                                 STATE OF VERMONT

                             ENVIRONMENTAL COURT



                                                       }
In re: Barsher Right-of-Way Waiver Application  1
                                                       }      Docket No. 96-5-08 Vtec
        (Appeal of Barsher)                            }
                                                       }

                Decision and Order on Motion for Summary Judgment

      Appellants Louis and Lorraine Barsher appealed from a decision of the

Development Review Board (DRB) of the Town of St. Albans, denying Appellants’

application for approval under § 4012 of a proposed right-of-way to access a proposed

2-lot subdivision. Appellants are represented by Jesse D. Bugbee, Esq.; the Town is

represented by David A. Barra, Esq.

      Appellants have moved for summary judgment.3              The following facts are

undisputed unless otherwise noted.

1
  The caption of this appeal has been changed from the caption assigned at the time the
Notice of Appeal was filed. The original caption was “In re Barsher 2-Lot Subdivision
Application;” however, the application before the DRB, and hence before the Court in
this appeal, was instead for a waiver under § 401 for a proposed right-of-way to access
the proposed 2-lot subdivision. The application for approval of the subdivision is not
before the Court in this appeal.
2 All citations refer to sections of the Town of St. Albans Zoning Bylaws and Subdivision

Regulations (the 2006 Ordinance) unless otherwise noted; only the 2006 version of the
ordinance has been provided to the Court in connection with the present motions.
3 The sole question in the Statement of Questions is posed in terms of whether the DRB

erred in various ways. However, the Town of St. Albans has not adopted the
procedures necessary for appeals from its decisions to be on the record. Compare 24
V.S.A. §§ 4471(b), 4472(a) (third sentence), and V.R.E.C.P. 5(h) (explaining on-the-record
appeals), with 24 V.S.A. § 4472(a) (second sentence), and V.R.E.C.P. 5(g) (explaining de
novo appeals). For the purposes of the present motion, this decision will treat that
question as if it had been stated in de novo terms. As the appeal is resolved on the basis
of this motion, we will not require Appellant to file a restated Statement of Questions.
                                            1
       Appellants own an approximately 3.02-acre property containing two existing

seasonal residences at the addresses of 100 and 102 East Solomon Road4 in the

Lakeshore zoning district.5 The residences on the lot were constructed in 1976 and 1977,

prior to the adoption of a zoning ordinance prohibiting more than one primary

structure on a single lot.6 Appellants’ lot is nonconforming with § 314(4) of the current

zoning ordinance, as it contains two primary dwellings on a single lot. See §§ 314(4)

(“Any project with more than one primary structure on a lot . . . must meet the

requirements of a PUD.”); 320 (Nonconforming Uses).                    As a pre-existing,

nonconforming lot, it is entitled to continue in its present configuration.7 See 24 V.S.A.

§ 4303(13); 2006 Ordinance, § 320.

       East Solomon Road is a 20-foot-wide private right-of-way (private road) in

existence since at least 1966, prior to the first adoption of the Town of St. Albans zoning

and subdivision ordinance. No information has been provided in connection with these

motions to allow the Court to determine whether East Solomon Road has ever been

approved as a right-of-way under § 401, or in connection with the approval of a

subdivision served by the road, see § 221(2). In addition to the two seasonal dwellings

located on Appellants’ lot, East Solomon Road serves at least six other lots, each with a

dwelling constructed prior to the adoption of zoning. Between approximately 2003 and


4
  East Solomon Road also is or was formerly known as “Gellis Road.” Statement of
Stipulated Facts, at ¶ 2. For the purposes of clarity, this decision will refer to it only as
East Solomon Road.
5 The DRB minutes from April 10, 2008 indicate that the property is also in the Flood

Hazard overlay district. As no issues have been raised as to the project’s compliance
with the Flood Hazard overlay district’s requirements, that district’s requirements will
not be further discussed. See § 315(1).
6
  The parties do not dispute that the residences were built prior to the prohibition of
more than one primary structure on a single lot.
7 While the 2006 Ordinance regulates nonconforming uses and structures, it does not

address how nonconforming lots are to be addressed, contrary to the requirement of 24
V.S.A. § 4412(7).
                                             2
2008, all six landowners have received approvals to replace those dwellings, without

any requirement to obtain approval under § 401 for the use of East Solomon Road.

      East Solomon Road provides access to Samson Road, a town highway.

