STATE OF VERMONT

ENVIRONMENTAL COURT

Appeal of Stephen Dana }

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Docket No. 66-4-03 Vtec

Decision and Order on Cross-Motions for Partial Summary Judgment

Appellant Stephen Dana appealed from a decision of the Development Review Board (DRB) of 

the Town of St. Albans, approving Appellee-Applicant Shantee Point Estates, Inc.= s application 

for approval of a relocated access road under the subdivision regulations. Appellant is 

represented by Brian P. Hehir, Esq.; Appellee-Applicant is represented by Lisa B. Shelkrot, Esq.; 

and the Town of St. Albans is represented by David A. Barra, Esq. The parties have moved for 

summary judgment and specifically requested the Court to address the substance of Questions 5 

and 8 of the Statement of Questions.

As discussed in prior orders, Appellee-Applicant Shantee Point Estates, Inc. owns a 25.35-acre 

parcel of land on Shantee Point in St. Albans adjoining Appellant= s land. Appellee-Applicant= s 

property contains pre-existing leased lots, over which a pre-existing road ran close to the shore of 

Lake Champlain, for access to those pre-existing leased lots. Appellee-Applicant requests 

approval of a relocated roadway farther from the lake within its property.

Prior litigation established, among other things, that approval under the subdivision regulations 

was required for the right-of-way for this roadway, as it was the extension of a road to serve more 

than two lots. See ' 200.2 of the Subdivision Regulations.

Nothing in that litigation required that Appellee-Applicant subdivide the right-of-way of the 

roadway as a second lot. However, in the present case Appellee-Applicant does propose to 

divide its property into two (and only two) lots: the 1.9-acre L-shaped lot containing the road rightof-way and the remaining 23.5 acres of Appellee-Applicant= s land. In the September 8, 2003 

order in the present case, we ruled that Appellee-Applicant= s present proposal is a two-lot 

subdivision, and the fact that the remaining land contains a number of pre-existing leased lots 

does not make the present proposal more than a two lot-subdivision.

Section 200 provides two possible triggers for the requirement to obtain approval under the 

Subdivision Regulations: under ' 200.1 if property is being divided into two or more lots (including 

leased lots), and under ' 200.2 if a road is being constructed, extended or relocated to serve two 

or more lots (including leased lots). The present proposal now requires approval under both 

prongs of ' 200, as it is itself a two lot subdivision, and it is also the relocation of a road to serve 

more than two lots.

If the requirement for review under the Subdivision Regulations is only triggered by ' 200.1, the 

treatment of the application under the Regulations is reasonably clear. If the proposed subdivision

divides the property into three or more lots, it must be reviewed under Article II, which in turn 

refers (in ' 211(3)) to the Article III development standards (the planning standards of ' 220 and 

the design standards of ' 221). If the proposed subdivision divides the property into only two lots, 

Article II by its title and terms does not apply and the application is instead to be reviewed by the 

Zoning Administrator under the much more limited requirements of ' 203.
If the requirement for review under the Subdivision Regulations is triggered by ' 200.2, the 

treatment of an application to relocate a road to serve pre-existing lots is not so specifically 

addressed in any section of the remainder of the Regulations. While it would be rational for the 

Town to have specified that the road-related subsections of ' ' 220 and 221 are applicable in such 

a case, the Subdivision Regulations do not do so explicitly.1 However, ' 200.2 makes the 

Subdivision Regulations applicable generally to review of a ' 200.2 road extension or relocation, 

and ' 201 allows the DRB (and hence this Court on appeal) both to administer the regulations and 

to waive any inapplicable sections. Therefore, the standards in ' ' 220 and 221 do apply to this 

project. The Court has examined all the subsections of ' ' 220 and 221. The only applicable 

subsections are the first phrase of ' 220(4): that the proposal A shall not cause unreasonable 

congestion or unsafe conditions on the affected public or private roads;@ and all of ' 221(2). 

Accordingly, pursuant to ' 201(2), the Court hereby waives all the other subsections of ' ' 220 and 

221 as inappropriate and no requisite in the interest of the public health, safety and general 

welfare.

Accordingly, based on the foregoing, it is hereby ORDERED and ADJUDGED that both parties=

motions for summary judgment on the substance of Questions 5 and 8 of the Statement of 

Questions, are denied in part and granted in part, as discussed above. Because it is a two-lot 

subdivision, ' 203 of the Subdivision Regulations does apply to the proposed two-lot subdivision 

for the roadway right-of-way, and ' ' 210-212 do not apply. However, because ' 200.2 makes the 

regulations applicable generally to review of a ' 200.2 road extension or relocation, and because '

201 allows the DRB (and hence this Court on appeal) to administer the regulations and to waive 

any inapplicable sections, the standards in ' ' 220 and 221 do apply, and the Court has waived all 

but ' ' 220(4), first phrase, and 221(2).

It appears to the Court that the only issues remaining for a hearing on the merits are 

the project= s compliance with ' ' 220(4), first phrase, and 221(2). We will schedule a telephone 

conference to set these issues for hearing. Please be prepared to discuss dates in December, 

January and February, and whether the parties are willing for the hearing to be held in Burlington 

rather than in St. Albans, to give us a greater flexibility in scheduling dates.

Done at Barre, Vermont, this 7th day of November, 2003.

___________________

Merideth Wright 

Environmental Judge

Footnotes

1. The Town may wish to consider whether to amend its Subdivision Regulations to explicitly 

address projects triggered only by §200.2, or at least to provide a procedure for their 

consideration by the DRB analogous to those provided for §200.1 projects by §§203 and 210-

212.