parallel to the Braunegg property line to the south. Appellee-Applicants also propose to

install a parallel two-way driveway within the easement area, as a fifteen-foot-wide paved

driveway located five feet from and parallel to the Wasser/Noble property line to the north,

to serve the three houses in Phase II of the proposed development. No landscaping was

proposed within the setbacks on either side, or between the Phase II driveway and the

recreation area pedestrian access.

Appellee-Applicants propose to install signs within the Phase II driveway near and

facing Beech Street, stating APrivate Property, Do Not Enter.@ To conform with their

recently-issued Act 250 permit, they also propose[5] to install at least one speed hump

within the Phase II driveway designed to slow any exiting traffic as it approaches the

sidewalk, and to install a stop sign within the Phase II driveway to stop any exiting traffic

at the intersection of the Phase II driveway with the sidewalk.

The recreation area pedestrian access and the proposed Phase II driveway are

proposed to intersect approximately ten feet from the sidewalk, within the property, and to

share a driveway proposed to be about 25 feet wide at the sidewalk, widening to

approximately 35 feet wide at the street. Vehicular access to the recreation area
pedestrian pathway is proposed to be controlled by a chain running across that pathway a

short distance down the pathway from the sidewalk.

Pedestrian traffic using the recreation area pedestrian access was initially proposed

to be separated from the vehicular traffic using the Phase II driveway by a wood guardrail

running close to and along the northerly side of the recreation area pedestrian access,

extending beyond the recreation area entrance along the edge of the recreation area to the

steep slope at the westerly boundary of the recreation area. At trial several alternate

proposals were made to the Court to separate the recreation area pedestrian access from

the proposed Phase II driveway. One proposal was to replace the guard rail with a 4-

foot-high picket fence in the same location, extending back the same distance. Another

proposal made at trial, to improve visibility between the recreation area pedestrian access

and the Phase II driveway, was to replace the guard rail with a 4-foot-high chain link

fence in the same location, extending back the same distance. To conform with their

recently-issued Act 250 permit, Appellee-Applicants also now propose that the chain link

fence be increased in height to six feet. As well as any of these proposed fences, at trial

Appellee-Applicants also proposed to add a short segment of sidewalk from the existing

Beech Street sidewalk to connect with the recreation area pedestrian access beyond the

chain controlling vehicle access.
 Appellee-Applicants have also installed a 6-foot-high wooden stockade fence along

the boundary of the property with the rear boundaries of the lots along Beech Street and

Hubbell=s Falls Drive, so that the rear side of the fence faces the adjacent properties. No

plantings have been proposed in connection with this fence to soften the effect of the

fence on the adjacent properties.

Question 3: Development of multiple houses on a single parcel in the R-1 district

The Residential-1 zoning district is intended for relatively large[6] lot single-family

residential development. The Land Development Code provides not only for conventional

developments of single houses each on its own lot, but also for other types of ownership

such as condominium ownership. A development of multiple house sites on a single

parcel, intended for development as a land condominium, is treated as a subdivision under

'503 regardless of whether the lots are to be divided and owned in fee, or whether the

house sites are to be held in condominium ownership as in the present proposal, as the

term Asubdivision@ is defined in '201.C.180 as property divided into two or more Alots,

parcels, sites, plots or interests for the purpose of offer for sale, lease or development.@ It

therefore requires subdivision approval under '503.

Because it is proposed as land condominium ownership, rather than conventionally-

owned lots, and because waivers are requested at least the pavement width and curb cut
requirements of Chapter 9, it must be reviewed as a Planned Development. ''917.A.6

and 724.B. As a development activity involving more than a single one-family or two-

family dwelling, it also requires site plan approval under '502.I.2; this is the application

before the Court.[7]

The project proposes no innovative land or building design techniques, other

than placement of the building sites to avoid encroachment on wetlands, and the land

condominium form of ownership. Accordingly, it must meet the standard density and other

requirements of the district under '724.A and .B. While the property on the northerly side

of Hubbell=s Falls Drive may be included in the overall development proposal for the

project, it is separated from the southerly portion of the property by a public street.

Because that land could not have been included in any conventional lots on the southerly

(development) parcel, it cannot be included in the density calculations for the development

parcel. Nevertheless, the land southerly of Hubbell=s Falls Drive amounts to approximately

ten acres, or over one acre per house, which exceeds the district requirement of 15,000

square feet (approximately a third of an acre) per house.

