MAR ‘ 9 2012

STATE ()F VERMONT
SUPERIOR COURT - ENVIRONMENTAL DIVISION VERMONT
SUPEREOR COUHT
{ ENV|HONMENTAL DlVlSlON
'In Re LaFogg Subdivision { Docket No. 103-7-11 Vtec
Final Plat Approval {

Decision on CroSs-Motions for Sumrnarv ludgment

David Christie (”Appellant”) appeals the Town of l-lalifa)< Planning Commission's (”the
Commission”) approval of joan and Peter LaFogg’s (”Applicants”) permit to create a new
parcel on their property in the Town of Halifa><, Vermont. Currently pending before this Court
are the parties' cross-motions for summary judgment concerning whether Applicants’
application for a permit to create a new parcel should be approved

In this proceeding, Appellant is represented by Robin Stern, Esq. Applicants are
represented by Christopher D. Roy, Esq. The Town of Halifa)< filed an appearance in this matter

but did not participate in the motions.

Factual Backgi_:ound

For the sole purpose of putting the pending motions into context, the Court recites the
following facts, Which it understands to be undisputed unless otherwise noted:
l. Applicants own a 60.18i acre parcel of property in the Town of Halifax, Vermont (”the
Town”). Appellant owns land abutting Applicants’ property.
2. The current version of the Town of Halifax Zoning Regulations (”the Regulations”) was
adopted on l\/larch 6, 2007. Pursuant to the Regulations, Applicants’ property is located in the
Conservation District. `
3. A Single-family residence, constructed in approximately 2002, currently exists on
Applicants' property. The residence was constructed prior to the adoption of the current
Regulations.
4. Applicants’ property has 50 feet of road frontage on Old County Road, a public town
road.
5. Applicants Seel< to create a new parcel on their property so that the property will consist
of two Separate parcels. Lot l will consist of 32.54i acres and will include the 50 feet of road
frontage currently existing on Old County Road. Lot 2 will be a ”bacl< lot” consisting of 27.63i

acres and served by a 50-foot right-of~way.

6. On April 10, 2011, Applicants submitted an application to the Commission seeking a
permit to divide their property and create a new parcel. The Commission approved the
application on ]une 22, 2011.

’7. Appellant thereafter filed a timely appeal of the Commission's decision with this Court.

Discussion

ln his motion for summary judgment, Appellant asks the Court to deny Applicants'
request for approval to divide their property into two parcels. ln support of his motion,
Appellant argues that (1) ”[t]he proposed subdivision violates both local and state law”; (2) the
proposed property division will increase the nonconformity of Applicants' property; (3) the
proposed property division will result in merger of the parcels, thereby resulting in one
nonconforming lot; and (4) the applicable provisions of the Regulations conflict with the
applicable provisions of 24 V.S.A., Chapter 117.1

ln their cross~motion, Applicants contend that the Court should approve their
application to divide their property into two parcels. ln support of their motion, Applicants
argue that the Regulations permit division of their property, and, if their property is divided
into two lots, Lot l will remain a permissible preexisting nonconforming lot under the
Regulations and Lot 2 will be a conforming lot under both the Regulations and 24 V.S.A.,
Chapter 117.

For the reasons detailed below, we conclude as a matter of law that (l) although the
property is nonconforming, it can be divided into two lots pursuant to both the Regulations and
24 V.S.A., Chapter 117; (2) the proposed division of Applicants’ property will not increase the
property's nonconformity because Lot l will be a permissible preexisting nonconforming lot
and Lot 2 will be a conforming lot under the Regulations and 24 V.S.A., Chapter 117,' (3) the
Regulations contain sufficient standards regulating the process of property division; (4) the
proposed lots Will not merge,' and (5) the applicable provisions of the Regulations do not

conflict with the applicable provisions of 24 V.S.A., Chapter ll7.

 

1 Appellant also argues as part of his motion for summary judgment that the proposed property division
will defeat the purpose of the frontage requirements as well as the purpose of the Conservation District.
Appellant did not raise this issue in his Statement of Questions, however, and we therefore decline to
consider it. See V.R.E.C.P. 5(f) (”The appellant may not raise any question on the appeal not presented in
the [statement of questions].”).

I. Summarv judgment Standard

A court may grant summary judgment where ”the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any, . . . show that there is
no genuine issue as to any material fact and that any party is entitled to judgment as a matter of
law." V.R.C.P. 56(c)(3) (2011) (amended jan. 23, 2012).2 ln considering the parties’ cross-
motions for summary judgment, we give each party the benefit of all reasonable doubts and

inferences City of Burlington v. Fairpoint Commc’ns, 

, jj 5, 

(citing Toysl

 

lnc. v. F.l\/l. Burlington Co., 

, 48 (1990)). We ”accept as true the jfactualj allegations
made in opposition to jeach] motion for summary judgment, so long as they are supported by
affidavits or other evidentiary material." Robertson v. l\/lVlan Labs., lnc., 

, jj 15, 

.

