This Opinion is subject to motion for reargument or formal revision before publication. See V.R.A.P. 40
On Appeal from Superior Court, Chittenden Unit, Civil Division. Superior Court, Environmental Division. Geoffrey W. Crawford, J. (13-101). Thomas S. Durkin, J. (13-281).
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
[¶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 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.
[¶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 ...