The proposal also meets the lot coverage, setback, and parking requirements for

the R-1 zoning district. All of the building envelopes are located a minimum of 45' from

the property lines. Single-family houses are a permitted use in the district; the houses
that may be constructed are to be limited to five-bedroom single-family houses with no

more than two stories, and may have accessory garages up to a three-car capacity.

However, to comply with '' 709.A.1 and 2, Appellee-Applicants must submit

documentation to ensure the continued maintenance of and snow removal from of the

Phase I private street. Similarly, to comply with '511.C.5(c)(3),[8] Appellee-Applicants

must submit Aspecification of ownership and responsibility for maintenance of such

commonly-owned features@ as common open space or common improvements. Similarly,

to comply with '719.D.3.(b), Appellee-Applicants must submit documentation of the entity

responsible for maintenance of all landscaped areas, or, in a case such as this proposal in

which a waiver is requested to allow existing trees and other vegetation to substitute for

planted landscaping, the homeowners= association or other entity responsible for that

maintenance on the commonly-held land.

Question 4: Adequacy of Site Plan Application - ''502.I.3 and 719.B

The proposed site plan contains all the elements required to be submitted by

'502.I.3 and 719.B, except those discussed as follows.

Section 502.I.3(d) requires the site plan to include a survey of the property which

shows existing or proposed rights of way and easements. A survey of the portion of the

property southerly of Hubbell=s Falls Drive is incorporated in the site plan. However, the
site plan does not include a survey of the portion of the property northerly of Hubbell=s

Falls Drive, and does not show the existing undisputed easement in favor of the

Countryside Home Owners Association, Inc., for ingress and egress only over a 50' strip

of land which is also proposed to be used for access to Phase II of the project from

Beech Street. Both these features must be supplied for the site plan to be approved.

Section 502.I.3(e) requires the site plan to show the Atotal land area and location,

size, height, and number of stories of all existing and proposed structures and the distance

from all structures to the nearest property line. The site plan shows the land to the south

of Hubbell=s Falls Drive and the location and number of stories of the existing Kalanges

house, and shows the location, maximum size and number of stories of the proposed

structures, and by use of the scale on the site plan, shows the distance from all structures

to the nearest property lines. Any >proposed structures= have not yet been designed, as

they will be built by the purchasers of the house sites rather than by the developers of this

project; accordingly, it is sufficient for the site plan to show that they will be restricted to

two stories in height. As discussed above, the site plan fails to show the land to the north

of Hubbell=s Falls Drive, which must be shown as it is part of the proposed project.

Sections 502.I.3(i) and (j) require the site plan to identify existing natural features,

including wetlands, rock outcroppings, and tree groupings and to include a detailed

landscape plan by a landscape design professional, showing the Atype, size, quantity and
location of all plant materials, existing and proposed.@ This requirement must be read

together with '719.B, which requires the plan to indicate the location of existing mature

trees, or tree groupings, and to indicate the trees or tree groupings that are proposed to

be saved. The site plan shows wetlands, ledge outcroppings, the edge of the existing

treeline, and three specific mature pine trees. While the site plan does state that the

clearing of trees shall be limited to the clearing limits noted around each proposed house

site and the proposed driveways and utility routes, it does not make any statements

regarding the maturity of the trees within the existing forested site. By proposing to

preserve much of the forested site, Appellee-Applicants implicitly request a waiver.

Certainly nothing in the Code requires the developers of a forested site to cut down the

forest in order to comply with a minimum landscaping requirement. However, '719.B does

not provide for a complete waiver of landscaping, but only a credit of up to 50% of the

required landscaping. In order to obtain such a credit, Appellee-Applicants must at least

provide a statement about the proportion of mature trees within the forested area, and a

plan or proposal for preserving them, through a management plan or other mechanism for

maintaining the forested site. Moreover, the site plan contains no proposal for the

landscaping or maintenance of the open space parcel northerly of Hubbell=s Falls Road,

nor does it provide for or request a waiver of the requirement to plant street trees on the

Hubbell=s Falls Road frontage.
Questions 5, 7 and 8: Compatibility with neighborhood, impact on traffic generation, impact

on public health, safety and welfare ('502.I.4)); visibility at intersections and driveways for

pedestrian and vehicular traffic ('710); and '705 standards for curb cuts and access as

applied to the Phase II driveway.

