In re Bourassa

• Decision Date: 02 September 2016
• Docket Number: No. 2015-406,2015-406
• Court: Vermont Supreme Court
• Parties: In re Wagner & Guay Permit (Mary Bourassa, Appellant)

2016 VT 96

In re Wagner & Guay Permit (Mary Bourassa, Appellant)

No. 2015-406

Supreme Court of Vermont

March Term, 2016

September 2, 2016

NOTICE: This opinion is subject to motions for reargument under V.R.A.P. 40 as well as formal revision before publication in the Vermont Reports. Readers are requested to notify the Reporter of Decisions by email at: JUD.Reporter@vermont.gov or by mail at: Vermont Supreme Court, 109 State Street, Montpelier, Vermont 05609-0801, of any errors in order that corrections may be made before this opinion goes to press.

On Appeal from Superior Court, Environmental Division

Thomas G. Walsh, J.

David Bond of Strouse & Bond, PLLC, Burlington, for Appellant.

Robert F. O'Neill and Matthew S. Stern of Gravel & Shea PC, Burlington, for Appellees William and Barbara Wagner.

PRESENT: Reiber, C.J., Dooley, Skoglund, Robinson and Eaton, JJ.

¶ 1. DOOLEY, J. Neighbor Mary Bourassa appeals the Environmental Division's affirmance of a zoning permit application by Philip and Barbara Wagner and Christopher Guay (collectively, applicants) seeking to construct a single family residence and detached garage on two merged lots of a six-lot subdivision in Grand Isle, Vermont. Neighbor, an owner of another lot in the subdivision, opposes development, chiefly on the ground that the proposed house will not be constructed within the "tree line" on the property, as required by the subdivision plat plan. We affirm.

¶ 2. In February 1995, the Grand Isle Planning Commission approved the Wagners' six-lot subdivision on Dodge Terrace. Dodge Terrace is a dead-end road running along the south edge of a large field. It is bordered by a row of trees, which run parallel to the south side of Dodge Terrace and denote the beginning of a wooded area that stretches south from the road into a wetland. The subdivision's plat plan, authored by Mr. Wagner, was approved by the Planning Commission on April 4, 1995, and was recorded two days later. As relevant to this appeal, the plan contains a scalloped line labelled as "existing edge of the woods" and defined in the legend as the "tree line boundary." On the plan, in-ground septic systems are generally located to the north of the scalloped line and house sites are located to the south of the line. The plan contains a note that states that the location of all houses and drives are for "illustrative purposes only," but adds "with provision that the houses for lots 2-6 must be within the tree line."

¶ 3. The Wagners own lots 3 and 4 of the subdivision. Neighbor owns and resides at lot 2 of the subdivision. The Wagners seek to sell their lots to Mr. Guay with the intention of adjusting lot lines, merging lots 3 and 4 into a single lot, and building a single-family residence and detached garage on that combined lot. In accordance with that plan, applicants submitted a zoning permit application to the town in June 2014, with an accompanying unscaled sketch plan featuring the locations of the proposed residence and garage. Mr. Wagner testified during the town's review of the application that the house's setback distances from Dodge Terrace, as depicted on the sketch plan, were "distances from the front corners of the proposed house to the southern edge of the traveled way of Dodge Terrace." The town's Development Review Board (DRB) granted that permit on October 1, 2014.

¶ 4. On October 13, 2014, neighbor appealed the town's decision to the Superior Court, Environmental Division by filing the following statement of questions:

1. Should the Application be denied as inconsistent with section 2.4 of the Town of Grand Isle's Zoning Bylaws and Subdivision Regulations (the "Zoning Bylaws") which provides that "[t]his Bylaw must not repeal, abrogate, or impair other land use controls (including . . . easements, deed restrictions, covenants or similar devices.")?

2. Should the Application be denied as inconsistent with the original approved plat plan for the development, as set forth on Map Slide 21 of the Town's Land Records, which provides that the locations of houses on lots 2 through 6 of the development "must be within the tree line"?

3. Should the Application be denied under section 2.4 of the Zoning Bylaws as abrogating or impairing the covenants and restrictions in the deeds for lots 2, 5 and 6 of the development, where each deed expressly references and incorporates the provisions of Map Slide 21, and where each deed provides that all structures shall be within the tree line, as depicted on Map Slide 21?

