Sunday, October 19, 2014

In Burlington, Vermont, Single-Family Dwelling Lot Subdivides You

Regan v. Pomerleau, 2014 VT 99

By Christopher A. Davis

Landowner wishes to add apartment to single-family home in Burlington, as well as subdivide the property into two lots. Predictably, lots of folks get upset about it, cases proceed to both Chittenden Civil Division and the Environmental Division, courts say, “You’re good, go for it,” everyone is still upset, appeals follow to the SCOV, SCOV says “Nah, you’re still good, go for it.” The end.

But let’s dig deeper for purposes of this qualifying as a helpful summary. Overlake Park Development Corporation creates the lot at issue in 1955. In 1961, the lot is sold to DeForest Reality with a covenant restricting use to “one dwelling for a single family dwelling unit.” By its terms, covenant expires in 1995. In 1965, DeForest sells lot in question to the predecessor-in-interest of landowner (let’s call landowner “applicant” from now on). In 1987 applicant purchases home and lot.

In 2010, applicant submits an application to Burlington’s Department of Planning and Zoning for a permit that would allow her to establish an accessory apartment in her single-family home. Department grants permit, so other residents who live on the street that applicant’s home fronts form a group (“Friends of Chittenden Drive,” or “Friends”) and appeal the Department’s decision to the Development Review Board (DRB), which upholds the decision. Friends appeals to the Environmental Division.

Applicant separately applies to subdivide her property into two lots (one containing her single-family dwelling and the other vacant, presumably for future development). Applicant’s plan conforms to Burlington’s Comprehensive Development Ordinance (CDO) with respect to the amount of required road frontage, but the DRB notes that there is a ten-foot greenbelt strip of privately-owned land between applicant’s lot and Chittenden Drive. DRB approves applicant’s plan, but directs her to demonstrate that the proposed vacant lot has required access to Chittenden Drive. DeForest Realty appeals that decision to the Environmental Division, as well as the applicant (on a limited issue) and the ironically-named Friends.

In September 2010, everyone agrees to place the environmental court action on hold while applicant files a quiet-title action against DeForest Realty in civil court to determine her right to access Chittenden Drive from the vacant lot (which she does in January 2011). In October 2011, Chittenden Civil Division ultimately grants 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 (a map, drawn to scale, showing divisions of a piece of land). Also, since the restrictive covenant had expired in 1995, the implied easement allowed access from both proposed lots. Pretty spicy stuff, right? Well, put the kiddos to bed, pour a glass of wine, and strap in, because naturally an appeal follows and we arrive finally to our favorite pack of perspicacious pals, the SCOV!

Well, almost. Everyone moves to reactivate the appeals in the Environmental Division, and in December 2012, that court grants applicant’s motion for summary judgment in the accessory-dwelling appeal (the request to add the apartment). Shortly thereafter, the court rules on cross-summary judgment motions largely in applicant’s favor on the subdivision appeal, reserving only the question of applicant’s compliance with a section of the City ordinance that prohibits development on “lots that do not have frontage on a public road or public waters,” except for those “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 feed in width.” See, applicant had arguedand the City agreedthat Chittenden Drive qualified as a public road, but the environmental court concluded that the City’s definition conflicted with the term “public road” as understood in the state statute enabling development on lots with access to public road through an approved easement or right-of-way. While finding that Chittenden Drive did not meet the definition of a public road as understood in the state enabling statute, the court noted that the street did connect to Vermont Route 7, which would bring applicant’s proposal within the exception for lots with access to a public road…but for that ridiculous bit of red tape known as the provision in the City ordinance prohibiting development of new lots of record under the above-referenced exception after January 1, 2007. Court says that’s stupid, and defers to trial the question of just how stupid that provision is. Following an evidentiary hearing on the stupidity of the provision, the court concludes it’s really stupid (or “not rationally related to the purpose” of the frontage requirement in the ordinance) and approves applicant’s proposal. DeForest Realty and Friends appeal that decision as well, and everyone prepares to be served up a cold slice of SCOV justice.

The SCOV is handling both sets of appeals, from Chittenden Civil Division and the Environmental Division, and looks first to the environmental court appeal of applicant’s lot subdivision proposal. Friends claim the date restriction isn’t stupid at all, but the SCOV says “We’re not going to address that point because of all the various ways we’re about to shut down your other arguments. If you’ll just take a seat over here, please…”

The threshold question before the DRB and the environmental court was whether applicant’s subdivision was authorized under the City’s development ordinance, which the SCOV finds clearly it was, based not only on a string of definitions in the ordinance itself, but also the testimony of a senior planner for the City, all of which clearly indicated that Chittenden Drive is a public road, and therefore, applicant’s proposal involved development of a lot having frontage on a public road. Regardless, Chittenden Drive meets the alternative statutory basis for development under the state enabling statute as a right-of-way connecting to a public road (that being Vermont Route 7).