II. Legalitv of PropertV Division Under State and Municipal Law l

ln his motion for summary judgment, Appellant contends that the division of
Applicants' property as proposed ”violates both local and state law." (Appellant's l\/lotion for
Summary judgment 4, filed l\lov. 21, 2011). Specifically, Appellant argues that division of the
subject property will increase the property's preexisting nonconformity under the Regulations
and will create a new nonconforming lot without the road frontage required by the Regulations
and 24 v.s.A., chapter 117.

Applicants argue in their cross-motion that, if their property is divided, the proposed
Lot 1 will remain a preexisting nonconforming lot and the proposed Lot 2 will be a conforming
lot under the Regulations and 24 V.S.A., Chapter 117.

We interpret a Zoning ordinance using the familiar rules of statutory construction l_nie
Im__h_ag, 

, jj 19, 

. We will ”construe words according to their plain and
ordinary meaning, giving effect to the whole and every part of the ordinance.” l_d. lf the plain
language resolves the conflict, ”there is no need to go further, always bearing in mind that the
paramount function of the court is to give effect to the legislative intent.” Lubinsl148 Vt. 47
, 49 (1986); see also ln re Hartland Group l\lorth Ave. Permit, 
2008
VT 92
, jj 11, 
184 Vt. 606 
(citing Bergeron v. Boyle, 
2003 VT 89
, jj 11, n.1, 
176 Vt. 78
, for the

proposition that courts will avoid a statutory construction that leads to absurd results).

 

2 We note that an updated Version of V.R.C.P. 56 took effect on January 23, 2012. HoWever, We analyze the
pending motions under the previous version of the rule because that Version Was in effect at the time the motions

were filed

The parties do not dispute that Applicants’ property is a preexisting nonconforming lot
under the Regulations. A preexisting nonconforming lot, which the Regulations simply label a
"nonconforming lot," is defined as ”ja] lot, the area, dimensions or location of which was lawful
under prior zoning regulations, but which fails to conform to the present requirements of the
zoning district.” Regulations Art. 7. Under the Regulations, the Conservation District, the
District in which Applicants’ property is located, requires a minimum lot size of 15 acres and
minimum road frontage of 500 feet. Regulations § 308(5); Art. 7 (defining ”frontage” as the
”jdjistance along the established division line between a lot and a public right of way jsicj”).
Applicants’ property currently encompasses approximately 60 acres, thereby satisfying the
District's minimum lot size requirement Applicants' property has only 50 feet of road frontage
on a public right-of-Way. The subject property therefore fails to conform to the current frontage
requirements of the Conservation District. The lot also predates enactment of zoning
regulations in Halifax. As such, Applicant's property is a preexisting ”nonconforming lot”
under the Regulations.

We turn next to the question of whether the proposed division of Applicants' property
to create two lots will increase the property's nonconformity. Pursuant to Section 406 of the
Regulations, ”nonconforming uses or structures may be continued indefinitely, but shall not be
moved, enlarged, altered, extended, reconstructed or restored." The Regulations also provide
for certain enumerated exceptions, including a change from one nonconforming use to ”another
nonconforming use of equal or less intensity." Regulations § 406.

As discussed above, Applicants seek to subdivide their property into two lots.' As
proposed, Lot 1 will consist of the front 52 acres of the current property, while Lot 2 will consist
of the back 27 acres. The back property will be accessed by an existing 50-foot right-of-way. No
changes are proposed to the front portion of the property other than reducing its size.

At approximately 32 acres, the proposed Lot 1 will satisfy the Conservation District's 15-
acre minimum lot size requirement See Regulations § 308. l\/loreover, the subject property's
nonconformity with regard to road frontage will remain unchanged because Lot 1 will retain
the property's 50 feet of frontage on a public road. Accordingly, the creation of Lot 1 will not
increase the nonconformity of Applicants’ property.

Nor will the creation of Lot 2 increase the nonconformity of Applicants’ property. ln his

motion for summary judgment, Appellant contends that the creation of Lot 2 is impermissible

because it would create an ”island lot," (Appellant's l\/lotion for Summary judgment 8, filed
l\lov. 21, 2011). ln their cross-motion, Applicants argue that the creation of Lot 2 is permissible
under the Regulations because it would be a conforming lot, We agree with Applicants.

