                                     STATE OF VERMONT

                                  ENVIRONMENTAL COURT

               Appeal of Levine                 }    Docket No. 212-9-02 Vtec
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               Decision and Order on Appellants= Motion for Summary Judgment

Appellants Bruce and Ellen Levine appealed from a decision of the Development Review Board
(DRB) of the Town of St. Albans, denying them a variance from the provisions of ' 400 of the
Zoning Bylaws. Appellants are represented by John C. Candon, Esq.; the Town is represented by
David A. Barra, Esq. Appellants have moved for summary judgment.

The following facts are undisputed unless otherwise noted. We note at the outset that no survey
or other diagram has been provided by the parties to assist the Court in determining the relative
locations of the parcels and access road at issue in the present appeal.

Appellants acquired property in 1976 consisting of approximately 18 acres of land and a house,
with access. Material facts are in dispute or at least have not been provided to the Court as to
whether the access road referred to by the parties ran along a boundary of or through or into the
18-acre parcel. Material facts are in dispute or at least have not been provided to the Court as to
whether Appellants owned the land under the access road, with the Town or another party
holding the easement or right-of-way over it, or whether Appellants only acquired a right-of-way
or easement over the access road.

In 1981 Appellants conveyed the house and 7.1 acres of land to one Silk, retaining an
undeveloped parcel of approximately 11.9 acres. They conveyed to Silk A the right to use the
access way in common@ with Appellants. This deed has not been provided so that material facts
are in dispute or at least have not been provided to the Court as to whether the A right to use the
access road@ was an easement or right-of-way over land owned by another, to be held in common
by Appellants and Silk, or whether the transaction resulted in one party owning the underlying
land to the right-of-way with the other acquiring an easement or right-of-way to travel over it.

Later in 1981 Appellants conveyed .6 acres to be added to the land already owned by another
neighbor, Palmer. It is not clear to the Court whether the Town= s argument that the hardship was
created by Appellants is based on this conveyance. This conveyance was subject to a so-called
Deferral of Permit. The Court is aware that these Deferrals of Permit are typically issued by the
state and restrict the property from being developed unless a further permit has been acquired;
however, the restrictions in the Deferral of Permit have not been provided to the Court. This
neighbor apparently has vehicular access to the combined land from some other access, but
material facts are in dispute or at least have not been provided to the Court as to the location of
that access, and also as to whether the conveyed .6-acre strip adjoins the right-of-way at issue in
the present appeal.

The Zoning Bylaws imposing the current requirements of ' ' 400 and 401 were adopted on
December 27, 1983 and took effect on January 17, 1984. Section 400 requires a 60-foot width of
right-of-way for access to parcels lacking access by a Class I, II or III public road, except that
rights of way not more than 20 feet in width may be approved under ' 401 for access to not more
than two single-family dwellings.

In 1988 the Selectboard appears to have discussed and declined to discontinue the access road at
issue in the present case. It is classified as a Class IV road with a presumed right-of-way width of
50 feet.

At some time in 2000 Appellants requested of unidentified > neighbors= a 60-foot right of way for
access to an unidentified location, which was refused. Material facts are in dispute or at least
have not been provided to the Court as to whether they requested or were denied the additional
ten-foot-wide strip of right-of-way adjacent to the existing 50-foot-wide Class IV town road,
from either neighbor on either side of that road.

At some time in 2000 Appellants apparently submitted a request to the Planning Commission to
approve their right-of-way for access to their parcel, presumably under ' 401. However, they
withdrew the request before it was acted upon. Their 2002 request to the DRB for a variance
from the requirements of ' 400 was denied and resulted in the present appeal.

Appellants first argue that they are entitled to access along the fifty-foot-wide right-of-way
because the creation of their lot with such access predated the requirement for a sixty-foot-wide
right-of-way in ' 400. They may be entitled to treatment of their lot as a preexisting single-
family building lot, nonconforming only as to the access width requirements, under Article VI of
the Zoning Bylaws. However, material facts are in dispute as to the configuration of the lots vis-
à-vis the access road, from which the Court could make this determination. In addition,
Appellants do not appear to have applied yet for any zoning permit by which this issue would
then come before the Court.

Appellants next argue that they qualify for consideration under ' 401 rather than ' 400, arguing
that theirs would be the second residential property, as access to the Palmers property is by some
other route. They may be entitled to approval of their application under ' 401 rather than ' 400.
However, material facts are in dispute as to the configuration of the lots vis-à-vis the access road,
from which the Court could make this determination. Moreover, as Appellants withdrew their
application for approval under ' 401, strictly speaking this issue is not before the Court in this
proceeding.

Without Appellants having applied for approval of their access under ' 401; and without their
having applied for a permit for a house on their lot with a pre-existing non-complying access
road; and without evidence that they have requested and been denied an additional ten-foot-wide
easement adjacent to the Town Road by either neighbor, it would be impossible for the Court to
find that the second of the five variance criteria had been met. Material facts are also in dispute
as to the fifth of the variance criteria. The Court cannot even tell from the materials so far filed
by the parties whether the variance that is being requested is a variance of the 50-foot-wide
requirement of ' 400, or of the 2-residence requirement of ' 401, or is a variance being requested
under Article VI of the Zoning Bylaws. The requested variance cannot therefore be ruled on by
summary judgment.

Appellants final argument is that ' 400 of the Town= s Zoning Bylaws is invalid, under the
Vermont Supreme Court= s decision in Appeal of Richards, 13 Vt. L. Week 265 (September 20,
2002). Unlike the ordinance in the Richards case, which provided a definition of > preexisting
small lot= more favorable to the landowner than that provided in 24 V.S.A.' 4406 (1), sections
400 and 401 of the Zoning Bylaws, when read together, do not conflict with the state statute 24
V.S.A.' 4406(2). As pointed out by the Supreme Court in Blundon v. Town of Stamford, 154 Vt.
227, 230-32 (1990), section 4406(2) simply precludes development which does not meet its
minimum standard of access by a right-of-way of at least 20 feet in width. It does not provide
landowners who have a 20-foot-wide right-of-way with any entitlement to develop. Rather, it
allows towns to set higher standards for access to all or to particular types of development. In the
present case, the Town of St. Albans ordinance sets the standard at the state minimum for access
to one or two single-family houses, and requires a higher standard for access to larger
developments or more intense land uses. This ordinance is within the Town= s authority to do so.

Accordingly, based on the foregoing, it is hereby ORDERED and ADJUDGED that Appellants=
Motion for Summary Judgment is DENIED. We will hold a conference with the parties on
Tuesday, April 22, 2003, at 11:45 a.m., with Attorney Barra on the telephone and Attorney
Candon in person as he has another Environmental Court hearing that day. Judge Wright will
place the call to Attorney Barra. Please be prepared to discuss whether a hearing is necessary on
the variance application or whether the parties wish to discuss whether Appellants should also
apply for access under ' 401 or for a zoning permit, so that all the necessary issues can be before
the Court in a single proceeding. Attorney Candon may bring a site plan or survey to that
conference, if Attorney Barra agrees that the Court may see it for the purposes of aiding
discussion at the conference.

Done at Barre, Vermont, this 15th day of April, 2003.




___________________
Merideth Wright
Environmental Judge



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