Regan v. Pomerleau

• Decision Date: 14 August 2014
• Docket Number: Nos. 13–101,13–281.,s. 13–101
• Citation: 107 A.3d 327,2014 VT 99
• Court: Vermont Supreme Court
• Parties: Ute REGAN v. Antonio B. POMERLEAU, DeForest Realty, Inc. and City of Burlington. In re Regan Subdivision Permit (DeForest Realty, Inc. and Friends of Chittenden Drive, Appellants).

107 A.3d 327

2014 VT 99

Ute REGAN

v. Antonio B. POMERLEAU, DeForest Realty, Inc. and City of Burlington.In re Regan Subdivision Permit (DeForest Realty, Inc. and Friends of Chittenden Drive, Appellants).

Nos. 13–101

13–281.

Supreme Court of Vermont.

Aug. 14, 2014.

Liam L. Murphy and Damien J. Leonard of Murphy Sullivan Kronk, Burlington, for Plaintiff–Appellee (13–101) and Appellee (13–281) Regan.

Daniel P. O'Rourke and Adam P. Bergeron of Bergeron, Paradis & Fitzpatrick, LLP, Burlington, for Defendant–Appellant (13–101) and Appellant (13–281) DeForest Realty, Inc.

Claudine C. Safar and Courtney E. Butler of Monaghan Safar Ducham PLLC, Burlington, for Appellant Friends of Chittenden Drive (13–281).

Kimberlee J. Sturtevant, Assistant City Attorney, Burlington, for Amicus Curiae City of Burlington (13–281).

Present: REIBER, C.J., SKOGLUND and ROBINSON, JJ., and TEACHOUT and EATON, Supr. JJ., Specially Assigned.

Opinion

SKOGLUND, J.

¶ 1. In these consolidated appeals we review rulings by the environmental and civil divisions concerning a subdivision application for a property located within a residential development in the City of Burlington. Appellants' principal contention is that the courts erred in concluding that the subdivision had the requisite access to a public road. We affirm the judgments.

¶ 2. The background to these appeals may be briefly summarized; additional material facts will be set forth in the discussion which follows. Ute Regan (applicant) owns a lot and single-family dwelling in a residential subdivision in Burlington known as the Overlake Park Development. The subdivision was created in 1955 by the Overlake Park Development Corporation, which built several streets within the development. One of these, Chittenden Drive, was laid out along a fifty-foot wide strip. Overlake paved a thirty-foot wide portion of the street and retained ten feet of “greenspace” on either side.

¶ 3. In 1961, Overlake sold the development to DeForest Realty, Inc. The deed to DeForest contained a covenant restricting the use of each lot within the subdivision to “one dwelling for a single family dwelling unit.” By its terms, the covenant expired in 1995. In 1965, DeForest sold Lot 76, which fronts on Chittenden Drive, to applicant's predecessor-in-interest. Consistent with the other deeded lots, the deed to Lot 76 placed the boundary ten feet from the curb of Chittenden Drive, and stated that the lot was subject to the covenants more particularly set forth in the 1961 deed from Overlake to DeForest Realty. A single-family home was built

on the property in the 1960s. Applicant purchased the home and lot in 1987.

¶ 4. In April 2010, applicant submitted an application to the City's Department of Planning and Zoning for a permit to establish an accessory apartment in her single-family home. The Department granted the permit, prompting an administrative appeal by Friends of Chittenden Drive (Friends), a group comprised of other residents on the street. In June 2010, following a hearing, the Development Review Board (DRB) approved the permit, and Friends appealed to the environmental court.

¶ 5. Applicant had also sought a permit to subdivide her property into two lots, one containing the existing single-family home and the other vacant. The subdivision plan provided that each lot would contain at least sixty feet of road frontage, as required by the City's Comprehensive Development Ordinance (CDO). CDO § 4.4.5–1. In reviewing the application, however, the DRB noted that “a 10 foot wide strip of privately owned land runs between the subject lot and Chittenden Drive (a private street).” Thus, while the DRB ultimately granted the permit, it conditioned approval on applicant's demonstrating “that the proposed vacant lot has the required access (via easement or otherwise) to the adjacent street (Chittenden Drive).” DeForest Realty appealed the DRB's decision to the environmental court, and Friends and applicant submitted separate appeals.¹

¶ 6. In September 2010, the parties agreed to place the environmental-court appeals on inactive status pending the outcome of a contemplated quiet-title action by applicant in the civil division to determine her right to access Chittenden Drive from the vacant lot. Applicant filed her quiet-title action in January 2011, naming DeForest Realty and its principal owner Antonio B. Pomerleau as defendants. Applicant claimed that she was entitled to access Chittenden Drive under a number of theories, including adverse possession of the disputed ten-foot strip, implied easement, and easement by necessity. In a written ruling issued in October 2011, the trial court granted applicant's motion for summary judgment, concluding that she had acquired an implied easement of access over the ten-foot greenbelt strip “by reference” to the recorded plat map. The court also concluded that,

inasmuch as the restrictive covenant had expired in 1995, the implied easement allowed access from the additional vacant lot. DeForest filed a timely appeal of the ruling with this Court.