The Regulations prohibit development on a lot that does not have ”either frontage on a
public road or . . . access to such a road . . . by a permanent easement.” Regulations § 401. Lots
that lack frontage on a public road can satisfy this requirement by access via a right-of-way that
is at least 50 feet wide. Regulations § 401(1). That is, ”jfjrontage requirements for a single lot
served by an approved 50 foot right of way jsicj shall be reduced to the width of the right-of-
way in all districts.” ld_.

The plain language of the Regulations, therefore, permits the creation of the proposed
Lot 2. Lot 2 will be served by an approved 50-foot right-of-way. Thus, its required road
frontage will be reduced to the width of the right-of-way, or 50 feet, and the right-of-way itself
will satisfy the frontage requirement See Regulations § 401 (1) l\/loreover, at approximately 27
acres, Lot 2 will satisfy the minimum lot size requirement of 15 acres. By complying with both
the frontage and lot size requirements, Lot 2 will be a conforming lot under the Regulations.

Lot 2 will also be a conforming lot under 24 V.S.A., Chapter 117 . Section 4412(3) of Title
24 of the Vermont Statutes Annotated permits land_:development on lots that do not have road
frontage as long as access to the'property is provided by a right-of-way of at least 20 feet, Lot 2
will be accessed by a 50-foot right-of-way, and thus will satisfy the requirements of 24 V.S.A. §
4412(3).

Accordingly, Applicants’ proposal to divide their property and create a new lot
complies with the Regulations, Lot 1 will remain a permissible preexisting nonconforming lot,
Lot 2 will be a conforming lot because it satisfies the Regulations’ minimum lot size
requirements and conforms with the frontage requirements of Section 401(1) of the Regulations
and 24 V.S.A. § 4412(3).

This conclusion is made even clearer when we consider what an alternative
interpretation of these provisions in the Regulations would mean. The Town explicitly
determined that the minimum lot size requirement in the Conservation District is 15 acres. lf
the Town had wanted to preserve larger lots in the district, it could have done so. lt would be
unreasonable to interpret the Regulations as prohibiting the division of a 60-acre lot in a district

where 15-acre lots are permitted

III. Alleged Lack of Standards

ln his motion for summary judgment, Appellant contends that the Regulations are
devoid of standards regulating the property division review process. With this argument,
Appellant appears to either be challenging the Regulations themselves or contending that such
standards are required for a waiver or Variance, of the road frontage requirements We see no
merit in Appellant’s argument regardless of its intended meaning

First, the Regulations contain appropriate minimal standards regulating the property
division review process Pursuant to 24 V.S.A. § 4412(3), a right-of-way may be approved
according to standards specified in subdivision bylaws or, ”where subdivision bylaws have not
been adopted or do not apply, through a process and pursuant to standards defined in bylaws
adopted for the purpose of assuring safe and adequate access.” The Vermont Supreme Court
has held that regardless of whether a municipality implements subdivision bylaws or instead
regulates subdivision using zoning regulations, the subdivision review process ”should reflect
the application of at least minimal standards to ensure rationality in the planning process.” i_n
re Appeal of Van l\jostrand, 
2008 VT 77
, jj 12, 
184 Vt. 557 
(mem.).

Here, the Town has not implemented subdivision bylaws The Town has, however,
implemented zoning regulations which regulate property division Contrary to Appellant’s
argument, the Regulations do contain minimal standards to ensure safe and adequate access as
required by Appeal of Van Nostrand and 24 V.S.A. § 4412(3). Section 401(1) of the Regulations
requires a minimum of a 50-foot right-of-way. This is a larger right-of-way than the 20-foot
right-of-way required by statute. See 24 V.S.A. § 4412(3). l\/loreover, the Regulations mandate
compliance with the Department of Highway Standards B-71 for Residential and Comrnercial
Drives as well as public notice before a right-of-way can be approved Regulations § 401(1)(a)-
(b). Accordingly, the Regulations contain minimal standards which 'f ensure rationality in the

planning process."3 Appeal of Van Nostrand, 
2008 VT 77
, jj 12.

 

Second, Appellant did not raise the issue of whether the Regulations contain appropriate

standards for a waiver from the frontage requirements within his Statement of Questions. We

 

3 Appellant also contends that the Regulations do not contain any of the subdivision standards found in
24 V.SA. § 4418 entitled ”Subdivision bylaws.” This section does not control our analysis here because
the 'l`own has not adopted subdivision bylaws See also 24 V.S.A. § 4412(3) (stating that right-of-way
approval must comply with subdivision bylaws when those bylaws were enacted in accordance with 24
V.S.A. § 4418 but omitting any reference to that section when discussing the right-of-way approval
process Where no subdivision bylaws have been adopted).

