1

STATE OF VERMONT

} } Vermont Environmental Court In re: Appeals of } Shantee Point Estates, Inc. } Docket Nos. 169-9- 98 Vtec, } 144-8-99 Vtec, 152-8-99 Vtec; and } 10-1-00 Vtec } }

} Stephen Dana, } Plaintiff, } } Franklin County, SS v. } Franklin Superior Court } Shantee Point Estates, Inc., } Defendant, } } v. } Docket No. S 313-97 Fc } Town of St. Albans, } Third-Party Defendant. } }

DECISION and ORDER In Docket No.169-9-98 Vtec, Appellant Shantee Point Estates, Inc. appealed from a decision of the Zoning Board of Adjustment (ZBA) of the Town of St. Albans upholding a Notice of Violation for constructing a road without site plan approval. In Docket No.144-8- 99 Vtec, Appellant appealed from the Planning Commi ssion = s July 6, 1999 decision denying site plan approval for the construction of a segment of the road. In Docket No.152-8-99 Vtec, Appellant appealed from the ZBA = s July 15, 1999 decision upholding a Notice of Violation for constructing the road witho ut subdivision approval. In Docket No.10- 1-00 Vtec, Appellant appealed from the Planning Com mission = s January 4, 2000 decision, issued in writing on January 11, 2000, denying site plan approval for the construction of a segment of the road in a revised location. By agre ement of the parties, the four Environmental Court cases were consolidated, and th e parties agreed that the time to appeal for all four cases would run from the last f inal decision in any of them. The related2

Franklin Superior Court case, Docket No. S 313-97 F C, was heard before Judge Wright in conjunction with the Environmental Court cases, but was not formally consolidated with them. Appellant/Defendant Shantee Point Estates, I nc. is represented by Liam M. Murphy, Esq. and Lisa B. Shelkrot, Esq.; Intervenor/Plainti ff Stephen Dana is represented by Brian P. Hehir, Esq.; and the Town was represented throug hout these proceedings by David A. Barra, Esq., and has been represented since Septemb er 18, 2000 by Paul S. Gillies, Esq.

Effect of Prior Rulings: The December 15, 1999 decision and order in S 313-9 7 FC, determined that the disputed segment of road is a private road and not a Class IV Town Highway, and that the boundary between Plaintiff = s and Defendant = s property is the northerly line of Lot 11 and its extension easterly. The Court ordered that a porti on of the so-called connector road which

had been constructed on Plaintiff = s property had to be reconstructed so that it runs on Defendant = s property. As the Environmental Court order of January 17, 200 0 noted, all issues in Docket

No.169-9-98 Vtec were concluded as of the December 15, 1999 decision in S 313-97 FC determining the road to be a private road. The Env ironmental Court summary judgment order of June 1, 1999, had determined that Appellan t was required to apply for and obtain site plan approval for the so-called A connector segment @ of the new road, but that if the old road were determined to be private, and therefore c ould be discontinued, then site plan approval would not be required for the remainder of the new road other than the connector segment. By agreement of the parties, the time to appeal runs from the last final decision

in the four consolidated Environmental Court cases. As the Environmental Court order of January 17, 200 0 also noted, Docket No. 152- 8-99 Vtec was concluded by the Environmental Court summary judgment order of that date, ruling that subdivision approval is required for the new road.

An evidentiary hearing was held on the remaining is sues in all the related Environmental Court and Franklin Superior Court mat ters before Merideth Wright, sitting both as Environmental Judge and specially assigned as Presiding Judge. Both Assistant3

Judges were unavailable for this matter. 4 V.S.A. ' 112. Upon consideration of the evidence and the written memoranda and proposed fin dings, the Court finds and concludes as follows. Factual findings made in the June 1999 decision in Docket No. 169- 9-98 Vtec and in the December 15, 1999 decision in Docket No. S 313-97 FC, are hereby incorporated by reference, and are repeated here on ly as necessary to clarify this remaining decision. Shantee Point is a peninsula of land running roughl y north to south and extending into Lapan Bay of Lake Champlain in the Town of St. Albans. A road runs westerly from Maquam Shore Road to Lake Champlain, and turns sout herly and runs along the shore down the peninsula. There is no dispute that the p ortion of the road from Maquam Shore Road to the Samson-Dana line(also identified as A the turnaround @ ) is a Class III town highway, known as Town Highway 27 or Samson Road. The road continues along the shore as a gravel road , known as Shantee Point Road. In its original configuration, it turned tow ards the southeast on Appellant/Defendant = s property between leased lots 19 and 21, and then turned again

