=
=
; &=
nbsp; &nb=
sp; =
; &=
nbsp; STATE
OF VERMONT
=
=
; &=
nbsp; &nb=
sp; =
; =
ENVIRONMENTAL
COURT
}
Appe=
al of
Prudence L. Kelley and }
Wayne Stearns, Sr. =
&n=
bsp; } =
Docket
No. 34-3-04 Vtec
}
}
=
; &=
nbsp; &nb=
sp; =
; &=
nbsp; Decision
and Order
Appellants Prudence L. Kelley and Wayne Stearns, Sr.,
appealed from a decision of the Zoning Board of Adjustment (ZBA) of the To=
wn of
Ferrisburgh, granting conditional use[1]
approval for the construction of a house and on-site water supply and sept=
ic
system, on the so-called Bookstaver lot.&=
nbsp;
Appellants represent themselves, through their respective sons Pete=
r J.
Tomasi and Wayne Stearns, Jr., who hold their powers of attorney. Interested Persons Charles and Li=
nda
Piasecki also appeared and represent themselves. Appellee-Applicants Dwight
Hyde, Ellen Flanders, John C. Bookstaver and Jane M. Orebaugh, are represe=
nted
by James H. Wick and Joseph F. Obechowski, Jr. The Town of Ferrisburgh did not e=
nter an
appearance in this appeal. An
evidentiary hearing was held in this matter before Merideth Wright,
Environmental Judge. A site =
visit
was taken at the conclusion of the hearing with the parties and their
representatives. The parties=
were
given the opportunity to submit written memoranda and requests for
findings. Upon consideration=
of the
evidence, as illustrated by the site visit, and of the written memoranda a=
nd
requests for findings filed by the parties, the Court finds and concludes =
as
follows.
Appellant Stearns owns a farm property near Lake Champl=
ain
on Schoolhouse Road in the Town of Ferrisburgh, improved with an existing
farmhouse. The Stearns prope=
rty is
separated from Lake Champlain by a row of small existing lakeshore lots th=
at
were part of a 7-acre parcel of lakeshore land conveyed by the Stearns=3D predecessors in 1887.=
The lakeshore lots, created between 1895 and 1915, are located in the Shoreland zoni=
ng
district.
The southernmost of those lakeshore lots (Athe Bookstaver lot@) is the .72-acre parcel that is the subject of the
application on appeal. It is=
exempt
from the minimum lot size requirements of the district as an existing smal=
l lot
under '5.8. The
southerly line of the Stearns property, extended to the lake, is the south=
erly
line of the Bookstaver lot. =
An area
in the southwest corner of the Stearns property and the southeast corner o=
f the
Bookstaver lot tends to be wet[2];
that area drains across the property line onto adjacent property to the so=
uth
and then in a small channel or swale across the southeasterly corner of the
Bookstaver lot to the lake. =
Other
lakeshore lots to the south of the Bookstaver lot have access by another r=
oad
to the south.
Adjacent to the north of the Bookstaver lot is an
approximately one-third-acre lot owned by Appellant Kelley (also referred =
to in
evidence as the Kelley/Tomasi lot).
The Kelley/Tomasi lot is approximately 108 feet wide at its easterl=
y boundary,
tapering to 48 feet wide at the lake.&nbs=
p;
The Kelley/Tomasi lot is improved with a small house. Its water supply is drawn from th=
e lake;
it is served by a septic holding tank rather than an on-site disposal syst=
em.
Adjacent to the north of the Kelley/Tomasi lot is an
approximately half-acre lot owned by Linda and Charles Piasecki. The Piasecki lot is improved with=
a
house served by a mound-type on-site septic system. The location or type of the Piase=
cki
water supply was not presented in evidence. Based on the evidence of Appellee=
-Applicants=3D consultant, the location of the mound septic system on=
the
Piasecki lot is likely already to preclude the installation of a well on t=
he
Kelley/Tomasi lot, without regard to the disposal system proposed by
Appellee-Applicants, although actual measurements of the 100-foot separati=
on
distance from that system were not presented in evidence.
A private gravel drive known as Sunset Lane extends from
Schoolhouse Road across the Stearns farm fields to the easterly line of the
lakeshore lots approximately in the middle of the Piasecki lot, where it m=
akes
a T and extends both to the north and to the south to provide access for a=
ll
the lakeshore lots. To the s=
outh,
it extends across the Piasecki lot and the Kelley/Tomasi lot onto the
Bookstaver lot. An apparent
footpath continues across the Bookstaver lot onto the next property to the
south.