The neighborhood is characterized by residential developments, most of which are

smaller houses on smaller lots in a more suburban configuration than is proposed for the

project houses. The proposed development will have a lower density than the surrounding

properties, and be located in a more wooded area. Although the houses are proposed to

be larger in size, they will be restricted to a height of no more than two stories and a

size and style similar to Appellee-Applicants= existing house. The proposed development

is compatible with the neighborhood.

The project has adequate accessibility for fire and rescue vehicles to the project

property. Fire hydrants are available on both Hubbell=s Falls Drive and Beech Street. The

proposed project is adequately served by municipal water supply and sewage disposal.

The proposed project is calculated to generate approximately 70[9] to 95 vehicle

trips per day to be added to the surrounding roadways. The peak hour traffic on the

surrounding roadways occurs from 7:15 to 8:15 in the morning and from 4:30 to 5:30 in

the afternoon. A total of approximately 53[10] vehicle trip ends per weekday can be
anticipated to be generated on Hubbell=s Falls Drive from the proposed houses= use of the

Phase I private street. Hubbell=s Falls Drive now carries approximately 385 vehicles

during an average November weekday, including those from the existing Kalanges house,

with 36 vehicles using it in the morning peak hour and 45 vehicles using it in the

afternoon peak hour. Approximately thirteen of the trips to be generated by the proposed

project on Hubbell=s Falls Drive can be anticipated to be generated in the morning peak

hour and approximately eight in the evening peak hour. A total of 42 vehicle trip ends

per weekday can be anticipated to be generated on Beech Street from the houses using

the Phase II driveway, with 12 of those trips being generated in the morning peak hour

and five in the evening peak hour.

Both Hubbell=s Falls Drive and Beech Street, and the other connecting roads in the

area have adequate capacity to handle the estimated vehicle trips to be generated by

these houses, regardless of whether the lower or higher trip generation numbers are used.

The ordinance requires the Court to examine not only the traffic generation of the

proposed project, but also the effect of those vehicle trips in terms of safety for vehicles

and pedestrians using the surrounding streets and sidewalks. '502.I.4.

The waiver of reducing five feet from the 20-foot-wide pavement width for a

private street is warranted to ensure that two-way travel remains adequate, while
preventing excessive speed on the Phase II private street, especially at the approach to

Hubbell=s Falls Drive.

The sight distances of 480 feet to the east and 420 feet to the west at the

Hubbell=s Falls Drive intersection of the Phase I private street are adequate at the posted

speed limit of 25 miles per hour, and remain adequate at 30 miles per hour. The sight

distances of 300 to 400 feet to the south and 1000 feet to the north at the Beech Street

intersection of the Phase II driveway are only adequate in the absence of vehicles parked

on the west side of Beech Street within approximately twenty feet of that intersection.

The intersection of the Phase I private street with Hubbell=s Falls Drive will meet

the thirty-foot visibility triangle requirement of '710.B, if the foliage is cut as required by

that section and the ATV Pedestal@ shown in the plans is moved outside the visibility

triangle (unless it falls within one of the exceptions in '710.D). The intersection of the

proposed Phase II driveway with Beech Street will meet the ten-foot visibility triangle

requirement of '710.C. However, due to the curve of Beech Street to the south of that

intersection and due to the heavy use of the adjacent pathway to the recreation area,

especially by children, visibility from that driveway will not be adequate to protect public

safety and welfare unless on-street parking is prohibited on the westerly side of Beech

Street for twenty feet on both sides of the new Phase II driveway.
 Placing the recreation area access in association with the proposed Phase II

driveway will not be adequate to protect public safety and welfare, particularly of children

using the recreation area, unless the two functions are effectively separated. Not only

must they be effectively separated all the way to the rear property line of the recreation

area, so that users of the recreation area will not use the Phase II driveway as an

alternate route to the recreation area, but there must be sufficient visibility on the approach

to Beech Street to enable drivers to see, stop for, and avoid pedestrians (including

children on skateboards and scooters) and bicyclists and to enable pedestrians and

bicyclists to see and avoid approaching vehicles. Before discussing whether any version

of the proposed fence achieves that goal, we must first examine whether the two accesses

as designed comply with the other requirements of the regulations.

The required side setback for the R-1 zoning district is eight feet. '613.C.2. In

order to meet that setback, the recreation area pedestrian access and the proposed Phase

II driveway must be moved six feet closer together, so that the side setbacks are each

eight feet wide, and the strip separating the two is nine feet wide.

