Musty Zoning Permit ( 2011 )

State of Vermont
Superior Court—Environmental Division
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ENTRY REGARDING MOTION
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In re Musty Permit Docket No. 174-10-10 Vtec
(Appeal from DRB denial of appeal from Zoning Administrator’s permit determination)
Title: Motion for Reconsideration of Merits Decision (Filing No. 9)
Filed: May 4, 2011
Filed By: Appellant Frederick Tiballi
Response in Opposition filed on 5/19/11 by Liam L. Murphy, Attorney for Applicant Sherrill Musty
Reply filed on 6/6/11 by Appellant Frederick Tiballi
___ Granted X Denied ___ Other
Before us is a motion filed by Frederick Tiballi asking the Court to reconsider its April 27,
2011 Decision on the Merits (“Merits Decision”) in this appeal. The motion, although difficult to
decipher, appears to ask for reconsideration of two issues. First, the motion asks that we reconsider
our approval of the zoning permit at issue in this appeal because, Mr. Tiballi asserts, the applicant
(Sherill Musty) needs to undergo conditional use review for her proposed development prior to
seeking zoning permit approval. Second, the motion asks that we reconsider our conclusions about
the subdivision plan approval Ms. Musty received in a prior proceeding.
While this Court has no specific authorization to hear requests to “reconsider” an order, we
treat such requests as motions to alter or amend an order pursuant to V.R.C.P. 59(e). See Campbell
v. Stafford, 2011 VT 11, ¶ 17 (mem.); see also V.R.E.C.P. 5(b). It is ultimately within the Court’s
discretion whether to grant such motions, and we have identified four principal reasons for doing so:
(1) to “correct manifest errors of law or fact upon which the judgment is based”; (2) to allow a
moving party to “present newly discovered or previously unavailable evidence”; (3) to “prevent
manifest injustice”; and (4) to respond to an “intervening change in the controlling law.” Lathrop
Ltd. P’ship I, Nos. 122-7-04 Vtec, 210-9-08 Vtec, and 136-8-10 Vtec, slip op. at 10–11 (Vt. Super.
Ct. Envtl. Div. Apr. 12, 2011) (Durkin, J.) (quoting 11 Wright, Miller & Kane, Federal Practice and
Procedure: Civil 2d § 2810.1); see V.R.C.P. 59(e); Drumheller v. Drumheller, 2009 VT 23, ¶ 29, 185
Vt. 417 (“Vermont Rule 59(e) is substantially identical to Federal Rule of Civil Procedure 59(e), and
we have looked to federal decisions interpreting the federal rule for guidance in applying the
Vermont rule.”).
Here, Mr. Tiballi first argues that the Court should not have approved the zoning permit
because Ms. Musty must first obtain conditional use approval for her proposed development. Mr.
Tiballi argues that conditional use review is necessary because all relevant documents show a rear-
yard setback of 15 feet on the lot for which the zoning permit is sought (Ms. Musty’s vacant lot), a
setback that Mr. Tiballi contends makes the lot nonconforming under the City of Burlington’s zoning
ordinance, thereby triggering conditional use review.
In re Musty Permit, No. 174-10-10 Vtec (EO on Motion for Reconsideration) (7-28-11) Pg. 2 of 3.
We first note that we find no reference in Mr. Tiballi’s original Statement of Questions, nor
in the revised Statement he filed, that specifically raises this legal question. Mr. Tiballi thus
effectively seeks to now raise a number of issues that he did not include in his Statement of
Questions. As a result, neither this Court nor opposing parties had the opportunity to focus on these
issues during the de novo trial.
When an appellant fails to preserve a legal issue for review by specifically raising the legal
question in his or her Statement of Questions, this Court is deprived of whatever jurisdictional
authority it may have to address the issue. An appellant’s statement of questions serves two very
important purposes in Environmental Division proceedings: to establish the scope of an appeal and to
provide notice to the other parties, and this court, of what issues are to be addressed during the
litigation. See Reporter’s Notes, V.R.E.C.P. 5(f); Appeal of Town of Fairfax, No. 45-3-03 Vtec, slip
op. at 4 (Vt. Envtl. Ct. June 13, 2005) (Wright, J.). It would be unfair and prejudicial to the applicant
here, and to any other potential parties who have not joined in this appeal, for the Court to now take
up issues they had no notice would be adjudicated. Indeed, we are without jurisdiction to do so.1
See V.R.E.C.P. 5(f); Vill. of Woodstock v. Bahramian, 160 Vt. 417, 424 (1993). Mr. Tiballi cannot
now seek a ruling on issues that he did not coherently raise in his Statement of Questions.2 Thus, Mr.
Tiballi’s first argument in support of his motion to alter or amend our original Decision must fail.
Mr. Tiballi’s first argument also fails because of the nature of the application before the
Court in this appeal. As the Court has attempted on numerous occasions to explain to Mr. Tiballi, the
prior subdivision determinations that created the subject lot and referenced its setbacks cannot be
collaterally attacked in these proceedings, since these proceedings solely concern the development
and use of the vacant lot for a single-family residence. See Entry Orders issued on February 24,
2011 and March 9, 2011. The prior determinations, not appealed and now final, include the original
December 17, 2008 subdivision approval by the City of Burlington Development Review Board
(“DRB”), with conditions to be satisfied by Ms. Musty, including the submission of a revised site
plan; the May 19, 2009 certification by both the City of Burlington Engineer and DRB Chairman that
Ms. Musty’s revised site plan conforms to the DRB conditions; and the July 10, 2009 certificate of
compliance issued by the City of Burlington Zoning Compliance Officer to Ms. Musty. See April
27, 2011 Merits Decision at 2–3.