¶ 7. The parties then moved to reactivate the pending appeals in the environmental division, which the court granted, and the matters proceeded to decision. In mid-December 2012, the trial court granted applicant's motion for summary judgment in the accessory-dwelling appeal, and entered judgment in her favor. Shortly thereafter, the court addressed the parties' cross-motions for summary judgment in the subdivision appeal, issuing a written decision largely in applicant's favor. The court reserved ruling, however, on the question of compliance with CDO § 5.2.2, which prohibits development on “lots that do not have frontage on a public road or public waters” except for “lots of record existing as of January 1, 2007, ... if access to such road or public waters exists by a permanent easement or right-of-way at least twenty-five (25) feet in width.”

¶ 8. Applicant had argued—and the City agreed—that although privately owned, Chittenden Drive qualified as a “public road” under the development ordinance. The trial court concluded, however, that the City's definition conflicted with the state's enabling statute, which provides that land development “may be permitted on lots that do not have frontage either on a public road or public waters, provided that access through a permanent easement or right-of-way has been approved” under the municipal bylaws. 24 V.S.A. § 4412(3). Although the enabling statute did not at the time of the application contain a definition of “public road,” the term had been interpreted by this Court to be synonymous with “highway” as defined by 19 V.S.A. § 1(12), meaning essentially roads laid out “by statute or by dedication and acceptance.” Okemo Mountain, Inc. v. Town of Ludlow, 164 Vt. 447, 454, 671 A.2d 1263, 1269 (1995).²

¶ 9. While finding that Chittenden Drive had not been formally dedicated and accepted and therefore did not meet this definition,

the court nevertheless observed that it clearly connects with South Willard Street—a public road also known as Vermont Route 7—and that this would normally bring the proposal within the exception for lots with “access” to a public road. The only difficulty with this conclusion, however, was the January 1, 2007 date restriction in the City ordinance, which appeared to bar development of any new “lot of record” resulting from an approved subdivision—a result the court found to be paradoxical and self-defeating. Accordingly, the court deferred to trial the question of whether the date restriction had any “rational relation to the purpose” of the frontage requirement.

¶ 10. Following an evidentiary hearing, the trial court issued a written decision and judgment order in April 2013. The court found that the “evidence presented provided no explanation” for the time limitation; that its literal application “would lead to an absurd result”; that the subdivision proposal otherwise met the exception; and therefore that the proposal qualified for a subdivision permit, subject to certain unrelated conditions. Applicant later filed a “motion to clarify,” resulting in a modified judgment explaining and reaffirming the original ruling. DeForest and Friends then filed this appeal, which we consolidated with DeForest's appeal from the civil division for purposes of oral argument and review.

I.

¶ 11. We turn first to the environmental court judgment granting the subdivision permit. Friends claim that the court erred in concluding that the date restriction in § 5.2.2 of the CDO is irrational and unenforceable.³ See Simendinger v. City of Barre, 171 Vt. 648, 653, 770 A.2d 888, 895 (2001) (mem.) (noting that ordinance which is “irrational” is invalid). For the reasons that follow, however, we need not address this particular issue.

¶ 12. The threshold question before the DRB and the court was whether applicant's subdivision was authorized under the City's

development ordinance. To recall, § 5.2.2 of the CDO prohibits development on “lots that do not have frontage on a public road or public waters,” so the first issue is whether the road fronting applicant's proposed subdivision, Chittenden Drive, constitutes a public road under the ordinance. For the definition of “road,” the CDO directs the reader to “see street,” which is defined, in turn, as “[a] public way as defined in Section 1 –2 of the Code of Ordinances, or a private way devoted to public use. ” CDO § 13.1.2. (Emphasis added.) The CDO defines a “public use” as “[a] use that is owned and operated by a public agency, or by a private/non-profit entity for use by the general public without unreasonable restriction.” Id. The City's Code of Ordinances reinforces these definitions, stating that a “street” includes “every way used for vehicular and pedestrian travel which has become public by authority of the law, and such ways in public places other than highways as the public is permitted to use for vehicular and pedestrian traffic. ” Burlington Code of...