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 Commission=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 without subdivision approval. In Docket No.10-

1-00 Vtec, Appellant appealed from the Planning Commission=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 agreement of the parties, the four 

Environmental Court cases were consolidated, and the parties agreed that the time to 

appeal for all four cases would run from the last final decision in any of them. The related 
2 

Franklin Superior Court case, Docket No. S 313-97 FC, was heard before Judge Wright in 

conjunction with the Environmental Court cases, but was not formally consolidated with 

them. Appellant/Defendant Shantee Point Estates, Inc. is represented by Liam M. Murphy, 

Esq. and Lisa B. Shelkrot, Esq.; Intervenor/Plaintiff Stephen Dana is represented by Brian 

P. Hehir, Esq.; and the Town was represented throughout these proceedings by David A. 

Barra, Esq., and has been represented since September 18, 2000 by Paul S. Gillies, Esq. 

Effect of Prior Rulings:

The December 15, 1999 decision and order in S 313-97 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 portion 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, 2000 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 Environmental Court summary judgment 

order of June 1, 1999, had determined that Appellant was required to apply for and obtain 

site plan approval for the so-called Aconnector segment@ of the new road, but that if the old 

road were determined to be private, and therefore could 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, 2000 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 issues in all the related 

Environmental Court and Franklin Superior Court matters before Merideth Wright, sitting 

both as Environmental Judge and specially assigned as Presiding Judge. Both Assistant 
3 

Judges were unavailable for this matter. 4 V.S.A. '112. Upon consideration of the 

evidence and the written memoranda and proposed findings, 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 only as necessary to clarify this 

remaining decision. 

Shantee Point is a peninsula of land running roughly 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 southerly and runs along the shore 

down the peninsula. There is no dispute that the portion of the road from Maquam Shore 

Road to the Samson-Dana line(also identified as Athe 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 towards 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 the 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 the boundary between lots 10 and 11 is 

the portion of the road that was disputed, and which 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 undisputed to be a private road. The 

parties agree that the entire private gravel road is not constructed to the standards in '4 of 

the Town road ordinance adopted in 1988, in that its traveled way is less than 28 feet wide 

and it is unpaved. The width of the right of way is undefined by the Partition Order, both on 

Intervenor/Plaintiff=s property and on Appellant/Defendant=s property. 

In 1997, Appellant/Defendant constructed an alternative road from the front road 

near the lot 10-11 boundary, extending easterly away from the lake at that location, and 

then turning to the south behind lots 11-19, joining with the original road behind lot 21 to 

serve the remaining leased lots and Intervenor/Plaintiff=s property at the end of the Point. 

The portion of this alternative road which connected the original road (in front of 
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Intervenor/Plaintiff=s lots 1 through 10) with the new road running behind 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 entirely on 

Appellant/Defendant=s property. Site plan approval for the original design of this alternative 

road is the subject of Docket No. 144- 8-99 Vtec; site plan approval for the revised design 

of this alternative road is the subject of Docket No. 10-1-00 Vtec. 

For the purposes of this discussion, the road in its 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 Athe old road@ or Athe front road.@ The road in its new 

configuration is referred to as Athe new road@ or Athe back road.@ The segment of road 

extending from the existing shore road over and behind lot 11 to connect with the back 

segment running behind lots 11 through 19 is referred to as Athe connector segment@ and 

is the subject of the two applications for site plan approval. 

Docket No. S 313-97 Fc

The remaining questions to be resolved in the Superior Court case are, first, 

whether under the Partition Order Appellant/Defendant may relocate the road without 

obtaining Intervenor/Plaintiff Dana=s agreement and, second, whether the Awidth 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 Ashall be interpreted [or] construed to prohibit the . . . 

access roadway, as it crosses the . . . parcels partitioned to [now-Appellant/Defendant] 

from being relocated by [Appellant/Defendant] (subject to applicable laws and regulations, 

if any) as long as its width and quality is at least maintained.@ Similar language is found in 

the preceding section of the Partition Order, giving reciprocal rights to Intervenor/Plaintiff to 

relocate the road running over his portion of the partitioned property. 

As the language of the Partition Order is not ambiguous, 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 other=s land, for pedestrian and vehicular 
5 

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 addressed in the related Environmental 

Court cases) conditioned on at least maintaining, if not improving, the width and quality of 

that roadway. The right to relocate in each instance is given solely to the owner of the 

underlying land. 

