STATE OF
ENVIRONMENTAL COURT
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In re Appeal of H=
ildebrand =
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Decision and Order on Appe=
llants’
Motion for Summary Judgment
Appellant-Applicants=
Joan
Hildebrand and James Hildebrand appeal from a decision of the Town of Wait=
sfield
(Town) Planning Commission (Planning Commission), denying
Appellant-Applicants’ application for a two-lot subdivision of their
15.9-acre parcel located at 2077 East Warren Road. Appellant-Applicants are represen=
ted by Paul
S. Gillies, Esq.; the Town is represented by Joseph S. McLean, Esq. Appellant-Applicants have filed a=
motion
for summary judgment and the Town has filed an opposition thereto. No other interested person has ap=
peared
in this proceeding.
Appellan=
t-Applicants’
statement of questions and motion for summary judgment summarizes the issu=
es
presented as follows:
(a) Whet=
her
conditions prohibiting further subdivision and requiring preservation and
maintenance of open agricultural fields, imposed as part of the original 1=
992
subdivision approval that created Appellant-Applicants’ parcel, may =
be
amended; and
(b) Whet=
her,
if the conditions are amended, Appellant-Applicants’ property may be
subdivided.
Factual Background
=
1.&=
nbsp;
Appellant-Applicants Joan Hildebrand and he=
r son
James own a 15.9± acre parcel of land,[1]
known as
=
2.&=
nbsp;
On April 30, 2004, Appellant-Applicants
submitted a subdivision application (Application #04-09) to the Town Plann=
ing
Commission to further subdivide Lot 4 into two parcels: a 10± acre
parcel with the existing residence (the 10-acre parcel), and a new 5.9&plu=
smn;
acre parcel (the 5.9-acre parcel) of currently undeveloped land to the sou=
th of
the 10-acre parcel.
Appellant-Applicant James Hildebrand intends to construct a
single-family residence on the southerly 5.9-acre parcel and install a dri=
veway
as access from an existing curb cut on
=
3.&=
nbsp;
As part of the Town’s original approv=
al of
the 1992 Neill Farm subdivision, the Town imposed a number of conditions o=
n the
subdivision of Lots 1, 2 and 4, including a provision prohibiting
“further subdivision” and requiring that “the agricultur=
al
fields remaining on lot 4 shall be maintained as open fields, either throu=
gh
grazing, cultivation or mowing on an annual basis, by the owner.”
=
4.&=
nbsp;
During the original approval of the Neill F=
arm
subdivision in 1992, the Town Planning Commission expressed concern about =
the
placement of the then proposed house and driveway on Lot 4 because the lot=
is
located in a scenic corridor.
Members of the Planning Commission at that time expressed concerns =
that
further development within the subdivision might disrupt an important view=
shed. Also, the Neill Farm subdivision,
particularly
= 5.&= nbsp; The Town’s Notice of Decision approvi= ng the Neill Farm subdivision on March 4, 1992, stated “[t]he 32.2 acre parcel [referring to the combination of Lots 1, 2, and 4 of the subdivisio= n on the east side of East Warren Road] is located in an extremely sensitive ar= ea of the Town, adjacent to or within site [sic] of 3-4 protected properties, and along a well traveled scenic road. Among the nearby properties is the Maple Avenue Farm, which the Tow= n has pledged $20,000 to assist with the purchase of development rights.”<= o:p>
=
6.&=
nbsp;
During the Town Planning Commission’s
meetings on the present subdivision application, Appellant-Applicants pres=
ented
three letters from the original subdivision applicants, Norm Neill, Donald
Neill, and Dorothy Lawliss, now neighboring property owners and original
Grantors of Appellant-Applicants’ parcel, saying that they have R=
20;no
concerns with the withdrawl [sic] of the restrictive meadowland covenant to
allow subdivision of lot #4 for the purposes of building a single family
dwelling.” See Attach.=
2 to
Appellant-Applicants’ Mot. for Summ. J., at 3–5.
