STATE OF VERMONT

ENVIRONMENTAL COURT

Decision and Order

Appellant David Cole appealed from a decision of the Planning Commission of the Town of Arlington, granting a permit for a minor subdivision to Appellee-Applicant General Land Company.

Appellant appeared and represented himself and Appellee-Applicant is represented by John S. Liccardi, Esq. Mr. Philip Sherwin entered his appearance as an interested party but did not participate in the trial and the Town of Arlington did not participate as a party. In an order issued on September 16, 2002, the parties were advised that this court does not have jurisdiction to determine conclusively the existence, width or other attributes of the right-of-way, or to resolve the priority or accuracy of the various deeds or surveys; that, if the parties wish a court to do so, they will need to file a quiet title action in superior court; and that in the hearing on the merits, this court would simply take evidence on and determine whether Appellee-Applicant has met its burden of proof in the de novo proceedings to demonstrate compliance with ' 2.02 of the Subdivision Regulations that there is access to the subdivision parcel via a right-of-way at least twenty feet in width. After most of the issues in this matter were resolved by summary judgment, an evidentiary hearing was held in this matter before Merideth Wright, Environmental Judge, on the sole remaining question of whether the application complied with ' 2.02 of the Subdivision Regulations. The parties were given the opportunity to submit written requests for findings and memoranda of law. Upon consideration of the evidence and the written memoranda and proposed findings, the Court finds and concludes as follows.

Appellee-Applicant proposes a three-lot subdivision of an approximately 302-acre parcel of land on the easterly slope of Ball Mountain (or A the Ball@ as it is shown on the inset topographical map on the Rockwell (Sitelines) plat). The proposed subdivision is shown on a 2001 Rockwell (Sitelines) plat based on a 1981 Schaefer survey of lands of Gundrum. Both the Rockwell plat and the 1981 Schaefer survey are drawn to a scale of one inch equals three hundred feet.

Access to the proposed subdivision parcel extends from Crow Hill Road along Cedar Rock Road adjacent to property now or formerly owned by the Cole family, where it branches into two forks, which we will refer to in this decision as the northerly and the westerly fork. Appellee-Applicant asserts that the required access to the subdivision is via this northerly fork. The northerly fork extends northerly along the easterly boundary of the subdivision parcel, adjacent to all three of Appellee-Applicant=s proposed lots, ending on the proposed Lot 3. The northerly fork is shown as a double dashed line denominated A mountain road that leads in back of ACedar Rock@ @on the 1981 Schaefer survey. Along the easterly boundary of the Cole lot and the subdivision parcel, it is shown as a double dashed line having a single line of dashes on each side of the boundary line. The northerly fork is also shown as a double dashed line without a name on the 1983 Bliss survey of the Edith P. Smith Estate submitted by Appellant as Exhibit 13¹, the original of which is to be returned to him at the conclusion of this case. The Bliss survey is drawn to a scale of one inch to two hundred feet and it does not show the full extent of the northerly fork beyond the lands formerly of the Bliss estate.

The westerly fork zig-zags west and north across two Cole lots and turns sharply again to the west at the southerly boundary of the proposed subdivision parcel. At that point, a spur road extends to the northeast onto proposed Lot 1, while the westerly fork continues along the southerly boundary of proposed Lot 1, at the narrowest portion of proposed Lot 1. It then extends onto the proposed Lot 1 of the subdivision in a westerly direction for approximately 800 feet, turning northerly and extending in a northerly direction for approximately a thousand feet, and ending on proposed Lot 2 of the subdivision. The westerly fork is shown as a double dashed line denominated A Downer Lot Road (so called)@ on the 1981 Schaefer survey, until the point at which it reaches the southerly boundary of the subdivision parcel. The spur road is shown as a single dashed line denominated A logging road@ on the 1981 Schaefer survey. The continuation of the westerly fork along the boundary of the subdivision parcel is shown as a double dashed line having a single line of dashes on each side of the boundary line, but where it continues onto proposed Lot 1 of the subdivision it is shown as a single dashed line denominated A logging road@ on the 1981 Schaefer survey. The westerly fork is also shown as a double dashed line without a name on the 1983 Bliss survey, but its two branches are only shown to the point at which they cross the boundaries of the former Smith Estate.

Appellant does not distinguish between the width of the legal right-of-way (the width that the grantee of the right-of-way is authorized to use for access) and the portion of that legal right-of-way that is actually used for travel (sometimes called the > traveled way.= ) Appellee-Applicant does not dispute Appellant= s assertion, as demonstrated in his videotaped measurements, that the traveled way is considerably less than twenty feet in width. However, the width of the traveled way does not define the width of the right-of-way, and the fact that the traveled way is less than twenty feet wide does not by itself mean that the subdivision fails to comply with ' 2.02.