The fact that the Partition Order gives this right Asubject 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 to 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 Superior Court to determine what state, 

local or federal laws or regulations are Aapplicable.@

Both versions of the new road at least maintained the quality of the old road as it 

existed on April 9, 1990. The roadway of the new road was designed by an engineer and 

consists of a depth of from 11 to 18 inches of crushed stone and gravel, over a layer of 

sand in most locations from three to 13 inches thick, over a layer of geotextile, providing for 

excellent drainage and stability. The traveled way of the new road is 14 to approximately 

172 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 engineer, 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 graded it, which has resulted in some 

widening of the old road since that date, but the quality and width of the new road is better 

than the 1990 quality and width of the old road, and 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 passes across the relocated easement (that 

is, the Anew road@ as redesigned and as shown in Exhibit 34 or 40) has not only maintained 
6 

but has improved the quality and the width of the old 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 site plan approval of the so-called 

Aconnector 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 Superior Court case determined that a 

portion of that road was constructed on Intervenor/Plaintiff=s property. Thereafter, 

Appellant/Defendant revised the design of the connector segment to locate it entirely on 

Appellant/Defendant=s property, as shown on Exhibit 40. The Planning Commission=s 

decision on that application is on appeal to this court in Docket No. 10-1-00 Vtec. 

Because a portion of the initial design of the connector 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 Docket No. 144-8-99 Vtec it is hereby 

ORDERED and ADJUDGED that site plan approval is DENIED for the connector segment 

in its initial configuration, as shown on Exhibit 33. 

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 which 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, on the site of the connector segment. 

 As no traffic will be generated by the new road or the 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 old 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, landscaping, screening, utilization of 

renewable energy resources, and Aother similar site factors.@ Section 303(c) also states 

that Aprovisions of the Selectmen=s Road Standards shall apply during site plan review.@ 
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Section 303 does not allow the Planning Commission, and hence this Court, to examine 

factors reserved to the ZBA by the Zoning Regulations. Hence the compliance, lack of 

compliance, or necessity for compliance of this private 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 Athe right of way of any road hereafter constructed shall be 

sixty feet (60').@ On the other hand, the so-called AA-76" standards for road construction, 

(including a 28'-wide traveled portion of which 22 feet is to be paved), are only required for 

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

Selectboard1 to grant a Avariance@ from Athe strict adherence to strict standards.@ The 

purpose statement of the ordinance, in '1, explains that as over time Amany private roads 

eventually become or should become public roads, the purpose of this regulation is to 

specify the requirements that all roads should meet.@

Reading the ordinance as a whole, it is evident that the reservation of a sixty-footwide right-of-way2

 is required for any road, private or public, constructed within the Town of 

St. Albans after July 25, 1988, unless a variance from that provision has been obtained. 

On the other hand, nothing in the ordinance requires that a road or its traveled way actually 

be constructed to the A-76 standards unless it is to be dedicated as a public road. By 

requiring the reservation of a sixty-foot-wide right-of-way, the ordinance thus preserves the 

potential for newly-constructed roads to be dedicated as public roads in the future, without 

requiring premature construction of unnecessarily wide 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 variance provisions in the zoning 

regulations, '305(e). 

2

 We note that nothing in the ordinance requires the traveled portion of the 

actual roadway to be centered on the 60-foot-wide right-of-way. 
8 

middle of a private gravel road at most twenty feet wide. 

Turning to the remaining factors for site plan approval, 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 the utilization of renewable energy 

resources, and that factor is therefore inapplicable. 

Neither the Town nor Intervenor/Plaintiff filed a cross-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 screening as an issue. Village of 

Woodstock v. Bahramian, 160 Vt. 417 (1993). However, from the evidence presented 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 is proposed to be removed near the shore 

road, to provide adequate sight distance for vehicles exiting the connector segment onto 

the shore road. The remaining trees shown to be removed, 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 pedestrian 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 lots. 

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 for the pedestrian circulation that is 

anticipated. In fact, it avoids the former pedestrian-vehicular conflict on the old front road 

experienced by pedestrians, especially children, seeking access to the Lake from lots 11 

through 19. Finally, the revised design of the connector 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 east off the shore road and for the turn 
9 

back to the south onto the new back road. It also provides an improved access for 

emergency vehicles compared to the former configuration 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 are engineered to avoid that 

problem. 

Assuming for the purposes of this discussion that the presence of Class III wetlands 

beyond the area of the proposed site improvements is an Aother similar site factor@ within 

the jurisdiction of '303(b), this issue also is one not raised by Appellant/Defendant. 

Without having filed a cross-appeal, Intervenor/Plaintiff 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 adversely affected by the construction of the 

connector segment=s roadway in the revised design, nor by the reservation of a 60-footwide right of way for the connector segment. The Court only has before it the site plan 

approval for the connector segment, not for the remainder 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 that is sixty feet in width 

for the new road. Nothing, however, requires the actual construction of the new road to 

Town Road standards, until and unless the road is proposed to be dedicated as a public 

road, or until and unless such improvement is required as a condition to future permits for 

the development of additional lots to be served by that road. 

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

______________________________________ 
10 

Merideth Wright 

Environmental Judge and 

Presiding Judge, Franklin Superior Court, Specially Assigned