Connor Group LLP Major Site Plan and CU ( 2014 )

STATE OF VERMONT
SUPERIOR COURT ENVIRONMENTAL DIVISION
Vermont Unit Docket No. 74-6-13 Vtec
Connor Grp LLP Major Site Plan & CU Approval
ENTRY REGARDING MOTION
Count 1, Municipal DRB Multiple Types (74-6-13 Vtec)
Title: Motion for Partial Summary Judgment (Motion 3)
Filer: Connor Group, LLP
Attorney: William A. Fead
Filed Date: January 24, 2014
Response in Opposition filed on 02/28/2014 by Attorney Paul S. Gillies for Appellants Mark
Prent, et al.
Reply filed on 03/11/2014 by Attorney William A. Fead for Appellee Connor Group, LLP
The motion is DENIED.
The pending appeal is set for a multi-day trial beginning on May 7, 2014. Applicant
Connor Group, LLP (“Applicant”) seeks summary judgment on one of several legal issues raised
in the Statement of Questions filed by Appellants Peter D. Ford, Susan Prent, and Mark Prent
(“Appellants”). Specifically, Applicant asks this Court to conclude that its plan to demolish the
Smith House portion of its property conforms to the pre-conditions for demolition of historic
structures established in §§ 706 and 708 of the Land Development Regulations for the City of
Saint Albans (“Regulations”).
We will grant summary judgment to a moving party (here, Applicant) only if that party
shows that “there is no genuine dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” V.R.C.P. 56(a); V.R.E.C.P. 5(a)(2). In ruling on a summary
judgment motion, the Court is directed to “accept as true the [factual] allegations made in
opposition to the motion for summary judgment,” as long as they are supported by reference
to admissible evidence, and to give the non-moving party (here, Appellants) the benefit of all
reasonable doubts and inferences. Robertson v. Mylan Labs., Inc., 2004 VT 15, ¶ 15, 176 Vt.
356; see V.R.C.P. 56(c).
Connor Group, LLC Major Site Plan & CU Approval, No. 74-6-13 Vtec (EO on Partial Summ. J.) P. 2 of 3.
Applicant notes that its pending motion does not request summary judgment on the
questions of whether the proposed new development conforms to the applicable conditional
use and site plan review standards in the Regulations.1
In fact, Applicant’s motion for partial summary judgment appears to focus on
Regulations § 708(a)(8)(e)(i), which requires that an applicant present an assessment and
inventory of the historic structure and its gardens, landscaping, and outbuildings, as well as
further evidence that all efforts had been exhausted to salvage the historic structure.
The Court conducted multi-day hearings on Appellants’ motion to stay demolition of the
Smith House. The first two days resulted in the parties stipulating to a temporary stay; when
that stay expired, Appellants filed a subsequent motion for a continued stay. After several
more days of evidentiary hearings, this Court denied Appellants’ request. See Entry Order of
Nov. 20, 2013.
This procedural background provides important context for our ruling on the pending
motion. In particular, although the Court denied Appellants’ motion for a continued stay at the
conclusion of the November 18, 2013 hearing, the Court did not specifically authorize Applicant
to demolish the Smith House. In fact, the Court cautioned Applicant at the conclusion of the
hearing that if it proceeded with demolition while this appeal was pending, it did so at its peril,
since no final authorization has been issued on Applicant’s request to demolish the Smith
House portion of the building.
In support of its pending request for a judgment authorizing the planned demolition,
Applicant has submitted an affidavit from its historic preservation consultant, Suzanne C.
Jamele, as well as Ms. Jamele’s initial and supplemental Historic Documentation Reports.
Appellants have submitted a critique of Ms. Jamele’s report, prepared by their expert,
Thomas Keefe. Mr. Keefe’s report does not serve as an independent historic documentation
report, but it identifies perceived deficiencies of Ms. Jamele’s report. Mr. Keefe also references
and cites to a rehabilitation evaluation he prepared at Applicant’s request.
We recognize that Appellants’ most recent presentation does not present contradicting
facts, but rather suggests that Applicant’s presentation is insufficient. However, in his most
recent assessment, Appellants’ expert references a prior evaluation he completed for a possible
Smith House rehabilitation; his current assessment includes citations to the rehabilitative
possibilities for the Smith House. While this evidence is sparse, we conclude that, when viewed
in a most favorable light, Appellants’ proffered evidence is sufficient to overcome Applicant’s
allegation that it has satisfied § 708(a)(8)(e)(i). Because we conclude that there is a genuine
dispute of material fact and that Applicant is not entitled to judgment as a matter of law
regarding conformance with § 708(a)(8)(e)(i), we DENY the pending motion for partial summary
judgment and look forward to the parties’ presentation of admissible evidence at trial.
1
Applicant recently filed a separate motion, seeking judgment on Appellants’ remaining legal issues. We will
afford Appellants an abbreviated opportunity to respond to this new motion, given the pending trial date. We
request that Appellants file their response to this recently filed motion no later than 4:00 p.m. on Monday, April
28, 2014.
Connor Group, LLC Major Site Plan & CU Approval, No. 74-6-13 Vtec (EO on Partial Summ. J.) P. 3 of 3.
So ordered.
Electronically signed on April 21, 2014 at 01:47 PM pursuant to V.R.E.F. 7(d).
________________________________
Thomas S. Durkin, Judge
Environmental Division
Notifications:
Paul S. Gillies (ERN 3786), Attorney for Appellant Peter D. Ford
Paul S. Gillies (ERN 3786), Attorney for Appellant Susan Prent
Paul S. Gillies (ERN 3786), Attorney for Appellant Mark Prent
William A. Fead (ERN 4606), Attorney for Appellee Connor Group, LLP
Co-Counsel for party 5 David Bond
rkane