STATE OF VERMONT

ENVIRONMENTAL COURT

Appeal of C.C. Construction 

and Charlie Christolini

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Docket No. 177-8-02 Vtec

Decision and Order

Appellants C.C. Construction and Charlie Christolini appealed from three conditions of a 

decision of the Development Review Board (DRB) of the Town of St. Albans, granting final plat 

approval for an eight-lot subdivision.

Appellants are represented by Joseph P. Bauer, Esq.; the Town of St. Albans is represented by 

David A. Barra, Esq.; and Interested Person Michael Lawton appeared and represented himself. 

An evidentiary hearing was held in this matter before Merideth Wright, Environmental Judge. 

The parties were given the opportunity to submit written requests for findings and memoranda of 

law. Upon consideration of the evidence and the written memoranda and proposed findings, the 

Court finds and concludes as follows.

Appellants received approval for an eight-lot subdivision served by municipal water and sewer, 

located between Fairfax Street and Orchard Street. Lots 1, 4 and 5 have frontage on Orchard 

Street and Lot 8 has frontage on Fairfax Street. Lots 1, 2 and 3 have access to Orchard Street by 

one 60-foot-wide right-of-way; Lots 5, 6, 7 and 8 have access to Orchard Street by another 60-

foot-wide right of way, to be called Philomena Drive; and Lot 4 appears to have only direct 

access to Orchard Street. Mr. Lawton= s property on Orchard Street is adjacent to the proposed 

Philomena Drive, is adjacent in the rear to Lot 6 of the subdivision, and is adjacent to another 

unrelated property (the Ross property) along Orchard Street. The 8" water main to serve the 

subdivision runs on Appellants= property easterly along the frontage of Orchard Street beyond 

the Lot 4 property line, and diagonally northerly across Appellants= property to Fairfax Street 

along a 20" wide water main easement. This water line serves approximately 100 connections.

An approximately 42-year-old private 2-inch water line (the old private water line) extends from 

a municipal water main in Fairfax Street to Orchard Street along an easement across the westerly 

edge of Appellants= property, across what will be the back yards of Lots 6, 7, and 8, and across 

the Ross property to Orchard Street. As it relates to the issues in this appeal, the old private water 

line runs easterly along Orchard Street to serve Mr. Lawton= s property. Beyond Mr. Lawton= s 

property, it ran along the front of Appellants= property, under the right-of-way for Philomena 

Drive and along Orchard Street, and served two additional properties across Orchard Street. The 

owners of those properties have since relinquished their rights to the use of the old private water 

line, and it has been discontinued along Orchard Street easterly of Mr. Lawton= s property.
The old private water line served a total of ten houses that were members of the Orchard Street 

Water Association, under a water agreement in evidence as Exhibit 22. In recent years, at least, 

the Water Association operated informally, without elections or formal voting. In the time period 

leading up to the events in this case, Mr. Kris Vanderoudermeulen functioned as the president of 

the Water Association and Appellant Christolini dealt directly with him regarding matters to do 

with the old private water line. The old private water line was not in good condition and had 

experienced a break which was repaired by Appellants and which repair was paid for by the 

Water Association members. 

In connection with the proposal at issue in the present case, the owners of all of the properties 

served by the old private water line, except for Mr. Lawton, have relinquished their rights to the 

old private water line, in return either for direct connection to the new 8" water line or for 

connection of the old private water line to the new 8" water line. They paid Appellants a share of 

the connection costs. Appellants installed shutoff valves for the water lines to the subdivision, 

and at the same time connected the old private water line to the new 8" water line just east of the 

Lawton property but outside the Philomena Drive right-of-way. To allow connection of the old 

private water line to the municipal system, the municipal water system also required Appellants 

to discontinue and cap the old private water line from Fairfax Street to Orchard Street, to avoid 

any flow and possible contamination to enter the municipal water system by back flow from the 

old private water line. This disconnection of the old private water line from its Fairfax Street 

supply was done on the Ross property at the same time as its connection to the new 8" water line.

Appellant challenges the following three conditions imposed by the DRB, as clarified by the 

language shown in bold type taken from the minutes of the DRB proceedings:

Condition 2. The applicant must state in writing to all ten lot owners that are currently on their 

own private water line; and to provide proof to the Zoning Administrator that these ten owners 

have been notified in writing by certified mail with return receipt of his intention to offer a freeof-charge hook up to his water line.

Condition 4. A performance bond of $2,000 to be provided (to be combined) regarding the 

responsibility to lie with Charles Christolini in the event there is a break of the preexisting old 

private water line directly within the road ROW [right-of-way] which services the Philomena 

Drive area for two years from the initiation of construction.