Mr. Tiballi’s second argument is that Ms. Musty has not proven that she has approval from
the DRB for the location of the line that divides her now-subdivided lots, one of which is to be
developed pursuant to the zoning permit that is the subject of this appeal. To the extent that Mr.
Tiballi wishes to challenge the finality of the subdivision approval Ms. Musty received from the
DRB, he has not given us reason to doubt that that prior decision has become final under 24 V.S.A. §
4472. To the extent that Mr. Tiballi wishes to challenge what dimensions the subdivision approval
actually incorporated, including the location of the dividing line between Ms. Musty’s lots, we refer
Mr. Tiballi to the revised final plat that was approved by the DRB Chairman on May 19, 2009 and
for which a certificate of compliance was issued on July 10, 2009. We stated as much in our Merits
1
The importance of this rule is particularly evident here because the parties have not had the opportunity to provide
full testimony and argument before the Court on the multiple issues Mr. Tiballi now raises in his post-trial
memorandum. These issues include whether a 15 foot rear-yard setback exists, whether such a setback would have
the import of making Ms. Musty’s vacant lot nonconforming, and whether such a nonconformity would trigger
conditional use review or whether there are circumstances exempting the proposed development from such review.
2
We regret that the lack of clarity in Mr. Tiballi’s Statement of Questions and subsequent filings may have
prevented him from putting the applicant and the Court on notice of all of the issues he wanted to raise in his appeal.
However, we stress that this Court has a responsibility to ensure that all parties are afforded procedural due process;
notice of the issues to be adjudicated is a fundamental part of that due process.
In re Musty Permit, No. 174-10-10 Vtec (EO on Motion for Reconsideration) (7-28-11) Pg. 3 of 3.
Decision, and Mr. Tiballi has put forth no argument leading us to question our previous conclusion.
Finally, to the extent that Mr. Tiballi wishes to challenge whether Ms. Musty has, in fact, complied
with the provisions of the approved revised final plat, we must decline to respond, as that question is
not before us in this appeal.
To clarify, to the extent that Mr. Tiballi has asked for reconsideration of any conclusion
reached in our Merits Decision, he has not made any showing of an error of law or fact, new
evidence, injustice, or change in the controlling law that would warrant an alteration or amendment
of that decision. Consequently, we DENY Mr. Tiballi’s motion.
Within his motion for reconsideration, Mr. Tiballi also asks for clarification of what site plan
our Merits Decision effectively approves. We answer here that the approved site plan is the three-
page site plan admitted at trial as Applicant’s Exhibits 8, 9, and 10. Those exhibits evidence the site
plan Ms. Musty identified at trial as her preferred site plan3 and evidence the site plan actually
approved by the Court.
This last challenge appears to be based upon a premise that the site plan Ms. Musty submitted
at trial was different from that presented to the DRB, and that such differences prohibit approval on
appeal. If this is the premise for Mr. Tiballi’s last argument, we respectfully conclude that his legal
interpretations are incorrect. Mr. Tiballi did not provide evidence at trial or with this motion that
shows that the site plan admitted at trial includes material differences from the site plan approved by
the City of Burlington zoning administrator and DRB. Applicants who in no way change the
substantive nature of their application are allowed to make revisions to their site plan, particularly in
response to a neighbor’s concerns or to assure conformance with the ordinance. See In re Sisters and
Brothers Inv. Group, LLP, 2009 VT 58, ¶¶ 20–21, 186 Vt. 103. For these reasons, we see no error or
mistake in our prior Merits Decision and therefore DENY Mr. Tiballi’s motion in its entirety.
Our Merits Decision of April 27, 2011 remains unchanged.
________________________________________ July 28, 2011_____
Thomas S. Durkin, Judge Date
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Date copies sent to: ____________ Clerk's Initials _______
Copies sent to:
Mark L. Sperry, Attorney for Appellant Frederick P. Tiballi
Kimberlee J. Sturtevant, Attorney for Interested Person City of Burlington
Liam L. Murphy, Attorney for Appellee Sherill N. Musty
Interested Persons Lynne Tiballi, Phyllis P. Rose, Alexander H. Rose, Colin Trevorrow, Isabelle Trevorrow,
Lewis R. First, Sandra L. First, Rachel First, Daniel L. Lustgarden, Callie Fortin, Charles Bookwalter, Carol S.
Bookwalter, Jurij Homziak, Mary Trexler, Ann K. Cenci Family Trust, Eugene P. Cenci, Robert G. Openheimer,
Wendy D. Oppenheimer, Sue Ellen Strang, Rita Carlile, and Paul Carlile
3
Applicant Musty offered an alternate site plan at trial, evidenced by Exhibits 13−15, but clearly expressed a
preference for the site plan evidence by Exhibits 8−10, which was the site plan the Court approved in its findings
and conclusions entered on the record during the last day of trial.