In re Shantee Point, Inc.

• Decision Date: 04 October 2002
• Docket Number: No. 00-474.,00-474.
• Citation: 811 A.2d 1243
• Parties: In re Appeals of SHANTEE POINT, INC.
• Court: Vermont Supreme Court

811 A.2d 1243

In re Appeals of SHANTEE POINT, INC.

No. 00-474.

Supreme Court of Vermont.

October 4, 2002.

Lisa B. Shelkrot and Liam L. Murphy of Langrock Sperry & Wool, L.L.P., Burlington, for Appellant.

Brian P. Hehir, Burlington, for Cross-Appellant.

David A. Barra of Hill, Unsworth & Barra, P.L.C., Essex Junction, for Appellee.

Present: AMESTOY, C.J., DOOLEY, MORSE, JOHNSON and SKOGLUND, JJ.

DOOLEY, J.

This case centers on a road, known as Shantee Point Road, located on a peninsula on Lake Champlain in the Town of St. Albans. The road was relocated in part by appellant, Shantee Point Estates, Inc. (SPE). The town zoning board, affirmed by the environmental court, ruled that the relocation required a subdivision permit. SPE appeals that decision, arguing that it was based on an invalid subdivision ordinance, was erroneous even if the ordinance were valid, and resulted from an improper intervention by appellee, Stephen Dana (Dana). Dana also sued in superior court, and that court, with the environmental judge sitting by designation, ruled that SPE had the power to relocate the road. Dana appeals from that decision, arguing that SPE could not relocate the road without his consent and that the relocated road was not of the same width and quality as the prior one. SPE responds that Dana failed to properly and timely appeal the superior court decision. We conclude that we have jurisdiction over the superior court appeal and affirm it and the decision of the environmental court.

The Shantee Point peninsula juts out into Lake Champlain in a southerly direction. Access has been provided by a dirt road along the west edge of the peninsula between the lake and a series of summer camps and permanent homes. Up until 1965, the developed land was owned by one person who rented lots, some forty-three in all, upon which the camps and homes were constructed. In that year, the owner's daughters inherited the property as tenants in common. Each sold her interest so that ownership of the land ended up with the litigants in this case as tenants in common.

Dana brought an action to partition the property in 1989, and the superior court did so in 1990 pursuant to a commissioners' report. Each party received some of the land containing camp and house lots, but to equalize value the lots were not entirely contiguous. Thus, proceeding from the north down the peninsula, Dana received the land containing the first ten lots, but the next group went to SPE, and the lots to the south of these were again awarded to Dana. The distribution of the land meant that both parties, and their tenants, would regularly use the length of the access road.

Litigation between the parties developed when SPE decided to relocate the road section serving its contiguous lots away from the lake and behind the camps and homes. Dana chose not to do a similar relocation of the road serving his ten contiguous lots to the north. Thus, after SPE's road relocation, a vehicle coming onto the peninsula from the north would first proceed along the lake on the old road in front of Dana's ten lots, then proceed to the east on the "connector" portion and then proceed south on the new road behind SPE's lots, until joining the old road again south of these lots.

SPE built the road relying on opinions of the zoning administrator that no site plan or subdivision permit was necessary for the construction, and the following language in the partition order:

Nothing herein shall be interpreted to construed to [sic] prohibit the above identified access roadway as it crosses the [a]bove parcels partitioned to [SPE] from being relocated by [SPE] (subject to applicable laws and regulations, if any) as long as its width and quality is at least maintained.

Dana was unhappy with the road relocation and commenced an action in superior court to require relocation of the road to its former location. Various proceedings started in the town planning commission and zoning board of adjustment (ZBA) and continued on appeal in the environmental court. The environmental judge was assigned to preside over the related superior court case, and she heard it in conjunction with the environmental court cases, but did not consolidate them. The court issued a final decision and order on September 21, 2000. We have consolidated all of the matters on appeal.

In the superior court case, Dana claimed that Shantee Point Road was a public road and that SPE unlawfully interfered with his easement over the road by relocating part of it without his consent. He also claimed that SPE unlawfully built the connector portion of the road on his property. SPE filed a third-party complaint against the Town to resolve whether the road was public or private.