As proposed, the recreation area pedestrian access and the proposed Phase II

driveway intersect approximately ten feet from the sidewalk, within the property. From that

point to the curb, they share a driveway which is approximately 25 feet wide [11] at the

sidewalk, widening to approximately 35 feet wide at the street. However, the recreation
area pedestrian access does not in fact constitute a third traveled vehicle lane at the

street. Rather, it is a pedestrian pathway that must be suitable for occasional travel by

maintenance and emergency vehicles, which obtain access to it if necessary from the

proposed Phase II driveway by removing the chain that otherwise restricts vehicles from

traveling on it.

The proposed Phase II driveway is 15 feet wide, so as to accommodate two-way

driveway traffic. The waiver of allowing an additional three feet to be added to the 12-

foot-wide pavement width for a driveway is warranted to ensure that all traffic will be able

to exit from the driveway facing forward, and to avoid conflict when a maintenance or

emergency vehicle is entering or exiting the pedestrian pathway. The recreation area

pedestrian access is paved to a ten-foot width, to provide for pedestrian, bicycle, stroller,

wheelchair, rollerblade, skateboard and scooter access, and to enable occasional

maintenance and emergency vehicles to reach the recreation area.

Even if the width of the curb cut should be calculated in the same way as a multi-

family dwelling, because it serves three houses rather than the one or two addressed in

'705.B.1, it only serves two traffic lanes, and therefore should meet the standards of a 20

to 25 foot curb cut. Although that is a minimum standard, in the present circumstances a

wider curb cut decreases safety rather than increasing it. Instead, the very wide curb cut

creates a larger undefined area within which adults and children using the recreation area
access path could conflict with or be confused by the turning movements of vehicles

turning into the Phase II driveway. Rather, the curb cut should be reduced in width to

carry the 15-foot width of the Phase II driveway to the sidewalk, broadening out to a 20-

to-25-foot-wide curb cut with the required radii. The recreation area pedestrian access

could then meet the Phase II driveway at its ten-foot width, so that the chain limiting traffic

from that pathway would more clearly define the edge of the Phase II driveway. (See

diagram attached as Appendix A).

If the driveway were reconfigured and the six-foot-high green vinyl chain link fence

were installed as now proposed, it would accomplish both goals. It would adequately

separate the flow of pedestrians (including children) traveling to and from the recreation

area from the vehicles using the Phase II driveway. It would improve visibility between the

recreation area pedestrian access and the Phase II driveway sufficiently far back from the

junction of the two traveled ways so as to enable both drivers and pedestrians to perceive

and adjust to the other to avoid conflict. Moreover, it would better define the vehicular

and the pedestrian paths of travel[12] so that drivers new to the intersection, such as

drivers of delivery vehicles, could accurately recognize their appropriate traveled lane and

the unusual configuration of the intersection.

At trial Appellee-Applicants also proposed to add a short segment of sidewalk from

the existing Beech Street sidewalk to connect with the recreation area pedestrian access
beyond the chain controlling vehicle access. Such a sidewalk segment will be useful to

connect the sidewalk to the pathway and to clarify that the recreation area pedestrian

access is not part of the street and vehicular access system, but instead is part of the

pedestrian and sidewalk circulation system. In adjusting the design of the curb cut,

Appellee-Applicants should consider adjusting the shape and location of the additional

sidewalk segment, to encourage its use for pedestrians approaching from both directions

along Beech Street.

Question 9: Storm Water Management ('713)

The proposed development does not result in substantial alterations to topography

and does not result in a substantial increase in the impervious area, and therefore does

not require a stormwater management plan under '713. The proposed project does not

require a state stormwater permit because the total impervious area on the site is less

than two acres. The post-development peak runoff rate is a minimal 5% increase. The

project design makes provisions to attenuate the runoff from individual house sites with

stone interceptor trenches located at the downgradient side of the construction envelopes,

so that the stormwater flow is conducted to grassed sedimentation swales with 2% or less

slope for both access drives and is conducted to overland sheet flow across lawns of 5%

or less slope, and to stone interceptor trenches where applicable. Water runoff treatment
complies with best management practices. The infiltration capabilities of the site are

maximized through overland flow and existing dense vegetation uptake, to reduce both

runoff volume and peak discharge, in compliance with '713.

Question 10: Creation of any dangerous, injurious, noxious or otherwise objectionable

conditions ('718.A)

The performance standards in '718 must be complied with by all uses during their

operation, not only in assessing a permit application. The project consists of adding seven

houses to the area, which are not expected to generate objectionable noise, odor, smoke,

or hazardous materials.

