Appeal of O'Donnell ( 2001 )

STATE OF VERMONT
ENVIRONMENTAL COURT
In re: Appeals of Joseph O= }
Donnell and Barbara O= Donnell }
Docket Nos. 50-2-00 Vtec and
}
199-9-00 Vtec
}
}
Decision and Order on Appellants= Motion for Summary Judgment
Appellants Joseph and Barbara O= Donnell appealed in Docket No. 50-2-00 Vtec from a decision
of the Planning Commission of the Town of Peru, granting site plan approval to Applicants
Nicholas Rostow, L&W Construction, and Walter Williams for a gravel pit. Appellants appealed in
Docket No. 199-9-00 Vtec from a decision of the Zoning Board of Adjustment (ZBA) denying their
appeal of the Zoning Administrator= s grant of a zoning permit to Applicants Eugene Rostow (as
landowner) and Walter Williams (as applicant) for the same gravel pit. As of Appellants= filing of
January 22, 2001, Kevin and Cynthia Brocks also appear on Appellants= documents as parties
appellant, although the Court finds no motion in the file to intervene or add them as parties.
Appellants are represented by A. Jay Kenlan, Esq. Walter (A Tink@ ) and Donna Williams are
represented by John M. Ruggiero, Esq.; the Town is represented by Robert E. Woolmington, Esq.
No appearance was ever entered in either appeal on behalf of either Mr. Nicholas Rostow or Mr.
Eugene Rostow. (A courtesy copy of this decision is being sent to Jean B. Giddings, Esq., who
has not entered an appearance but who represents Eugene Rostow on other matters.)
In the course of the pretrial proceedings on these appeals, the Applicants appear to have
determined that certain deed covenants might prevent the operation of a gravel pit regardless of
any determination of the zoning permit and site plan approval on appeal to this Court. The
Applicants have stipulated to withdraw both applications for the approvals on appeal. The Court
was prepared to vacate the approvals on appeal; but Appellants seek a decision instead on the
merits of the applications. They argue that they have a right to de novo review in these appeals
and seek a decision on the merits to prevent the revival or resubmittal of these applications in the
future.
The Town suggests that these matters are moot now that the applications have been withdrawn.
Appellants argue that mootness does not apply because they have a right to de novo review,
citing an Act 250 case: In re Green Peak Estates, 154 Vt. 363, 372 (1990). In that case, the
appellant, which was also the permit applicant, appealed the District Commission= s denial of a
permit under one Act 250 criterion, and also appealed the District Commission= s imposition of
certain conditions under other criteria. In the appeal to the Environmental Board, the applicant
then sought to withdraw its appeal of the conditions, after the time had run within which other
parties could have appealed that aspect of the case. The Environmental Board denied the
applicant= s request to dismiss only that portion of the appeal. For three reasons, the Green Peak
Estates decision is inapplicable. First, in that case the applicant was also the appellant, and was
seeking to control the scope of the appeal. Second, unlike zoning appeals, the Environmental
Board relied upon the fact that no cross-appeal was required to be filed, so that the other
participating parties would have been deprived of the ability to raise issues that they might have
appealed in the absence of Green Peak Estates= having filed the appeal on those issues. Most
importantly, in Green Peak Estates the applicant was not asking to withdraw the underlying
permit application and vacate the already-approved permits. Rather, it was seeking to limit the
issues open to the de novo appeal, while preserving the aspects of the application which had
already been approved.
In the present case, Applicants have withdrawn their applications and have abandoned their
proposal to develop a gravel pit on the Rostow property. It is an applicant= s prerogative to
abandon a project, as long as that applicant also abandons any approvals already obtained for
the project, and those approvals are vacated by the Court. Once the approvals are vacated, there
is no case or controversy in which the Court can adjudicate whether the proposed project would
have, should have or could have been approved. Any pronouncements to that effect would
constitute an impermissible advisory opinion on the part of the Court. In the present appeals, the
applications have been withdrawn, the approvals for the formerly-proposed project are or should
be vacated, the appeals of those approvals have become moot, and therefore the appeals must
be dismissed as moot.
Accordingly, based on the foregoing, Appellants= motion for summary judgment on the merits of
the gravel pit application is DENIED. Based on the Applicants= withdrawal of the applications, the
approvals appealed from in docket numbers 50-2-00 Vtec and 199-9-00 Vtec are hereby
VACATED, and the underlying applications are dismissed with prejudice, concluding these
appeals as moot. The two above-captioned appeals are therefore DISMISSED as MOOT. Any
future application for the use of the property at issue in these appeals must be made on its own
merits and under the Zoning Regulations in effect at such future time. This dismissal does not
affect the rights of Appellants to participate in or appeal from any such future applications.
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Done at Barre, Vermont, this 20 day of April, 2001.
___________________
Merideth Wright
Environmental Judge