Yates Subdivision Application ( 2007 )

STATE OF VERMONT
ENVIRONMENTAL COURT
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In re: Yates Subdivision Application } Docket No. 149-6-06 Vtec
(Appeal of Stutler) }
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Decision and Order
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 minor 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.
After Questions 2, 4, 7 , and 9, and portions of Questions 1 and 3 were resolved by
summary judgment, an evidentiary hearing was held in this matter before Merideth
Wright, Environmental Judge. A site visit was taken prior to the hearing with the parties
and their representatives. At trial Appellee-Applicants showed that the site plan is based
on a field survey as required by §902(B)(1)(a); accordingly, judgment as a matter of law is
hereby granted on Questions 5, 6, and 8, as provided in the summary judgment order at
p. 7.
As explained in the summary judgment decision, the Environmental Court is
required by statute to apply the substantive standards that were applicable before the DRB,
10 V.S.A. 8504(h), and to consider each issue in the Statement of Questions de novo.
V.R.E.C.P. 5(g). All that was before the DRB was the issue of approval of the subdivision
itself, not any application for a building permit for a specific house location or any curb cut
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for a specific driveway location; therefore that is all that is before the Court in this de novo
appeal.
The trial on the merits proceeded on Question 10, and on the remaining portions of
Questions 1 and 3, as to the historic building and as to snow removal and parking on
Stanley Court. The parties were given the opportunity to submit written memoranda1 and
requests for findings. Upon consideration of the evidence as illustrated by the site visit,
and of the written memoranda and requests for findings filed by the parties, the Court
finds and concludes as follows. To the extent any proposed findings of fact and
conclusions of law are incorporated in this decision, they are granted; otherwise, they are
denied.
As more fully described in the summary judgment decision, Appellee-Applicants’
.78-acre parcel is located with frontage on Route 7 at the address of 255 North Main Street
(Route 7); it extends easterly to and has frontage on the end of Stanley Court. Stanley
Court is a quiet dead-end street maintained by the City and having an irregular cul-de-sac
at its end.
The property contains an existing historic building now in use as a four-unit multi-
family dwelling, fronting on North Main Street. The property has two curb cuts on North
Main Street, one on each side of the building, giving access by driveways to a parking area
in the rear of the existing 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
lines extending easterly from Main Street along the southerly side of the property.
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The parties were also given the opportunity to submit responsive memoranda but did
not do so.
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Appellee-Applicants propose to divide the property 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 the rear yards of both proposed lots will adjoin at their common boundary.
Lot 1 is proposed to consist of the existing four-unit multi-family building, its
driveways and parking lot, and is 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. No site work, excavation or filling is proposed
for Lot 1.
The building on Lot 1 is listed on the National Register of Historic Places as
“Hathaway’s Tavern,” also known as the “Hathaway-Hoyt House.” It was built originally
as a tavern in 1793, serving the principal route along the east side of Lake Champlain to
Canada, and was converted to a private dwelling by 1805. The building is reputed to have
been an Underground Railroad station where fugitives were hidden prior to the Civil War,
and to have access to a tunnel or tunnels used as hiding places during that period. Even
if any such tunnel exists, no evidence was presented to suggest that any tunnel extends
onto the area proposed as Lot 2.
Lot 2 is located entirely within the Low Density Residential District and is proposed
to become a building lot for a new single-family residence and attached garage, although
no design for such buildings and no application for a building permit or for a curb cut
approval has yet been submitted to the appropriate city department. The site plan shows
the proposed lot lines with the “approximate dimensions and suggested locations of
buildings” as required by § 902(C)(2)(p) of the Land Development Regulations of the City
of St. Albans (Regulations); however, the labeling of those suggested locations does not
reflect that regulation provision. That is, the site plan shows the footprint of a suggested
location for a house labeled as “proposed single family residence” rather than as
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“suggested location;” the site plan shows the footprint of a suggested location for an
apparent attached garage house without a label; and the site plan shows the footprint of
a suggested location for a driveway labeled as “proposed drive” although no curb cut
permit has been applied for in that location.
Although the proposed site plan shows site work proposed to raise Lot 2 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, at trial the project engineer clarified that such site work
was not now proposed and would depend upon the design of the house not yet proposed
for the site. For example, if a house were to be designed on several levels or with a walk-
out basement towards the west, the site work as shown on the plan would not be required.
Access to Lot 2 is proposed to be from the end of Stanley Court, but the shaded area
labeled on the site plan as “proposed driveway” has not been proposed as the actual
location of a curb cut for access to Lot 2.
Appellant’s property adjoins the northerly side of the enlarged area or cul-de-sac
at the westerly end of Stanley Court. 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 placement of the paved area of Stanley Court within the City’s right-of-way is
shown as a shaded area on the site plan. The Stanley Court cul-de-sac is unusual in that
the cul-de-sac area is rectangular rather than rounded in shape, and in that the Stanley
Court street enters the cul-de-sac along the southerly edge of the cul-de-sac rather than
centered on the cul-de-sac area. That is, a large proportion of the rectangular cul-de-sac
area extends northerly of the traveled lanes of the street entering it, towards Appellant’s
property, and none of the cul-de-sac area extends southerly of the traveled lanes of the
street entering it.