Deeds to lands below the Cole property on what is clearly described as Cedar Rock Road contain a deed definition of the right-of-way width as twenty feet wide (ten feet on either side of the center line). If those lands were above the proposed subdivision parcel, there might be an argument in favor of concluding that the right-of-way was also twenty feet wide between Crow Hill Road and the deeded twenty-foot-wide right-of-way. But the fact that the parcels nearest Crow Hill Road have a deeded twenty-foot-wide right-of-way along Cedar Rock Road does not necessarily mean that the right-of-way remains that width as it proceeds beyond that point, especially if the width is not defined in the deeds above that point.

Although the deed to the subdivision parcel conveys any and all right, title and interest which the Grantors may have in and to the beds of roadways abutting the subdivision parcel, the deed only refers to two roadways, and does not define the width of either one. The first is the A Mountain Road, so-called that leads in back of A Cedar Rock@ (so-called) along a blazed line of trees@ forming a portion of the easterly line of the property. The second is A all such rights as the Grantors may have in and to the existing roadway leading from the highway known as Crow Hill Road across or adjacent to lands now or formerly of Cushman to the southeasterly boundary of the lands herein conveyed, together with all rights, which the Grantors have to use said roadway for purposes of ingress and egress to and from said Crow Hill Road and the lands herein conveyed.@ The deed itself does not define the width of either roadway, that is, the width of what is described above as the northerly fork or the westerly fork.

Appellee-Applicant claims that measurements Mr. Grace made between boundary markers to lands on either side of the northerly fork are located more than 20 feet apart. However, there was no showing that the boundary markers to which the measurements were taken were located along a property boundary to mark the edge of the right-of-way, or merely that they were located at some point along a perpendicular boundary line at a convenient distance from the traveled way of the roadway, or along a boundary line adjoining the right-of-way on only one side.

Appellee-Applicant claims that the double-dashed lines depicting the contested right-of-way, if measured by the scale on each survey, amounts to at least twenty feet on both surveys. However, Appellee-Applicant cannot rely on the scaled width of the right-of-way as it is depicted on either survey, for three reasons. First, even if the double dashed lines purported to show the surveyed width of the right-of-way, the scale of 1" to 300' or 1" to 200' is insufficiently detailed to show the right-of-way width with any accuracy, especially as the double dashed lines on both surveys are hand drawn and vary in width. Second, even if those double dashed lines are assumed to show a surveyed width, they yield scaled widths on both surveys that in places are narrower than the required twenty-foot width under ' 2.02. In fact, on the 1981 Schaefer survey, wherever the right-of-way is depicted as a clear double-dashed line not surrounding the depiction of a boundary line, the right-of-way width is drawn as just under a sixteenth of an inch in width, which scales on the Schaefer survey to only 18: feet wide (at 1" = 300'). On the 1983 Bliss survey, the narrowest depiction of the double-dashed line is less than a sixteenth of an inch but greater than a thirty-second of an inch. But even using a sixteenth of an inch, it scales to only 122 feet wide (at 1" = 200'). Third and most importantly, nothing on either survey suggests that the double dashed lines were intended to depict a surveyed width of the roads; we must conclude that the double dashed lines were used to show the location of the road and to enable the surveyor to show that the surveyed boundary lines ran down the middle of some of the roads.

Based on the foregoing, it is hereby ORDERED and ADJUDGED that Appellee-Applicant has failed to show that the proposed three-lot subdivision meets the requirements of ' 2.02 of the Subdivision Regulations requiring access by a private street, permanent easement or right-of-way of not less than twenty feet in width, and that therefore the proposed subdivision cannot be approved at this time. The decision specifically does not decide that the right-of-way is necessarily narrower than twenty feet in width, nor that it is any particular width, but only that the applicant for the subdivision permit has not met its burden to establish that it meets ' 2.02. This decision is specifically without prejudice to either party= s filing an action to establish the width of the right-of-way by proceedings in superior court, and without prejudice to Appellee-Applicant= s thereafter applying to the Planning Commission or its successor for approval of the same or another proposed subdivision.

Dated at Barre, Vermont, this 12^th day of May, 2003.

___________________
Merideth Wright
Environmental Judge

Footnotes

^1.     Exhibit 13 also contains many handwritten notes placed on it by Mr. Cole; the Court’s references to it are only to the underlying survey and not to any of his additions to it.