Ferrera and Fenn Gravel Pit Application ( 2011 )

State of Vermont
Superior Court—Environmental Division
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ENTRY REGARDING MOTION
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In re Ferrera & Fenn Gravel Pit Application Docket No. 159-9-10 Vtec
(Appeal from Middlebury Development Review Board decision)
Title: Motion for Summary Judgment on Questions 6, 7, and 10 (Filing No. 5)
Filed: August 18, 2011
Filed By: Mark G. Hall, Attorney for Appellants/Applicants Charles Ferrera and Ronald S. Fenn
Response in opposition filed on 9/19/11 by Attorney Putnam, for Appellee Town of Middlebury
Response in opposition filed on 9/19/11 by Interested Persons Jeff Forbes and Joan Forbes
Response in opposition filed on 9/19/11 by Interested Person Ronald Kohn
Response in opposition filed on 9/22/11 by Interested Person Barbara J. Shapiro
Response in opposition filed on 9/22/11 by Interested Person Ben Burd
Response in opposition filed on 9/26/11 by Interested Person Robert Knippler
___ Granted ___ Denied X Other
Charles Ferrera and Ronald S. Fenn (“Appellants”) sought a municipal permit for gravel
extraction on property located in the Town of Middlebury, Vermont (“the Town”). The Town of
Middlebury Development Review Board (“the DRB”) denied Appellants’ permit application,
finding that the project failed to comply with eight sections of the Town of Middlebury Zoning and
Subdivision Regulations. Appellants appealed the DRB’s denial to this Court in an on-the-record
appeal pursuant to V.R.E.C.P. 5(h)(1).
As part of their appeal, Appellants submitted a Statement of Questions that included 24
Questions. In accordance with a Scheduling Order dated February 15, 2011, Appellants submitted
what is essentially a motion for summary judgment1 on Questions 6, 7, and 10, arguing that the
matter must be remanded to the DRB so that the DRB can (1) separately discuss and label its
findings of fact and conclusions of law (Question 6), (2) make its findings of fact more explicit
(Question 7), and (3) separately affirm or deny each of Appellants’ proposed findings of fact and
conclusions of law (Question 8).
1 Appellants filed a document they described as an “appellate opening brief” rather than a motion for
summary judgment. However, the Scheduling Order provided the parties with the opportunity to file
motions for summary judgment within a specified timeframe, and the Town’s response to Appellants’ brief
was entitled “Opposition to Appellants’ Motion for Summary Judgment and Brief.” Although we decline in
our holding today to consider motions for summary judgment in on-the-record appeals, the distinction
makes no difference here because we direct the parties to fully brief all of the issues contained in the
Statement of Questions. Thus, regardless of the nomenclature, Appellants must submit a new brief because
their initial filing addressed only three of the questions presented.
In re Ferrera and Fenn Gravel Pit Application, No. 159-9-101 Vtec (EO on SJ motion) (09-29-11) Pg. 2 of 2
The procedural rules governing on-the-record appeals to the Environmental Division do
not conclusively settle the issue of whether motions for summary judgment are appropriate in
such appeals. See V.R.E.C.P. 5(h). We seek to clear up any confusion now by holding that an on-
the-record appeal to the Environmental Division is governed by the Vermont Rules of Appellate
Procedures (V.R.A.P.). As such, motions for summary judgment are inappropriate.
Accordingly, in an on-the-record appeal to this Court pursuant to V.R.E.C.P. 5(h), our
review is limited to the record made before the municipal panel and the briefs submitted by the
parties. See In re Saman ROW Approval, No. 176-10-10 Vtec, slip. op. at 1 (Vt. Super. Ct. Envtl.
Div. Sept. 2, 2011) (Durkin, J.). We will affirm the municipal panel’s factual findings if they are
supported by substantial evidence in the record, and we will review its legal conclusions de novo
where such conclusions are outside the panel’s area of expertise. See In re Stowe Highlands Resort
PUD and PRD Application, 2009 VT 76, ¶ 7, 186 Vt. 568.
We realize that the parties in this case filed their motions in accordance with a Scheduling
Order issued by this Court. However, in light of our holding today, we conclude that requiring
the parties to submit revised briefs, so that all questions presented in this on-the-record appeal
may be reviewed together, will minimize delay and the costs incurred by the parties. Although a
cursory review of the motions for summary judgment leads us to the conclusion that remand is
unlikely, we decline to consider such motions in this on-the-record appeal. In the interest of
judicial economy and in accordance with appellate procedure, we direct the parties to submit
briefs addressing the Statement of Questions in its entirety. The parties may, but are not obligated
to, repeat the arguments contained in their motions regarding Questions 6, 7, and 10.
The Appellants are directed to submit their appellate brief by Monday, October 31, 2011.
All other parties to this on-the-record appeal shall have until Monday, November 21, 2011, to file
their reply briefs.
_________________________________________ September 29, 2011 _
Thomas S. Durkin, Judge Date
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Date copies sent to: ____________ Clerk's Initials _______
Copies sent to:
Mark G. Hall, Attorney for Appellants/Applicants Charles Ferrera and Ronald S. Fenn
Benjamin W. Putnam, Attorney for Appellee Town of Middlebury
Interested Person Barbara J. Shapiro
Interested Person Ronald Kohn
Interested Person Ben Burd
Interested Person Robert Knippler
Interested Person Marion D. Bauer
Interested Person Brian J. Bauer, Sr.
Interested Person Virginia R. Heidke
Interested Person Jeff Forbes
Interested Person Joan Forbes
Interested Person Dave Warfel
For Informational Purposes Only Carol A. Wood
For Informational Purposes Only Ginny Welch
For Informational Purposes Only Harold Welch