In re Ranney Dairy Farm, LLC Major Subdivision Appeal
| Docket Number | 22-ENV-00018 |
| Decision Date | 08 December 2023 |
| Citation | 2023 Vt Super 120801 |
| Parties | Ranney Dairy Farm, LLC Major Subdivision Appeal |
| Court | Superior Court of Vermont |
MERITS DECISION
This is an appeal of a major subdivision permit issued by the Town of Westminster Development Review Board (DRB) to Ranney Dairy Farm, LLC (Applicant) for a subdivision of land that it owns in the Town of Westminster, Vermont (Town). Neighbors Daniel Deitz, Steven Goulas, Sr., Veronica Goulas, Martha Moscrip Nancy Pike, Michael Sylvester, and Teresa Sylvester (collectively, Neighbors) appeal the approval to this Court.[1]
This Court conducted a merits hearing via the WebEx platform on October 17, 2023 and October 18, 2023. The Court conducted a site visit on December 7, 2023 and made observations requested by the parties. The parties are reminded that the site visit is not evidence to be considered in rendering this decision, but rather it is to place the evidence received during trial into context.
Applicant is represented by Samuel H. Angell, Esq. Neighbors are represented by Fletcher D. Proctor, Esq. The Town is represented by Lawrence G. Slason, Esq.[2]
Neighbors brought forward 16 Questions in their initial Statement of Questions. See Statement of Questions (filed on Feb. 22 2022). Several Questions were resolved by pre-trial motions. Only Question 5 and Question 16 remain before the Court in full. These Questions ask:
Id. ().
Question 6 remains before the Court in part, as clarified by this Court's June 30, 2023 decision. See Ranney Dairy Farm, No. 22-ENV-00018, slip op. at 6-8 (June 30, 2023) (Walsh, J.). It asks, generally, "[d]oes the plot plan filed by the Applicant conform to the site plan review requirements of 24 V.S.A. § 4416 and Westminster zoning and subdivision bylaws?" Id. In the Court's June 30, 2023 decision, the Court clarified that the only aspects of the Westminster Zoning and Subdivision Bylaws (the Bylaws) that remain at issue in Question 6 are Bylaws §§ 311(b)(1), (2) and (5). Id. These subsections address traffic concerns between the site and the streets (Bylaws § 311(b)(1)), traffic circulation within the development, including pedestrian concerns, parking and loading facilities (Bylaws § 311(b)(2)), and the adequacy of access for emergency services (Bylaws § 311(b)(5)).
1. Ranney Dairy Farm, LLC (previously defined as Applicant) owns property located at 700 Westminster West Road, Westminster Vermont (the Property).
2. The Property has frontage on Westminster West Road, McKinnon Road, and Old Codding Road.
3. The Property is ±161.6 acres.
4. Applicant proposes to subdivide the Property into two residential lots, 6.8 acres and 13.45 acres, respectively, with a third retained lot of 141.27 acres (the Project). See Applicant Ex. 1 (Site Plan).
5. The two proposed residential lots are to be accessed off of Old Codding Road. Id.
6. The lots have 423 feet and 688 feet of frontage on Old Codding Road, respectively. Id.
7. Old Codding Road serves multiple residences, including Neighbors' residences.
8. Old Codding Road is a dirt road and is approximately 1 mile long.
9. Old Codding Road was a town road that was discontinued in the 1890s.
10. Old Codding Road is accessible by McKinnon Road, a public road.
11. Applicant does not have a deeded right of way to use Old Codding Road, nor did Applicant's predecessors in interest, Harold and Joyce Ranney.
12. Applicant's predecessors in interest used Old Codding Road for agricultural uses, including to access lower pastures on the farm.
13. When Applicant purchased the Property from the Ranneys, as a part of that sale, a portion of the Ranney's land was subdivided from the Ranney's larger parcel and given to the Ranney's son, Philip, and an easement was given over the Property to access Philip Ranney's new parcel.
14. This easement connected Philip Ranney's parcel to Old Codding Road and is the sole access to his land.
15. Philip Ranney built a home on that parcel and used Old Codding Road to access his home for approximately 18 years, until he sold the land.
