                                 STATE OF VERMONT

                                          }
                                          }       Vermont Environmental Court
In re: Appeals of                         }
 Shantee Point Estates, Inc.                      }     Docket Nos. 169-9-98 Vtec,
                                          }       144-8-99 Vtec, 152-8-99 Vtec; and
                                          }       10-1-00 Vtec
                                          }
                                          }

                                   }
Stephen Dana,                      }
Plaintiff,                         }
                                   }      Franklin County, SS
      v.                           }      Franklin Superior Court
                                   }
Shantee Point Estates, Inc.,              }
Defendant,                         }
                                   }
     v.                            }      Docket No. S 313-97 Fc
                                   }
Town of St. Albans,                }
Third-Party Defendant.             }
                                   }

                                 DECISION and ORDER
       In Docket No.169-9-98 Vtec, Appellant Shantee Point Estates, Inc. appealed from a
decision of the Zoning Board of Adjustment (ZBA) of the Town of St. Albans upholding a
Notice of Violation for constructing a road without site plan approval. In Docket No.144-8-
99 Vtec, Appellant appealed from the Planning Commission=s July 6, 1999 decision
denying site plan approval for the construction of a segment of the road. In Docket
No.152-8-99 Vtec, Appellant appealed from the ZBA=s July 15, 1999 decision upholding a
Notice of Violation for constructing the road without subdivision approval. In Docket No.10-
1-00 Vtec, Appellant appealed from the Planning Commission=s January 4, 2000 decision,
issued in writing on January 11, 2000, denying site plan approval for the construction of a
segment of the road in a       revised location. By agreement of the parties, the four
Environmental Court cases were consolidated, and the parties agreed that the time to
appeal for all four cases would run from the last final decision in any of them. The related

                                              1
Franklin Superior Court case, Docket No. S 313-97 FC, was heard before Judge Wright in
conjunction with the Environmental Court cases, but was not formally consolidated with
them. Appellant/Defendant Shantee Point Estates, Inc. is represented by Liam M. Murphy,
Esq. and Lisa B. Shelkrot, Esq.; Intervenor/Plaintiff Stephen Dana is represented by Brian
P. Hehir, Esq.; and the Town was represented throughout these proceedings by David A.
Barra, Esq., and has been represented since September 18, 2000 by Paul S. Gillies, Esq.


Effect of Prior Rulings:
       The December 15, 1999 decision and order in S 313-97 FC, determined that the
disputed segment of road is a private road and not a Class IV Town Highway, and that the
boundary between Plaintiff=s and Defendant=s property is the northerly line of Lot 11 and its
extension easterly. The Court ordered that a portion of the so-called connector road which
had been constructed on Plaintiff=s property had to be reconstructed so that it runs on
Defendant=s property.
       As the Environmental Court order of January 17, 2000 noted, all issues in Docket
No.169-9-98 Vtec were concluded as of the December 15, 1999 decision in S 313-97 FC
determining the road to be a private road. The Environmental Court summary judgment
order of June 1, 1999, had determined that Appellant was required to apply for and obtain
site plan approval for the so-called Aconnector segment@ of the new road, but that if the old
road were determined to be private, and therefore could be discontinued, then site plan
approval would not be required for the remainder of the new road other than the connector
segment. By agreement of the parties, the time to appeal runs from the last final decision
in the four consolidated Environmental Court cases.
       As the Environmental Court order of January 17, 2000 also noted, Docket No. 152-
8-99 Vtec was concluded by the Environmental Court summary judgment order of that
date, ruling that subdivision approval is required for the new road.


       An evidentiary hearing was held on the remaining issues in all the related
Environmental Court and Franklin Superior Court matters before Merideth Wright, sitting
both as Environmental Judge and specially assigned as Presiding Judge. Both Assistant

