Main St Place LLC ( 2012 )

State of Vermont
Superior Court—Environmental Division
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ENTRY REGARDING MOTION
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In re Main St. Place, LLC Demolition Application Docket No. 120-7-10 Vtec
(Appeal of ZBA denial of demolition permit)
Title: Motion for Summary Judgment (Filing No. 2)
Filed: December 23, 2011
Filed By: Applicant/Appellant Main Street Place, LLC
Response filed on 1/30/12 by Interested Person Village of Derby Line
Reply filed on 2/13/12 by Main Street Place, LLC
Supplemental memorandum filed on 5/8/12 by Main Street Place, LLC
Supplemental memorandum filed on 5/14/12 by Village of Derby Line
___ Granted X Denied ___ Other
Currently before the Court are five separate, but related, appeals concerning municipal
land use permits for development activities on the same two lots: 50 and 58 Main Street in the
Village of Derby Line, Vermont. The above Docket is an appeal by Main Street Place, LLC
(“Applicant”) of a decision by the Town of Derby Zoning Board of Adjustment (“the ZBA”)
denying Applicant a demolition permit to raze existing buildings on the two lots and level the
site.
The ZBA’s decision currently on appeal follows this Court’s previous remand in a prior
appeal from an earlier decision by the ZBA granting a demolition permit to Applicant. Both the
current and prior appeals concern a permit application referencing the same or similar
development proposal. In the prior appeal, Docket No. 163-8-09 Vtec, this Court determined
that remand of Applicant’s application to the ZBA was appropriate because an adjoining
property owner had not been notified of the ZBA’s public hearing on Applicant’s original
proposal, as required by 24 V.S.A. § 4464(a)(1)(C), and thus, the ZBA had not had an
opportunity to receive and consider that party’s testimony. See In re Main St. Place, LLC
Demolition Permit, No. 163-8-09 Vtec (Vt. Envtl. Ct. Feb. 12, 2010) (Durkin, J.) (ruling on request
for remand). That adjoining property owner was the only appellant in that appeal and has not
chosen to appear in the current appeal.
Following remand, the ZBA issued a new decision denying Applicant a demolition
permit, and Applicant appealed that decision in this appeal, Docket No. 120-7-10 Vtec. Now
pending is Applicant’s summary judgment motion requesting that the Court determine that the
appeal in Docket No. 163-8-09 Vtec was incorrectly filed by the only appellant in that case, the
adjoining property owner, and that, therefore, the original decision granting the demolition
permit should stand.
Main St. Place, LLC Demolition App, No. 120-7-10 Vtec (EO on Mot. for Summ. J.) (06-19-12) Pg. 2 of 3.
We will grant summary judgment to a moving party (here, Applicant) only if that party
shows that “there is no genuine dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” V.R.C.P. 56(a); V.R.E.C.P. 5(a)(2).1 In determining whether this
standard is met, we “accept as true the [factual] allegations made in opposition to the motion
for summary judgment,” as long as they are supported by reference to admissible evidence, and
give the opposing parties (here, the Village) the benefit of all reasonable doubts and inferences.
Robertson v. Mylan Labs., Inc., 2004 VT 15, ¶ 15, 176 Vt. 356; see V.R.C.P. 56(c).
Applicant argues that the original appeal by the adjoining property owner was not
properly filed because it was not accompanied by a motion for party status. Applicant supports
its argument by reference to our decision in In re Verizon Wireless Barton Permit, where we
dismissed the appellants for failure to file such a motion. No. 133-6-08, slip op. at 7–10 (Vt.
Envtl. Ct. May 20, 2009) (Durkin, J.), aff’d, 2010 VT 62, 188 Vt. 262. Applicant argues that,
because a decision by this Court to remand an application to a municipal panel is not a final
judgment (rather, the original application is returned to the ZBA for further review and possible
return to this Court on appeal), we have jurisdiction in the current appeal to consider the
validity of the adjoining property owner’s appeal in Docket No. 163-8-09 Vtec.
