Buckwald Home Occupation CU ( 2014 )

STATE OF VERMONT
SUPERIOR COURT ENVIRONMENTAL DIVISION
Vermont Unit Docket No. 181-12-13 Vtec
Buchwald Home Occ. Cond. Use Permit
ENTRY REGARDING MOTION
Title: Motion for Reconsideration (Motion 7)
Filer: Barbara Headrick
Attorney: Pro Se
Filed Date: April 8, 2014
No response filed
The motion is DENIED.
Ms. Barbara Headrick appeals a 2013 City of Burlington Development Review Board
approval allowing Mr. Adam Buchwald to expand his home occupation from one-half of his
garage to the entire garage. In an April 1, 2014 decision, this Court dismissed certain of Ms.
Headrick’s questions for failure to state a claim upon which relief could be granted because
they were outside the scope of the permit appeal before the Court. Ms. Headrick now moves
for the Court to reconsider our dismissal of four of the questions in her Amended Statement of
Questions.
We consider motions to reconsider a pre-trial order under Vermont Rules of Civil
Procedure Rule 54(b). In re Bennington Wal-Mart Demolition/Constr. Permit, No. 158-10-11
Vtec, slip op. at 4 (Vt. Super. Ct. Envtl. Div. Aug. 17, 2012) (Walsh, J.). V.R.C.P. 54(b) provides
that, absent a final judgment, “any order or other form of decision” adjudicating fewer than all
of the claims or fewer than all the parties “is subject to revision at any time before the entry of
judgment adjudicating all the claims and the rights and liabilities of all the parties.” We note
that neither the Vermont Rules for Environmental Court Proceedings nor the Vermont Rules of
Civil Procedure require us to consider a motion to reconsider an interlocutory order that does
not conclude a case. Bennington Wal-Mart, No. 158-10-11 Vtec, slip op. at 3.
In addressing a motion to reconsider under Rule 54(b), we apply the legal standard
applicable to ruling on a Rule 59(e) motion to alter or amend a final judgment. Id. at 4. It is
within the Court’s discretion to grant such a motion, and we have identified four principal
reasons for doing so: (1) to correct manifest errors of law or fact; (2) to allow a party to provide
“newly discovered or previously unavailable evidence”; (3) to “prevent manifest injustice”; and
(4) to respond to an “intervening change in the controlling law.” In re Lathrop Ltd. P’ship I, Nos.
122-7-04 Vtec, 210-9-08 Vtec, and 136-8-10 Vtec, slip op. at 10–11 (Vt. Super. Ct. Envtl. Div.
In re Buchwald Home Occupation, No 181-12-13 Vtec (Entry Order on Mot. to alter) (04-15-14) Pg. 2 of 3.
Apr. 12, 2011) (Durkin, J.) (quoting 11 Wright, Miller & Kane, Federal Practice and Procedure:
Civil 2d § 2810.1). We view alteration or amendment of a prior decision of this Court as an
“extraordinary remedy.” Bennington Wal-Mart, No. 158-10-11 Vtec, slip op. at 4.
Ms. Headrick first asks that we reconsider our denial of her Question 22, which relates
to noise caused by Mr. Buchwald’s permitted use in the south half of his garage. She points to
no change in law or fact and so we consider only whether there was a manifest error by the
Court or whether dismissal of this question creates an injustice.
We find no error in our April 1, 2014 decision. The question as posed by Ms. Headrick
asks whether noise from Mr. Buchwald’s operation in the south half of his garage, which is
permitted by his unappealed and final 2012 permit, can be grounds for denial of his application
to expand. Question 22 asks only whether Mr. Buchwald’s legal activities can be grounds for
denying his application. This collateral attack on the 2012 permit is outside the scope of the
Court’s review. See 10 V.S.A. § 4472.
Question 23 asks about other home occupations in the City, specifically the extent to
which other home occupations involve customer visits. Although Mr. Buchwald proposes, as
part of his expansion, to have one customer at a time visit his home occupation by appointment
only, whether this proposed use complies with the zoning regulations does not depend on how
other home occupations operate. The only issue before the Court is whether Mr. Buchwald’s
home occupation expansion application should be granted. Ms. Headrick has raised this
question directly in other questions in her Amended Statement of Questions. There is no relief
the Court could grant Ms. Headrick based on any findings about other home occupations. We
therefore find no error or injustice in dismissal of this question.
Question 24 asks whether either a retail or micro-factory store is a “customary and
necessary” use of a garage within the neighborhood where both properties are located. To the
extent Question 24 asks the Court how others use their garages, it is not relevant to
determining whether Mr. Buchwald’s expansion conforms to the City’s Zoning Ordinance. The
question of whether Mr. Buchwald’s proposed expansion meets the requirements of the
Ordinance for an accessory use, a conditional use, and/or a home occupation is raised in other
questions in Ms. Headrick’s Statement of Questions. Therefore there was no error, nor any
injustice, caused by the Court’s dismissal of Question 24.
Question 25 asks whether Mr. Buchwald’s expansion application should be denied if
there are no other home occupations in the neighborhood that manufacture and sell similar
products. For the same reasons, even if the Court made determinations about how other home
occupations in the City operate, there is no relief we could grant Ms. Headrick in answering this
question as the only issue before the Court is whether Mr. Buchwald’s home occupation
expansion complies with the Ordinance. We will make that determination based on the
relevant Ordinance provisions and the description of Mr. Buchwald’s expansion. We therefore
find no error in our dismissal of this question.
In re Buchwald Home Occupation, No 181-12-13 Vtec (Entry Order on Mot. to alter) (04-15-14) Pg. 3 of 3.
For the reasons stated above, Ms. Headrick’s motion to alter or amend the Court’s April
1, 2014 decision dismissing Questions 22–25 of her Amended Statement of Questions is
DENIED.
Electronically signed on April 15, 2014 at 03:32 PM pursuant to V.R.E.F. 7(d).
_________________________________________
Thomas G. Walsh, Judge
Superior Court, Environmental Division
Notifications:
Appellant Barbara Headrick
Kimberlee J. Sturtevant (ERN 4778), Attorney for Appellee City of Burlington
Appellee Adam Buchwald