In re Kisiel

The Town of Waitsfield had adopted a town plan, or comprehensive plan, pursuant to the Vermont Land Use and Development Act (Act 250). Act 250 required certain developers to apply for permits from a regional environmental commission to ensure a development was consistent with planning objectives. The state environmental board heard appeals from decisions of the environmental commissions. As part of its planning objectives, Waitsfield’s town plan provided that the town “maintain the current status” of all class-four roads in the forest-reserve district to promote recreational activities and to discourage road improvements, which would lead to increased automobile access and development. The plan indicated that the subdivision of land posed a risk to access to recreational activities but further provided that the subdivision-approval process was an opportunity to encourage public easements for such access as an approval condition. Mark and Pauline Kisiel (plaintiffs) sought to develop a residential subdivision on property located at the end of an unmaintained class-four town highway in the forest-reserve district. The Kisiels applied for and received permits from both Waitsfield’s planning commission and the town board for the subdivision and road improvements. The permits issued by the town contained many conditions, including the provision of public easements for access to the forest for recreational activities. Subsequently, the Kisiels applied to the regional environmental commission for a permit, which was granted under Act 250. Despite previously granting permits to the Kisiels, Waitsfield appealed the environmental commission’s decision to the state environmental board. The environmental board found that the Kisiels’s application failed to comply with the town plan’s objective of maintaining the status of class-four roads. Although the town had interpreted its objective of maintaining the current status of class-four roads as a mandate to maintain the road’s current legal classification, the environmental board interpreted the objective as a mandate to maintain the road’s current condition. The Kisiels appealed.