Friends (the SCOV at this point is referring to Friends and DeForest Realty collectively as “Friends” because of overlapping arguments) claim the environmental court erred in granting summary judgment on applicant’s proposal’s compliance with the City ordinance, specifically certain dimensional standards, principles of development, and design components. The SCOV upholds the environmental court’s determination that not only do the sections of the City ordinance cited by Friends not constitute enforceable regulatory language, but specifically with respect to certain design components there’s an air of “should” rather than “shall” or “must.” Like, “I should stop reading this SCOV Law Blog article because it is e-NyQuil,” not, “I shall or must stop reading this SCOV Law Blog article because it’s causing me to harm myself.”

Friends claim that the environmental court erred in holding that the proposal met the specific density limit of seven dwelling units per acre as set forth in the City ordinance, but the SCOV finds they didn’t properly preserve the argument for appeal. Friends’ final argument with respect to the subdivision proposal deals with conformity to dimensional and developmental standards in the City ordinance, and the SCOV refers to its previous analysis in dismissing that claim.

Onward, to the accessory-dwelling permit appeal from the environmental court regarding applicant’s request for the apartment addition…except the SCOV doesn’t get there, because wily applicant had moved during the appeal process to dismiss the portions of Friends’ briefs addressing the accessory-dwelling as untimely (no separate appeal had been filed from the environmental court’s order with respect to the accessory-dwelling issue). Friends argue the two environmental court matter had been consolidated, by reference to comments in the environmental court record about consolidation of the matters for purposes of trial. The SCOV disagrees, concluding that the record following reactivation of both matters in the environmental court indicates the court considered them separate matters, and by the way y’all, V.R.C.P. 42(a) makes clear that just because you order joint hearings doesn’t mean you consolidate actions. We may be eating lunch together, but we are NOT boyfriend-girlfriend, because that requires consent of the parties, do you hear me?

Last but not least, the SCOV addresses DeForest Realty’s appeal from the Chittenden Civil Division’s decision that applicant had an implied easement to access Chittenden Drive from the vacant lot created by applicant’s subdivision. In so concluding, the trial court had relied on the principle (as reinforced in a SCOV decision) that when a lot is sold by reference to a recorded plat, “lot purchases acquire the right to keep open and use roads, streets, highways and park areas as indicated on the plat.” Because that’s fair. And the right extends to all other roads, parks, and common areas on the plat, not just the ones touching the lot, that are necessary to the purchaser’s use and enjoyment of the property. Necessity is determined by an objective test, not a demonstration by the purchaser of specific reliance on depictions in the plat.

DeForest concedes the easement for purposes of applicant’s original lot, but not the lot created by the subdivision, arguing that would impermissibly expand the scope of the implied easement beyond the reasonable expectations of the parties. The SCOV disagrees, noting the trial court’s explanation that the original Overlake Park covenant (restricting development to single-family dwellings) expired in 1995, so a prospective purchaser (such as applicant in 1987) could look ahead to the time of expiration of the restrictive covenant and plan for different kinds of development. DeForest argues that the trial court’s ruling violates the principle that implied easements are disfavored and must limited to their original purpose. The SCOV does note that implied easements are limited by their original purpose, but the scope of these type of easements is determined not by necessity at the time of creation, but rather the reasonable expectations of the parties, and here, it would have been reasonable for a prospective purchaser to anticipate engaging in different developmental practices after the expiration of the restrictive covenant.

DeForest’s final argument is that the trial court erred in holding that the implied easement as to the newly-created lot includes the right to cross the ten-foot greenstrip for purposes of connecting to utilities owned by DeForest, because the utilities weren’t depicted on the plat map for Overlake Park. The SCOV acknowledges that its cases dealing with implied easements by reference to plat maps have not addressed the issue of access to utilities (Ooh! I’m awake, I’m awake!), but it is well-settled in Vermont that implied easements come into play where it is “essential to the reasonable enjoyment of the land,” and even here in Vermont, there’s no argument that water and sewer are essential to both applicant’s original lot, as well as the lot created by the subdivision.

Affirmed across the board. So sayeth the SCOV.

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