Capitol Plaza 2-Lot Subdivision/Capitol Plaza Major Site Plan - Decision on Motions ( 2020 )

STATE OF VERMONT
SUPERIOR COURT ENVIRONMENTAL DIVISION
Docket Nos. 3-1-19 Vtec
4-1-19 Vtec
Capitol Plaza 2-Lot Subdivision
Capitol Plaza Major Site Plan DECISION ON MOTIONS
This coordinated appeal relates to a parking garage and associated subdivision (the
Project) proposed by the City of Montpelier (the City). The City applied for subdivision and Major
Site Plan approval in connection with the Project, and the Montpelier Development Review Board
(DRB) approved both applications. John Russell and Les Blomberg (together, Appellants) appeal
the DRB’s decisions.
At a status conference on December 19, 2019, the Court directed Appellants to file an
amended Statement of Questions in both dockets (3-1-19 and 4-1-19 Vtec), clarifying the
regulations at issue. Appellants filed an Amended Statements of Questions, including motions to
amend. The City filed in opposition with motions to strike and clarify aspects of the amended
questions. Before the Court are Appellants’ motions to amend their Statement of Questions in
each docket, along with the City’s corresponding motions to strike and clarify. The Court has
taken the parties’ earlier motions for summary judgment under advisement, and a separate
decision will be forthcoming.
Motions to Amend Statements of Questions
At the Court’s direction, Appellants have filed amended Statements of Questions in both
subdivision and site plan appeals. Appellants ask the Court to accept their amendments pursuant
to V.R.E.C.P. 5(f). While the City does not oppose the amendments in full, it asks us to prohibit
or dismiss certain amended questions on the basis that they impermissibly expand the issues on
appeal.
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This Court has interpreted V.R.E.C.P. 5(f) to allow an appellant to amend the Statement
of Questions. See, e.g., Laberge Shooting Range JO, No. 96-8-16 Vtec, slip op. at 1 (Vt. Super. Ct.
Envtl. Div. Jan. 4, 2017) (Walsh, J.), aff’d, 2018 VT 84. As with motions to amend complaints
pursuant to V.R.C.P. 15, “motions to amend a Statement of Questions are to be liberally granted,
so long as they do not prejudice the other party . . . .” In re Ridgewood Estates Homeowners’
Ass’n & Indian Creek Homeowners’ Ass’n, No. 57-4-10 Vtec, slip op. at 7 (Vt. Super. Ct. Envtl. Div.
Jan. 26, 2011) (Wright, J.); see also V.R.C.P. 15(a) (mandating that leave to amend “shall be freely
given when justice so requires.”). Along with considering whether an amendment is prejudicial,
we also consider whether it might be frivolous or in bad faith. B & M Realty Act 250 Application,
No. 103-8-13 Vtec, slip op. at 2 (Vt. Super. Ct. Envtl. Div. Nov. 26, 2013) (Walsh, J.) (citations
omitted), rev’d on other grounds by 2016 VT 114, 203 Vt. 438.
We are mindful that leave to amend should be liberally granted, and that Appellants filed
amended questions at the request of the Court. All parties agree that clarification of the issues
will be beneficial. The motions to amend are GRANTED. Appellants’ amendments, however,
represent more than mere clarification. We address the City’s concerns below in the context of
its motion to strike and clarify.
Motions to Strike and Clarify Appellant’s Amended Statements of Questions
Pursuant to V.R.E.C.P. 5(f), V.R.C.P. 12(b), and V.R.C.P. 12(f), the City moves to strike or
dismiss certain portions and clarify other portions of Appellant’s Amended Statements of
Questions.
Under V.R.C.P. 12(f), a party may move to strike “any insufficient defense or any
redundant, immaterial, impertinent, or scandalous matter.” Motions to strike should be used
sparingly and should not be used to address the substance of a filing. See Watson v. Village at
Northshore I Ass'n, Inc., No. 2013-451, 2014 WL 3714662, at *2 (Vt. May 1, 2014) (unpublished
mem.); In re Werner Conditional Use, No. 44-4-16 Vtec, slip op. at 3 (Vt. Super. Ct. Envtl. Div. Aug.
31, 2016) (Durkin, J.). Thus, we consider a motion to strike questions on substantive grounds as
a motion to dismiss for lack of subject matter jurisdiction under V.R.C.P. 12(b)(1). In re Ring 85
Depot Street Conditional Use, No. 138-11-15 Vtec, slip op. at 1 n.1 (Vt. Super. Ct. Envtl. Div. July
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6, 2016) (Walsh, J.); see also, e.g., In re Conlon CU Permit, No. 2-1-12 Vtec, slip op. at 1 (Vt Super
Ct. Envtl. Div. Aug. 30, 2012) (Durkin, J.).
