Loading...
HomeMy WebLinkAboutZB-85-0000 - Decision - 0911 Dorset StreetCHITfEND1=N CO'J iM Co' )'RT j FILED IN CLERKS OFFICE JAN 141985 i� STATE OF VERMONT CHITTENDEN COUNTY,SS FRANCIS G. FEE CLERK In Re: EXISTENCE OF AN iOPEN CONNECTING ROAD CHITTENDEN SUPERIOR COURT , Ii BETWEEN RIDGEWOOD ESTATES DOCKET NO. 512-83 CnM and INDIAN CREEK DEVELOPMENTS FINDINGS OF FACT, CONCLUSIONS OF LAW, AND ORDER The petitioner appealed the decision of the South Burlington ii. Planning Commission which required that a road running through ' ;i two developments known as Ridgewood Estates and Indian Creek be kept open for traffic. The cause was tried on the merits before the undersigned, sitting without Assistant Judges, who were I! unavailable. Based upon the credible evidence introduced at the 1 hearing, the exhibits, stipulations entered by counsel, memoranda submitted, and arguments of counsel, the court makes the follow- ing findings of fact, conclusions of law, and order: �! FINDINGS 1. Ridgei✓ood Estates homeowners Association, Inc. i (Ridgewood) is a non-profit corporation located in the City of South Burlin;ton and is a condominium established pursuant to Vermont law. Articles of association and bylaws are on file in the South Burlington land records. As the name implies, it is a i I I� condominium homeowners association. In 1974, Ridgewood Estates Development, Inc. (R.E.D. Inc.) planned a condominium development on the northwest corner of Dorset and Swift streets in South i Burlington. Fifty-seven acres were involved. About one hundred units were to be constructed in three phases, including some 1 single family houses and recreational facilities such as a pool �I � 1 � I I and tennis courts. All these were shown on a plan which was 1 eventually filed in the City Clerk's office. (Defendant's Q) The internal roads were shown on defendant's Q, including the i section of the roadway in dispute. The Planning Commission approved the plan on September 19, 1974. 2. In June 1975, the City approved Phase I of the project. areas to R.E.D, Inc. conveyed the commonRidgewood -in July, 1977. i ;i 3. Phase II was approved by the City September 27, 1977. R.E.D., Inc. conveyed the common areas of Phase II to Ridgewood on October 19, 1979. 4. Phase III was approved by the City in April, 1979. i� (defendant's D) The Phase III plan was signed as approved June i 12, 1979. The plan for Phase III was filed July 11, 1979. (See defendant's N.) The connecting road that is in dispute in this t� litigation was shown on the filed plan. (defendant's N.) The ii plan showed 12 private residential units, 40 town houses, internal roads, and no recreation facilities. The Court finds s j that at this point, the connecting road in dispute was considered !I � by all parties as part of the plan and was required. This had i been the understanding since the first general approval in 1974. 5. Phase III never came into being as shown on Defendant's N. R.E.D. Inc. went bankrupt after the approval for Phase III but before it had completed Phase II. Construction of Phase III never started. On December 3, 1981, R.E.D. Inc. conveyed its i 1`i remaining property to the Vermont Federal Savings and Loan Asso- ciation, a bank in Burlington. The deed (Plaintiff's 5) contains i� a detailed description by metes and bounds. It does not refer to I� 2 i I a plan. The land conveyed is the same land upon which Phase III ? of Ridgewood Estates would have been developed. -At this point, 4 i the land that would have been part of Ridgewood Estates, and i! i I ; known as Phase III, came under separate ownership. �I P R.E.D. Inc. +� and the Ridgewood Estates Homeowners Association no longer had anything to do with it and no longer had a control, or ,1 potential control, over the development of the common areas. i 6. It is not clear from the evidence just what happened 1 next, but it seems that a gentleman by the name of Osgood came into the picture during the summer of 1981. A new plan was developed for the land that would have been Phase III, and a { I revised "plat" was prepared for which approval was given by the ! I Planning Commission on September 8, 1981. It was recorded in the land records. It became Defendant's 0 at the trial. T Ij d'he con- 1necting road in dispute is shown. Althou-fi in the name of � Ridgewood Estates !i , it is quite clear that this shows a different plan of development than that for Phase III shown on Defendant's I I �+ P1 and approved by the Planning Commission in 1979. These revised i plans seem to have received Commission approval Without anyone on the Planning Commission being aware that the land in Phase III was to change hands, and that the owners in Phases I and II wo uld no longer be g part of the so-called Phase III. They were unaware ' t if that they were dealing with an entirely new development, which j ffj was to have its own separate bylaws and articles of association. The Court finds that the Plannin; Commission was not told by Osgood that this was not Phase III of the original Ridgewood development, and that the Ridgewood Homeowners Association would ' ij �I s 3 j not be involved in the land under consideration. Further, the Court finds that the Planning Commission was not told that what was formerly to be Phase III was now to be called Indian Creek. 