4. Should the Application be denied under section 2.4 of the Zoning Bylaws as abrogating or impairing the covenants and restrictions in the deeds for lots 2 and 6 of the development, where each deed expressly provides that "no pre-fabricated dwellings, including but not limited, to mobile homes or double-wide dwellings shall be erected on the premises"?

5. Should the "tree line" referenced in the plat plan and above-referenced deeds be defined as the sketched location of the edge of the forest canopy shown on Map Slide 21 or as the actual location, measured from tree trunk to tree trunk?

6. Should the Application be denied as inconsistent with the provisions of the Town Plan that mandate preservation of open spaces, views, and vistas, as incorporated by reference into the Town's Zoning Bylaws under section 1.1 of the Bylaws?

7. Should the Application be denied under section 5.10 of the Bylaws in that it involves a boundary line adjustment that substantially changes the nature of the development?

8. Should the Application be denied on account of multiple material misrepresentations of fact made by the Applicants in connection with their Application?

9. Should [neighbor] be awarded the legal fees, costs, and expenses they incurred on account of the multiple material misrepresentation [sic] of fact by the Applicants?

On December 22, 2014, applicants filed a motion to dismiss neighbor's questions 1, 3, 4, 6, 8, and 9. The Environmental Division granted the motion in part and denied it in part, dismissing questions 1, 3, and 4 on the ground they raised "issues regarding private property rights, which are outside [the Environmental Division's] jurisdiction" and dismissing question 6 on the ground that it relied on the Town Bylaws' purpose provisions, which "have no direct regulatory effect."

Following unsuccessful summary judgment motions from both sides, the Environmental Division held a trial on September 21-22 of 2015. The court also visited the site on September 22.

¶ 5. On October 1, 2015, the Environmental Division issued its decision on the merits affirming the grant of applicants' permit. The court noted that both sides had provided expert opinions, which "generally agree[d]" on the location of the scalloped tree line boundary identified on the 1995 Plat Plan; the experts both located the trunks of actual mature trees "farther south" from Dodge Terrace than the line boundary and located the mature tree dripline as it exists today as "the same distance north" of the scalloped line. The court thus identified the primary contention between the parties as whether the "tree line" on the Plat Plan should be interpreted as the edge of the canopy or "dripline"—that is, the line between the open meadow and the branches of the trees in the forested area—or the location of the first mature tree trunks in the forested area.¹ The court began its analysis by observing that its principal concern in construing permit conditions was to implement the intent of the drafters; thus, it considered testimony from Mr. Wagner, the original designer of the subdivision, as to the meaning of the phrase "within the tree line." Mr. Wagner testified that he intended that houses "be nestled within the trees" and "have views into the meadow" and that the purpose of the tree line condition was to ensure that houses on lots 2 through 6 "not appear to be sitting within the center of the meadow." By contrast, plaintiff and another homeowner testified that "they thought Mr. Wagner told them," when they were considering purchasing land in the subdivision, that all houses were required to be behind or south of the mature tree trunks.

¶ 6. The Environmental Division credited Mr. Wagner, concluding that the scalloped line on the Plat Plan is "not intended to show the location of the trunks of mature trees, but ratherthe line between the open meadow area and the forested area." The court was particularly persuaded by the testimony of neighbor's surveying expert, who stated at trial that a scalloped line on a plat "typically represents the edge of the open area, or in other words, the division between woods and a field."

¶ 7. The court relied on this determination in answering question 2. It noted that the survey plan created by neighbor's expert showed applicants' proposed house was located 98 to 109 feet from the center of the traveled way of Dodge Terrace. Although Mr. Wagner acknowledged that the measurements on the plan accompanying his application to the town "could reasonably be interpreted" to show setback distances from the center of Dodge Terrace, the court found that Mr. Wagner "credibly testified during trial" that he had informed the town that measurements were intended to be from the edge of the travelled right of way, as shown on the survey plan created by his retained expert witness. Because the proposed house is to the south of the tree-line boundary— "on both experts' surveys"—when measured from the southern edge, the court found that the planned house comported with the 1995 Plat Plan as being within the tree line. The court also found that the proposed boundary adjustment would "not substantially change the development or create new lots," as it would maintain the subdivision's "rural nature" and would involve the construction of only one house where, because two lots were to be merged, two would have been possible. Finally, the court dismissed neighbor's argument that the applicants misrepresented the distance of the...