Appellee-Applicants propose to place a house with a
footprint of 1728 square feet on the Bookstaver lot, with an associated on=
-site
mound or engineered septic system, meeting the required 25-foot side and r=
ear
setbacks and the required 80-foot lakeshore setback. The house is proposed to be locat=
ed on a
slab or on piers, to avoid creating any problems with the proposed septic
system. The house is propose=
d to be
located on the southerly side of the lot and the septic disposal field is
proposed to be located on the northerly (Kelley/Tomasi) side of the lot, s=
o as
to be able to place an on-site well in the southeasterly corner of the pro=
perty
and meet a 100-foot separation distance[3]
between the well and the on-site septic system. The well is proposed to be =
drilled
by a technique that allows for the installation of a proper casing and for=
it
to be sealed so as to exclude any influences from lake water, surface wate=
r, or
septic systems. As condition=
al use
standard '9.4(A)(4) requires a finding that the proposal will not
adversely affect municipal Abylaws in effect,@ if the Town does incorporate the State standards in ot=
her
bylaws not provided in evidence, such as municipal health regulations or
on-site sewage regulations, such additional municipal bylaws would be
applicable to the present proposal through '9.4(A)(4).
The proposal meets all the setback requirements of the
zoning ordinance.[4] Appellee-Applicants propose to li=
mit
tree cutting and to preserve the older trees, but have not stated this
limitation or marked the specific older trees on any site plan in connecti=
on
with their proposal. If most=
of the
trees are preserved, because of the small area proposed to be disturbed, t=
here
is little danger of erosion during or after construction, and little dange=
r of
increased stormwater runoff. The
upgradient agricultural use on the Stearns property is well-managed so as =
not
to place undue drainage or erosion onto the Bookstaver lot.
Appellants argue that the proposed development will
adversely affect the appropriate use or development of both the adjacent
Kelly/Tomasi property and the adjacent Stearns property, and therefore fai=
ls to
comply with '9.4(A)(6).
Appellant Kelley is concerned that the placement of the proposed se=
ptic
system will make it impossible to place a well anywhere on the Kelley/Toma=
si
lot for future year-round use of that property. Appellant Stearns is concerned th=
at the
placement of the proposed well will limit the potential future uses for the
Stearns property upgradient of the well.
While the proposal will not affect any existing improve=
ments
on any adjacent property, that is not the standard in the zoning bylaws. The location of the proposed on-site septic system does
impair potential development of an on-site well for the neighboring
Kelley/Tomasi property, even=
though
the suitable sites for a well on the Kelley/Tomasi property may already be=
impaired
by the location of the Piasecki on-site disposal system. Appellee-Applicants did not prove=
that
the potential for locating a well on the Kelley/Tomasi property was entire=
ly
precluded by the location of the Piasecki mound system, and did not present
evidence on the location of that system with reference to the Kelley/Tomasi
property line. Accordingly, =
to
protect the best interests of the Kelly/Tomasi property, the Court will ad=
d a
condition that Appellee-Applicants have the well installed on their proper=
ty
properly sized and equipped so that it could potentially serve the
Kelley/Tomasi property in addition to the Bookstaver property, if in some
future permit proceeding the Kelley/Tomasi property was shown to qualify f=
or
such future permit but for the ability to locate a drilled well on the
Kelley/Tomasi lot due to the improvements on the Bookstaver lot. The parties should note that this=
is not
a requirement at the present time for Appellee-Applicants to provide a wat=
er
supply for the Kelley/Tomasi lot.