towards the south behind lots 21 and 22 to serve th e remaining leased lots and

Intervenor/Plaintiff = s property at the end of the Point. The first .38 mile of this road extending southerly from the Samson-Dana line to th e boundary between lots 10 and 11 is the portion of the road that was disputed, and whic h the December 15, 1999 decision in Docket No. S 313-97 FC ruled to be a private road. The remainder of the gravel road continuing towards the southwest and south was undi sputed to be a private road. The parties agree that the entire private gravel road i s not constructed to the standards in ' 4 of the Town road ordinance adopted in 1988, in that it s traveled way is less than 28 feet wide and it is unpaved. The width of the right of way i s undefined by the Partition Order, both on

Intervenor/Plaintiff = s property and on Appellant/Defendant = s property. In 1997, Appellant/Defendant constructed an alterna tive road from the front road near the lot 10-11 boundary, extending easterly awa y from the lake at that location, and then turning to the south behind lots 11-19, joinin g with the original road behind lot 21 to serve the remaining leased lots and Intervenor/Plai ntiff = s property at the end of the Point. The portion of this alternative road which connecte d the original road (in front of4

Intervenor/Plaintiff = s lots 1 through 10) with the new road running behi nd lots 11 through 19, was initially constructed on a portion of what the Court later ruled to be

Intervenor/Plaintiff = s property, and was redesigned to be located entire ly on Appellant/Defendant = s property. Site plan approval for the original de sign of this alternative road is the subject of Docket No. 144- 8-99 Vtec; s ite plan approval for the revised design of this alternative road is the subject of Docket N o. 10-1-00 Vtec. For the purposes of this discussion, the road in it s original configuration, extending down the shore in front of lots 11 through 19, and turning towards the southeast between lots 19 and 21, is referred to as A the old road @ or A the front road. @ The road in its new configuration is referred to as A the new road @ or A the back road. @ The segment of road extending from the existing shore road over and beh ind lot 11 to connect with the back segment running behind lots 11 through 19 is referr ed to as A the connector segment @ and is the subject of the two applications for site pla n approval.

Docket No. S 313-97 Fc The remaining questions to be resolved in the Super ior Court case are, first, whether under the Partition Order Appellant/Defenda nt may relocate the road without obtaining Intervenor/Plaintiff Dana = s agreement and, second, whether the A width and quality @ of the new road is at least as good as that of the old road. The language governing relocation of the roadway is found in the partition order of the Franklin Superior Court in Docket No. S 323-88 Fc, issued as of April 9, 1990. It states that nothing in the partition order A shall be interpreted [or] construed to prohibit the

. . . access roadway, as it crosses the . . . parcels par titioned to [now-Appellant/Defendant] from being relocated by [Appellant/Defendant] (subj ect to applicable laws and regulations, if any) as long as its width and quality is at leas t maintained. @ Similar language is found in the preceding section of the Partition Order, givin g reciprocal rights to Intervenor/Plaintiff to relocate the road running over his portion of the p artitioned property. As the language of the Partition Order is not ambig uous, we do not turn to extrinsic

evidence of either the landowners = intent or the Commissioners = intent. The Partition Order gives each party an access easement across the othe r = s land, for pedestrian and vehicular5

traffic over the existing access roadway. Further, it gives each party the right to relocate that access roadway elsewhere on that party = s own land, subject to any applicable laws and regulations (such as the zoning requirements ad dressed in the related Environmental Court cases) conditioned on at least maintaining, i f not improving, the width and quality of that roadway. The right to relocate in each instan ce is given solely to the owner of the underlying land. The fact that the Partition Order gives this right A subject to any applicable laws and regulations @ does not limit or expand the scope of the property rights granted by the Partition Order. If permits are required prior to relocating the easement, then the Partition Order simply does not relieve the owner of having t o comply with those applicable laws and regulations. It does not somehow incorporate those laws and regulations into the Partition Order, and does not bestow jurisdiction on the Supe rior Court to determine what state, local or federal laws or regulations are A applicable. @

Both versions of the new road at least maintained t he quality of the old road as it existed on April 9, 1990. The roadway of the new r oad was designed by an engineer and consists of a depth of from 11 to 18 inches of crus hed stone and gravel, over a layer of

sand in most locations from three to 13 inches thic k, over a layer of geotextile, providing for excellent drainage and stability. The traveled way of the new road is 14 to approximately

