re Miller Subdivision Final Plan (2007-260)
2008 VT 74
NOTICE: This opinion is subject to
reargument under V.R.A.P. 40 as well as formal revision before
the Vermont Reports. Readers
requested to notify the Reporter of Decisions, Vermont Supreme Court, 109 State Street,
Montpelier, Vermont 05609-0801
of any errors in order that corrections may be made before this opinion
PRESENT: Reiber, C.J., Dooley,
Johnson, Skoglund and
re Miller Subdivision Final Plan
(John Fothergill, Appellant)
On Appeal from
Thomas S. Durkin, J.
P. Riley of McKee, Giuliani & Cleveland, P.C., Montpelier,
Miller, Pro Se, Calais, and
David John Mullett of David John Mullett, P.C.,
DOOLEY, J. Neighbor,
landowner, appeals a decision by the Environmental Court
granting summary judgment in favor of
applicant in a zoning dispute and giving him the right to subdivide his
property and to relocate an outbuilding.
On appeal, neighbor claims that: (1) the Environmental
Court erred in
concluding that applicant's property constitutes two separate lots
divided by a
right-of-way, and (2) the evidence did not support the Environmental
finding that applicant's main parcel does not drain into Curtis Pond. We reverse in part, affirm
in part, and
remand for further proceedings.
Applicant owns a
2.92-acre lot and a .05-acre lot in
the Town of Calais. For the purpose of
determining the assessed
value of the property, the Calais Board of Listers currently identifies
applicant's parcels as one lot. The small parcel, called the
borders Curtis Pond, with 130 feet of shore front on the Northwest, and
Road on the
Southwest. The road
is very close to the
pond. Thus, as
applicant described it at
oral argument: "it averages about five or six feet in depth; you can
from the road into the pond." The
large parcel, called the main parcel, lies across Camp Road
from the shoreland parcel and
is bordered by two public roads. Camp Road
16.5-foot wide private road that services twenty seasonal dwellings and
residences, all further from the public road than applicant's land.
to divide the large parcel into two,
one 1.68-acre parcel and another 1.24-acre lot.
Although each of the two new lots would abut Camp Road,
the shoreland parcel would not
be subdivided, and so the expectation is that it would be owned by the
of one of the subdivided lots.
The Town of Calais Land Use
and Development Regulations (Regulations)
establish seven zoning districts. Only the Shoreland District and the
District are relevant to this dispute.
Shoreland District includes, among other things, all land within 800
Curtis Pond. However,
provide an exception for property that does not border Curtis Pond and
not drain into" the pond. The
Shoreland District requires that lots within the district be at least
acres in area. If
parcel is in the Shoreland District, the subdivision cannot occur
minimum lot-size requirement cannot be met.
If the land is not in the Shoreland District, it is in the
District, which has no minimum lot-size requirement.
The applicability of the lot-size
requirements in this case depends entirely on whether the Shoreland
exception applies—that is, whether the land to be subdivided
borders, and the
water on the land drains into, Curtis Pond.
On March 30, 2006,
the Calais Development Review Board granted
applicant's conceptual subdivision plan, and neighbor appealed to the Environmental
The parties entered into a stipulation of
facts and submitted the case for summary judgment on the issue of
land to be subdivided bordered Curtis Pond.
Applicant argued that: (1) the shoreland parcel and main
described and conveyed as two separate parcels in applicant's 1998
deed, and (2) this Court's precedents support the notion that, for
purposes, a well-traveled right-of-way divides the parcels that it
agreed that the
threshold question was whether the proposed subdivision " 'borders' on
Curtis Pond." However,
view, the precedents cited by applicant cautioned that the existence of
right-of-way between parcels will not always mean separation. Furthermore, neighbor
noted that, for tax
purposes, the town lister's records treat the property as a single
parcel with 130 feet of waterfront on Curtis Pond.
Court granted partial summary
judgment in favor of
It is undisputed that
Parcel, the only parcel [he] now proposes to subdivided [sic], does not
Curtis Pond. Thus, the first requirement of the exception [to the
District zoning regulations] is satisfied by the now undisputed
evidence. But the
second requirement of the exception
to the general rule that would place this property in the Shoreland
[namely, the requirement that the property not drain into the water
the subject of a material factual dispute.
