Appeal of Ghia ( 2003 )

STATE OF VERMONT
ENVIRONMENTAL COURT
Appeal of James Ghia }
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Docket No. 31-2-03
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Vtec
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Decision and Order on Motion to Alter or Amend
This Court issued its Decision and Judgment Order on the merits of
this on-the-record appeal on November 19, 2003. Appellant James
Ghia is represented by Martin Nitka, Esq.; the Town1 of Ludlow is
represented by J. Christopher Callahan, Esq. Appellant has moved to
alter or amend the judgment order.
Before we reach Appellant= s motion, we must correct a typographical
error in the Court= s decision: In the last sentence of the first (partial)
paragraph on page 7 of that decision, the date should have been
>1987' rather than >1997.= To avoid confusion in future readers of
that decision, we will correct that error in the electronic version of that
decision before it is made available to the public. We will also correct
the paper copies on file at the Court, noting that that change was
made as a result of today= s order.
Appellant argues that the issue of whether the project was commenced
within the 120-day-period required by ' 225 and its unappealed
conditional use permit was not before the Court. A fair reading of
Question 3 of the Statement of Questions, however, shows that
Appellant brought the question of commencement of construction
squarely before the Court in this case.
Appellant argues that the finding that construction was not
commenced on the initial group of twelve units (three buildings) until
1987 at the earliest is not supported in the record as a whole. In
support of this argument Appellant adduces an additional affidavit, not
presented to the DRB and not part of the record, asserting that the
foundations of the first three buildings were dug and the footings for
them were poured in July of 1985, although those buildings were not
completed until between 1987 and 1989.
Unfortunately for Appellant= s argument, because this is an on-the-
record appeal, any additional evidence must be presented initially to
the DRB before the Court could consider it. Appellant remains free to
move the DRB to reopen and reconsider its decision, and to allow
Appellant to present to it this additional evidence. But that evidence
cannot be considered for the first time by the Court.
All that the Court had before it in this particular case was the evidence
that was before the DRB when it made its decision. Based on that
evidence, which is described in the November 19, 2003 decision and
order, we decline to alter or amend the decision and order or the
associated judgment order. We do note, for the guidance of the
parties, that the Court= s decision was and is without prejudice to any
decision the DRB may make in the future to reopen its hearing and
take further evidence. We also note that any decision which it may
make on the basis of the additional evidence would be subject to a
future appeal that would be a new appeal, not a reopening of the
present appeal.
Accordingly, Appellant= s motion to alter or amend is DENIED.
Done at Barre, Vermont, this 31st day of December, 2003.
___________________
Merideth Wright
Environmental Judge
Footnotes
1.
Despite discussions in pretrial conferences and footnote 2 to that
order, Attorney Callahan persists in filing legal memoranda on behalf
of the “Ludlow Town and Village Development Review Board,” even
though he entered his appearance properly on behalf of the “Town and
Village of Ludlow.” As we noted in that footnote, the only proper
municipal party under 24 V.S.A. § 4464(b)(2) is the municipality itself,
not the administrative body whose decision is being appealed.