                                  STATE OF VERMONT

                                ENVIRONMENTAL COURT


                                           }
In re: Yates Subdivision Application       }       Docket No. 149-6-06 Vtec
        (Appeal of Stutler)                }
                                           }

                 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 two-
lot 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


                                               1
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 cul-
de-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

                                              2
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 Appellee-
Applicants= 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



                                                3
                        1
standards in Article 8 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.@
       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
       1
           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.




                                              4
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.

                                              5
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

                                              6
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

                                            7
Environmental Judge




        8