An appellant’s Statement of Questions is also “subject to a motion to dismiss or clarify
some or all of the questions.” V.R.E.C.P. 5(f). In reviewing such a motion, the Environmental
Division utilizes the standards set out in V.R.C.P. 12. See V.R.E.C.P. 5(a)(2) (providing that the
Vermont Rules of Civil Procedure apply generally to this Court's proceedings); In re Union Bank,
No. 7-1-12 Vtec, slip op. at 1 (Vt. Super. Ct. Envtl. Div. Nov. 8, 2012) (Durkin, J.). We will grant a
motion to dismiss a question under V.R.C.P. 12(b)(1) if this Court lacks subject matter jurisdiction
over the issues presented, and we will grant a motion under V.R.C.P. 12(b)(6) if the question fails
to state a claim upon which relief can be granted. Union Bank, No. 7-1-12 Vtec at 1–2 (Nov. 8,
2012). We may require an appellant to clarify their questions under V.R.C.P. 12(e) if the questions
are “so vague or ambiguous that a party cannot reasonably be required to frame a respons[e].”
Id. at 2 (quoting V.R.C.P. 12(e)) (alteration in original).
I. Subdivision Appeal
We begin with the subdivision appeal, Docket No. 3-1-19 Vtec. The City first argues that
the lengthy narrative and argument included in the Amended Statement of Questions should be
stricken. Though we are reluctant to excise portions of a filing, the narrative here is “redundant
[or] immaterial.” See V.R.C.P. 12(f). Appellant’s Amended Statement of Questions is over six
pages long, and the bulk of that length consists of explanations or legal arguments. Rather than
setting forth a “short, concise and plain statement” of the issues, appellants have repeated or
expanded on arguments which have already been filed in connection with the pending motions
for summary judgment. See In re Rivers Dev., LLC, Nos. 7-1-05 Vtec & 68-3-07 Vtec, slip op. at 14
(Vt. Envtl. Ct. Jan. 8, 2008) (Durkin, J.).
Appellants note that detailed questions can add clarity and put parties on notice of the
issue. See Hinesburg Hannaford Discharge Permit, No. 68-6-17 Vtec, slip op. at 7–8 (Vt. Super. Ct.
Envtl. Div. Dec. 20, 2017 (Walsh, J.) (discouraging broad questions in favor of more specificity).
We agree; that was the goal in the present case. Yet the Statement of Questions is not a
mechanism for arguing the substance of one’s claims. See In re Conlon CU Permit, No. 2-1-12
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Vtec, slip op. at 1 (Vt. Super. Ct. Envtl. Div. Aug. 30, 2012) (Durkin, J.) (“[D]etailed factual and legal
information that goes beyond identifying the Questions and crosses over into arguing the merits
. . . is misplaced in a Statement of Questions.”) (citation omitted). Here, Appellants have included
many statements and legal arguments which, if they are not redundant, are immaterial to the
purpose of stating the issues for trial. See V.R.C.P. 12(f); V.R.E.C.P. 5(f). The excess language is
unhelpful and makes it more difficult for the Court and the parties to accurately refer to the
issues. The motion to strike is therefore GRANTED as to legal arguments and language going to
the substance of the issues.
The City also contends that Appellants’ Amended Question 3 should be dismissed as it
raises issues under Section 3505 of Montpelier’s Unified Development Regulations (UDR) that
were not raised in the original Question 3.1 Question 3 originally asked: “Will the proposed
subdivision conform to § 3505, governing Design and Configuration of Parcel Boundaries,
specifically § 3505.B(1) (frontage)?” As the City points out, Appellants explicitly referenced UDR
§ 3505.B(1) which requires that “all lots front on a street.” Appellants’ Amended Question 3
removes that subsection and adds references to “§§ 3505.A(1) and (2)” which set forth general
layout requirements for subdivisions.
Although subsections 3505.A(1) and (2) were not explicitly mentioned in the original
Question 3, we find that they were “intrinsic” to the Question. See In re LaBerge NOV, 2016 VT
99, ¶ 15, 203 Vt. 98 (“[T]he Environmental Division may consider matters that are intrinsic to the
statement of questions, even if they are not literally stated in the statement of questions.”). The
Court convened the December 19 status conference because it was apparent that both parties
considered Appellants’ questions as going beyond the specifically referenced subsections. For
example, the City recognized at the conference and in prior filings that Question 3 arguably
encompassed UDR § 3505 in its entirety. See, e.g., City’s Motion for Summary Judgment on the
Scope of Review, at 12-13 (making arguments concerning “§§ 3505.A and B,” not merely §
3505.B(1)). The Court asked Appellants to clarify their questions by making these types of
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For clarity, we refer to specific questions by the numbers Appellants have assigned. The City’s filings use new
numbers to account for questions that have been withdrawn, but we maintain Appellants’ numbering to ensure
consistency between the original and Amended Statements of Questions.