The Vermont Supreme Court has decisively stated that a decision by this Court to
remand a matter to the municipal panel is not a final judgment by this Court. See e.g., In re
Appeal of Cliffside Leasing Co., 167 Vt. 569, 570 (1997). However, we do not understand this
determination to give parties an absolute license to raise any issue about a remanded
proceeding in a subsequent appeal from the new decision resulting after remand. All, or
portions, of the original decision on appeal may be vacated upon remand, and, as is the case
here with the adjoining property owner, parties to the remanded matter may choose not to
appeal the new decision or to appear in another party’s appeal of a new decision.
We need not determine the exact limits to Applicant’s ability to raise issues concerning
the remanded proceeding, however, because, in an Entry Order we issued in that previous
appeal, we effectively addressed Applicant’s current argument challenging the validity of the
adjoining property owner’s appeal. See Main St. Place LLC Demolition Permit, No. 163-8-09
Vtec (Vt. Envtl. Ct. Feb. 12, 2010) (Durkin, J.) (ruling on motion for summary judgment). In that
Entry Order, we concluded that the adjoining property owner’s appeal was timely filed under
the exception to the 30-day time period found in 10 V.S.A. § 8504(b)(2). Id., slip op. at 2. We
found that the adjoining property owner had not been notified of the public hearing on
Applicant’s original proposal and that this “absence of notice ‘prevented [CNB] from obtaining
party status or participating in the [ZBA] proceeding.’” Id. (emphasis added).
Applicant’s current motion effectively asks the Court to reconsider this previous ruling
based on our prior ruling in Verizon Wireless Barton Permit. Specifically, Applicant asserts that
we should conclude that the adjoining property owner’s appeal was not valid because the
appellant failed to file a motion for party status along with its notice of appeal.
1 We note that an updated version of V.R.C.P. 56 took effect on January 23, 2012, subsequent to the filing
of the pending motion. We analyze the pending motion, and all other motions for summary judgment
filed in the four related appeals concerning 50 and 58 Main Street in the Village of Derby Line, under the
current version of the rule because the rule change does not affect our analysis and at least one of these
motions for summary judgment was filed after the rule change.
Main St. Place, LLC Demolition App, No. 120-7-10 Vtec (EO on Mot. for Summ. J.) (06-19-12) Pg. 3 of 3.
We do not agree that the situation in Docket No. 163-8-09 Vtec is analogous to that in
Verizon Wireless Barton Permit. In Verizon Wireless Barton Permit, the dismissed parties’
notice of appeal did not request party status or state a basis for claiming that they had a right to
appeal. See 2010 VT 62, ¶ 20. Nor did any other filing by the parties ask the Court to grant
them party status. See id. In Docket No. 163-8-09 Vtec, the adjoining property owner explicitly
asked for a right to appeal under 10 V.S.A. § 8504(b)(2) and indicated that its basis for doing so
was its lack of notice for the public hearing leading to the decision it sought to appeal.
The situation in Docket No. 163-8-09 Vtec is similar to that in In re Granville
Manufacturing Co. where the party filed its motion for party status shortly after filing its notice
of appeal rather than at the same time. See No. 2-1-11 Vtec, slip op. at 4 (Vt. Super. Ct. Envtl.
Div. July 1, 2011) (Durkin, J.). In both Granville Manufacturing Co. and Docket No. 163-8-09
Vtec, the Court and other parties were put on clear notice, at the same time as or shortly after
the filing of a notice of appeal, that the party appealing sought to do so under an exception to
the normal requirements and on what basis the party claimed such a right.
Because we do not agree that our ruling in Verizon Wireless Barton Permit, or any of the
arguments presented by Applicant in its current motion for summary judgment, requires us to
revisit our previous ruling that the adjoining property owner’s appeal in Docket No. 163-8-09
Vtec was valid, we DENY Applicant’s motion for summary judgment.
_________________________________________ June 19, 2012
Thomas S. Durkin, Judge Date
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Date copies sent to: ____________ Clerk's Initials _______
Copies sent to:
Jon T. Anderson, Attorney for Main Street Place, LLC
William E. Simendinger, Co-counsel for Main Street Place, LLC
Robert Halpert, Attorney for Town of Derby
Paul S. Gilles, Attorney for Village of Derby Line