=
7.&=
nbsp;
Appellant-Applicants’ Warranty Deed, =
dated
=
8.&=
nbsp;
After three public hearings on Appellant-Ap=
plicants’
proposed subdivision and a site visit, the Planning Commission voted
unanimously to deny Appellant-Applicants’ application on
Discussion
The resolution of Appellant-Applicants’ appeal raises an issue that is fundamental to the ability of the State and its municipalities to limit fu= ture development: whether to allo= w the successive subdivision of a parcel whose original subdivision approval alr= eady restricts future partitioning and requires the preservation and maintenanc= e of that parcel’s open fields for agricultural use.
At the outset, we note that the Waitsfield Subdivision Regulations (Regulatio= ns) expressly authorize the amendment of previously issued subdivision permits= , as long as the applicant’s final plat is resubmitted to the Planning Commission with the proposed modifications. Regulations Art. V, § 4.0.
Appellant-Applicants’
subdivision amendment application appears to satisfy many of the requireme=
nts
for a two-lot subdivision of
Appellant-Applicants’ submissions do not, however, satisfy the requirements for a preliminary pl= an, Regulations, Art. III, § 1.0, because it lacks a description of the applicable zoning regulations, has no date and compass orientation, and do= es not depict any of the features required by Article III, § 1 including water supply, sewage disposal, utility rights of way, and contours of the property at issue. Thus, bec= ause Appellant-Applicants have not met the Regulation’s requirements for a Preliminary and Final Subdivision Plan, we cannot approve Appellant-Applicants’ subdivision in this proceeding. However, because we sit as the Pl= anning Commission in this de novo appeal, we can address whether Appellant-Applicants’ application can be properly considered in the discussion phase of subdivision review pursuant to Regulations Art. II, &s= ect; 1.
Appellant-Applicants’
subdivision of
It
is important to note here that while some conditions of
Appellant-Applicants’ subdivision permit may mirror covenants in the=
ir
Warranty Deed, this Court does not have jurisdiction to address, remove, or
modify a covenant or deed restriction.&nb=
sp;
A covenant, like the preservation of meadowland covenant in Appella=
nt-Applicants’
Warranty Deed, is a contract, entered into in connection with 1992 subdivi=
sion
approval, that now has an independent existence. Any litigation regarding the alte=
ration,
limitation or voiding of the Covenant must be undertaken in Superior Court=
. It is beyond the jurisdiction of =
the
Appellant-Applicants’
application seeks to amend a prior subdivision approval that contains clear
prohibitions against further subdivision or development and requires the
preservation of the parcel’s associated open agricultural lands. Caselaw precedent under Act 250, =
the
Vermont Land Use Law, 10 V.S.A. Ch. 151, provides guidance on how to revie=
w State
permit amendment applications, but that precedent is not yet been directly
applied in the context of municipal subdivision and zoning proceedings.
Giving
due regard to the clear policy favoring the finality of municipal panel
decisions, this Court has yet to find precedent guiding the amendment of
previously-granted municipal subdivision permits. Notwithstanding the lack of bindi=
ng
precedent in this context, the framework established by the Vermont Suprem=
e Court
in In re Stowe Club Highlands, 166 Vt. 33 (1996); In re Nehemiah
Assoc., 166 Vt. 593 (1996) (Nehemiah I); and In re Nehemiah
Assoc., 168 Vt. 288 (1998) (Nehemiah II), for amending Act 250 =
land
use permits is particularly helpful in analyzing whether to allow the furt=
her
consideration of Appellants’ subdivision amendment application.
The
central question in deciding whether to amend original permit conditions, =
like
the conditions on Appellant-Applicants’ subdivision, is “under=
what
circumstances those permit conditions may be modified.”
Though
unappealed zoning permits are final, the permit process should incorporate
enough flexibility to handle changes in circumstance. Our Supreme Court provided an out=
line of
the circumstances, in an Act 250 context, where permit amendments could be
justified: “(a) changes in factual or regulatory circumstances beyon=
d the
control of a permittee; (b) changes in the construction or operation of the
permittee’s project, not reasonably foreseeable at the time the perm=
it
was issued; or (c) changes in technology.” Nehemiah II, 168
While flexibility in the permit process may be warranted, the present case does = not present a change in circumstances significant enough to justify the amendm= ent of the 1992 subdivision permit.