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intrinsic issues explicit. We also cautioned Appellants not to introduce entirely new sections of
the UDR at this time, but Section 3505 has been at issue from the outset and the City has
acknowledged that Question 3 was broad. The motion to dismiss Amended Question 3 is
DENIED.
The City’s next argument involves Amended Questions 1(3), 3(3), 4(1)(C), and 5(2). These
amendments each raise a similar issue related to a lot known as the “Heney Lot” which is owned
by two family trusts and leased by the City: whether subdivision approval should be contingent
on the lot’s owners accepting certain conditions. It appears that the proposed parking garage
will occupy part of the Heney Lot, but this subdivision appeal concerns a separate and adjacent
parcel at 100 State Street. The City contends that we lack subject matter jurisdiction to consider
issues related to the Heney Lot in the subdivision appeal.
When reviewing motions to dismiss for lack of subject matter jurisdiction pursuant to
V.R.C.P. 12(b)(1), we accept all uncontroverted factual allegations as true and construe them in
the light most favorable to the nonmoving party. Rheaume v. Pallito, 2011 VT 72, ¶ 2, 190 Vt.
245. In our de novo review of municipal decisions, this Court sits in the shoes of the relevant
municipal panel. V.R.E.C.P. 5(g); 10 V.S.A. § 8504(h); In re Feeley Constr. Permits, Nos. 4-1-10
Vtec, 5-1-10 Vtec, slip op. at 11-13 (Vt. Super. Ct. Envtl. Div. Jan. 3, 2011) (Wright, J.) (citing In re
Maple Tree Place, 156 Vt. 494, 500 (1991)). The scope of the municipal panel’s authority
determines the scope of ours. See In re Sweet Bldg. Permit, No. 19-2-12 Vtec, slip op. at 2 (Vt.
Super. Ct. Envtl. Div. Jan. 25, 2013) (Walsh, J.) (citing In re Torres, 154 Vt. 233, 235 (1990)).
Nothing in the record before us indicates that the DRB considered the future involvement
of the Heney Lot when evaluating the subdivision application. Precedent suggests that such an
inquiry exceeds the authority of a municipal panel engaged in subdivision review. While the
Vermont Supreme Court has not decided “whether a [municipal panel] ever has the power to
deny a subdivision permit because the proposed uses for it are not authorized,” it has clearly
described “a limited role for subdivision review.” In re Taft Corners Assocs., Inc., 171 Vt. 135, 141
(2000). As the Supreme Court has explained:
[S]ubdivision review is not intended to police prospective uses of the subdivided
lots. No subdivider is required to specify what uses will be placed on the
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subdivided lots, and the act of subdivision does not restrict those uses. Indeed,
there is no requirement that the subdivider know what uses will be placed on
those lots.
Id. at 141. Appellants’ questions regarding the Heney Lot involve a separate parcel from the land
to be subdivided. The questions go beyond the scope of the subdivision application, and beyond
the “limited role” of subdivision review. See id. Appellants argue that we must consider the
Heney Lot because the proposed parking garage will use the lot for emergency access along with
pedestrian, bicycle, and vehicle access. They are concerned that “[t]he subdivision permit would
be unenforceable” against the Heney Lot. We do not see how subdivision approval for the land
at 100 State Street could bind a separate property. Appellants compare this issue to that of a
“necessary co-applicant” in Act 250 proceedings, where owners of “involved land” are sometimes
required to join the application to ensure that permit conditions are enforceable across the entire
development. See Hinesburg Hannaford CU Application, No. 129-9-12 Vtec, slip op. at 4–5 (Vt.
Super. Ct. Envtl. Div. Oct. 27, 2015) (Walsh, J.). Act 250 was created to regulate land use, and the
principles applied there fit the comprehensive nature of land use review. See In re Audet, 2004
VT 30, ¶ 13, 176 Vt. 617 (noting the Legislature’s intent to require “review of large-scale changes
in land utilization”) (quotation omitted). Those principles have no bearing on subdivision
approval. Appellants would have us bind adjacent landowners by examining the future use of
the subdivided land and concluding that neighboring properties will be involved.
