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           &nbs= p;            = ;            =             &= nbsp;        =20 STATE OF VERMONT

 

           &nbs= p;            = ;            =             &= nbsp;    =20 ENVIRONMENTAL COURT

 

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Appeal=20 of Denizot, et al.           &nbs= p;            = ;      =20 }          =20            =20 Docket No. 91-6-03 Vtec

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           &nbs= p;            = ;            =             &= nbsp;           =20 Decision and Order

Appellants=20 Lee Buik Denizot, David and Janice Bartley, John and Regina Meigs, and = Alan and=20 Lynne Fletcher appealed from a decision of the Development Review Board = (DRB) of=20 the Town of Fairfax, approving Appellee Brian Burnor=3Ds=20 subdivision application.  = Appellants=20 represent themselves; Appellee-Applicant Brian Burnor is represented by = Joseph=20 F. Cahill, Jr., Esq.  The = Town did=20 not enter an appearance in this appeal.

           =20 Of the eight issues raised in Appellants=3D=20 statement of questions, all but Question 6, a portion of Question 4, and = a=20 portion of Question 7 were addressed on summary judgment.  An evidentiary hearing was = held on the=20 remaining issues in this matter before Merideth Wright, Environmental=20 Judge.  The parties were = given the=20 opportunity to submit written memoranda and requests for findings.  Upon consideration of the = evidence, and=20 the written memoranda and requests for findings filed by the parties, = the Court=20 finds and concludes as follows

Appellee-Applicant=3Ds=20 property is located on the north side of Rood Mill Road, which runs east = and=20 west in this location.  = The property=20 is located in the Agricultural and Forest Resources zoning district; a = portion=20 of the property constituting the 100-year flood plain surrounding the = stream is=20 also located in the Shoreland (flood plain) overlay zoning = district.  =

In=20 an earlier four-lot subdivision Appellee-Applicant created three = two-acre lots=20 proposed for single-family residences (Lots 2 through 4 as shown on the = present=20 subdivision plan), and retained the large parcel of remaining land as = Lot 1,=20 with one house site. In the present appeal he proposes to further = subdivide the=20 59.81-acre parcel retained in the previous subdivision into a total of = six=20 parcels.  Five of the = parcels are=20 building lots, each in the two- to three-acre size range (denominated = Lots 5=20 through 9 on the present subdivision plan) intended for single-family = residences=20 (one of which already exists on Lot 5). =20 The remaining land of approximately 48 acres is denominated as = Lot 1, and=20 includes a house site near the subdivision roadway.  The property as a whole also = contains=20 areas of land suitable for agriculture, areas of ledge, wetlands, a = stream, and=20 areas of land with steep (over 25%) slopes unsuitable for building, most = of=20 which is located on the retained Lot 1. =20 All six of the house sites are located to the southwest of the = stream on=20 the property.  Small = portions of=20 Lots 6 and 8 and a large portion of Lot 1 are located to the northeast = of the=20 stream.  The plan provides = three=20 means of access onto different portions of Lot 1: one via a right of way = from=20 Rood Mill Road running between the Bartley/Allen property and existing = Lot 4,=20 one via the subdivision roadway onto the house site for Lot 1, and one = from the=20 northwest end of the subdivision roadway onto the northwesterly portion = of Lot=20 1.

 

Question=20 4

The=20 revised proposed subdivision plan as presented at trial (Exhibit A) now = meets=20 not only the two-acre density requirement, after the undevelopable land = is=20 deducted for the subdivision as a whole, but also meets the two-acre = minimum lot=20 size after easement areas are deducted from specific lots.  Most of the area containing = the soils[1]=20 most suitable for agriculture, as shown on Exhibit B, is not affected by = the=20 proposed building lots.

 

Question=20 6

Question=20 6 claims that the subdivision is proposed for a parcel of >productive=20 agricultural land=3D=20 and that it therefore fails to meet the applicable subsections of = ''703=20 and 704 (that is,  = ''703(A),=20 703(F), and 704(G)).  = While the term=20 Aagricultural=20 use@=20 is defined in the ordinance as Aland=20 used for cultivating the soil and producing crops or raising livestock, = for the=20 purpose of economic gain, . . .@=20 neither the term Aagricultural=20 land@=20 nor the term Aproductive=20 agricultural land@=20 is defined in the ordinance. =20 Appellant Denizot claims that, as she hayed a portion of Lot 1 in = the=20 past, it constitutes >productive=20 agricultural land=3D=20 that should not be allowed to be converted to residential use.  However, as appears on Exhibit = B, the=20 portions of the overall property most suitable for agriculture are = largely=20 located in the retained land on Lot 1, so that they are adequately = preserved in=20 this subdivision plan.  = Access to=20 those areas from both sides of the stream has also been preserved by the = plan.

           =20 Section 703(A) requires the proposal to Agive=20 due regard for@=20 the preservation of existing site features, including Aagricultural=20 lands.@  Section 703(F) requires = subdivisions to=20 be designed to Aminimize=20 adverse [e]ffects@=20 upon Aproductive[2]=20 agricultural . . . []land.@=20 Section 704(G) mandates the Planning Commission, and hence this Court in = this=20 de novo appeal, to encourage (and allows it to require) a=20 subdivision lot layout that will conserve and/or maintain Aaccess=20 to open areas in blocks large enough for productive agriculture and=20 forestry.@  The subdivision layout shown = in Exhibit=20 A provides the means of access to the 48 acres of remaining lands in Lot = 1, and=20 allows access to the Lot 1 areas, including to the largest block of land = in the=20 northwesterly portion of Lot 1 potentially suitable for use as pasture = or=20 hayfield.

 

Question=20 7

The=20 portion of Question 7 remaining after summary judgment is whether the = five=20 additional single-family house lots will place an Aunreasonable=20 burden on the ability@=20 of the Town to provide police services to cope with the potential for = noise and=20 vandalism to be generated by those five households.  '703(D).  Nothing was presented in = evidence to=20 suggest that the subdivision of five additional lots, or the houses to = be=20 constructed on those lots, or the residents who will occupy those lots, = will=20 place any burden, much less an unreasonable one, on the ability of the = Town to=20 provide the police services necessary to address any potential noise or=20 vandalism that may be generated by the use or occupants of those five=20 lots.

 

Based=20 on the foregoing, it is hereby ORDERED and ADJUDGED that=20 Appellee-Applicant=3Ds=20 revised subdivision application, as shown in Exhibit A, is hereby = APPROVED,=20 subject to the conditions imposed by the DRB and found in Exhibit D.=20

 

 

Done=20 at Berlin, Vermont, this 9th  day of August,=20 2005.

 

 

 

_________________________________________________

Merideth=20 Wright

Environmental=20 Judge


[1]  In any event, unlike Act 250 = (10 V.S.A.=20 Chapter 151), the Fairfax ordinances do not regulate on the basis of = categories=20 of Aagricultural=20 soils.@ 

[2]  The use of the term = Aproductive@=20 in '703(F)=20 and not in '703(A)=20 suggests that '703(F)=20 may provide a more limited protection. =20 However, as the proposed subdivision meets the requirements of = the=20 ordinance under either formulation, we need not resolve whether = '703(F)=20 is meant to apply only to land currently in agricultural use as opposed = to land=20 potentially suited for agricultural use, or whether, as in  '704(G),=20 the economics of the parcel size is to be taken into account.=20