7. Osgood built the connecting road in the summer of 1982. I The homeowners in Phases I and II squawked. They went before the Planning Com mission to have the road between the developments h things, i n g s people p l e were driving v i n g � closed. Among other � � b�, Y�oY � .. e_ e d_ i . i__�, through the development for the purpose of going between Dorset and Swift Streets, thereby avoiding the traffic at the corner. The Plan- IIning Commission decided it best to keep the connecting road open, although there were now two separate developments on what was originally to be Ridgewood Estates. The Planning Commission, however, did require the developer to make a new plan entitled Indian Creek, which plan was approved and filed in 1983. (Defendant's P) It shows the same layout as Defendant's 0. Ij 8. The parties stipulated that at all times the roads within Ridgewood Estates were to be private. So too were the roads in Indian Creek. As matters stood after the land for Phase III was conveyed to the bank, the Ridgewood Homeowners Associa- tion would no longer have all the roads under its control. It would be forced to share a connecting road with another develop- ment, although this was not clear to anyone in the association until the connecting road was built in the summer of 1982. The residents of Ridgewood could use the connecting road to go to Dorset Street, and in so doing they would use only a short li portion of the Indian Creek access road for that purpose. Those in Indian Creek, however, who wanted to go to Swift Street, would i. 4 be driving through a major portion of the Ridgewood development. Yet they would not be contributing to the cost of upkeep of the roads they used. Under the original plan devised in 1974, all residents of all three phases would have been obligated to share the cost of road upkeep and snow removal. Once the properties were split into separate ownership, on the other hand, the effect was to require the owners in Ridgewood to keep up their roads for the benefit of owners in another development, without a corre- sponding benefit running the other way. 9. The cost of snowplowing is significant. Ridgewood pays about $17,000 per year to plow its portion of the development. The roads in the development were not constructed to town specifications because they were not to be public roads. Additional wear on the roads from use by others outside the development was not contemplated at the time of the original approvals and should not be imposed upon Ridgewood now ,from Indian Creek, whose residents will not be bearing any portion of the cost of upkeep. The Court finds that the only legitimate use of the connecting road between the developments is for emergency vehicles such as fire and ambulance. Ridgewood agrees that the connecting road may be maintained for emergency purposes, but it proposes to close the road for general public use. The Court finds nothing in the evidence that required the connecting road to be open to the neneral public. The only requirement that the Court can determine was that Phases II and III would be connected together by the road. This would have been a reasonable requirement had Phases I, II, and III remained under common 5 ownership, especially as there were to be no recreational facilities on the land for Phase III, and residents would have needed the connecting road to reach them in the other part of the development. 10. One of the arguments of Ridgewood is that it owns title to the connecting road. The city, on the other hand, asserts that because of confusion in the instruments of conveyance,�the Vermont Federal Savings owns the connecting road. The Court finds that Ridgewood obtained title to the land for the connecting road in a deed from R.E.D. Inc. dated October 25, 1979. (See Plaintiff's 4) Thisideed purported to convey to Ridgewood Phases 2A, 2B, and 2C. The individual lots were excluded. Thus the common areas were conveyed. The deed specifically stated that it was intended to convey the common areas in Phase II. In the deed it said that the lands conveyed were shown on plans on file with the city. No volume or page ! number was typed on e i the deed, but on the first page "Vol 153 Page 7" is handwritten at the end of the first paragraph of the I description. The trouble is that this gives no indication of an i official reference. It so happens, however, that in Vol, 153 on page 7 is a plan (Plaintiff's 7) which shows Ridgewood's Phase I and what seems to be parcels 2A, 2B, and 2C. The Court is satisfied by a preponderance of the evidence