While the trial in superior court was going on, and a year after construction of the new road section, the zoning administrator informed SPE on June 15, 1998 that a site plan permit was required for the road. On July 8, the administrator issued a notice of violation to SPE for constructing the road without site plan approval. The ZBA upheld the administrator's decision, and SPE appealed that decision to the environmental court. On June 1, 1999, the environmental court affirmed with respect to the connector section, but deferred decision on the rest of the new road until the superior court determined whether the old road was private or public.

On May 27, 1999, the administrator issued SPE a notice of violation for constructing the new road without subdivision approval. He relied upon § 200(b) of the Town of Saint Albans Subdivision Regulations, which provides that land development for residential or recreational purposes is subject to the subdivision regulations if it involves "[c]onstruction or extension of a road or driveway to serve more than two lots." The ZBA upheld this decision, and SPE appealed to the environmental court, arguing that (1) all the land it owned was one "lot" despite the home and camp leases and (2) § 200(b) was invalid because it created a permit requirement without an actual subdivision. On cross-motions for summary judgment, the environmental court agreed with the Town and held that the road required subdivision approval under § 200(b). It did not, however, address SPE's argument that § 200(b) is invalid. This decision is one of the two on appeal before us.

Thereafter, the parties continued to skirmish over the connector section. The superior court ruled that it had been constructed on Dana's property and required that it be moved. On appeal from the planning commission, the environmental court granted site plan approval to the connector section once it was moved. Because the superior court ruled that Shantee Point Road was not a public road, this ended the site plan permit litigation, and the site plan permit has not been appealed.

As noted above, the superior court first ruled that the connector section had to be moved and that Shantee Point Road was a private road. On September 21, 2000, the court ruled that pursuant to the partition order, SPE had the right unilaterally to relocate the road section without Dana's consent. The court also found that the new road section surpassed the old road section in width and quality, as required by the partition order. This is the second decision on appeal before us.

SPE has filed appeals in the environmental court and the superior court cases. SPE also claims that, on the same day, Dana filed an appeal of the environmental court cases, but failed to file an appeal of the superior court case. We are treating these appeals under one docket because these cases are obviously interrelated. We begin with SPE's claim that the trial court erred by allowing Dana to intervene in the environmental court matters. The environmental court allowed intervention under V.R.C.P. 24(a)(2), made applicable to the environmental court by V.R.C.P. 76(a)(2),¹ which allows for intervention of a party in certain circumstances when the intervenor claims an interest in property which is the subject of the action and the intervenor's interests are not adequately represented by other parties. SPE's position is that the Town of Saint Albans adequately represented Dana's interests so it was error to allow Dana to intervene.

We do not reach SPE's argument because we find that Dana was entitled to intervention under V.R.C.P. 24(a)(1), which allows intervention "when a statute confers an unconditional right to intervene." 24 V.S.A. § 4471(a) provides a right to intervene "to every interested person appearing and having been heard at the hearing before the planning commission, board of adjustment, or the development review board." The term "interested person" is defined in 24 V.S.A. § 4464(b), including:

(3) A person owning or occupying property in the immediate neighborhood of a property which is the subject of any decision or act taken under this chapter, who alleges that the decision or act, if confirmed, will not be in accord with the policies, purposes or terms of the plan or bylaw of that municipality.

24 V.S.A. § 4464(b)(3).

It is undisputed that Dana appeared and was heard before the ZBA. Nevertheless, the environmental court ruled that Dana could not intervene as of right under § 4471 because he was not an interested person. Apparently, the court ruled that Dana would be an interested person under § 4464(b)(3) only if he were contesting an adverse decision of the ZBA, and not when he is supporting the ZBA decision. SPE argues that this represents a policy judgment of the Legislature that a landowner should not have to litigate against both the municipality and the adjoining landowner at the same time.

Although we recognize that the plain meaning of the statute appears to support the environmental court's decision, we also recognize that we held in Mohr v. Village of Manchester, 161 Vt. 562, 562, 641 A.2d 89, 90 (1993), that an adjoining landowner was an interested person who had a statutory right to...