In re Wagner & Guay Permit (Mary Bourassa, Appellant)
153 A.3d 539
Vt.2016Background
- In 1995 William Wagner’s six-lot subdivision plat for property on Dodge Terrace included a scalloped line labeled “existing edge of the woods” with a note that houses on lots 2–6 “must be within the tree line.”
- Wagners (owners of lots 3 and 4) sought a zoning permit in 2014 to merge lots 3 and 4 and build one house and garage; the DRB granted the permit. Neighbor (owner of lot 2) appealed, asserting the house would not be built “within the tree line.”
- The Environmental Division trial focused on whether the plat’s “tree line” means the canopy/dripline (edge of woods) or the trunks of the first mature trees; experts agreed the scalloped line represented the edge of the open area, not tree trunks.
- The Environmental Division credited Wagner’s testimony that the scalloped line was intended to mark the meadow/wood boundary and found the proposed house located south of that line (i.e., within the tree line). The court affirmed the permit and denied attorney’s fees.
- Neighbor raised additional claims (estoppel, wetland/setback violations, deed covenant enforcement via zoning, and statutory fee award under 24 V.S.A. § 4470a); the Environmental Division dismissed or declined to reach several of these as unpreserved or outside its jurisdiction.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Meaning of “within the tree line” on the 1995 plat | Phrase is ambiguous and must be construed against the drafter (Wagner); it means line at trunks of mature trees | Phrase refers to edge of open meadow / canopy/dripline as depicted by scalloped line on the plat; Wagner’s intent controls because he drafted the condition | Court upheld Environmental Division: “tree line” = scalloped line (edge of meadow/canopy), not trunks; factual finding supported by record |
| Admissibility/weight of Wagner’s testimony about intent (contra proferentem / estoppel) | Wagner should be bound by representations to purchasers; equitable estoppel should bar inconsistent testimony | Wagner’s testimony about his intent and the plat was admissible; estoppel not properly raised/preserved | Court affirmed reliance on Wagner’s testimony; estoppel argument not preserved for appeal |
| Whether town/zoning may be construed to enforce or abrogate private deed covenants (§ 2.4) | §2.4 prohibits bylaws/permits that impair deed covenants; zoning permit should be denied if it conflicts with deed restrictions | §2.4 is a general statement of legal effect, not an enforceable rule converting private covenants into zoning obligations; covenant enforcement is distinct and belongs in civil proceedings | Court affirmed dismissal: Environmental Division lacks jurisdiction to enforce private covenants via zoning; §2.4 is not an enforceable regulatory rule |
| Claims of material misrepresentation and entitlement to fees under 24 V.S.A. § 4470a | Applicants misrepresented site facts (wetland setback/measurements); neighbor incurred fees and statutory relief/fees should follow | No showing of knowing false representation or concealment material to the DRB’s decision before the court; wetland issues not presented to DRB/Environmental Division | Court refused to award fees; misrepresentation/fee claim not adequately preserved or proven in this proceeding; neighbor may pursue state wetland permitting enforcement separately |
Key Cases Cited
- Sec’y v. Handy Family Enters., 163 Vt. 476, 660 A.2d 309 (Vt. 1995) (permits construed with statutory-construction principles; implement drafter intent)
- In re Lathrop Ltd. P’ship I, 199 Vt. 19, 121 A.3d 630 (Vt. 2015) (standard of review: defer to Environmental Division’s factual findings unless clearly erroneous)
- In re Stowe Club Highlands, 164 Vt. 272, 668 A.2d 1271 (Vt. 1995) (recorded plats become subdivision permit conditions)
- Blanche S. Marsh Inter Vivos Trust v. McGillvray, 193 Vt. 320, 67 A.3d 943 (Vt. 2013) (distinction between zoning determinations and private covenant enforcement; zoning decision does not preclude covenant actions)
- In re Beckstrom (H.A. Manosh), 176 Vt. 622, 852 A.2d 561 (Vt. 2004) (misrepresentation in permit context requires knowing falsehood or concealment intending to mislead)