The critical regulatory and factual circumstances surrounding Appellant-Applic= ants’ parcel and their 1992 subdivision permit have remained unchanged. Appellant-Applicants advance two arguments regarding changes affecting their property, but neither justifies amending the original subdivision permit.= First, Appellant-Applicants argue that the subdivision permit’= ;s original applicants, Norm Neill, Donald Neill, and Dorothy Lawliss, have consented to the removal of the permit conditions at issue here. Second, they asserted at the Plan= ning Commission hearings that “times have changed.”[3] Notably, there has been no change= in the relevant subdivision regulations, nor has there been any further developme= nt of the other parcels created in the original 1992 subdivision.[4]
Furthermore,
any of the now-proposed changes in the composition of the Neill Farm
subdivision appear to have been foreseen and do not justify amending the 1=
992
subdivision permit. On the
contrary, when the Neill Farm subdivision was first proposed, it was entir=
ely
foreseeable that a future landowner might attempt to further subdivide
The
Town subsequently adopted this proposal to mitigate the impacts of the
development, to protect agricultural soils, and to maintain the open vista=
from
Appellant-Applicants’
argument that their proposal is consistent with the preservation of
agricultural lands ignores the differences between residential development=
and
the preservation of agricultural land.&nb=
sp;
As our Supreme Court stated, “[B]uilding a single-family home=
. .
. is not consistent with preserving the lot for agricultural uses. . . . T=
here
are significant differences between an open meadow . . . and a developed l=
ot
with a private home.” =
The final consideration in analyzing whether to incorporate flexibility into t= he municipal permit process through a permit amendment is whether there has b= een a change in technology necessitating or creating a benefit that would result= from amending the permit. Neither= party has suggested that a change in technology has occurred that would justify amending Appellant-Applicants’ subdivision permit, and we have found= none in the evidence presented. T= hus, the final avenue for justifying a change in a permit condition is not avai= lable to the Appellant here.
There has been no significant change in circumstances since 1992 necessitating flexibility in the municipal land use permitting process. Section 4472(d) and reliance by t= he Planning Commission and neighboring landowners supports the finality of the Town’s 1992 subdivision permit conditions. The Town relied on the conditions proposed by the original applicants, limiting further subdivision to mitig= ate the impact of the Neill Farm subdivision on neighboring conserved properti= es, including the abutting Maple Avenue Farm, a parcel that was protected in p= art through the use of Town funds. The Town suggests that the owner of the Maple Farm likely did not appeal the P= lanning Commission’s original approval because of the subdivision conditions= , and we believe this suggestion has merit.&nbs= p; The evidence not only points to this neighbor’s strong disagreement with the 1992 subdivision proposal, but also his belief that = the development did not conform with the Town Plan or the conservation conditi= ons placed on his abutting property.
The
pending subdivision application initially meets the dimensional requiremen=
ts
for a subdivision in the Town’s Agricultural-Residential District.
Accordingly, based on the foregoing, it is hereby ORDERED and ADJUDGED that Appellant-Applicants’ motion for summary judgment is DENIED as to all pending questions. In accordance with the authority provided by V.R.C.P 56(e), we conclude that the material facts of this cas= e, even when viewed in a light most favorable to Appellant-Applicants, and wh= en applied to the applicable law and precedent, including the precedent controlling permit amendment in the Act 250 context, leads us to GRANT summary judgment against t= he proposed subdivision amendment. We therefore specifically AFFIRM= the denial by the Waitsfield Planning Commission of Appellant’s subdivis= ion application, thereby concluding this appeal.
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as
S. Durkin, Environmental Judge
[1] The Appellant-Applicants’ l=
and is
sometimes referred to as a 15.3± acre parcel, which is represented =
as
the acreage outside of the right-of-way for the adjoining Town highway.
[2] The full text of the meadowland preservation covenant is noted in Town Exhibit Y, which is a photocopy of = the deed recorded at Book 71, Page 468-469 of the Waitsfield Land Records. The covenant specifically prohibi= ts the construction of any structures as well as “any other use . . . which= is inconsistent with its maintenance as meadowland, cropland or grazing land.” Interestingly, = the deed does not contain a specific prohibition against further subdivision.<= /p>
[3] This argument was not advanced in Appellant-Applicants’ memoranda filed with this Court, but was prese= nted in the prior Planning Commission proceedings.
[4] Lots 1 and 2 from the 1992 subdiv=
ision
have restrictions similar to