The court came to
this conclusion without discussing
the nature of Camp Road
or of applicant's use of the shoreland parcel. The
court held an evidentiary
hearing, ultimately concluding: "that the [applicant's]
2.92± acre parcel
does not drain into the nearest body of water (Curtis Pond) and
within the applicable exception that removes the subject parcel from
Shoreland Zoning District . . . . placing it instead within the Village
the court held
that no minimum lot-size requirement applies to applicant's land and
that the subdivision
could go forward. The
court, however, expressed
its concern that future improvements to the driveway servicing one of
subdivided lots might cause water to flow onto Camp Road
and "perhaps even into
Curtis Pond," and conditioned its approval "upon future improvements
to the Lot 1B
driveway being completed so as
to not cause water to flow into Curtis Pond."
argument on appeal is that the court
erred in finding that the land to be subdivided did not border Curtis
based solely on the existence of Camp Road
between the shoreland parcel and the main parcel.
We review summary judgment decisions de novo,
applying the same standard of review as that applied by the trial
Ins. Co. v. Frederick, 2004 VT
125, ¶ 10, 177 Vt.
441, 869 A.2d 112. "Summary
judgment is appropriate where there is no genuine issue of material
the moving party is entitled to judgment as a matter of law." Id. "In applying this
standard, we give the
nonmoving party the benefit of all reasonable doubts and inferences." Id.
Although in a
somewhat different context, we have
addressed the issue of whether, for zoning purposes, commonly owned
separated by a private right-of-way are considered to be multiple lots
or one lot. The
issue first arose in Wilcox v. Village
of Manchester Zoning Board of Adjustment, 159 Vt.
193, 616 A.2d 1137 (1992). In
that case, we considered whether a lot
could be conveyed in spite of being defined as undersized by relevant
to these requirements,
in order to be considered as a separate lot, a parcel had to be in "
and non-affiliated ownership' " from surrounding lots, the main one of
which was divided from the lot in question by a right-of-way. Id.
at 195, 616 A.2d at 1138. We
lots divided by a right-of-way could not be considered separate as a
law simply because they were noncontiguous.
at 197-98, 616 A.2d at 1140. We
explicitly cautioned that "the existence of a right-of-way contiguous
and separating two parcels in common ownership will not
render those parcels separate lots." Id.
(emphasis added). We
remanded for a determination as to whether
the right-of-way "effectively" separated the parcels.
Id. at 198, 616 A.2d at 1140; see also
In re Richards, 2005 VT 23, ¶ 11,
178 Vt. 478, 872 A.2d 315 (stating
that under Wilcox, court must determine if "the function
location of the right-of-way . . . effectively
prevents the use of the
property as a single lot"); Neun v. Town of Roxbury,
150 Vt. 242,
244, 522 A.2d 408, 410 (1988) (discussing factors that must be
determining whether a property should be assessed as a single parcel,
whether the property was conveyed in one deed, the character of the
the purposes for which it is used, whether separately deeded tracts are
contiguous, and whether the property currently functions as one tract
We conclude that Wilcox
apply and that these cases required the Environmental Court
to evaluate whether
the presence of Camp Road
effectively separated the shoreland parcel from the main parcel such
prevented them from functioning as a single lot.
We note as well that the stipulation of facts
on which the court acted provided very little information from which
the court could
make any determination on summary judgment.
Thus, based on the record before us, we conclude that
summary judgment was
In so holding, we
recognize that the issue before us is
related to the one in Wilcox but not identical to
it. As in Wilcox,
the nature of the
right-of-way and the extent to which it separates the lots are relevant. Also relevant, as in Richards,
extent to which the main and shoreland parcels function as a single
however, unlike in those
cases, the ultimate issue is the applicability of zoning-district rules
intended to protect land bordering a body of water.
The Environmental Court
must evaluate whether treating the shoreland
parcel and the main parcel as separate lots undermines the purpose of
District regulations. We
further proceedings on the issue of whether these regulations apply.
