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 STATE OF VERMONT 

 ENVIRONMENTAL COURT 

} 

In re: Yates Subdivision Application } Docket No. 149-6-06 Vtec 

(Appeal of Stutler) } 

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 Decision and Order on Motion for Summary Judgment

Appellant Joyce Stutler appealed from a decision of the Development Review Board 

(DRB) of the City of St. Albans issued on May 25, 2006, approving an application for a twolot subdivision of Appellee-Applicants Randolph and Cathy Yates= property at 255 North 

Main Street. Appellant is represented by Timothy G. Hurlbut, Esq.; Appellee-Applicants are 

represented by Brian P. Hehir, Esq.; and the City of St. Albans is represented by Robert E. 

Farrar, Esq. Appellee-Applicants have moved for summary judgment. The following facts 

are undisputed unless otherwise noted. 

Appellee-Applicants= property is located at 255 North Main Street (Route 7), and 

extends easterly to the end of Stanley Court, a dead-end street maintained by the City. 

The parcel is approximately 34,112 square feet, or .78 acres in total area. It contains an 

existing four-unit multi-family dwelling fronting on North Main Street, with two curb cuts on 

North Main Street on either side of the building, giving access by driveways to a parking 

area in the rear of the building. The portion of the property containing the multi-family 

building is located in the B2 Transitional Business zoning district. The remainder of the 

property, extending easterly is undeveloped and is located in the Low Density Residential 

zoning district. The property is served by municipal water supply and sewage disposal 

services. 

Appellee-Applicants propose to divide the lot into two resulting lots, with Lot 1 having 

an area of 21,080 square feet and fronting on North Main Street, and Lot 2 having an area 

of 13,031 square feet and fronting on the enlarged area at the end of Stanley Court, so that 
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the rear yards of both lots would adjoin at their common boundary. 

Lot 1 is proposed to consist of the existing four-unit multi-family building, its 

driveways and parking lot, located entirely within the B2 Transitional Business zoning 

district, except for an approximately 6' 3"-wide strip at its easterly end located in the Low 

Density Residential zoning district. A new single-family residence and attached garage is 

proposed to be constructed on Lot 2, which is located entirely within the Low Density 

Residential District. Access to Lot 2 is proposed to be by a short driveway easterly onto 

land shown on the site plan as being owned by the City, that forms an enlarged area or culde-sac at the end of Stanley Court. Appellant=s property adjoins the northerly side of the 

enlarged area at the end of Stanley Court; Lot 2 adjoins its westerly side. Appellant=s 

southerly property line adjoins the northerly property line of Lot 2 by approximately 15.76 

feet at the northeast corner of Lot 2. The site plan reflects that site work is proposed for 

Lot 2 to raise it to an elevation at the house site of 505 feet above sea level, approximately 

ten feet above the elevation at the rear line of Lot 1, and approximately fifteen feet above 

the elevation at the middle of the four-unit building on Lot 1. 

In this appeal, the Environmental Court must apply the substantive standards that 

were applicable before the DRB, and considers each issue in the Statement of Questions 

de novo. That is, on the issues raised by Appellant, this Court sits in place of the DRB to 

rule on Appellee-Applicants= application anew, as if there had been no decision rendered 

by the DRB. 10 V.S.A. 8504(h); V.R.E.C.P. 5(g). On summary judgment, this Court is 

required to view the facts in the light most favorable to the non-moving party, which in this 

case is Appellant. Montgomery v. Devoid, 2006 VT 127, &28 (party opposing summary 

judgment is entitled to Athe benefit of all reasonable doubts and inferences@). 

Question 1 - Whether a two-lot subdivision at 255 Main Street, a registered historic site, 

should be permitted

We will address this question as it pertains to the issue of the historic building 

together with Questions 3 and 4 relating to historic buildings, and will address the issue 

regarding the required frontage on Stanley Court in connection with Questions 6 and 8. 

To the extent that this question calls for the Court to address whether the proposed 
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subdivision meets the other requirements of the Land Development Regulations applicable 

to subdivisions, Appellee-Applicants have moved for summary judgment that it does. With 

regard to the issues raised by that motion, Appellant does not dispute that AppelleeApplicants= application contains the information required by ' 902(B)(1); that it is properly 

classified as a Aminor@ subdivision pursuant to ' 202 because it does not contain more than 

four lots; that it meets the minimum lot size requirements of 9,500 square feet in the Low 

Density Residential District (Lot 2) and 5,000 square feet in the B2 Transitional Business 

Subdistrict (Lot 1); and that the new building on Lot 2 will be served by municipal water and 

sewer. 