17 2 feet wide. The roadway of the old road is located very close to the edge of Lake Champlain, and is prone to flooding and washing out , due to its low elevation and its location. As of 1990 it was not designed by an eng ineer, was composed of shale and beach stone, and was twelve or thirteen feet wide. Since that date, the Town has added crushed stone or gravel to the old road and has gra ded it, which has resulted in some widening of the old road since that date, but the q uality and width of the new road is better than the 1990 quality and width of the old road, an d is at least as good as the present quality and width of the old road. Accordingly, based on the foregoing, in Docket No. S 313-97 Fc it is hereby ORDERED and ADJUDGED that Appellant/Defendants may relocate the old road unilaterally, and that the access roadway as it pas ses across the relocated easement (that is, the A new road @ as redesigned and as shown in Exhibit 34 or 40) ha s not only maintained6

but has improved the quality and the width of the o ld roadway as it existed on April 9, 1990.

Docket Nos. 144-8-99 Vtec and 10-1-00 Vtec Appellant/Defendant applied in June of 1999 for sit e plan approval of the so-called

A connector segment @ of the contested roadway, as shown on Exhibit 33. The Planning

Commission = s decision on that application is on appeal to this court in Docket No. 144-8-99 Vtec. However, the December 1999 decision in the S uperior Court case determined that a portion of that road was constructed on Intervenor/ Plaintiff = s property. Thereafter, Appellant/Defendant revised the design of the conne ctor segment to locate it entirely on Appellant/Defendant = s property, as shown on Exhibit 40. The Planning C ommission = s decision on that application is on appeal to this c ourt in Docket No. 10-1-00 Vtec. Because a portion of the initial design of the conn ector segment located it on

Intervenor/Plaintiff = s property, it does not meet the standards for site plan approval found in ' 303 of the Zoning Regulations. Therefore, in Docke t No. 144-8-99 Vtec it is hereby ORDERED and ADJUDGED that site plan approval is DEN IED for the connector segment in its initial configuration, as shown on Exhibit 3 3. We proceed to review the revised site plan for the connector segment, as shown on Exhibit 40. The application meets the requirements of ' 303(a) for completeness of the application, as to the connector segment of road wh ich is the subject of the application. It shows all existing features, landscaping, screening , ground contours and buildings, and the proposed improvements and features to be removed, o n the site of the connector segment. As no traffic will be generated by the new road orthe connector segment, ' 303(a)(6) is inapplicable. As no new landscaping materials are proposed to be added to the site, ' 303(a)(3) is inapplicable. Nothing in ' 303(a) requires the application for the connector segment to show the complete extent of the rest of the new road or the remainder of the

old front road or the area of the turn where the ol d road and the new road meet. The standards for site plan review in ' 303 are limited to the adequacy of pedestrian and vehicular access and circulation, parking, land scaping, screening, utilization of renewable energy resources, and A other similar site factors. @ Section 303(c) also states

that A provisions of the Selectmen = s Road Standards shall apply during site plan revie w. @7

Section 303 does not allow the Planning Commission, and hence this Court, to examine factors reserved to the ZBA by the Zoning Regulatio ns. Hence the compliance, lack of compliance, or necessity for compliance of this pri vate road segment with ' 400 of the Zoning Regulations is not before the Court in this case. The ordinance adopted in 1988 relating to roads and driveways is found in Town = s Exhibit K. It provides in ' 3 that A the right of way of any road hereafter constructed shall be sixty feet (60'). @ On the other hand, the so-called A A-76" standards for road construction, (including a 28'-wide traveled portion of which 22 feet is to be paved), are only required for

A any road to be dedicated for a public highway. @ ' 4. Section 6 provides a process for the

Selectboard 1 to grant a A variance @ from A the strict adherence to strict standards. @ The purpose statement of the ordinance, in ' 1, explains that as over time A many private roads eventually become or should become public roads, th e purpose of this regulation is to specify the requirements that all roads should meet

