A property owner applied for a permit to subdivide a 2.92-acre lot into two parcels. The applicant also owned a .05-acre lot abutting a pond, that was separated from the larger “main” lot by a private road used to service the parcels and other camps in the area. The applicable zoning provided that if the property were located in a Shoreland District, the subdivision would violate minimum three-acre lot size requirement, but if the property was in a Village District, no minimum lot size would apply.  While the Shoreland Zoning District includes all land within 800 feet of the pond, the regulation contains an exception for property that does not border the pond and does not drain into the pond.  Agreeing with the Environmental Court that the lot does not drain into the pond, the key question presented is whether the “main” parcel sought be subdivided, which does not abut the pond, is considered to be the same parcel as the .05 lot that does abut the pond.  If it is the same parcel, then the applicant cannot subdivide the lot, if it is not the same parcel, the applicant may subdivide.     

                                        

The Supreme Court remanded the matter to the Environmental Court, which had concluded that the lots were separate, to evaluate whether the presence of the road effectively separated the shoreland parcel from the main parcel in such a manner that prevents them from functioning as a single lot. The Court noted that the nature of the right-of-way and the extent to which it separates the lots is relevant, as well as the extent to which the main and shoreland lots function as a single parcel. The Supreme Court also directed the Environmental Court to “evaluate whether treating the shoreland parcel and the main parcel as separate lots undermines the purpose of the Shoreland District regulations.” 

 

In re Miller Subdivision Final Plan, 2008 WL 2152755 (Vt. 5/23/2008).

 

The opinion can be accessed at:

http://www.libraries.vermont.gov/supct/current/op2007-260.html