Castleton Expansion and Renovation ( 2014 )

STATE OF VERMONT
SUPERIOR COURT ENVIRONMENTAL DIVISION
Vermont Unit Docket No. 129-9-13 Vtec
Castleton Expansion & Renovation Permit DECISION ON MOTION
Motions to Dismiss Appeal for Appellant’s Lack of Standing
In the present appeal, Mr. Graham Trudo, representing himself, appeals an August 29,
2013 decision of the Town of Castleton Development Review Board (“the DRB”) which
determined that proposed alterations to a town-owned building for town office purposes did
not require a zoning permit because the alterations were exempted under the definition and
treatment of “essential services.” Mr. Trudo argues that the proposed use does not fit the
definition of essential services under the zoning regulations. Pending before the Court are two
motions to dismiss Mr. Trudo for lack of standing, one by the Town of Castleton (“the Town”),
represented by Theodore A. Parisi, Jr., Esq., the other by interested persons John Rehlen,
Pamela Rehlen, and Gary Kupferer, Esq., represented by Attorney Kupferer. As Mr. Trudo is the
only appellant, the motions to dismiss Mr. Trudo ask for dismissal of the appeal.
Standing is a “necessary component of the court’s subject-matter jurisdiction.” Bischoff
v. Bletz, 2008 VT 16, ¶ 15, 183 Vt. 235. Thus, we review the motions challenging Mr. Trudo’s
standing under the standard of review afforded by Rule 12(b)(1) of the Vermont Rules of Civil
Procedure, which governs motions to dismiss for lack of subject matter jurisdiction. We will
accept as true all uncontroverted factual allegations, and we will construe those factual
allegations in the light most favorable to the nonmoving party (here, Mr. Trudo). See Rheaume
v. Pallito, 2011 VT 72, ¶ 2, 190 Vt. 245 (mem.).
The Legislature has established the standing requirements to appeal a municipal panel’s
decision, and this Court does not have the authority to “judicially expand the class of persons
entitled to such [appeal].” In re Verizon Wireless Barton Permit, 2010 VT 62, ¶ 7, 188 Vt. 262(quoting Garzo v. Stowe Bd. of Adjustment, 144 Vt. 298, 302 (1984)). Pursuant to 10 V.S.A.
§ 8504(b) and 24 V.S.A. § 4471(a), a person has standing to appeal a municipal panel’s decision
to this Court if he or she participated in the proceeding below and qualifies as an “interested
person” under one of the categories defined in 24 V.S.A. § 4465(b). The parties do not dispute
that Mr. Trudo participated in the DRB proceeding. Thus, the only issue before the Court with
respect to Mr. Trudo’s standing is whether he qualifies as an interested person.
Section 4465(b) sets forth five definitions of “interested person,” three of which are
referenced by the parties:
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(1) A person owning title to property . . . affected by a bylaw, who alleges that
the bylaw imposes on the property unreasonable or inappropriate restrictions of
present or potential use under the particular circumstances of the case;
(2) The municipality that has a plan or a bylaw at issue in an appeal brought
under this chapter or any municipality that adjoins that municipality;
(3) A person owning or occupying property in the immediate neighborhood of a
property that is the subject of any decision or act taken under this chapter, who
can demonstrate a physical or environmental impact on the person's interest
under the criteria reviewed, and 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. § 4465(b)(1)–(3).
Mr. Trudo first argues that because the building is owned by the Town of Castleton any
taxpayer in the town qualifies as a person owning title to affected property under § 4465(b)(1).
The language used by the Legislature in subsection (b)(1) cannot be read so broadly as to
include any taxpayer in a town when town property is at issue. As the title owner of the
property at issue, it is the Town as the applicant in this proceeding that has standing under
(b)(1). We know of no precedent for the legal proposition Mr. Trudo asserts that every
taxpayer is an “owner” of town property for purposes of a land use application and therefore
has standing as a party opposing that application. To the extent that Mr. Trudo, as an individual
taxpayer, objects to this proposed municipal project, he has the right to express his concerns to
the governing body. But here the “owner” of the property upon which improvements are
proposed is the Town itself, represented through its legal counsel; only the Town has standing
here pursuant to 24 V.S.A. § 4465(b)(1), and not any individual taxpayer.
Mr. Trudo makes essentially the same argument with regard to subsection (b)(2). Under
(b)(2), the municipality where the project is located and neighboring municipalities are
interested persons, but individual residents of those municipalities are not. Subsection (b)(2)
provides standing to the host municipality and neighboring municipalities, thereby allowing
those municipalities to participate in land use litigation that may impact those communities
generally. Status as a voter and taxpayer in a given municipality is insufficient to establish
standing under this subsection. Thus, Mr. Trudo cannot establish standing under subsections
(b)(1) or (b)(2).
The motions by the Town and the interested persons further argue that Mr. Trudo
cannot establish standing under subsection (b)(3) and that he therefore must be dismissed
from this appeal. The first requirement for standing under subsection (b)(3) is that the person
seeking party status must own or occupy property in the “immediate neighborhood” of the
project. 24 V.S.A. § 4465(b)(3). “[T]he determination of whether an appellant lives in the
‘immediate neighborhood’ is made on a case-by-case basis and largely depends on the physical
environment surrounding the project property and its nexus to a particular appellant and their
property.” In re Bostwick Road Two-Lot Subdivision, No. 211-10-05 Vtec, slip op. at 2–3 (Vt.
Envtl. Ct. Feb. 24, 2006) (Durkin, J.), aff’d, No. 2006-128 (Vt. 2007) (mem.). In Bostwick Road,
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the Court held that an appellant who lived 2,000 feet, as the crow flies, from a proposed
development was not in the immediate neighborhood because the proposed development
would not be visible from appellant’s property and would not impact his home, due to the
surrounding environment. It is undisputed that Mr. Trudo’s residence is more than three miles
from the project site and he alleges no physical or environmental impacts on his interests
related to that property. Mr. Trudo therefore does not own or occupy property in the
immediate neighborhood.
Mr. Trudo also argues that his status as a trustee of a commercial building across the
street from the proposed project qualifies him as owning or occupying property in the
immediate neighborhood. It is not alleged that the commercial entity itself has appealed the
DRB decision or that any such entity designated Mr. Trudo as its spokesperson for the purpose
of doing so. As Mr. Trudo appeals the decision in his individual capacity and he does not own or
occupy property in the immediate neighborhood, he does not qualify as an interested person in
this appeal.
For these reasons, the motions by the Town of Castleton and the interested persons to
dismiss Mr. Trudo for lack of standing and to dismiss this appeal are GRANTED. As a
consequence, we hereby enter judgment in favor of the Town of Castleton and direct that the
decision of the Town of Castleton Development review Board remains in full force and effect.
Electronically signed on April 28, 2014 at 02:23 PM pursuant to V.R.E.F. 7(d).
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Thomas S. Durkin, Judge
Environmental Division
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