To be sure, “[t]he safety and adequacy of access roads is a matter of particular
significance in the subdivision review process,” and the City must show that the subdivision
complies with applicable regulations. See In re Van Nostrand, 2008 VT 77, ¶ 11, 184 Vt. 557(stating that subdivision standards should establish requirements for “streets, curbs, . . . and
other necessary public improvements”) (internal quotation omitted). But regulating prospective
land use is not “[c]onsistent with the proper role of subdivision review.” Taft Corners Assocs.,
Inc., 171 Vt. at 141 (“[T]he act of subdivision does not restrict [prospective] uses.”). Zoning and
site plan review are the appropriate mechanisms to vet uses like the proposed parking garage,
regardless of which lots they may occupy. In Montpelier, the UDR sets general development
standards for emergency, vehicular, and pedestrian access. See UDR § 3010 (discussing “safe and
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efficient access”). Subdivision review, by contrast, is concerned with the parcel to be subdivided
and any associated impacts, not prospective uses or development on other parcels. See Taft
Corners Assocs., Inc., 171 Vt. at 141; UDR § 3501.A (“All subdivision of the land shall conform to
the standards of this chapter.”); UDR § 3503.A (“The land to be subdivided shall be suitable for
use . . . .”); UDR § 3506.B (“The applicant shall integrate pedestrian and bicycle access into the
design of the subdivision . . . .”). The proposed subdivision must comply with the applicable
standards, but the Heney Lot is not part of the proposed subdivision. As such, we conclude that
this Court does not have authority to place obligations on the Heney Lot through the subdivision
standards. See In re Torres, 154 Vt. 233, 235 (1990) (“The reach of the superior court in
[municipal] appeals is as broad as the powers of a [municipal panel], but it is not broader.”).
Amended Questions 1(3), 3(3), and 5(2) are therefore DISMISSED. Amended Question 4(1)(C) is
also DISMISSED to the extent it seeks to place obligations on the Heney Lot.
The City makes several additional arguments asking us to dismiss certain questions
because they are outside the scope of review in this case. Ordinarily we would treat this as a
motion to dismiss for lack of subject matter jurisdiction, but we decline to address the City’s
contentions at this time. The pending motions for summary judgment address the scope of
review and whether these questions should be dismissed. Both parties submitted extensive
briefing on the issues. At the December 19, 2019 status conference, the Court informed the
parties that it had reached a legal conclusion on the scope of review: The Project must comply
with applicable regulations, as limited by UDR § 3103. The forthcoming decision on the parties’
summary judgment motions will explain that conclusion in detail and will decide which issues
remain once the limitations of UDR § 3103 are applied. In the present motion, the City’s
assertions as to the scope of review are duplicative. The motion is therefore DENIED as to the
remaining portions of Amended Questions 1, 4, and 5.
The City’s final argument regarding the subdivision appeal asks that we order Appellants
to clarify their amended questions. Under V.R.C.P. 12(e), we may require an appellant to clarify
questions that are “so vague or ambiguous that a party cannot reasonably be required to frame
a respons[e].” Union Bank, No. 7-1-12 Vtec at 2 (Nov. 8, 2012) (quoting V.R.C.P. 12(e)). Questions
must be clear enough to give the Court and the other parties notice of the grounds on which the
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appellant’s claim rest. See Reporter’s Notes, V.R.C.P. 8(a) (citing Conly v. Gibson, 355 U.S. 41, 47
(1957)). Both the parties and the Court “are entitled to . . . know what issues to prepare for trial.”
In re Unified Buddhist Church, Inc., Indirect Discharge Permit, No. 253-10-06 Vtec, slip op. at 5
(Vt. Envtl. Ct. May 11, 2007) (Wright, J.).
The Court’s goal in ordering Appellants to amend their Statement of Questions was to
clarify the issues ahead of a decision on the pending motions for summary judgment. As the
Court and the City noted at the December 19 status conference, Appellants original questions
were framed quite broadly.2 At the conference, the Court expressed its desire to avoid a situation
that arose in In re Atwood Planned Unit Development, where the appellant’s questions remained
broad and ambiguous even after amendments. See In re Atwood Planned Unit Dev., 2017 VT 16,
¶ 5, 204 Vt. 301. In that case, the Vermont Supreme Court reinforced the idea that all issues
intrinsic to the Statement of Questions should be addressed. Id. ¶ 17. Here, this Court asked
Appellants to specifically state any subsections of the UDR they wished to raise. In other words,
to explicitly raise any intrinsic issues. Both parties indicated their understanding of that goal. The
Court also informed both parties of its legal conclusion on the scope of review.