                                             2
Judges were unavailable for this matter. 4 V.S.A. '112. Upon consideration of the
evidence and the written memoranda and proposed findings, the Court finds and
concludes as follows. Factual findings made in the June 1999 decision in Docket No. 169-
9-98 Vtec and in the December 15, 1999 decision in Docket No. S 313-97 FC, are hereby
incorporated by reference, and are repeated here only as necessary to clarify this
remaining decision.
        Shantee Point is a peninsula of land running roughly north to south and extending
into Lapan Bay of Lake Champlain in the Town of St. Albans. A road runs westerly from
Maquam Shore Road to Lake Champlain, and turns southerly and runs along the shore
down the peninsula. There is no dispute that the portion of the road from Maquam Shore
Road to the Samson-Dana line(also identified as Athe turnaround@) is a Class III town
highway, known as Town Highway 27 or Samson Road.
        The road continues along the shore as a gravel road, known as Shantee Point
Road.       In   its   original   configuration,       it   turned   towards   the   southeast   on
Appellant/Defendant=s property between leased lots 19 and 21, and then turned again
towards the south behind lots 21 and 22 to serve the remaining leased lots and
Intervenor/Plaintiff=s property at the end of the Point. The first .38 mile of this road
extending southerly from the Samson-Dana line to the boundary between lots 10 and 11 is
the portion of the road that was disputed, and which the December 15, 1999 decision in
Docket No. S 313-97 FC ruled to be a private road. The remainder of the gravel road
continuing towards the southwest and south was undisputed to be a private road. The
parties agree that the entire private gravel road is not constructed to the standards in '4 of
the Town road ordinance adopted in 1988, in that its traveled way is less than 28 feet wide
and it is unpaved. The width of the right of way is undefined by the Partition Order, both on
Intervenor/Plaintiff=s property and on Appellant/Defendant=s property.
        In 1997, Appellant/Defendant constructed an alternative road from the front road
near the lot 10-11 boundary, extending easterly away from the lake at that location, and
then turning to the south behind lots 11-19, joining with the original road behind lot 21 to
serve the remaining leased lots and Intervenor/Plaintiff=s property at the end of the Point.
The portion of this alternative road which connected the original road (in front of

                                                   3
Intervenor/Plaintiff=s lots 1 through 10) with the new road running behind lots 11 through
19, was initially constructed on a portion of what the Court later ruled to be
Intervenor/Plaintiff=s property, and was redesigned to be located entirely on
Appellant/Defendant=s property. Site plan approval for the original design of this alternative
road is the subject of Docket No. 144- 8-99 Vtec; site plan approval for the revised design
of this alternative road is the subject of Docket No. 10-1-00 Vtec.
       For the purposes of this discussion, the road in its original configuration, extending
down the shore in front of lots 11 through 19, and turning towards the southeast between
lots 19 and 21, is referred to as Athe old road@ or Athe front road.@ The road in its new
configuration is referred to as Athe new road@ or Athe back road.@ The segment of road
extending from the existing shore road over and behind lot 11 to connect with the back
segment running behind lots 11 through 19 is referred to as Athe connector segment@ and
is the subject of the two applications for site plan approval.


Docket No. S 313-97 Fc
       The remaining questions to be resolved in the Superior Court case are, first,
whether under the Partition Order Appellant/Defendant may relocate the road without
obtaining Intervenor/Plaintiff Dana=s agreement and, second, whether the Awidth and
quality@ of the new road is at least as good as that of the old road.
       The language governing relocation of the roadway is found in the partition order of
the Franklin Superior Court in Docket No. S 323-88 Fc, issued as of April 9, 1990. It states
that nothing in the partition order Ashall be interpreted [or] construed to prohibit the . . .
access roadway, as it crosses the . . . parcels partitioned to [now-Appellant/Defendant]
from being relocated by [Appellant/Defendant] (subject to applicable laws and regulations,
if any) as long as its width and quality is at least maintained.@ Similar language is found in
the preceding section of the Partition Order, giving reciprocal rights to Intervenor/Plaintiff to
relocate the road running over his portion of the partitioned property.
       As the language of the Partition Order is not ambiguous, we do not turn to extrinsic
evidence of either the landowners= intent or the Commissioners= intent. The Partition Order
gives each party an access easement across the other=s land, for pedestrian and vehicular

