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ENVIRONMENTAL
COURT
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Appeal of Lovell =
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=
; De=
cision
and Order on Appellant=3Ds Motion for Partial Summary Judgment
Appellant-Applicant Raymond Lovell appealed from a deci=
sion
of the Zoning Board of Adjustment (ZBA) of the Town of Maidstone denying a
permit to subdivide a ninety-acre parcel on the easterly side of Vermont R=
oute
102 into three parcels of
forty-four acres, forty acres, and six acres. Appellant is represented by Debor=
ah T.
Bucknam, Esq.; the Town of Maidstone is represented by Robert A. Gensburg,
Esq.
Appellant has moved for partial summary judgment. The following facts are undisputed
unless otherwise noted. All
section references are to the Zoning Bylaw and Subdivision Regulations (the
Bylaw), unless otherwise noted.
Appellant owns a ninety-acre parcel of land in the
Agricultural zoning district westerly of the Connecticut River and easterl=
y of
Vermont Route 102. The Agric=
ultural
zoning district is defined as Athe land along the Connecticut River as indicated on the
official zoning map;@ however, neither party has provided a copy of the offi=
cial
zoning map showing the district.
Based on Exhibit 2 to Appellant=3Ds affidavit, it appears that most of the land between R=
oute
102 and the river is actually zoned Rural Lands-1 (RL-1), and that only
Appellant=3Ds property and two small parcels of land owned by James=
Fay
and Robert Value, respectively, are zoned Agricultural, although most of t=
he
RL-1 land easterly of the road is in fact in agricultural use. Appellant=3D
Appellant proposes to divide the property into three
parcels. The proposed forty-=
acre
parcel is the most southerly and consists of the land south of the island;=
the
proposed six-acre parcel is in the middle and includes the island, and the
proposed forty-four-acre parcel consists of the land northerly of the isla=
nd.
All that Appellant is proposing is to subdivide his
property; he does not at this time propose any particular use of the subdi=
vided
lots. He submitted an
application to the Zoning Administrative Officer on the form for a zoning
permit ('702.03), rather than submitting an application requesti=
ng
minor subdivision approval ('502.01). =
No
party has suggested that the=
re is
any separate form for submitting a
subdivision application, nor does the zoning permit application form
provide a box to check off for subdivision approval of a minor subdivision=
by
the Zoning Administrative Officer.
Appellant=3Ds application form stated that the proposed use is both
residential and agricultural, but did not propose any new construction, wh=
ich
suggests that an existing house may be located on the property. However, material facts have not =
been
provided to the Court regarding whether any existing structures exist on t=
he
property.
The Town of Maidstone may have initially intended to us=
e its
Agricultural zoning district in the way that some other towns use a flood
hazard overlay district, to restrict development in areas prone to
flooding. Indeed, an earlier
proposal in late 1998 for the proposed zoning map, provided as an attachme=
nt to
Appellant=3Ds affidavit, shows most of Appellant=3Ds and others=3D land in the floodplain of the river as a proposed Aflood zone@ except for a small amount of land close to Route 102 ,
which was proposed to be zoned Rural Lands 1. However, if the Agricultural dist=
rict is
accurately reflected in the attachment to Appellant=3Ds affidavit, it appears that it does not apply generall=
y to
the Connecticut River Valley floodplain.
In the Agricultural zoning district, only three permitt=
ed
uses are allowed, and there is no provision for any conditional uses. The allowed permitted uses are on=
ly Aagricultural use@ and Aprimary forestry operation,@ with Ahome occupations@ being allowed as permitted uses only in existing dwell=
ing
units.
Appellant submitted the application to the Town Clerk on
June 3, 2004, rather than to the Zoning Administrative Officer; the Zoning
Administrative Officer did not receive the application until June 8, 2004.=
After informing Appellant that th=
e Bylaw
did not contain a provision for subdividing land in the Agricultural zoning
district and after contacting Appellant three times by telephone regarding
whether he intended to withdraw his application and receive a refund of the
filing fee, the Zoning Administrative Officer acted to deny the applicatio=
n on
July 7, 2004. Appellant file=
d a
timely appeal of that decision to the ZBA on July 22, 2004.