Rather, it is a requirement that they develop the well so as to mak=
e it
possible to do so in the future, if in some future proceeding the Kelley/T=
omasi
applicants can show that they would have qualified for their permit in eve=
ry
respect except for the ability to install a drilled well on their property=
, and
that their inability to install a well was due to the location of the sept=
ic
system on the Bookstaver lot. Aside from the issue of whether the location of the pro=
posed
well is within a right-of-way (discussed below) Appellant Stearns did not =
show
that the location of the proposed well impairs or affects the potential
development of the neighboring farm field, either for farming or for any o=
ther
purpose. Even if Appellant S=
tearns
sought to develop the farm field for residential lots, which would need on=
-site
septic systems, there was no evidence that there would be any problems
designing such a development in compliance with the subdivision regulation=
s,
that is, to comply with the
100-foot separation distance between a well and a septic system. Appellants also claim that, contrary to (or as well as)=
the
location on the ground of the traveled way of Sunset Lane across the Stear=
ns
property, the deeded right-of-way runs along or near what is now the Stear=
ns
southerly line, so that the deeded access for all the lakeshore lots would
actually turn to the north and run across the Bookstaver property along or=
near
the Bookstaver easterly lot line, over the area proposed for the well loca=
tion. Appellants argue that
Appellee-Applicants therefore should be precluded from installing a well w=
ithin
that claimed deeded right-of-way. <=
/span> Appellee-Applicants first argue that neither Appellant
Stearns nor Appellant Kelley were granted or reserved rights-of-way over t=
he
Bookstaver parcel. They argue
further that, in any event, the actual use of Sunset Lane, which runs thro=
ugh
the middle of the Stearns field rather than along its southerly line, has
superseded the lakeshore lot owners=3D claims to use a right-of-way along the Stearns southern
boundary and over the Bookstaver lot.&nbs=
p;
As explained to the parties several times prior to the
trial, this Court cannot resolve disputed property rights as between the
parties; such matters must be filed in superior court. At least based on the Court=3Ds inquiries of the parties in pretrial conferences and =
as of
the time of trial, none of the parties had chosen to file a declaratory
judgment or a quiet title action in superior court. All that this Court has jurisdict=
ion to
do in the present appeal is to determine whether project applicants have m=
et
their burden of proof that a proposed project meets the requirements of the
applicable zoning regulations. The parties should note that this decision does not in =
any
way rule on the question of whether there is a deeded right-of-way running
along the southerly edge of the Stearns&n=
bsp;
field to the Bookstaver lot, or whether such a deeded right-of-way =
turns
and continues northerly, either on the easterly edge of the Bookstaver lot=
or
on the Stearns property immediately adjacent to the Bookstaver lot. If such a deeded right-of-way exi=
sts and
has not been extinguished, it may affect the parties=3D property rights with respect to the proposed
development. The fact that t=
his
decision has granted conditional use approval to Appellee-Applicants does =
not
determine whether the claimed right-of-way location precludes this proposed
development; if that issue is to be litigated, it must be litigated in sup=
erior
court. Therefore, this decis=
ion
specifically has no collateral estoppel effect on any potential superior c=
ourt
litigation to establish the parties=3D respective property rights with respect to the deeded
right-of-way. Based on the foregoing, it is hereby ORDERED and ADJUDG=
ED
that Appellee-Applicants=3D application for conditional use approval to place a
single-family residence on the so-called Bookstaver lot is hereby approved,
subject to the conditions imposed by the ZBA and the following additional
conditions: Condition 3 is amended to add the following requirement=
at
the beginning of Condition 3, before the existing language: 3. A tree
preservation and removal plan shall be prepared to be incorporated in the
approved permit, to identify the trees marked for preservation as they were
shown to the ZBA during its site visit; those trees specifically to be
preserved shall also be marked on the property prior to construction to
identify them for preservation during construction. The trees to be removed shall be =
also
marked and the removal approved as provided in the existing language of
Condition 3. An additional Condition 8 is imposed as follows: 8.
Appellee-Applicants shall have the well installed on their property
properly sized and equipped so that it could potentially be connected to s=
erve
the Kelley/Tomasi property in addition to the Bookstaver property, if in s=
ome
future municipal permit proceeding the Kelley/Tomasi property is shown to
qualify for such future permit, but for the ability to locate a drilled we=
ll on
the Kelley/Tomasi lot as a result of the improvements on the Bookstaver lot
that are the subject of the present permit. Dated at Berlin, Vermont, this 19th day of
August, 2005. ______________________________________ Merideth Wright Environmental Judge &nbs=
p;
[1] We note that the Shoreland Zoning
District section of the Zoning By-Laws, in '4.6(A), final sentence, requires site plan review for c=
amps
and single-family residences, Ain regard to sewage, water, access, frontage and scenic
considerations.@ However,=
no
separate site plan review procedures or standards in fact appear in the Zo=
ning
By-Laws, and no separate standards other than the conditional use standards
were applied by the ZBA. &nbs=
p;
[2] No evidence was presented as to w=
hether
any state wetlands regulations limit development in this area of either the
Stearns or the Bookstaver properties. &nbs=
p;
[3] This separation distance is found=
in '440.6(D)(a) of the Subdivision Regulations, and not in =
the
Zoning By-Laws. The Subdivis=
ion
Regulations, which are not directly applicable to this project as no
subdivision of land is proposed, also require that individual septic syste=
ms Ameet the requirements of the municipal health regulatio=
ns.@ '440.6(C).
Appellee-Applicant=3Ds consultant=3Ds water and wastewater design package, in evidence as
Exhibit 1, states in paragraph A that the project=3D &nbs=
p;
[4] Appellants argue that the w=
ell
location is so close to the Stearns boundary as to fail to meet a 50-foot
setback from agricultural cropland required by the ANR Environmental Prote=
ction
Rules. However, nothing in t=
he
Zoning By-laws (or any other bylaws provided to the Court) requires a well=
to
meet the state ANR water supply rules in order for a property to qualify f=
or a
zoning permit. See footnote =
3,
above.