Next, we turn to
neighbor's second claim on appeal—a
challenge to the Environmental Court's findings as to whether surface
water on the
main parcel drains into Curtis Pond.
appeal, neighbor argues that the court's finding—that there
was no evidence
that surface water flows across Camp Road
into Curtis Pond—was clearly erroneous.
Neighbor also contends that the Environmental Court
improperly shifted the burden of proof to establish that surface water
main parcel drains into Curtis Pond.
In our review of
this issue, we must give deference to
the Environmental Court's findings.
will not set aside the court's findings unless they are clearly
we will uphold the court's conclusions as long as they are reasonably
by the findings. See Morgan v. Kroupa, 167 Vt.
99, 104, 702 A.2d 630, 633 (1997). We
view findings in the light most favorable
to the judgment, disregarding modifying evidence, and will not be
merely because they are contradicted by substantial evidence; rather,
must show that there is no credible evidence to support them. See Highgate
Assocs., Ltd. v. Merryfield, 157 Vt.
313, 315, 597 A.2d 1280, 1281 (1991).
expert, a licensed land surveyor, testified
that in his professional opinion, it is "almost impossible for any of
[applicant's] property to drain into Curtis Pond."
He explained further that "there's a
significant ridge that runs along Camp Road
almost the entire length of the property, and
. . . it drops down
into a swale that
brings the water down past the sugar house and right straight down
property to Worcester Road." The expert marked a line
on an exhibit to
show the exact location of the swale he described, explaining that Camp
essentially acts "as a barrier for water . . . so if water does get
into the road, it generally follows a wheel track right down the side
road back to Worcester Road."
Court also found persuasive
of photos he took of his property while conducting an experiment with
garden hose. Applicant
explained that he
"took [a] garden hose" to the northernmost point on his land, and let
the hose run "full bore for about an hour just to see what . . . it
look like." Applicant
exhibited a series of photos that showed water running down his
In other words, applicant's observations showed that water runoff from
property would likely run towards Worcester Road, rather than in the
direction to Camp Road and beyond, to Curtis Pond.
This evidence corroborated the testimony of
Based on the
evidence as a whole, and acknowledging the
contrary evidence offered by neighbor, the court made the following
find that while
there's been professional inferences that I found credible, but in
those with actual observations of the manner in which surface water
has historically acted on this property, I find that there has not been
evidence presented in this proceeding that surface water flows from the
[applicant's] property across . . . Camp Road and into Curtis Pond.
the court concluded in
writing that the main parcel "does not drain into . . . Curtis Pond." The finding that the main
parcel does not
drain into Curtis Pond is not clearly erroneous, and we must uphold it. Nevertheless, neighbor
argues that the court
really found that neighbor presented no contrary evidence—a
neighbor contends would be clearly erroneous.
We agree that neighbor presented contrary evidence, but
with which neighbor takes issue does not state a finding of fact. As stated above, we must
findings to support the conclusion flowing from them, and the court's
conclusion was clear and against the neighbor's position. In this context, we find
no reversible error.
Finally, we find
unpersuasive neighbor's argument that
the court improperly shifted the burden to neighbor to establish that
water from the main parcel drains into Curtis Pond.
Again, neighbor quotes the court's finding
that "there has not been evidence presented in this proceeding that
surface water flows from the [applicant's] property across Camp Road
Curtis Pond" as evidence that "the court shifted the burden away from
the Applicant, and upon [neighbor], to meet the burden of proof."
We disagree. The
record, when read as a whole, clearly indicates that the court properly
the burden on applicant to show that surface water does not run off his
property and into Curtis Pond.
Specifically, at the start of the hearing on the merits,
stated: "I'm gonna ask the applicant to go first, because the burden of
proof, generally, resides with the applicant." Additionally, the court
clearly stated that "[a]s to surface water, I think that the evidence
clearly supports the finding that I've just made, namely, that water
For the foregoing
reasons, we find no error with
respect to the court's conclusion that surface water does not run off
parcel into Curtis Pond.
in part, affirmed in part, and remanded for further proceedings