Appellants’ lot is separated from East Solomon Road by a narrow strip of land owned

by a neighboring property owner identified on the Site Plan as “Schwartz.” Appellants’

property has access to East Solomon Road by a driveway which crosses the Schwartz

property. When Appellants purchased the lot at issue in 1984, the deed included the

right to use East Solomon Road to access the residences,8 but the right-of-way across the

Schwartz property has not been shown on a survey connected with that 1984 deed. The

existing driveway from East Solomon Road to Appellants’ property is a single shared

driveway across the Schwartz property and onto Appellants’ property; it splits into two

driveways quite close to the two dwellings on Appellants’ property.

      The 2006 Ordinance does not provide definitions defining or distinguishing

among a public road, a private road, or a private right-of-way. The present case does

not implicate any issues regarding “public” roads, which are those taken over and

maintained by the Town.9      However, while neither the ordinance nor the statute

provides definitions distinguishing a “private road” from a private “right-of-way,” the

2006 Ordinance uses both of the terms “private road” and “right-of-way,” even though

the statute only uses the term “right-of-way” (or “easement”) in this context and does

not use the term “private road.”




8
   The DRB minutes refer to the proposed driveway as not being a deeded right-of-way;
however, the deed language refers to the entire right-of-way as “together with the
twenty foot (20’) ‘Right of Way’ to be used in common with others leading from the
Town Road, to the above lot . . . .”
9  See 19 V.S.A. § 1(21) (defining “Town highways” as those maintained by the Town);
e.g., Okemo Mountain, Inc. v. Town of Ludlow Zoning Bd. of Adjustment, 164 Vt. 447,
454 (1995).
                                           3
       The statute, 24 V.S.A. § 4412(3),10 allows municipalities to permit land

development on lots that do not have frontage on a public road,

       provided that access through a permanent easement or right-of-way has
       been approved in accordance with standards and process specified in the
       bylaws. This approval shall be pursuant to subdivision bylaws . . . or . . .
       through a process and pursuant to standards defined in bylaws adopted
       for the purpose of assuring safe and adequate access. . . .
Section 4412(3) also requires that “any permanent easement or right-of-way providing

access to such a road or waters shall be at least 20 feet in width.” All of the provisions

of § 4412 apply in every municipality, “[n]otwithstanding any existing bylaw.”

       On the one hand, § 400(1) of the 2006 Ordinance prohibits land development

“unless it has an adequate means of access[,] defined as either: (A.) [f]rontage . . . on a

maintained public road, private road or by means of a permanent easement at least 60

feet wide to a maintained public road . . . .” On the other hand, § 400(1) refers to an

exception to be found in § 401, the first sentence of which provides that:

       No land development is permitted on lots that do not have frontage on a
       public road, unless a permanent right-of-way, of at least twenty feet in
       width and approved by the Development Review Board, provides access
       to not more than two single-family dwellings.
       The Court is required to apply zoning ordinances as they are written. E.g., In re

Appeal of Clark, No. 2-1-01 Vtec, slip op. at 4 (Vt. Envtl. Ct. Jan 4, 2002) (Wright, J.); In

re Appeals of Waite, Nos. 139-6-00 Vtec, 183-8-00 Vtec, slip op. at 1 (Vt. Envtl. Ct. May

23, 2001) (Wright, J.); In re Appeals of Deso, Nos. 131-8-97 Vtec, 156-9-97 Vtec, slip op. at

3 (Vt. Envtl. Ct. Dec. 28, 1998) (Wright, J.). As written, § 401 prohibits private roads or

rights-of-way that provide access to more than two single-family dwellings.

       This may be the entirely inadvertent result of the triple or quadruple negatives in

the quoted sentence of § 401, as other sections in the 2006 Ordinance appear to allow


1024 V.S.A. § 4412(3) is the recodification of 24 V.S.A. § 4406(2), which was repealed in
2004.
                                             4
whole subdivisions to be served by private roads. As written § 400(1) allows land

development on lots with frontage only on a private road; §§ 212(3) and 220(4) of the

subdivision section of the 2006 Ordinance also contemplate private subdivision roads,

although they must be designed to town standards, § 221(2). Significantly, nothing in

the subdivision standards restricts subdivisions using private roads to having only one

or two lots. See generally §§ 210–213, 220–221.