. @ Reading the ordinance as a whole, it is evident tha t the reservation of a sixty-footwide right-of-way 2 is required for any road, private or public, const ructed within the Town of St. Albans after July 25, 1988, unless a variance f rom that provision has been obtained. On the other hand, nothing in the ordinance require s that a road or its traveled way actually

be constructed to the A-76 standards unless it is t o be dedicated as a public road. By requiring the reservation of a sixty-foot-wide righ t-of-way, the ordinance thus preserves the potential for newly-constructed roads to be dedicat ed as public roads in the future, without requiring premature construction of unnecessarily w ide or unnecessarily paved private

roads. This interpretation also makes particular sense in the present instance, in which it would be entirely unnecessary (and perhaps somewhat ludicrous) to require a twenty-eight foot wide segment of road, with a 22-foot width of pavement, to be constructed in the

1 It is unclear how this provision relates to the v ariance provisions in the zoning regulations, ' 305(e).

2 We note that nothing in the ordinance requires th e traveled portion of the actual roadway to be centered on the 60-foot-wide r ight-of-way.8

middle of a private gravel road at most twenty feet wide. Turning to the remaining factors for site plan appr oval, no parking is proposed to take place on the connector segment, therefore the adequacy of parking is inapplicable. Similarly, the connector segment will not affect th e utilization of renewable energy resources, and that factor is therefore inapplicabl e. Neither the Town nor Intervenor/Plaintiff filed a c ross-appeal of the January 2000 Planning Commission decision. Without having filed a cross-appeal, they cannot now raise the adequacy of the proposed landscaping and screen ing as an issue. Village of

Woodstock v. Bahramian , 160 Vt. 417 (1993). However, from the evidence p resented at trial, and shown on Exhibit 40, it appears that the revised connector segment is adequately landscaped and screened from Intervenor/Plaintiff = s property by existing hardwood trees and an existing cedar hedge. Other than the hedge as it stands within the revised location of the roadway, only a short portion of the hedge i s proposed to be removed near the shore road, to provide adequate sight distance for vehicl es exiting the connector segment onto the shore road. The remaining trees shown to be re moved, also for sight distance purposes, are to the south of the connector segment , and did not landscape or screen it from any neighboring property. As to the adequacy of the connector segment for ped estrian and vehicular access and circulation, the connector segment is adequate for access and circulation of passenger vehicles and delivery trucks; indeed, that function is what the roadway is designed to do. No new traffic will be created by the construction of the relocated road or connector segment; it serves exactly the same lots served by the former road, and no new construction or development is proposed for those l ots. As a private, rural, gravel road serving a limited number of lots, with a private speed limit of 15 miles per hour, it is also adequate forthe pedestrian circulation that is anticipated. In fact, it avoids the former pedestr ian-vehicular conflict on the old front road experienced by pedestrians, especially children, se eking access to the Lake from lots 11 through 19. Finally, the revised design of the con nector segment is adequate for emergency vehicles = access to the properties from Lot 11 to the south, as it provides an adequate turning radius both for the turn to the ea st off the shore road and for the turn9

back to the south onto the new back road. It also provides an improved access for emergency vehicles compared to the former configura tion because the old front road became impassable due to flooding from time to time , especially in the spring of the year, while the new connector segment and new back road a re engineered to avoid that problem. Assuming for the purposes of this discussion that t he presence of Class III wetlands beyond the area of the proposed site improvements i s an A other similar site factor @ within the jurisdiction of ' 303(b), this issue also is one not raised by Appell ant/Defendant. Without having filed a cross-appeal, Intervenor/Pla intiff cannot now raise this issue. Village

of Woodstock v. Bahramian , 160 Vt. 417 (1993). However, from the evidence presented at trial, we can conclude that no wetlands are adve rsely affected by the construction of the connector segment = s roadway in the revised design, nor by the reserva tion of a 60-footwide right of way for the connector segment. The C ourt only has before it the site plan approval for the connector segment, not for the rem ainder of the new back roadway. In any event, the construction of the entire new road remains subject to all state and federal requirements, including those relating to wetlands protection. In Docket No. 10-1-00 Vtec it is hereby ORDERED and ADJUDGED that site plan approval is GRANTED for the new road in its revised configuration, with the connector segment located entirely on Appellant/Defendant = s property, conditioned on Appellant/Defendant = s acquisition or designation of a right-of-way tha t is sixty feet in width for the new road. Nothing, however, requires the a ctual construction of the new road to Town Road standards, until and unless the road is p roposed to be dedicated as a public road, or until and unless such improvement is requi red as a condition to future permits for the development of additional lots to be served by that road.

Dated at Barre, Vermont, this 21 st day of September, 2000.

______________________________________10 Merideth Wright Environmental Judge and Presiding Judge, Franklin Superior Court, Specially Assigned