Therefore, summary judgment is GRANTED to Appellee-Applicants as to the portion 

of Question 1 related to the proposed subdivision=s compliance with those listed 

Regulations. 

Questions 1, 3, and 4 - related to the effect of the proposed subdivision on the existing 

building as a National Historic Site or as listed on the National Historic Register

Appellee-Applicants have moved for summary judgment or to dismiss Appellant=s 

Questions 1, 3, and 4, which relate to the historic character of the existing building on 

Appellee-Applicants= property. Question 1 raises the issue of whether this subdivision 

should be approved to the extent that it involves a registered, national historic site or 

building. Appellant=s Question 3 raises the issue of whether Appellee-Applicants= property 

contains a National Historic Site and if so, whether the project will have an adverse effect 

on the Ascenic or natural beauty of the area, aesthetics, or natural sites.@ Question 4 asks 

whether proper consideration of the impacts of the Adirect and indirect results@ of the 

subdivision Ashould be taken@ pursuant to '106 of the National Historic Preservation Act, 

16 U.S.C. '470 et seq.

As a state court with jurisdiction only over matters arising under the laws specified in 

4 V.S.A. '1001(b), this Court has no jurisdiction to determine compliance with a federal law 

unless that federal law is referenced in a state law or City ordinance over which the Court 

does have jurisdiction. In the Land Development Regulations, only the Design Review 
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standards in Article 81 implicate buildings listed on the National Register of Historic 

Buildings and Places. ''801(E), 802. 

Accordingly, Appellee-Applicants= motion for summary judgment must be GRANTED 

as to Question 4, which is hereby DISMISSED. This Court lacks jurisdiction to determine 

whether or not anything should be done Apursuant to ' 106 of the National Historic 

Preservation Act.@ 

 

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 The copy of the Land Development Regulations provided to the Court in 

connection with these motions is missing occasional pages, including pages 83-84 and 87-

88 in Article 8 pertaining to Design Review. 

With respect to Questions 1 and 3, material facts are in dispute as to whether the 

existing building at 255 North Main Street is listed on the National Register of Historic 

Buildings and Places, although Appellee-Applicants do not dispute Appellant=s assertion 

that it is on the National Register as an historic Underground Railroad Site, the AHathaway 

Tavern.@ Assuming that it is, under '901(A) the Court must determine whether the 

proposed subdivision complies with the Land Development Regulations, which include the 

Design Review provisions made applicable to this subdivision as a Adevelopment[] adjacent 

to buildings listed on the National Register of Historic Buildings and Places,@ ''801(E), 

802, as well as to developments in Design Review districts such as the one in which Lot 1 

is located. See Regulations, District Maps, ''1302 & 1303. 

Material facts are in dispute, or at least have not been provided to the Court, 

regarding the effect, if any, of the development proposed for Lot 2 on the existing building 

on Lot 1. Although the site plan reflects the relative elevations of the ground surface of the 

two properties, no information has been provided regarding any existing vegetation or any 

proposed landscaping or screening between Lot 2 and Lot 1 from which the Court could 

determine whether the proposed subdivision meets the requirements of Article 8 regarding 

preserving Athe character of the historic buildings@ and encouraging the Acompatibility of 

new development with the historic architectural qualities.@ '801(E). Moreover, not all the 

pages of Article 8 have been provided, so that the Court cannot determine whether any 
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other criteria within that Article are made applicable to this property. 

On the other hand, Appellant has failed to raise an issue of fact for trial relating the 

Ascenic or natural beauty of the area, aesthetics, or natural sites@ to the historic building 

issues otherwise raised by Question 3. Accordingly, Appellee-Applicants= motion for 

summary judgment must be GRANTED as to that aspect of Question 3, which is hereby 

DISMISSED. The remainder of Questions 1 and 3 remain an issue for trial, with respect to 

whether the existing building is listed, and the effect of the proposals on Lot 2, if any, on 

the standards applicable to such development in Article 8, Design Review. 

Question 1 as to frontage on Stanley Court, Question 2 as to whether the project Aunduly 

burdens@ the City, and Question 7 as to the City=s property interest in any portion of the 

proposed subdivision

Appellant agrees at page 2 of her memorandum that the City does not assert 

property rights over any portion of the proposed subdivision; the City=s attorney advised the 

Court and the parties that the City asserts no such property claim. Appellant has not come 

forth with Aan affidavit or other evidence that raises a dispute@ as to the City=s lack of 

property rights in the subdivision property. Miller v. Merchants Bank, 138 Vt. 235, 237 (Vt. 

