G and D LLC Permit ( 2013 )

State of Vermont
Superior Court—Environmental Division
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ENTRY REGARDING MOTION
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In re G & D, LLC Permit Application Docket No. 125-9-13 Vtec
(Appeal from Morristown/Morrisville DRB determination)
Title: Motion to Dismiss Appeal (Filing No. 1)
Filed: October 8, 2013
Filed By: Interested Person Town of Morristown
Opposition filed on 10/25/13 by Appellants Douglas and Beverley Corrow
___ Granted X Denied ___ Other
Douglas and Beverley Corrow (Appellants) appeal the Morristown/Morrisville
Development Review Board approval of the application by G & D, LLC (Applicant) for its
planned 29-unit residential development on its Brooklyn Street parcel in the Town of
Morristown, Vermont (Town).
Appellants filed their Statement of Questions on October 25, 2013, challenging the
proposed project’s conformance with the Zoning and Subdivision Bylaws for the Village of
Morrisville and the Town (Bylaws). The Town disagrees with Appellants’ assertions, as noted
in a letter dated September 26, 2013 and filed with the Court on October 8, 2013 by the Town of
Morristown Zoning Administrator, Todd Thomas (Administrator). Because the Administrator’s
letter asked the Court to dismiss this appeal, the Court docketed the Town’s request as a motion
to dismiss, pursuant to V.R.C.P. 12(b)(6). That procedural rule provides that a party may
request dismissal of a claim when the claimant has failed “to state a claim upon which relief can
be granted.” Id.
Appellants objected to the Town’s request, arguing that the Town is, in essence, asking
the Court to “resolve the case on the merits” before conducting a de novo merits hearing. For
the reasons stated below, we decline to grant the Town’s dismissal request.
A party who requests dismissal of litigation at its earliest stages must satisfy an
exceptional legal standard. This Court may only dismiss a claim under V.R.C.P. 12(b)(6) when
it is certain beyond any doubt that there are no possible facts or circumstances that would allow
relief for the claimant. Richards v. Town of Norwich, 169 Vt. 44, 48 (1999). To make this
determination, we are directed to assume that all factual allegations made by the non-moving
party are true and that all contravening assertions made by the moving party are false. Id. at 49.
Only when the factual allegations are viewed in this light, and applicable legal standards still
support a conclusion that the non-moving party cannot be granted the relief requested, is it
appropriate to grant a dismissal request and foreclose a claimant’s right to a trial. See id.The Town’s request does not fulfill this high legal standard. In essence, we are only
provided with the Town’s claims that Appellants’ assertions are not true and that the proposed
In re G & D, LLC Permit Application, No. 125-9-13 Vtec (EO on dismissal request)(11-7-13) Pg. 2 of 2.
project conforms to the Bylaws and is consistent with the Town’s development goals. This is an
insufficient basis for dismissing any appeal at such an early stage of the proceedings.
The Court has scheduled this matter for an initial conference on November 25, 2013,
pursuant to a notice of hearing recently issued. The Court requests that the parties talk with
each other, so that they are prepared at the conference to offer their suggestions on how this
appeal may be scheduled towards resolution.
For all these reasons, we DENY the Town’s request that the pending appeal be
dismissed.
_________________________________________ November 7, 2013
Thomas G. Walsh, Judge Date
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Date copies sent: ____________ Clerk's Initials: _______
Copies sent to:
Christopher J. Nordle, attorney for Appellants Douglas and Beverley Corrow
L. Brooke Dingledine, attorney for Appellee/Applicant G & D, LLC
Interested Person Town of Morristown (Todd Thomas, Zoning Administrator)
Robert J. Smith