To the extent that this question was intended to address noise during

construction, the proposed limits on the hours of construction of 7:00 a.m. to 6:00 p.m.

Monday through Friday and 8:00 a.m. to 5:00 p.m. on Saturday, with no construction

activity occurring on Sundays or holidays, are reasonable to prevent objectionable noise

during the site work.

To the extent that this question was intended to address blasting during site work,

the site plan shows that ledge or rock outcroppings occur on the property and are

anticipated to require removal by blasting. Any blasting activities will be conducted by a

blasting contractor in accordance with all applicable federal and state regulations, including
the preparation of a pre-blast survey of neighboring properties and structures (which

include the recreation area pool, tennis courts and associated buildings) and a blasting

plan. As a condition of site plan approval, Appellee-Applicant shall also provide

notification in writing or by other agreed means (such as email) to the owners of all

adjoining properties at least 24 hours in advance of any planned blasting.

Question 11: Sufficiency of landscaping ('719)

The portion of the property to the south of Hubbell=s Falls Drive is heavily

wooded. As discussed above, in order to qualify for the 50% waiver provided in '719,

Appellee-Applicants must provide a statement about the proportion of mature trees within

the forested area, and a plan or proposal for preserving them, through a management plan

or other mechanism for maintaining the forested site, as well as with the required

specification of ownership of the common areas and responsibility for their maintenance

required by '511, so that the owners= association will be able to tell which forestry

practices are acceptable beyond the house site clearing limits, and which are not.

Appellee-Applicants also must provide a description of and proposal for the landscaping or

maintenance of the open space parcel northerly of Hubbell=s Falls Road. Appellee-

Applicants also must provide for or request a waiver of the requirement to plant street

trees on the Hubbell=s Falls Road frontage.
 With respect to the adjacent properties, Appellee-Applicants must provide a

landscaping plan for the eight-foot side setback areas adjacent to the Braunegg and

Wasser/Noble properties, to protect and enhance those properties in connection with the

relocation of the recreation area pedestrian access and the new Phase II driveway.

Similarly, the the 6-foot-high perimeter stockade fence, by itself and without any

associated plantings to soften its effect on the back yards of the adjacent smaller lots on

Beech Street and Hubbell=s Falls Drive, fails to meet the requirement of '719.D to insure

protection of and enhance the quality both of the project in question and of adjacent

properties. If property now proposed for development has not been dedicated to public

open space use,[13] Appellee-Applicants are entitled to protect the new house sites from

use as public open space, but they must do so in a way that also protects and enhances

the adjacent properties.

Question 6: Appropriate conditions and safeguards with respect to the adequacy of traffic

access, of circulation and parking, of landscaping and screening, and protection of the

utilization of renewable energy resources (' 502.I.5)

The proposed project does not implicate the protection of the utilization of

renewable energy resources, as any availability of solar or wind power on the site or on

neighboring property is already governed by the existing vegetation, which is to be

preserved.
 All the remaining appropriate conditions and safeguards with respect to the

adequacy of traffic access, of circulation and parking, and of landscaping and screening

have been discussed above. With the imposition of those conditions and safeguards, the

proposal will meet all the requirements for site plan approval.

Based on the foregoing, it is hereby ORDERED and ADJUDGED that site plan

approval of Appellee-Applicant=s proposal is GRANTED, subject to the following

appropriate conditions and safeguards, and subject to the provision of the following

documents and their approval, if necessary,[14] as amendments to this site plan.

1. Provide a site plan based on a survey for the portion of the property north of

Hubbell=s Falls Drive, together with a landscaping and/or maintenance plan for that portion

of the property, and the entity and documentation of the ownership and responsibility for

maintenance of that portion of the property.

2. Show on the final site plan the easement relating to access to the Countryside

recreation area.

3. In lieu of showing specific mature trees or groups of trees on the site plan, due

to the heavily wooded nature of the property, provide a report describing the maturity of

the trees in the areas designated as beyond the clearing limits and a plan for maintenance

and preservation of those areas.
 4. Provide the entity and documentation of the ownership and responsibility for

maintenance of the common areas and the landscaping and preserved existing vegetation

in Phase I and Phase II, and for maintenance and snow removal on the private street and

driveways.

5. Revise the portion of the plan and any detail sheets relating to the Beech Street

Access to show the speed hump or humps, the placement of the stop sign, the correct

eight-foot-wide side setbacks, the 6-foot green vinyl-coated chain-link fence extending to

the rear of the recreation area property, the revised placement of the chain controlling

vehicular access, the revised curb cut width, and any proposed additional revisions to the

placement or geometry of the driveway curb cut or the sidewalk extension segment.

