Bennington Wal Mart ( 2012 )

State of Vermont
Superior Court—Environmental Division
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ENTRY REGARDING MOTION
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In re Bennington Wal-Mart Demolition/Constr. Permit Docket No. 158-10-11 Vtec
(Appeal from District #7 Environmental Commission Determination)
Title: Motion for Interlocutory Appeal (Filing Nos. 5 & 6)
Filed: August 31, 2012
Filed By: Interested Person Natural Resources Board/LU; Appellant Vermont Natural
Resources Council, Appellant Citizens for Greater Bennington
Response filed: None
X Granted Denied ___ Other
Currently before us is a joint motion filed by the Vermont Natural Resources Council
(VNRC) and Citizens for Greater Bennington (CFGB) requesting permission to file an
interlocutory appeal of our April 24, 2012 decision pursuant to Rule 5(b) of the Vermont Rules
of Appellate Procedure. The Land Use Panel of the Natural Resources Board (the NRB) also
filed a motion requesting permission to file an interlocutory appeal. Because both motions ask
to appeal the same issue, we will address them together.
In our April 24 decision, we denied BLS Bennington LC and Wal-Mart Real Estate
Business Trust’s motion to dismiss an appeal by VNRC and CFGB; we granted VNRC and
CFGB’s motion for party status with respect to several Act 250 criteria (the District 8
Environmental Commission (the Commission) denied party status); and we concluded that we
need not remand the matter back to the Commission. The NRB filed a motion to reconsider our
determination to not remand the matter. We denied that motion on August 17, 2012. VNRC,
CFGB, and the NRB take issue with our holding that remand to the Commission is not
necessary in this case, and they request permission to appeal that issue to the Vermont Supreme
Court.
Under V.R.A.P. 5(b), we are to grant a party permission to appeal an interlocutory order
of this Court if we reach three conclusions: (1) the order “involves a controlling question of
law;” (2) the question of law is one in which “there is substantial ground for difference of
opinion;” and (3) “an immediate appeal may materially advance the termination of the
litigation.”
Although the order to be appealed must meet all three criteria, the criteria are to be
treated as the statutory “equivalent of a direction to consider the probable gains and losses of
immediate appeal.” In re Pyramid Co. of Burlington, 141 Vt. 294, 302, (1982) (internal citation
omitted). For the reasons stated below, we conclude that an interlocutory appeal here would be
appropriate, and therefore, we GRANT permission to file an interlocutory appeal. Because it is
within our discretion to certify the controlling questions of law, we will do so at the outset to
help clarify our analysis. Brown v. Tatro, 134 Vt. 248, 249-50 (1976).
In re Bennington Wal-Mart, No. 158-10-11 Vtec (EO on Mot. for Interlocutory Appeal) (09-24-12) Pg. 2 of 3.
The issue for the Supreme Court to decide is:
In a de novo proceeding, when the Environmental Division grants party
status to a litigant who was denied party status by the District
Commission in the proceeding below, may the Environmental Division,
in its discretion and in the interest of avoiding unnecessary delay in the
land use permitting process, decline to remand the matter and instead
hear the substantive issues that the litigant raises?
Turning now to the criteria required for this Court to grant an interlocutory appeal, we
begin by determining whether the question we certify is a controlling question of law. A
controlling question of law is one that deals solely with substantive issues of law. See Pyramid
Co., 141 Vt. at 303. An answer to a controlling question of law will, at a minimum, have an
immediate effect on the course of litigation and save resources to either the court system or the
litigants. Id. In this case, the certified question above deals exclusively with the subject matter
jurisdiction of this Court. It deals with a substantive issue of law: whether the Environmental
Division may overturn a denial of party status and subsequently address the substantive issues
that the new party raises without remanding the issue to the tribunal below. Furthermore, if
the Supreme Court answers the question in the affirmative, litigants will be spared the time and
expense of a de novo hearing before the Environmental Division in advance of remand to the
tribunal below. Therefore, we conclude that this interlocutory appeal involves a controlling
question of law.
The next question is whether there is substantial ground for difference of opinion
regarding the question. Although we are confident in the soundness of the reasoning set forth
in our August 17, 2012 decision not to remand this case to the Commission, VNRC and CFGB
and the NRB raise a number of arguments in their motions suggesting that remand is necessary.
Based on the legal analysis in the party filings, we conclude that the issue is one about which
reasonable appellate judges could have differing opinions. See Pyramid Co., 141 Vt. at 307.
The final issue is whether an immediate appeal will help to expedite the ultimate
termination of the case. Here, there is little doubt that an immediate and final decision on the
certified question will fulfill this condition. If we deny the motion for interlocutory appeal and
hear the case on its merits, the decision will likely be appealed to the Vermont Supreme Court.
If the Supreme Court then finds that we were required to remand the case rather than hearing it
on its merits, then our merits hearing, and all of the associated proceedings, will have been for
naught. All of the litigation will ultimately have to be repeated—first before the Commission
and then before the Environmental Division on appeal. Alternatively, if the Supreme Court
affirms our decision, then we can proceed to hear the case on its merits, without remand, and
resolve the matter in a “summary and expedited proceeding.” V.R.E.C.P. 1. Therefore, we
conclude that an immediate decision on this matter would assist a timely “termination of the
litigation.” V.R.A.P. 5(b).
Based on our reasoning above, we conclude that the probable gains of an immediate
appeal greatly outweigh the potential costs. Accordingly, we GRANT VNRC and CFGB’s joint
motion and the NRB’s motion for permission to file an interlocutory appeal. We also CERTIFY
the question, as stated above, to the Vermont Supreme Court.
In re Bennington Wal-Mart, No. 158-10-11 Vtec (EO on Mot. for Interlocutory Appeal) (09-24-12) Pg. 3 of 3.
_________________________________________ September 24, 2012
Thomas G. Walsh, Judge Date
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Date copies sent: ____________ Clerk's Initials: _______
Copies sent to:
Attorneys Paul Brierre, Jamey Fidel for Appellant Vt. Natural Resources Council and Appellant Citizens for
Greater Bennington
Attorney David Grayck for Cross Appellants Down to Earth Golf Course Const. dba Mt. Anthony Country Club,
David Griffin, and Maru Leon Griffin
Attorney Catherine Gjessing William H. Rice for Interested Person Agency of Natural Resources
Attorney Robert E. Woolmington for Interested Person Town of Bennington
Attorney John H. Hasen for Interested Person Natural Resources Board/LU Panel
Attorney Alan B. George for Appellee BLS Bennington L.C.