1980) (emphasis added). Rather, from Appellant=s memorandum, it appears that Appellant 

is making the argument that the City now uses the easterly area of the project property to 

deposit plowed snow, suggesting that the area would no longer be available for that 

purpose if Lot 2 is developed. Accordingly, Appellee-Applicants= motion for summary 

judgment must be GRANTED as to Question 7. 

Moreover, even if the City has used a portion of the proposed subdivision property 

to place plowed snow, such use does not affect whether Lot 2 has ninety-three feet of 

frontage on Stanley Court in satisfaction of ' 401(b). Accordingly, summary judgment is 

GRANTED to Appellee-Applicants as to the portion of Question 1 related to the proposed 

subdivision=s compliance with ' 401(b). 

Appellant has not stated with any specificity any other way in which the proposed 

subdivision is alleged to Aunduly burden[]@ the City, accordingly, Question 2 is hereby 

DISMISSED for failure to raise an issue of fact or law for trial. 
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Questions 5, 6 and 8 as to Appellant=s potential property claims to any portion of Lot 2

Appellee-Applicants have moved for summary judgment on Questions 6 and 8 of 

Appellant=s Statement of Questions, and have moved to dismiss Question 5 for failure to 

state a claim with particularity. All three of these issues appear to relate to Appellant=s 

assertion that she may have obtained an interest in a portion of the proposed subdivision 

property through adverse possession, or, in the alternative, that she has acquired a 

prescriptive easement over a portion of the property. 

Although Appellant claims in her opposition memorandum to have commissioned a 

survey to determine Arecord ownership between Appellant and Appellees,@ she has not 

come forth with Aan affidavit or other evidence that raises a dispute@ for trial as to the fact 

of ownership. Miller, 138 Vt. at 237 (emphasis added). 

More importantly, the Environmental Court does not have jurisdiction to determine 

property ownership claims. If Appellee-Applicants= site plan is based on a field survey as 

required by '902(B)(1)(a) of the Land Development Regulations, such survey would 

constitute the required evidence of title to the property proposed for subdivision. If 

Appellant were to raise an actual dispute as to title, the parties must resolve it in superior 

court. See, e.g., Clermont Terrace Site Plan and Zoning Permit Approvals (Appeal of 

Curtis), Docket Nos. 46-2-05 Vtec & 72-4-05 Vtec, slip op. at 6 (Mar. 22, 2006). 

Appellee-Applicants must show at trial that the site plan is based on a field survey 

as required by '902(B)(1)(a). If they make that showing, judgment as a matter of law will 

be granted on Questions 5, 6, and 8, unless Appellant can bring forward evidence to the 

contrary. All that this Court can determine as to property ownership, however, is whether 

Appellee-Applicants have met the standards for approval of a subdivision. Any disputed 

claims to property ownership must be filed in superior court. 

Question 9 as to whether testimony of the landowners on Stanley Court should be given 

Acontrolling weight@ regarding the potential for traffic congestion

This question does not state an issue of fact or of law for trial, it merely asks an 

evidentiary question which would be for the trier of fact to determine after hearing the 
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witnesses, and is therefore hereby DISMISSED. In any event, no issue as to the potential 

effect of the subdivision on traffic congestion on Stanley Court has been raised in the 

Statement of Questions; the only issue relating to Stanley Court is Question 10 as to 

parking and snow removal. 

Question 10 as to whether there will be adequate room for snow removal and parking with 

the addition of a curb cut on the Stanley Court cul-de-sac

Appellee-Applicants ask for Question 10 to be dismissed as the DRB found there 

would be no adverse impacts on snow removal or parking due to the creation of Lot 2 and 

its curb cut. Because this appeal is not on the record, and no affidavits or evidence was 

provided on summary judgment to support Appellee-Applicants= motion on this question, 

Question 10 remains for trial. 

Accordingly, based on the foregoing, and as discussed above, it is hereby 

ORDERED and ADJUDGED that Appellee-Applicants= Motion for Summary Judgment is 

GRANTED with respect to Questions 2, 4, 7, and 9; is GRANTED in PART as to Questions 

1 and 3; is DENIED as to Question 10; and is reserved to be considered at trial as to 

Question 5, 6 and 8. 

Although a trial date was scheduled in this matter for July 3, 2007, it appears from 

the issues decided by this motion that a much shorter amount of time may be sufficient for 

the trial, and that it may be able to be scheduled instead in late May. At the telephone 

conference (see enclosed notice) please be prepared to discuss dates in the last week of 

May and the first week of June, and whether a half-day of trial will be sufficient for the 

remaining issues. Please be prepared to file any trial memoranda and requests for 

findings at the outset of the trial. 

Done at Berlin, Vermont, this 23rd day of March, 2007. 

_________________________________________________ 

Merideth Wright 
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Environmental Judge