Gaujac Final Site Plan PUD Review ( 2010 )

State of Vermont
Superior Court—Environmental Division
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ENTRY REGARDING MOTION
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In re Gaujac Final Plan Review PUD Docket No. 145-9-10 Vtec
Project: Request for final site plan/PUD approval
Applicant: Roland Gaujac and Lisa Gaujac
(Appeal from Town of Charlotte Planning Commission determination)
Title: Motion to Dismiss Wygmans as Interested Parties, (Filing No. 3)
Filed: November 9, 2010
Filed By: Liam L. Murphy, Attorney for Applicant/Cross Appellants Roland Gaujac and Lisa Gaujac
Response (in Opposition) filed on 11/30/10 by Interested Persons Maura and Justin Wygmans
___ Granted X Denied ___ Other
Before the Court is a motion to dismiss Maura and Justin Wygmans, who have entered a notice
of appearance as interested persons in this appeal by Michael and Karen Frost of the Town of Charlotte
Planning Commission’s approval of a final site plan for a Planned Unit Development (“PUD”) involving
the construction of an inn and residence on Applicants Roland and Lisa Gaujac’s (“Applicants”)
property. Applicants filed the motion to dismiss, arguing that the Wygmans’ notice of appearance was
late, not mailed to Applicants’ Counsel, and may have been purposefully back-dated. Applicants also
assert that allowing the Wygmans to intervene would prejudice Applicants and delay resolution of the
matter because of a quickly approaching mediation session scheduled for December 15, 2010.
This Court’s procedural rules require most parties, with a few exceptions not pertaining here,
who wish to intervene in the appeal of a municipal body’s decision to file a notice of appearance within
20 days of receiving service of the notice of appeal. V.R.E.C.P. 5(c). The parties wishing to intervene
must also serve each of the other parties involved in the appeal with their notices of appearance. Id.; see
also V.R.C.P. 5. If a filing party misses the 20-day deadline, the party may file a “timely” motion to
intervene. V.R.E.C.P. 5(a)(2), (c); see also 24 V.S.A. § 4471(c); V.R.C.P. 24. Further, all of these
filings must be signed by the filing party, or the party’s counsel, or they will be “stricken unless
omission of the signature is corrected promptly after being called to the attention of the attorney or
party.” V.R.C.P. 11(a).1
The Wygmans filed an unsigned notice of appearance with the Court on November 5, 2010, a
total of 31 days after they were served with notice of Applicants’ cross appeal, thereby rendering the
Wygmans’ filing 11 days late. For reasons unexplained to the Court (and not relied upon in our
determination here), the Wygmans dated their notice October 26, 2010 but the Court did not receive it
until November 5, 2010. When the Court brought the signature omission to the Wygmans’ attention,
they corrected this by each filing signed pro se notices of appearance on November 12, 2010. In
response to Applicants’ motion to dismiss, the Wygmans filed a signed letter apologizing for the
1
The signature serves as a party’s certification of the accuracy and good faith of the party’s representations to the
Court. See Reporter’s Notes, V.R.C.P. 11.
In re Gaujac Final Plan Review/PUD, No. 145-9-10 Vtec (EO on Motion to Dismiss IPs) (12-14-10) Page 2 of 2.
lateness of their filing and indicating that they were out of the state for the month of September and fell
behind on their correspondence.
We cannot discern how missing this appearance deadline by 11 days is an egregious delay
warranting dismissal.2 Here, the Wygmans promptly corrected the omission of their signatures, once the
Court brought their signature omission to their attention. While it remains unclear whether the
Wygmans have served all of the other parties involved in this appeal with copies of their notice of
appearance, Applicants were notified of the Wygmans’ desire to appear through an e-mail on November
4. (See Mot. to Dismiss Wygmans as Interested Parties n.1, filed Nov. 8, 2010). Additionally, despite
not filing an official motion to intervene, which is required of the Wygmans under V.R.E.C.P. 5(c), the
Wygmans have filed a signed explanation of their tardy notice with the Court in the form of a letter
responding to Applicants’ motion.3
Ultimately, the procedural errors in the date, format, and service of the Wygmans’ notice of
appearance do not warrant the harsh remedy of their dismissal as interested persons. If the Wygmans
had filed a motion to intervene, V.R.C.P. 24(b) would require the Court to consider whether
adjudication of the rights of the original parties in this appeal will be unduly delayed or prejudiced by
the Wygmans’ appearance. Applicants’ arguments on this question have not convinced us that the
errors here create such problems. The Wygmans state that they are aware of the date of the scheduled
mediation and have “no problem with this date.” (See letter to Court from Maura and Justin Wygmans,
filed Nov. 30, 2010). Additionally, while the Court frowns upon dating correspondence with a date
other than that on which it is mailed, we do not think the discrepancy here on the Wygmans’ original
notice of appearance, nine days, warrants their dismissal.
For the above reasons, the Court finds that the Wygmans may remain interested persons in this
appeal. Thus, the Wygmans may and should participate in the upcoming mediation session which was
ordered by the Court through its October 20, 2010 Scheduling Order. If the Wygmans have not done so
already they must send copies of their signed notice of appearance, which was filed with the Court on
November 12, 2010, to all of the parties in this appeal.
___________________________________________ ___December 14, 2010___
Thomas S. Durkin, Judge Date
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Date copies sent to: ____________ Clerk's Initials _______
Copies sent to:
Attorney Vincent A. Paradis for Appellants Karen Frost and Michael Frost
Attorney David W. Rugh for Interested Person Town of Charlotte
Attorney Liam L. Murphy for Cross Appellants Roland Gaujac and Lisa Gaujac
Interested Person Louise F. Reid
Interested Persons Maura Wygmans and Justin Wygmans
2
While Applicants discuss other opportunities the Wygmans had to file notices of appearance in this and a related
appeal—the approval of Applicants’ preliminary site plan—the applicable rule here, V.R.E.C.P. 5(c), entitles a party to
enter an appearance within 20 days of any notice of appeal. (See Mot. to Dismiss Wygmans as Interested Parties 2,
filed Nov. 8, 2010).
3
The record does not indicate if and when the Wygmans received service of Applicants’ November 9th motion to
dismiss. The Wygmans letter in response to the motion was filed on November 30, 2010. The Court reminds the
Wygmans that they must comply with the Vermont Rules of Civil Procedure including Rule 78 which requires
memorandum in opposition to motions to be filed with the Court 15 days after a party receives service of the motion.