16. At some point in the 1980s, Veronica Goulas sought financing to construct a home on Old Codding Road.
17. As a part of that approval process, the financial institution required her to obtain a deeded right of way over Old Codding Road. Ms. Goulas obtained that right of way.[3]
18. There is no evidence that right of way agreements were required for the use of Old Codding Road prior to the financial institution's request.
19. At least two residents of Old Codding Road, Jared Rolston and Applicant, do not have a deeded right of way over Old Codding Road.[4] The Ranneys did not have a deeded right of way to use Old Codding Road when they sold the Property to Applicant or when they subdivided off Philip Ranney's former parcel.
20. Mr. Rolston uses Old Codding Road to access his home, as do his tenants.
21. Old Codding Road has been maintained by various residents over the years.
22. Routine maintenance is regularly performed on the road, such as grading, filling potholes and repairing ditching.
23. Old Codding Road is plowed in the winter as needed.
24. Road improvements have also been made, including widening, adding gravel to the roadbed, and improving drainage, which has included the addition of culverts.
25. Presently, cars can pass each other on Old Codding Road, provided that one car moves to the side of the road.
26. In connection with the Project, on the north side of Old Codding Road, along the retained lot, Applicant proposes to install two pull-offs to facilitate easier passage along the road, one approximately 280 feet from the road's intersection with McKinnon Road and another approximately 500 feet further east along Old Codding Road from the first pull-off. See Ex. 1 (Site Plan).
27. There is an additional area approximately 500 feet east of the second pull-off that may be used as a pull-off but is not specifically designed as such, as it is just a gap in the agricultural stone wall on the retained lot. Id.
28. New pull-offs will be created as graveled areas and, along with the existing gap in the stone wall, are areas where one car can move over to allow another car to move past, as well as providing options for emergency services responding to calls on Old Codding Road.
29. The proposed house sites will each be accessed by existing driveways from Old Codding Road. See Ex. 1. Each driveway is the only traffic and/or pedestrian infrastructure proposed for each lot. Id. 30. Because the lots are to be developed as single-family homes, there are no concerns with traffic circulation on-site, including as needed for emergency vehicles.
31. No pedestrian facilities are proposed.
32. The Project is served by the Town of Westminster Fire Department (the Department) for emergency services.
33. In the 1980s, Dan Dietz was involved in a significant snowmobile accident at the terminus of Old Codding Road, beyond Mr. Rolston's house, which is the last house on the road, during a significant winter ice storm.
34. When responding to the accident, the ambulance could not travel on Old Codding Road beyond the Project.
35. In 1995, Mr. Rolston's residence caught fire and was destroyed. This residence is located at the end of Old Codding Road and is the last house on the road.
36. The Department reached the Rolston property but was not able to save the house from destruction.
37. Cole Streeter, the Department's Fire Chief, testified at trial. He has decades of experience with the Department, including serving as its current Fire Chief for the past 19 years and as its Deputy Fire Chief.
38. During Chief Streeter's tenure, the Department has responded to emergency calls on Old Codding Road other than those identified above without any incident, including homes located further down Old Codding Road than the Project.
39. In recent years, the Department has made upgrades to its emergency vehicles which better prepare it for accessing properties in inclement weather, on rough roads, or off-road. These upgrades include new specialized chains for emergency vehicles, an off-road rescue vehicle, a rescue trailer, and a snowmobile with a rescue sled.
40. The Town will also dispatch sand trucks to roads in the event of an emergency in snow, this includes sending trucks to private roads.
41. With the improvements to the Department's vehicles and continued maintenance of Old Codding Road, there are no concerns with access for emergency services at Old Codding Road.
42. On January 3, 2022, the Town DRB approved the Project.
43. Neighbors subsequently appealed that approval to this Court.
Bylaws § 310(A)(10) requires that a property have access to a public road or class 4 town highway. It is undisputed that Old Codding Road is not a public road or Town highway. Applicant's right to use Old Codding Road is disputed by the Neighbors.
The Environmental Division of the Vermont Superior Court is a Court of limited jurisdiction. 4. V.S.A. § 34. As such the Court's jurisdiction is limited to: "(1) jurisdiction of matters arising under 10 V.S.A. chapters 201 and 220; (2) jurisdiction of...
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