      East Solomon Road is an existing private road or right-of-way, at least twenty

feet in width, which provides access to at least eight single-family dwellings. East

Solomon Road may be nonconforming with 24 V.S.A. § 4412(3) if it has not been

approved as a right-of-way that accesses lots without frontage on a public road (or

public waters). East Solomon Road may be nonconforming with § 401 of the 2006

Ordinance, as a right-of-way serving lots without frontage on a public road but

providing access to more than two single-family dwellings. East Solomon Road may

also be nonconforming with § 400(1)(A) of the 2006 Ordinance, if it has a right-of-way

less than sixty feet in width, if private subdivision roads are required to have a sixty-

foot right-of-way. See § 221(2).

      Appellants have applied to subdivide the property into two lots of

approximately 1.51 acres each, so that each lot contains one of the existing dwellings.

The subdivision of the property constitutes “land development” as defined in Part V,

“Definitions,” of the 2006 Ordinance. No changes are proposed to the structures on the

lots, or regarding their access to East Solomon Road via the right-of-way crossing the

Schwartz property, or regarding their access by the private road or right-of-way of East

Solomon Road to the public road.




                                            5
        Although the proposed configuration of the two proposed lots is unusual,11 it is

designed so that the proposed subdivision meets all of the dimensional requirements

for the Lakeshore zoning district. Indeed, by separating the two primary structures

onto two dimensionally-conforming lots, the proposal eliminates the lot nonconformity.

Under the 2006 Ordinance, two-lot subdivisions that meet all the requirements of the

district require only a permit from the Zoning Administrator, as opposed to the more

extensive approval from the DRB that is required for subdivisions of three lots or more.

Compare § 203 (Two-Lot Subdivisions), with §§ 210–213 (Three or More Lot

Subdivisions).

        The Town argues that the proposal increases the nonconformity of East Solomon

Road, which is a private road serving at least eight dwellings, and that the proposed

subdivision therefore requires a variance. See § 320(2) (allowing expansion or alteration

of a nonconforming use “upon approval of a variance”). If East Solomon Road is

nonconforming at all, as a private road serving more than two single-family dwellings,

or for any other reason, it is a pre-existing nonconformity entitled to remain, but not to

be expanded.     See § 320.   However, the proposed subdivision does not alter the

nonconformity of East Solomon Road, as the test is not the number of lots accessed by

the private road, but instead is the number of single-family dwellings accessed by the

private road. That number is the same both before and after the proposed subdivision;

the proposal therefore does not alter or increase the nonconformity of East Solomon

Road.

        All that needs to be approved under § 401, therefore, is the right-of-way

providing access from East Solomon Road to the two existing dwellings on Appellants’

11
  Lot 1, containing the modular home, is proposed as a U-shaped lot running along the
southerly, westerly, and northerly boundaries of the combined lot; Lot 2, containing the
mobile home, is a roughly square lot surrounded on its southerly, westerly and
northerly sides by Lot 1. No issues as to the configuration of the 2-lot subdivision are
before the Court in the present appeal.
                                            6
property.   It appears that the proposed driveway meets the criteria in the 2006

Ordinance12 for approval under § 401, if it is or will be a deeded right-of-way, as it is

proposed to be twenty feet wide and to serve only two single-family dwellings.



       Accordingly, based on the foregoing, it is hereby ORDERED and ADJUDGED

that Appellants’ Motion for Summary Judgment is GRANTED. This decision concludes

the issues raised by the Statement of Questions, and hence concludes this appeal, unless

the parties wish the Court to proceed with the merits of the § 401 application only for

the right-of-way over the Schwartz property.          A telephone conference has been

scheduled (see enclosed notice) to determine whether Appellants wish to amend the

Statement of Questions to have the Court proceed with the merits of the § 401

application, or whether, in light of footnote 12, the parties prefer to conclude this matter

in this Court and leave it to the DRB to rule on the § 401 application for the right-of-way

from East Solomon Road to the project property. It would in any event be for the

Zoning Administrator thereafter to rule on an application for the subdivision’s permit

under § 203 (Two-Lot Subdivisions); that application is not before the Court in this

appeal. If the parties agree that this appeal is concluded, they may file a proposed

judgment order prior to the conference date, so that the conference may be canceled.

       Done at Berlin, Vermont, this 14th day of April, 2009.


                            _________________________________________________
                                  Merideth Wright
                                  Environmental Judge


12 This decision does not address whether § 401 meets the requirements of 24 V.S.A.
§ 4412(3) that the bylaws provide standards and a process for the DRB to follow in
making this determination, either in the subdivision bylaws or elsewhere in the zoning
or other municipal bylaws. See, e.g., In re Appeal of JAM Golf, LLC, 2008 VT 110, ¶¶
13–14.


                                             7