that the handwritten plan reference on the deed (Plaintiff's 4) is accurate, and what the deed refers to as "Phases 2A, 2B, and 2C" are in fact "parcel 2A," "parcel 2B," and "parcel 2C", as shown on the plan in Vol. 153, page 7, of the City's land records. (Plaintiff's 7) 0 11. There is another reason that the Court is inclined to find that Ridgewood was conveyed the land in the location of the connecting road in October, 1979. It is interesting to compare the metes and bounds set out on the plan in Plaintiff's 7 with the metes and bounds description in Plaintiff's 5, the deed from i R.E.D., Inc. to Vermont Federal dated December 3, 1981. If one II takes the time to start on the plan at the southeast corner of i Phase I, and then write down each description from the plan going I in a clockwise direction around Phase I and the parcels'2A, 2B, and 2C, it will be found that the description matches the description in Plaintiff's 5, R.t.D., Inc.'s deed to the Vermont I Federal. Of importance is the description along the northerly side of what is shown as "parcel 2C" on Plaintiff's 7. Plainly, Vermont Federal got no part of "parcel 2C" as claimed by the City in its memorandum of May 17, 1984. It is not disputed that Indian Creek got no more land than what R.E.D., Inc. conveyed to Vermont Federal, and Vermont Federal got no portion of parcel 2C. The same description is shown on Plaintiff's 1, the overall plan for Indian Creek and Ridgewood, dated 1984. The division line between the developments is shown and is the same line as shown on Plaintiff's 7 along the northerly line of parcel 2A. If, as the City claims, Ridgewood does not own part of "parcel 2C," then ownership is still in R.E.D., Inc. The Court, however, finds to the contrary. Ridgewood owns the connecting road in "parcel 2A." 12. As to the City's last ar;ument, the Court does not find that the City gained the right to insist that the road remain open on Ridgewood's land by virtue of the fact that Ridgewood did 7 not appeal the Planning Commission's decision in September, 1981. The Court finds that the City approved the connecting road only as a route between two parts of the same development. It did not approve the road as a required connection between two developments under separate ownership. 13. The Court finds that when the three phases of Ridgewood Estates was first approved by the City, there was a potential benefit to the private residents in the development in having the connecting road for travel to and from recreation areas and visits among neihbors in the same condominium association. ii Except for emergency vehicle access, however, the Court can find !i in the evidence no material benefit to the community of South Burlington. Now that Phase III is no longer part of Ridgewood Estates, the Court can find in the evidence no benefit to the I! residents of these developments in having a road between them. j All parties agree that emergency access is desirable, and they i.` stipulate that the road can be maintained for that purpose. i� H CONCLUSIONS OF LAW Ridgewood Estates started out as a single development in three phases. Had all gone according to plan, there would have been today a single owner of the common areas in what is now Ridgewood and Indian Creek. Instead, today there are two owners, through no involvement of Ridgewood who had no control over the situation. Neither development is responsible for the upkeep or plowing of the roads in the other development. All the roads in these developments are private. They are not today, nor were they ever, intended for general public use by residents who live i f in other areas of the town. Each development today has its own recreation area. There is no need for the residents of one to go to the other. While it is true that the connecting road was always contemplated from the beginning of Planning Commission involvement with Ridgewood Estates, until Osgood showed up, there never was any question but that the common areas in the entire area would be owned by Ridgewood. As it turned out, however, the three phases of Ridgewood were never completed. The Court can see no reason why a condition that was necessary and appropriate, when the entire property was to be developed under common i ownership, should be imposed on Ridgewood, who is now an adjacent '. land owner. This Court concludes that the City cannot now impose the added expense of Indian Creek traffic when the latter makes no contribution toward the upkeep of roads in the Ridgewood �j development. Ridgewood may close the connecting road to all but I emergency vehicles. ORDER IT IS HEREBY ORDERED AND ADJUDGED that the City of South 1' Burlington may not require that the connecting road between !f Ridgewood Estates and Indian Creek be open to the public, except for the passage of emergency vehicles. Dated at Burlington, County of Chittenden, this IQ,2ry day of January, 1985. 9 C,r/,X, Superior Judge tl