6

therefore are not required to address it. See V.R.E.C.P. 5(f) (”The appellant may not raise any
question on the appeal not presented in the jstatement of questionsj.”). lt is clear, however, that
Applicants’ proposed property division does not require a waiver. Appellant argues that 24
V.S.A. § 4414(8) allows a municipality to grant a waiver of dimensional requirements as long as
its zoning bylaws contain specific standards regulating the process of granting and appealing
waivers However, 24 V.S.A. § 4414(8) does not apply here because Section 401(1) is not itself a
waiver provision but instead is an alternative means by which appropriate road frontage can be
obtained

l\/loreover, a variance must be sought only when an applicants proposal would result in
a nonconformity with provisions in the municipal zoning regulations As discussed above,
Applicants' proposed property division will not create a nonconformity with the Regulations.

Therefore, Applicant is not required to seek a variance.

IV. Merger

Appellant contends that, once divided, the new lots will immediately merge ln support
of his argument, Appellant relies on Section 400(1) of the Regulations. That provision provides
that ”jijf a lot rendered nonconforming by Halifax Zoning Regulations prior to january 1 2005
jsicj subsequently comes under common ownership with one or more contiguous lots, the lot

j shall be deemed merged.” Regulations § 400(1).

The proposed division here would not result in the lots subsequently coming under
common ownership because the lots are currently under common ownership as one lot.
Therefore, no merger will occur upon division of the lot. l\/loreover, to hold otherwise would
prohibit any subdivision of a preexisting nonconforming lot because the resulting conforming
lot would immediately merge with the preexisting nonconforming lot, a result that the Town
surely did not intend See Hartland Group_, 
2008 VT 92
, jj 11 (citing Bergeron, 
2003 VT 89
, jj 11,
n.1, for the proposition that courts will avoid a statutory construction that leads to absurd
results); ln re Appeal of Pearl Street l\/lobil§ l\lo. 87-5-99 Vtec, slip op. at 31 (Vt. Envtl. Ct. Feb. 23,
2000) (Wright, j.) (”jTjhe zoning ordinance cannot be interpreted to yield an absurd result.").

V. Conflicting Provisions
Finally, Appellant contends that 24 V.S.A. §§ 4412(3), 4414(8), and 4418(1) must control

our analysis here because they are more restrictive than the related provisions of the

Regulations. ln the case of conflicting state statutes and municipal regulations, ”the more

7

stringent or restrictive regulation applicable shall apply.” 24 V.S.A. § 4413(c); see also lnie
Richards, 
174 Vt. 416
, 422 (2002) (interpreting a previous version of 24 V.S_.A. § 4412(2), formerly
codified as 24 V.S.A. § 4406(1)). Here, however, the applicable provisions of 24 V.S,A., Chapter
117 do not conflict with the applicable provisions of the Regulations. They are merely
alternatives to each other. As discussed above, Section 401(1) of the Regulations is not a waiver
provision, and therefore does not conflict with 24 V.S.A. § 4414(8). The rlt"own has not
implemented subdivision bylaws, and therefore 24 V.S.A. § 4418(1) does not apply.
Furthermore, even if Section 401(1) of the Regulations did conflict with 24 V.S.A. § 4412(3), and
it does not appear that it does, Section 401 (1) is more restrictive than 24 V.S.A. § 4412(3) because _

it requires a 50-foot right-of-way rather than the 20-foot right-of-way required by statute

Conclusion

For the reasons detailed above, we GRANT Applicants’ motion for summary judgment
in part, concluding as a matter of law that (1) although the property is nonconforming,_it can be
divided into two lots pursuant to both the Regulations and 24 V.S.A., Chapter 117; (2) the
proposed division of Applicants’ property will not increase the property's nonconformity
because Lot 1 will be a permissible preexisting nonconforming lot and Lot 2 will be a
conforming lot under the Regulations and 24 V.S.A., Chapter 117; (3) the Regulations contain
sufficient standards regulating the process of property division; (4) the proposed lots will not
merge; and (5) the applicable provisions of the Regulations do not conflict with the applicable
provisions of 24 V.S.A., Chapter 117 . For these same reasons, we DENY Appellant’s competing
motion for summary judgment

We cannot, however, grant the full relief that Applicants seek,' that is, we cannot yet
determine whether they are entitled to a permit to create a new parcel. This Decision answers
six of the seven Questions raised by Appellant in his Statement of Questions, Questions 1-6, but
the parties did not provide facts or brief the final Question, Question 7, in their cross-motions
for summary judgment Question 7 asks whether Applicants’ application for division of their
property should be denied because the requisite notice for approval of a right-of-way as
required under the Regulations was not provided The Court will hold a prehearing conference
on March 19, 2012 to determine whether Question 7 will be decided on briefs from the parties

or after a hearing Please see the enclosed notice regarding this prehearing conference

Done at Berlin, Vermont this 9th day of l\/larch, 2012.

       

Thomas Gw Walsh,
Environmental judge