STATE OF VERMONT
SUPERIOR COURT - ENVIRONMENTAL DIVISION
In re Bibby 5-Lot Final Plat
Subdivision & Waiver Application
Docket No. 189-11-10 Vtec
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Decision on Cross-Motions for SummarV ludgment and Dismissal
Before us on appeal is a decision by the Town of St. Albans Development Review Board
(”the DRB”) granting Thomas and Yu Bibby (”Applicants") final plat approval to create a five-
lot subdivision from an approximately 29-acre property along French I-Iill Road in the Town of
St. Albans, Vermont. The DRB decision also grants Applicants a waiver from the road frontage
requirement for two of the resulting lots. Susan Roush and Lawrence Bruce (”Neighbors”), who
own property adjacent to Applicants’, have appealed the DRB decision, filing a Statement of
Questions detailing 25 Questions.
Currently pending before the Court is a motion from Applicants requesting either
summary judgment or dismissal of 24 of the 25 Questions. Also pending before the Court is a
competing motion for partial summary judgment filed by Neighbors. Applicants are
represented by Brian P. Hehir, Esq. Neighbors are represented by Annie Dwight, Esq. The
Town of St. Albans, an interested person in this appeal, is represented by Vincent A. Paradis,
Esq., and interested person Eril< Kilburn is self-represented Neither the Town of St. Albans nor
Mr. Kilburn has filed a responsive pleading to the pending motions.
Factual Background
For the sole purpose of putting the pending motions into context, the Court recites the
following facts, which it understands to be undisputed'unless otherwise noted:
1. On ]uly 27, 2010 Applicants submitted an application to the DRB requesting final plat
approval to subdivide, into five lots, their approximately 29-acre property along French Hill
Road in the Town of St. Albans, Vermont. They also sought a waiver from the road frontage
requirement for two of the resulting lots (Lots 3 and 4).
2. On October 20, 2010 the DRB granted Applicants final plat approval for the proposed
five-lot subdivision and also granted Applicants a waiver from the road frontage requirement
for the two identified lots.
3. Applicants' 29-acre property includes portions located in two zoning districts, the
Conservation District and the Rural District, as designated by the Town of St. Albans Zoning
Bylaws and Subdivision Regulations.
4. As part of their application to the DRB, Applicants have proposed a 20-foot-wide right-
of~way that is intended to operate as a shared driveway for three of the resulting lots, as well as
proposed septic systems that will serve the resulting lots, The parties in this appeal debate the
import of the inclusion of these improvements in the pending application
5. The parties also debate whether any wetlands exist on Applicants' property that warrant
protection under the applicable version of the state wetland protection rules.
6. On November 14, 2010, Neighbors appealed the DRB's decision to this Court, raising 25
Questions.
Discussion
Neighbors have appealed the DRB’s grant of final plat approval to Applicants to
subdivide, into five lots, an approximately 29-acre property along French Hill Road in the Town
of St. Albans. Neighbors have also appealed the DRB's grant of a waiver from the road frontage
requirement for two of the resulting lots. Neighbors’ Statement of Questions details 25
Questions to be determined in this appeal. Applicants have filed for either summary judgment
or dismissal of 24 of the 25 Questions,1 and Neighbors have responded with a motion for partial
summary judgment concerning select Questions. Neither of the interested parties in this appeal
has responded to these motions.
Although Applicants’ motion here seeks dismissal of some of the Questions rather than
summary judgment, Neighbors have treated Applicants’ motion as one requesting summary
judgment on all of the Questions addressed in the motion. Thus, we have done the same in this
Decision, and we determine that the parties in this appeal have had reasonable opportunities to
respond to Applicants’_ motion as one for summary judgment By treating the requests for
dismissal as requests for summary judgment, we are able to take into account the information
offered by each party that goes outside of the text of the questions themselves See V.R.C.P.
12(b)(6) (”lf, on a motion . . . to dismiss for failure . . . to state a claim upon which relief can be
1 Although Applicants' motion indicates that they seek summary judgment or dismissal for all of
Neighbors’ Questions, their motion mal