Condition 5. A landscaping bond be provided in the amount of $25,000 which includes the road 

ROW issue for any break in the preexisting old private water line in the road bed, detention 

pond, drainage and anything else.

To the extent that Conditions 4 and 5 address a performance bond to fulfill Appellants=

responsibility to maintain that portion of the old private water line lying in the right-of-way for 

Philomena Drive, Appellants are correct that the issue has become moot as the old private water 

line has been relinquished by all its users easterly of Mr. Lawton= s property and no portion of it 

still in use lies under the right-of-way to Philomena Drive.
The Town acknowledges that Condition 5 as written, including the language A and anything 

else,@ is overbroad and subject to challenge for vagueness. Appellants acknowledge that a 

condition requiring security to be posted for the completion and maintenance of the 

improvements proposed for this subdivision is appropriate under ' 212(4) of the Subdivision 

Regulations. The Town proposes a revised Condition 5 that: 

A landscaping bond be provided in the amount of $25,000 to secure the completion of all 

improvements including landscaping, roads, detention pond construction, water line 

construction, and drainage system construction, to be held by the Town for 2 years after the 

completion of all the required improvements has been certified by Appellants= Vermont-licensed 

engineer.

Appellants propose that the security be posted in the form of a letter of credit rather than a 

performance bond, and that the two-year requirement is inapplicable to construction and should 

only be applied to a smaller sum of $2,000, which Appellants suggest is all that is necessary to 

secure maintenance of the improvements for that period.

The required security may be posted in the form of a letter of credit rather than in the form of a 

bond. It is reasonable to require that a smaller amount of security would be necessary to secure 

maintenance of the improvements after construction. However, although Appellants presented 

evidence that the estimated cost of the landscaping alone was $21,000, they did not present 

evidence to support their proposed amount of reduction of that security after the certification of 

construction completion. For example, the potential cost of tree replacement materials is $4,500 

in Exhibit 2, assuming a worst-case scenario that all of the landscaping trees had to be replaced. 

Accordingly, we approve the Town= s proposed revised Condition 5, with following editorial 

changes and the change to allowing a letter of credit:

A bond or letter of credit shall be provided in the amount of $25,000 to secure the completion of 

all improvements shown on the approved plans, including but not limited to landscaping, roads, 

detention pond, water lines, sewer lines, and drainage system, to be held by the Town for 2 years 

after the completion of all the required improvements has been certified by Appellants= Vermontlicensed engineer.

If Appellants and the Town wish to agree to a reduced amount of security during the two-year 

maintenance period after completion, they may do so in the form of a proposed amendment to 

this order, circulated to all the parties. 

Condition 2 is moot with respect to all of the property owners served by the old water line other 

than Mr. Lawton, as their property has been hooked up to the new water line. It is also moot with 

respect to Mr. Lawton, as he has in fact been provided with the hook-up free of charge, by virtue 

of the connection of the old private water line to the new 8" water line and its disconnection from 

the segment of old private water line extending from Fairfax Street to Orchard Street. It would be 

an entirely advisory opinion of the Court now to determine whether the condition was within the 

authority of the DRB under ' 220(3), either because Philomena Drive could have affected the old 

water line then running under it, or because the old water line could have contaminated the new 

water line or the municipal water system.
We also do not address in the present appeal whether Appellants performed construction activity 

on the proposal while this matter has been on appeal, as no enforcement action has been filed by 

the Town. Appellants= subdivision approval was not appealed by any party, and the Court does 

not here determine whether the subdivision or its water line should be or should have been 

approved. This appeal only raises the issues of whether Condition 2, Condition 4, or Condition 5 

of that approval should remain or should be amended or deleted.

Based on the foregoing, it is hereby ORDERED and ADJUDGED that the issues on appeal as to 

Condition 2 and Condition 4 have become MOOT for the reasons discussed above, and that 

Condition 5 is amended as follows, with leave to the parties to propose an amendment to 

establish a smaller amount of security to be imposed for the two years after construction has been 

certified to be complete: 

A bond or letter of credit shall be provided in the amount of $25,000 to secure the completion of 

all improvements shown on the approved plans, including but not limited to landscaping, roads, 

detention pond, water lines, sewer lines, and drainage system, to be held by the Town for 2 years 

after the completion of all the required improvements has been certified by Appellants= Vermontlicensed engineer.

Dated at Barre, Vermont, this 6th day of May, 2003.

___________________

Merideth Wright 

Environmental Judge

Footnotes