Lawrence Site Plan Approval ( 2011 )

State of Vermont
Superior Court—Environmental Division
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ENTRY REGARDING MOTION
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In re Lawrence Site Plan Approval Docket No. 166-10-10 Vtec
(Appeal from Town of Brattleboro Development Review Board decision)
Title: Motion for Permission to File an Interlocutory Appeal and Request for Stay of
Pending Appeal (Filing No. 12)
Filed: July 25, 2011
Filed By: Appellant Susan Rockwell
___ Granted X Denied ___ Other
Appellant Susan Rockwell has requested permission to file an interlocutory
appeal and has requested that the proceedings before this Court be stayed while that
appeal is pending. For the reasons summarized below, and for the reasons detailed in
the other entry orders issued today on other motions of Appellant Rockwell and
Appellee Lawrence, the Court DENIES Ms. Rockwell’s requests.
Appellant Rockwell correctly states the legal standard applicable to requests for
interlocutory appeals: trial courts are directed to allow such appeals when (1) there is
“substantial ground for difference of opinion” on a controlling question of law and (2)
the “immediate appeal may materially advance the termination of the litigation.”
V.R.A.P. 5(b)(1). However, Appellant has failed to provide sufficient grounds for this
Court to render the necessary determinations.
First, the controlling question of law appears undisputed: an “interested
person” has the authority to intervene and participate in an appeal before this Court.
See 10 V.S.A. § 8504(n)(5) (“Any person may intervene in a pending appeal [before the
Environmental Division] if that person . . . qualifies as an ‘interested person’” under
the applicable statutory criteria.). Here, there is no dispute that the Town of
Brattleboro, as the municipality where the subject property lies and whose zoning
regulations govern the application before us in this on-the-record appeal, qualifies as
an “interested person” pursuant to 24 V.S.A.§ 4465(b)(2).1
Appellant offers no foundation for disputing the legal standard for interested
person intervention/participation in environmental appeals, as established by 10
V.S.A. § 8504(n). Rather, Appellant appears confused by the distinction between a
party that is merely an interested person and a party who has additionally fulfilled the
requirements to be an appellant; the former is merely entitled to participate in the
1
We note here, for clarity’s sake, that this Court uses the term “interested person” in two ways—as a statutory term
of art to refer to parties who fall within the definitions listed in 24 V.S.A. § 4465(b) and informally, to refer to
parties who meet the requirements to participate, or “intervene” in appeals brought by other parties under any of the
categories in 10 V.S.A. § 8504(n), including the one that references 24 V.S.A. § 4465(b). Here, the Town is both—
an interested person under the definition in 24 V.S.A. § 4465(b)(2) and, as a result, an interested person who can
participate in this appeal via 10 V.S.A. § 8504(n)(5).
In re Lawrence Site Plan Approval, No. 166-10-10 Vtec (Interlocutory Appeal Request) (7-27-11) Pg. 2 of 2
proceedings; the latter initiates the proceedings and establishes the legal issues the
Court is to review on appeal. See 24 V.S.A. § 4471(a) (requiring that one who wishes
to appeal must both qualify as “an interested person” pursuant to 24 V.S.A. § 4465(b)
and have “participated in the municipal regulatory proceeding”) (emphasis added);
V.R.E.C.P. 5(f) (requiring “the appellant” and not all interested parties to file a
statement of questions within 20 days of filing their notice of appeal) (emphasis
added).
The applicable law is clear and Appellant has offered no basis for us to conclude
that there is a difference of opinion on this legal standard. For this reason, we
conclude that Appellant has failed to satisfy the first necessary requirement for
receiving permission to file an interlocutory appeal.
In addition, we are unpersuaded that an interlocutory appeal will materially
advance this litigation. Even if the Court is mistaken in its ruling that the Town is
entitled to participate as an interested person here, the principal parties will still need
to adjudicate the substantive legal issues in this appeal. The appeal is at a stage close
to disposition, as no hearing is required in this on-the-record appeal and the Court
has directed the parties to file their legal briefs. An interlocutory appeal, if granted,
would unnecessarily delay the proceedings before this Court, and it would not provide
any more efficient path to the termination of this litigation than an appeal after a
judgment order is issued.
Therefore, for all these reasons, Appellant’s request for permission to file an
interlocutory appeal and request that the proceedings before this Court be stayed
must be DENIED.
_________________________________________ July 27, 2011_____
Thomas S. Durkin, Judge Date
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Date copies sent to: ____________ Clerk's Initials _______
Copies sent to:
Appellant Susan Rockwell, Esq., Pro Se
Jodi P. French, Attorney for Interested Person Town of Brattleboro
Appellee Stephen Lawrence, Pro Se