                                               4
traffic over the existing access roadway. Further, it gives each party the right to relocate
that access roadway elsewhere on that party=s own land, subject to any applicable laws
and regulations (such as the zoning requirements addressed in the related Environmental
Court cases) conditioned on at least maintaining, if not improving, the width and quality of
that roadway. The right to relocate in each instance is given solely to the owner of the
underlying land.
       The fact that the Partition Order gives this right Asubject to any applicable laws and
regulations@ does not limit or expand the scope of the property rights granted by the
Partition Order. If permits are required prior to relocating the easement, then the Partition
Order simply does not relieve the owner of having to comply with those applicable laws and
regulations. It does not somehow incorporate those laws and regulations into the Partition
Order, and does not bestow jurisdiction on the Superior Court to determine what state,
local or federal laws or regulations are Aapplicable.@
       Both versions of the new road at least maintained the quality of the old road as it
existed on April 9, 1990. The roadway of the new road was designed by an engineer and
consists of a depth of from 11 to 18 inches of crushed stone and gravel, over a layer of
sand in most locations from three to 13 inches thick, over a layer of geotextile, providing for
excellent drainage and stability. The traveled way of the new road is 14 to approximately
172 feet wide. The roadway of the old road is located very close to the edge of Lake
Champlain, and is prone to flooding and washing out, due to its low elevation and its
location. As of 1990 it was not designed by an engineer, was composed of shale and
beach stone, and was twelve or thirteen feet wide. Since that date, the Town has added
crushed stone or gravel to the old road and has graded it, which has resulted in some
widening of the old road since that date, but the quality and width of the new road is better
than the 1990 quality and width of the old road, and is at least as good as the present
quality and width of the old road.
       Accordingly, based on the foregoing, in Docket No. S 313-97 Fc it is hereby
ORDERED and ADJUDGED that Appellant/Defendants may relocate the old road
unilaterally, and that the access roadway as it passes across the relocated easement (that
is, the Anew road@ as redesigned and as shown in Exhibit 34 or 40) has not only maintained

                                              5
but has improved the quality and the width of the old roadway as it existed on April 9, 1990.


Docket Nos. 144-8-99 Vtec and 10-1-00 Vtec
       Appellant/Defendant applied in June of 1999 for site plan approval of the so-called
Aconnector segment@ of the contested roadway, as shown on Exhibit 33. The Planning
Commission=s decision on that application is on appeal to this court in Docket No. 144-8-99
Vtec. However, the December 1999 decision in the Superior Court case determined that a
portion of that road was constructed on Intervenor/Plaintiff=s property.          Thereafter,
Appellant/Defendant revised the design of the connector segment to locate it entirely on
Appellant/Defendant=s property, as shown on Exhibit 40. The Planning Commission=s
decision on that application is on appeal to this court in Docket No. 10-1-00 Vtec.
       Because a portion of the initial design of the connector segment located it on
Intervenor/Plaintiff=s property, it does not meet the standards for site plan approval found in
'303 of the Zoning Regulations. Therefore, in Docket No. 144-8-99 Vtec it is hereby
ORDERED and ADJUDGED that site plan approval is DENIED for the connector segment
in its initial configuration, as shown on Exhibit 33.
       We proceed to review the revised site plan for the connector segment, as shown on
Exhibit 40. The application meets the requirements of '303(a) for completeness of the
application, as to the connector segment of road which is the subject of the application. It
shows all existing features, landscaping, screening, ground contours and buildings, and the
proposed improvements and features to be removed, on the site of the connector segment.
As no traffic will be generated by the new road or the connector segment, '303(a)(6) is
inapplicable. As no new landscaping materials are proposed to be added to the site,
'303(a)(3) is inapplicable. Nothing in '303(a) requires the application for the connector
segment to show the complete extent of the rest of the new road or the remainder of the
old front road or the area of the turn where the old road and the new road meet.
       The standards for site plan review in '303 are limited to the adequacy of pedestrian
and vehicular access and circulation, parking, landscaping, screening, utilization of
renewable energy resources, and Aother similar site factors.@ Section 303(c) also states
that Aprovisions of the Selectmen=s Road Standards shall apply during site plan review.@

                                              6
Section 303 does not allow the Planning Commission, and hence this Court, to examine
factors reserved to the ZBA by the Zoning Regulations. Hence the compliance, lack of
compliance, or necessity for compliance of this private road segment with '400 of the
Zoning Regulations is not before the Court in this case.
         The ordinance adopted in 1988 relating to roads and driveways is found in Town=s
Exhibit K. It provides in '3 that Athe right of way of any road hereafter constructed shall be
sixty feet (60').@ On the other hand, the so-called AA-76" standards for road construction,
(including a 28'-wide traveled portion of which 22 feet is to be paved), are only required for
Aany road to be dedicated for a public highway.@ '4. Section 6 provides a process for the
Selectboard1 to grant a Avariance@ from Athe strict adherence to strict standards.@ The
purpose statement of the ordinance, in '1, explains that as over time Amany private roads
eventually become or should become public roads, the purpose of this regulation is to
specify the requirements that all roads should meet.@
         Reading the ordinance as a whole, it is evident that the reservation of a sixty-foot-
wide right-of-way2 is required for any road, private or public, constructed within the Town of
St. Albans after July 25, 1988, unless a variance from that provision has been obtained.
On the other hand, nothing in the ordinance requires that a road or its traveled way actually
be constructed to the A-76 standards unless it is to be dedicated as a public road. By
requiring the reservation of a sixty-foot-wide right-of-way, the ordinance thus preserves the
potential for newly-constructed roads to be dedicated as public roads in the future, without
requiring premature construction of unnecessarily wide or unnecessarily paved private
roads.
         This interpretation also makes particular sense in the present instance, in which it
would be entirely unnecessary (and perhaps somewhat ludicrous) to require a twenty-eight
foot wide segment of road, with a 22-foot width of pavement, to be constructed in the