The ZBA considered the matter at a September 13, 2004
meeting; however, the parties have not provided the warning for or the min=
utes
of that ZBA hearing. While
Appellant=3Ds statement of undisputed facts simply states that no
explanation was contained in the minutes, it would have been helpful to kn=
ow
how that hearing was warned and how the vote was proposed, as the denial l=
etter
dated September 21, 2004, refers to Appellant=3D
In March of 2005, the Zoning Bylaw was amended to provi=
de
for a minimum lot size of fifteen acres and a minimum road frontage of 800=
feet
in the Agricultural Zoning district. Appellant had no obligation to reapply
under the changed regulations, and declined to adjust his proposed subdivi=
sion
to bring the middle parcel up to a fifteen-acre size that would have quali=
fied
for approval under the amended regulations.
Appellant first argues that his application for approva=
l of
a minor subdivision should be deemed to have been approved because he subm=
itted
the application to the Town Clerk on June 3, 2004 and the Administrative
Officer did not act to deny the application until July 7, 2004, exceeding the thirty-day period f=
or an
Administrative Officer=3Ds decision on an application for a zoning permit contai=
ned
in '702.04, a=
nd see
24 V.S.A. '4464(a) (in effect[2]
until July 1, 2004).
First, as the application under consideration by the Zo=
ning
Administrative Officer was for minor subdivision approval and was not a zoning permit appli=
cation,
it is not clear to the Court that the thirty-day period for Administrative
Officer action on a zoning permit in '702.04 even applies to this application. Nor does '702.04 contain a deemed approval provision for exceedin=
g the
thirty-day period.
=
Even
assuming that 24 V.S.A. '4464(a) (in effect until July 1, 2004) provided a deemed
approval remedy for an administrative officer=3D
Appellant next argues that his application for a minor
subdivision should have been approved on its merits. There is no question that the pro=
posal
falls within the definition of a minor subdivision in '602 (division of a parcel into Anot more than three improvable lots@); Aimprovable lot@ in turn is defined as a lot conforming with the minimum
area and dimensional requirements for the district (and any pre-existing
nonconforming lot). Similarl=
y,
under the minor subdivision requirements of '502.01, a minor subdivision must meet the minimum area =
and
dimensional requirements of the Bylaw.&nb=
sp;
'502.01(A).
Because the Bylaw in effect when Appellant filed his
application imposed no minimum area or dimensional requirements in the
Agricultural zoning district, Appellant=3Ds three-lot subdivision application met the requirement=
s of
the Bylaw. The fact that the=
Bylaw
prohibits the construction of permanent non-agricultural structures in the
Agricultural zoning district, including the construction of new houses, do=
es
not prevent Appellant from subdividing his property as proposed.
The fact that the Bylaw was later amended to require a
minimum lot size in the Agricultural zoning district may mean that the
resulting six-acre lot would have become a pre-existing non-conforming lot=
with
respect to the new lot size requirements, but that fact does not prohibit
Appellant from making that division based on an application filed in good =
faith
before the change was proposed.
Finally, Appellant argues that the Town engaged in >illegal reverse spot zoning=3D
In any event, because we have ruled that the subdivision
approval should have been granted, in the present appeal it is not necessa=
ry to
reach the constitutional issue inherent in a claim of spot zoning or any o=
ther
formulation of a denial of equal treatment under the law. However, we note that the issue m=
ay
arise again should Appellant seek to construct residences on any of the
resulting parcels, or to expand any existing residence, as the Agricultural
zoning district requirements preclude such action. In connection with both parties=3D analysis of whether the Agricultural zoning district m=
ay be
vulnerable to such a claim, we note that under 24 V.S.A. '4472(b), as amended in 2004, such a constitutional clai=
m may
be raised independently in superior court, in advance of any zoning
application; but that it may only be addressed in this court in the contex=
t of
an appropriate case, such as an appeal from a permit denial.
Accordingly, based on the foregoing, it is hereby ORDER=
ED
and ADJUDGED that Appellant=3Ds motion for partial summary judgment is GRANTED in par=
t, in
that Appellant=3Ds application for subdivision approval should have been=
and
is hereby GRANTED; it is otherwise DENIED on the issues of deemed approval,
spot zoning, and selective enforcement.
This decision appears to conclude the issues in the
appeal. If the parties belie=
ve that
any issues remain, please advise the Court in writing and a telephone
conference will be scheduled to discuss what issues, if any, remain to be
scheduled for trial.
Done at Berlin, Vermont, this 6th day of
September, 2005.
_________________________________________________
Merideth Wright
Environmental Judge
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