2016 VT 96
By Elizabeth Kruska
Back in 1995, Wagner subdivided some land into six parcels which were suitable for building houses. Apparently, this land is partly wooded and also has a meadow. Wagner created some rules, or covenants, regarding building. There’s a tree line, and in addition to required setbacks (road, wetlands, etc.), any houses constructed have to be built “within the tree line.” The point of building within the tree line was so as not to obstruct the view of the meadow.
Now, I’m not a builder, nor do I play one on television. I am, however, a person of ordinary sensibility, and before I read this I thought I understood what a tree line is. I also am a lawyer, and I know that if there’s an argument to be made about words, that someone of my ilk will make such an argument. I also know that those arguments can take a year or more, travel to a few different courthouses, cost thousands of dollars, and can end up in exactly the same place as where they started. Guess what happened here?
Wagner had plans to sell two lots to Guay, whose plan was to have the lots merged into one big lot and to build a house and a garage on the big lot. The rule appeared to be that Guay would have to build the house “within the tree line.” A neighbor (Neighbor), who owns a nearby lot (next door, to the proposed building lot, from what I can gather), objected to the issuance of the building permit. She objected on nine different grounds, four of which were dismissed pretrial. Both sides filed motions for summary judgment on the remaining grounds. The summary judgment motions were denied, so there was a trial in the Superior Court, Environmental Division.
Ultimately, the Environmental Division ruled in favor of Wagner and Guay. Both sides presented evidence, including expert evidence, in support of their positions. Wagner testified that the spirit of the subdivision plan was that there would be houses built, but that by building them “within the tree line” they would be “nestled” within the trees and would preserve views to a meadow. Part of the question was about what constitutes the tree line. There was a sketch of the property that showed a scalloped line noted as the tree line. There was question about whether that was the edge of the trees’ canopy or whether that meant the trunks of the trees. There were also issues regarding a survey and how measurements were made.
The whole trial at the Environmental Division had only to do with the issue of siting the proposed house and had nothing to do with other permitting issues. The trial court judge said as much, and also did not find that there was statutory authority to award attorney fees to anyone.
Neighbor appeals to SCOV, who affirms the trial court.
Neighbor tries to raise some issues that were never raised below, including an argument about equitable estoppel and an argument regarding failure to raise a wetland-permitting issue. Late in the opinion SCOV scuttles these away with the reminder that if a litigant doesn’t raise an issue below, it’s not getting dealt with on appeal. It’s just not.
With respect to the parts SCOV does review, it does so de novo, but will uphold the Environmental Division’s conclusions if they’re reasonably supported by the findings. That means the Environmental Division judge has to take in good evidence and use that evidence properly to make findings of fact to support its conclusions of law.
First, Neighbor raises an argument about the tree line, saying it was ambiguous. Neighbor’s position is that where there is ambiguity, it has to be construed against the drafter. Here, Wagner used the phrase “tree line” without defining what that meant. Neighbor’s position is that “tree line” meant “where the trunks of the trees are” and that the Environmental Division got it wrong by siding with Wagner.
SCOV takes a look at another environmental case concerning permitting and concludes that Vermont law intends for courts to look to the intent of the drafter. Here, the drafter was Wagner, who created the subdivision plat, which was recorded with the town back in 1995. SCOV agrees that “within the tree line” was ambiguous. But, there was lots of evidence at the trial court level, including from Neighbor’s own expert, supporting Wagner’s position that the tree line was really the edge of the canopy. Since Neighbor could not show that this wasn’t a situation where there was no credible evidence to support the trial court’s findings, this point gets affirmed.
Two surveyors placed the proposed house fully “within the tree line” based on defining the tree line as the edge of the canopy, so SCOV upholds Neighbor’s appeal issue on this point, as well.
Neighbor also argues that some of her initial arguments which were dismissed by the trial court in the early stages of the case should not have been dismissed. Specifically, she raises issues with the permit that she felt were inconsistent with the original covenants of the deeds. SCOV says that although there can be intentions expressed in a subdivision plan, as was done here, those intentions aren’t necessarily binding. Just by Wagner having said, “this is what I’d like to do with this project” doesn’t make that the law of the land for regulatory bodies reviewing the matter in the future. A bylaw like this doesn’t become a mandate on the town to enforce through zoning and other regulations.
Last, neighbor makes an argument for attorney fees. She says that if Wagner had been truthful about some issues regarding a wetland setback, the building permit would never have been given anyway, and nobody would have had to do all this. You can almost hear the audible sigh coming out of the opinion as SCOV denies this. This case was about a tree line and where a building could take place relative to the tree line. It wasn’t about wetlands or wastewater or any of those other things, and the Environmental Division was very clear about that. This issue regarding wetlands was not raised below, and in fact, Neighbor can still go to the local board and be heard about the wetlands issue. So, SCOV affirms what’s before it.
Justice Robinson concurs in the result. But, she disagrees with the reliance on the subdivision drafter’s subjective intent being used so heavily in determining what to do. She’s not hugely swayed that Wagner’s desire to continue having nice views of the meadow is relevant in figuring out what “tree line” means.