The effect of these two peculiarities of the Stanley Court cul-de-sac has been to cause
problems with snow removal in the winter, in particular that snow is not plowed from the
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street all the way to the end of Appellant’s driveway2, and that snow has been plowed
straight back onto the property of proposed Lot 2 into a heap that may block Appellant’s
full use of her driveway. No evidence was presented that either the City or the residents
have attempted to place markers at the edges of the pavement or at the corners of the
Stutler, Manahan, or Pigeon driveways, to assist the plow operators in recognizing what
areas should be plowed, due to the odd configuration of the cul-de-sac. Once Lot 2 is
developed with a house, the City intends to remove snow from the end of Stanley Court
by use of a backhoe and dump truck, as the City does from its other dead-end streets; that
is, the City Director of Public Works recognizes that it will lose the opportunity to plow
snow onto proposed Lot 2.
Questions 1 and 3
As the building on Lot 1 is listed on the National Register of Historic Buildings,
Regulations §801(E) applies (through §901(A)). Section 801(E) requires, “for developments
adjacent to” listed buildings, that “special provision shall be given to preserve the character
of the historic buildings and to encourage compatibility of new development with the
historic architectural qualities.” As the term “development” includes a subdivision even
if nothing is proposed for construction, this section is applicable to the present subdivision
proposal. Regulations §202.
The proposal before the Court only proposes the subdivision of the existing property
into two lots. As it does not propose any construction or site work at all, no special
provision is necessary with regard to Lot 2 in order to “preserve the character” of the
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Appellant also has complaints that the City does not come sufficiently quickly to plow
Stanley Court during a snowstorm, and that snow ends up in her driveway that she must
arrange privately to have cleared. These complaints are beyond the jurisdiction of this
Court in this appeal.
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historic building on Lot 1. In any event, as appears from the photographs in evidence, the
existing parking lot for the building on Lot 1 is located between Lot 2 and the rearmost
section of the historic building on Lot 1. Moreover, the rear face of the rearmost section of
the historic building has only one window facing eastwards, in its attic. A large deciduous
tree on Lot 1 partially screens the view from that window over the parking lot towards Lot
2. Therefore the subdivision of the property into the two proposed lots meets the
requirements of §801(E).
If and when a new single-family house is proposed for Lot 2, its design and
landscaping may have to be reviewed under §801(E) to assure that it also preserves the
character of the historic building on Lot 1 and to encourage its compatibility with the
historic architectural qualities of that building. However, the question of the design or
landscaping of any future house is not before the Court in the present appeal.
Question 10
Appellant’s primary concern is with the functionality of cul-de-sac for the
neighboring driveways and the potential for conflict with any driveway that may be
proposed for Lot 2, especially with regard to problems occurring during snow removal. No
layout, design, or location of a single-family house, garage, driveway or curb cut has yet
been proposed for Lot 2. The proposed subdivision in and of itself will not adversely affect
either the City’s responsibilities for or its ability to remove snow from the Stanley Court
cul-de-sac, nor will it interfere with the neighboring residents’ present ability to maneuver
their vehicles safely into or out of their respective driveways.
If and when a single-family residence is proposed for Lot 2, of course, it may be
necessary to design a driveway for Lot 2 so as to allow vehicles to be turned around on Lot
2 to exit the property forwards rather than backing up, and it may be necessary to place the
driveway curb cut onto Stanley Court in a different location along the property’s frontage
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than is shown on the site plan, to avoid conflicts with Appellant’s use of her driveway.
Those applications have not yet been made and are not before the Court3 in this appeal.
Based on the foregoing, it is hereby ORDERED and ADJUDGED that Appellee-
Applicants’ subdivision is APPROVED. On or before August 30, 2007, Appellee-Applicant
shall produce a site plan consistent with this decision (that is, with the label for the
suggested footprint of the house labeled as “suggested” rather than “proposed;” with a
label provided for the suggested footprint of the garage if that is what it is; with a notation
that the site work and changed elevations shown on the plan are also merely “suggested;”
and with the “proposed drive” (both the shaded indication of paving and the label)
deleted), approved as to form by the other parties, so that the subdivision as approved by
the Court can be appended to a judgment order and can be filed in the City’s zoning and
planning files for this property.
Dated at Berlin, Vermont, this 22nd day of August, 2007.
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Merideth Wright
Environmental Judge
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We note that in most municipalities, curb cut applications are governed by a separate
ordinance from the zoning and subdivision regulations. If curb cut approvals are not
issued by or appealed to the DRB, then any subsequent appeal is to the superior court
rather than to this court.
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