Boutin PRD Amendment ( 2007 )


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  •                                    STATE OF VERMONT
    ENVIRONMENTAL COURT
    }
    In re: Boutin PRD Amendment                 }       Docket No. 93-4-06 Vtec
    (Appeal of Boutin)                  }
    }
    Decision and Order on Motion for Reconsideration
    Appellant-Applicants Steve and Courtney Boutin appealed from a decision of the
    Development Review Board (DRB) of the Town of Fletcher denying their application to
    amend a Planned Residential Development (PRD). Appellant-Applicants are represented
    by Jon T. Anderson, Esq.; Interested Person John Koval represents himself; and the Town
    is represented by Vincent A. Paradis, Esq. and Chad V. Bonanni, Esq.
    The Court ruled on summary judgment in favor of the Town, granting summary
    judgment on Question 2 of the Statement of Questions that the restriction in the PRD’s
    approval waiving development rights to construct on Lot 6 “until future amendment of the
    zoning district density may provide for additional development of the tract” has not
    expired by its terms. Appellant-Applicants have moved for reconsideration.
    As noted in the decision on motions following the Superior Court’s summary
    judgment decision in Stacey v. Capitol City Press, Inc., Docket No. 482-8-02 Wncv (Wash.
    Super. Ct., June 10, 2004), “‘[m]otions for reconsideration serve a limited function: to correct
    manifest errors of law or fact or to present newly discovered evidence.’ Caisse Nationale
    de Credit Agricole v. CBI Industries, Inc., 
    90 F.3d 1264
    , 1269 (7th Cir. 1996) (quoting Keene
    Corp. v. Int'l Fidelity Ins. Co., 
    561 F.Supp. 656
    , 665 (N.D.Ill. 1982), aff'd, 
    736 F.2d 388
     (7th
    Cir. 1984)).”
    A motion for reconsideration of a summary judgment decision should not be used
    “to rehash arguments previously raised [to] and rejected by the court.” See Duane v.
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    Spaulding and Rogers Mfg. Inc., 
    1994 WL 494651
    , *2 (N.D.N.Y.,1994). As in that case, it
    may be “readily apparent from [a] reconsideration motion . . . that the [moving parties] and
    the court disagree,” nevertheless, “that disagreement [may] not, in the court’s view, rise
    to the level of a ‘clear error of law’ or ‘manifest injustice.’” 
    Id.
    In the present appeal, this Court has reexamined the February 12, 2007 summary
    judgment decision in light of Appellants’ reconsideration arguments, and declines to make
    any changes in that decision.
    As fully analyzed in that decision, Appellants’ proposal to develop Lot 6 of the
    existing PRD could only be considered by the DRB if the zoning district density has been
    amended to provide for additional development of the tract. Under the current 2002
    Zoning Bylaws, “[e]ach dwelling unit shall constitute a separate unit for purposes of
    calculating density,” Bylaws §7.2, and the “total number of dwelling units [in a PRD] shall
    not exceed that which would be permitted in the DRB’s judgment, if the parcel were
    subdivided into buildable lots in conformance with the district minimum lot area
    requirement for single-family dwellings,” Bylaws §5.5(B)(2). Thus, notwithstanding that
    the 2002 Bylaws now allow duplexes in this zoning district, the number of dwelling units
    allowed in this PRD has not changed (from when only single-family dwellings were
    allowed in the district) because the number of dwelling units allowed in the PRD is still
    measured by the number of single-family lots that would be allowed if the property were
    subdivided.
    In support of reconsideration, Appellants make two new arguments that they did
    not make in the original summary judgment proceedings, although both could have been
    raised at that time. First, they argue that because the 2002 Bylaws also allow for accessory
    dwelling units in this zoning district, the Court should interpret that provision as an
    amendment to the zoning district density (thereby allowing for additional development of
    Lot 6). However, accessory dwelling units are required by state law to be allowed “within
    2
    or appurtenant to an owner-occupied single-family dwelling,” 24 V.S.A. §4412(1)(E) (2004),
    now as a permitted use, and under the former statute (§4406(4)(D)) either a permitted or
    a conditional use, with additional restrictions requiring the accessory unit to be occupied
    by a relative of the owner or a disabled or elderly person. The provision in the 2002 Bylaws
    allowing such units as a conditional use merely implemented that state law, as well as
    allowing detached accessory dwellings “for use as a guest house or cottage;” it did not
    change the density requirements in the district. Rather, the 2002 Bylaws required that the
    single-family residential lot proposed for an accessory dwelling “must meet all current
    density, dimensional and other requirements for the district in which it is located.” 2002
    Bylaws §4.1(A)(1). In fact, it precluded subdivision of the accessory unit as a separate lot
    unless it “meets all existing municipal and state regulations applying to single family
    dwellings, including all density, dimensional and other requirements for the district in
    which it is located.” 2002 Bylaws §4.1(A)(5).
    Second, Appellants argue that this Court lacks jurisdiction to analyze the condition
    at issue in this appeal, because the language appears in the deed to the property. However,
    not only is the development restriction contained in the restrictive covenant in the deed,
    but, as discussed in the Court’s decision, it became a condition to the May 16, 1990 default
    approval of the PRD, because it was proposed by the Appellants’ predecessor, the then-
    applicant, as part of the application. Thus the Court is not called upon to interpret the
    language of the deed itself, but rather to interpret the language of a condition proposed by
    the then-applicant to meet the requirements of §780(c)(3) and (5) of the 1981 By-Laws
    governing PRDs (and to avoid an alternative condition that Lot 6 “never” be developed).
    Litigants must bear in mind, when presenting motions for summary judgment to a
    court, that a motion to reconsider “is not to be used as a means to reargue matters already
    argued and disposed of by prior rulings or to put forward additional arguments which [the
    moving party] could have made but neglected to make before judgment.” McDowell Oil
    3
    Service, Inc. v. Interstate Fire and Cas. Co., 
    817 F.Supp. 538
    , 541 (M.D.Pa. 1993) (internal
    quotations and citation omitted); see also Caisse Nationale, 
    90 F.3d at 1270
     (a party may not
    wait for reconsideration to “wheel out all its artillery”) (quoting Employers Ins. of Wausau
    v. Bodi-Wachs Aviation Ins. Agency, 
    846 F.Supp. 677
    , 685 (N.D.Ill. 1994)).
    Accordingly, based on the foregoing, it is hereby ORDERED and ADJUDGED that
    Appellant-Applicants’ Motion for Reconsideration is DENIED. This decision appears to
    the Court to conclude this appeal and therefore a judgment order is enclosed to be issued
    effective May 24, 2007, unless Appellant-Applicants file a request in writing with the Court
    by noon on May 24, 2007, to proceed with Question 1 of the Statement of Questions.
    Done at Berlin, Vermont, this 18th day of May, 2007.
    _________________________________________________
    Merideth Wright
    Environmental Judge
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