         1
         It is unclear how this provision relates to the variance provisions in the zoning
regulations, '305(e).
         2
         We note that nothing in the ordinance requires the traveled portion of the
actual roadway to be centered on the 60-foot-wide right-of-way.


                                               7
middle of a private gravel road at most twenty feet wide.
       Turning to the remaining factors for site plan approval, no parking is proposed to
take place on the connector segment, therefore the adequacy of parking is inapplicable.
Similarly, the connector segment will not affect the utilization of renewable energy
resources, and that factor is therefore inapplicable.
       Neither the Town nor Intervenor/Plaintiff filed a cross-appeal of the January 2000
Planning Commission decision. Without having filed a cross-appeal, they cannot now raise
the adequacy of the proposed landscaping and screening as an issue.                Village of
Woodstock v. Bahramian, 160 Vt. 417 (1993). However, from the evidence presented at
trial, and shown on Exhibit 40, it appears that the revised connector segment is adequately
landscaped and screened from Intervenor/Plaintiff=s property by existing hardwood trees
and an existing cedar hedge. Other than the hedge as it stands within the revised location
of the roadway, only a short portion of the hedge is proposed to be removed near the shore
road, to provide adequate sight distance for vehicles exiting the connector segment onto
the shore road. The remaining trees shown to be removed, also for sight distance
purposes, are to the south of the connector segment, and did not landscape or screen it
from any neighboring property.
       As to the adequacy of the connector segment for pedestrian and vehicular access
and circulation, the connector segment is adequate for access and circulation of passenger
vehicles and delivery trucks; indeed, that function is what the roadway is designed to do.
No new traffic will be created by the construction of the relocated road or connector
segment; it serves exactly the same lots served by          the former road, and no new
construction or development is proposed for those lots.
       As a private, rural, gravel road serving a limited number of lots, with a private speed
limit of 15 miles per hour, it is also adequate for the pedestrian circulation that is
anticipated. In fact, it avoids the former pedestrian-vehicular conflict on the old front road
experienced by pedestrians, especially children, seeking access to the Lake from lots 11
through 19.    Finally, the revised design of the connector segment is adequate for
emergency vehicles= access to the properties from Lot 11 to the south, as it provides an
adequate turning radius both for the turn to the east off the shore road and for the turn

                                              8
back to the south onto the new back road. It also provides an improved access for
emergency vehicles compared to the former configuration because the old front road
became impassable due to flooding from time to time, especially in the spring of the year,
while the new connector segment and new back road are engineered to avoid that
problem.
       Assuming for the purposes of this discussion that the presence of Class III wetlands
beyond the area of the proposed site improvements is an Aother similar site factor@ within
the jurisdiction of '303(b), this issue also is one not raised by Appellant/Defendant.
Without having filed a cross-appeal, Intervenor/Plaintiff cannot now raise this issue. Village
of Woodstock v. Bahramian, 160 Vt. 417 (1993). However, from the evidence presented
at trial, we can conclude that no wetlands are adversely affected by the construction of the
connector segment=s roadway in the revised design, nor by the reservation of a 60-foot-
wide right of way for the connector segment. The Court only has before it the site plan
approval for the connector segment, not for the remainder of the new back roadway. In
any event, the construction of the entire new road remains subject to all state and federal
requirements, including those relating to wetlands protection.
       In Docket No. 10-1-00 Vtec it is hereby ORDERED and ADJUDGED that site plan
approval is GRANTED for the new road in its revised configuration, with the connector
segment    located    entirely   on   Appellant/Defendant=s     property,   conditioned    on
Appellant/Defendant=s acquisition or designation of a right-of-way that is sixty feet in width
for the new road. Nothing, however, requires the actual construction of the new road to
Town Road standards, until and unless the road is proposed to be dedicated as a public
road, or until and unless such improvement is required as a condition to future permits for
the development of additional lots to be served by that road.


       Dated at Barre, Vermont, this 21st day of September, 2000.




                            ______________________________________


                                              9
Merideth Wright
Environmental Judge and
Presiding Judge, Franklin Superior Court, Specially Assigned




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