6. Provide a landscaping plan for the area within the eight-foot-wide side setbacks

at the Beech Street Access.

7. Obtain permission[15] from the appropriate governing body to prohibit parking on

the west side of Beech Street for twenty feet to either side of the edge of the Beech

Street curb cut, and install the signage and pavement striping necessary to establish that

no-parking zone.

8. Provide a landscaping plan for the area between the privacy fence and the back

property lines of the adjoining single-family residential properties, which may include

moving or redesigning the privacy fence.
 9. Address the planting of or waiver of the requirement for street trees on the

Hubbell=s Falls Drive frontage, and the relocation of the TV pedestal, if necessary to meet

the visibility triangle requirements at that location.

10. In carrying out any blasting plan, provide at least 24-hour notice to the

adjoining property owners of any planned blasting event.

In view of the complexity of this decision and the need for revisions in the site plan

documents in connection with this approval, on or before April 19, 2005, Appellee-

Applicants shall submit a proposed judgment order with a revised site plan and revised

detail sheets consistent with this decision, approved as to form by the other parties.

Dated at Berlin, Vermont, this 4th day of April, 2005.

______________________________________
Merideth Wright
Environmental Judge

[1]
The spelling of this street appears in the evidence both with and without the
apostrophe.

[2]
The directions are taken from the site plan, which contains a directional arrow
showing north to the right side of the page, not at the top.
 [3]
From the testimony of the project engineer at trial.

[4]
Sections 710.B and C require a ten-foot visibility triangle where a driveway
intersects with a public street, and require a thirty-foot visibility triangle on any Acorner lot,@
which is defined a lot Aabutting two or more intersecting public or private streets.@
'201.C.104.

[5]
The location of the proposed speed hump or humps and the proposed stop sign
would have to be added to any site plan as they were not shown in the original site plan
or as attachments to the March 9, 2005 stipulation.

[6]
The minimum lot size for the R-1 district is 15,000 square feet, or just over a
third of an acre. ALarge@ lot in this context is evidently a relative term, but the minimum
lot size in this district is twice that of the minimum lot size in the R-2 residential district,
the purpose of which is Ahigh-density@ single family residential development.

[7]
Under '503.F, applications for subdivision review, site plan review, and planned
development review may be reviewed in one proceeding by the Planning Commission and
hence this court. However, the parties have presented this appeal as only relating to site
plan approval for the proposed project.

[8]
On page 54 of the Code, apparently misnumbered, as it appears that the correct
numbering should have been '511.D.3(c), because >preliminary development plan= and
>final development plan= are not subsections of >conceptual plan.=

[9]
We note that at trial the project engineer used a rule-of-thumb estimate of ten
vehicle trips per new house, and Appellants= traffic expert agreed with that estimate.
However, Appellee-Applicant=s Exhibit 9 shows a calculated weekday estimate of 13 to 14
trips per day for each of the new houses.

[10]
Exhibit 9 shows the trip generation equations for five houses using Hubbell=s Falls
Drive: the existing house plus the four proposed houses. To avoid counting the Kalanges
house twice (once in the existing traffic and once as part of the project generation), we
have adjusted those figures downwards as approximations of the numbers that would be
calculated by the equations for the trip generation figures in Exhibit 9.

[11]
The details of that access provided as Exhibits 11, 12, and 13 are to an actual
scale of 3/4" = 20', not the 1" = 20' as stated. That is, the 10-foot-wide pedestrian
path measures 3/8" on the plan.

[12]
There was no testimony regarding the utility of differently colored surfacing
material or specially embossed asphalt to aid such visual separation; however, nothing in
this decision precludes the use of such techniques.

[13]
Questions of whether that property was dedicated to public or open space use in
connection with a previous development covenants and, if people have commonly used it
for walking or other recreation in the past, whether any easements have arisen by
operation of law, are issues that would have to be addressed in superior court. This
court can only determine whether the proposed project meets the standards in the Land
Development Code and any requirements of other municipal permits.

[14]
This decision does not address whether the consideration of the missing
information by the Planning Commission should be classified as a minor or a major
amendment under '502.I.10.

[15]
Any failure to obtain this permission shall be reported promptly to the parties and
to Village of Essex Junction zoning and planning officials, together with any proposal for
substitute safety measures for visibility at this location.