We agree with the City that the questions are not clearly worded, and we note that
Appellants did not remove the broad phrasing that initially caused confusion. Yet the amended
questions do clarify which subsections of the regulations are at issue. Appellants understood the
Court’s request to restate their questions with specificity, and they were aware of the scope of
review. Thus, we can construe Appellants’ Amended Statement of Questions to remove
ambiguity. We DENY the City’s motion to clarify and we interpret Appellant’s remaining
amended questions as follows:
1. Ordinance § 3503
(1) Will the proposed subdivision conform to § 3503.A, as limited by § 3103?
(2) Will the proposed subdivision conform to § 3503.B, as limited by § 3103?
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For example, Question 4 began: “Will the proposed subdivision conform to § 3506.” The regulation, UDR
§ 3506, contains 11 subsections and over 30 subparts.
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3. Ordinance § 35053
(1) Will the proposed subdivision conform to § 3505.A(1), as limited by § 3103?
(2) Will the proposed subdivision conform to § 3505.A(2), as limited by § 3103?
4. Ordinance § 3506
(1) Will the proposed subdivision conform to § 3506.A(14) (street trees), as limited by
§ 3103?
(2) Will the proposed subdivision conform to § 3506.B (pedestrian and bicycle facilities),
including §§ 3506.B(1), B(2), and B(3), as limited by § 3103?
5. Ordinance § 3507
(1) Has the applicant demonstrated that the proposed subdivision will be “compatible
with the character of the neighborhood” under §§ 3507.A and B(3), as limited by
§ 3103?
The above issues are not new. The forthcoming summary judgment decision will consider
Appellants’ Amended Statement of Questions as construed above, along with the parties’ briefs,
to determine the scope of the regulations as limited by UDR § 3103.
II. Site Plan Appeal
We now turn to the site plan appeal, Docket No. 4-1-19 Vtec. Appellants have withdrawn
Questions 1 and 3, leaving Amended Questions 2(a) through (d). The City objects to amended
questions in the site plan appeal on many of the same grounds as in the subdivision appeal.
Where the City’s arguments and our reasoning remain the same, we will refer to our discussion
of the subdivision appeal above.
First, the City asks us to strike extraneous narrative and legal arguments from the
Amended Statement of Questions. For the reasons set forth in our subdivision discussion, the
motion to strike is GRANTED as to legal arguments and language going to the substance of the
issues.
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Appellant’s Question 2 has been withdrawn.
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Second, the City argues that Amended Question 2(a) raises a new issue: a river setback
requirement that was not part of the original Question 2(a). The City had a similar objection to
Amended Question 3 in the subdivision appeal, and we find the argument equally unavailing
here. Initially, Question 2(a) asked whether the Project will “comply with Chapter 210 of the
Ordinance, including Figure 2-01 requiring 30 feet of frontage.” While the original question
explicitly referenced a frontage requirement, nothing in the question limited the scope of issues.
The City acknowledged that the original Question 2(a) was framed broadly. See City’s Motion for
Summary Judgment on the Scope of Review, at 27 (“Chapter 210 . . . is over thirty pages long,
and the City cannot discern which standards . . . Appellant is asking the Court to evaluate.”). The
sweeping nature of Appellants’ questions led the Court to request clarification through the
present amendments. For the reasons set forth in our subdivision discussion, we DENY the City’s
motion to dismiss Amended Question 2(a).
Third, the City contends that Amended Question 2(d)(2) seeks to expand the issues before
the Court by questioning whether the Heney Lot is “truly part of a community facility” entitled to
limited regulation under UDR § 3103. Keeping in mind that legal arguments in Appellants’
Amended Statement of Questions have been struck, we do not agree that Amended Question
2(d)(2) introduces new issues. The Court’s current understanding is that the Heney Lot is part of
the Project and part of the site plan application. The Court informed both parties of its conclusion
that the scope of review for the Project will be limited by UDR § 3103. We interpret Amended
Question 2(d)(2) to ask whether “the project, including the Heney Lot, [will] comply with” certain
regulations, as limited by § 3103. The motion to dismiss Amended Question 2(d)(2) is DENIED.
Fourth, the City asks us to dismiss portions of Amended Questions 2(a), 2(b), and 2(c)
because they are outside the scope of review. These arguments will be addressed in our decision
on the pending motions for summary judgment. For the reasons stated in our subdivision
discussion, the motion is DENIED. The City’s last argument asks that Appellants further clarify
and revise their amended questions. We need not order additional clarification. For the reasons
set forth in our subdivision discussion, the Court can construe Appellants’ Amended Statement
of Questions to remove ambiguity. We DENY the motion to clarify and interpret Appellants’
amended questions as follows:
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2(a). Chapter 210 of the Ordinance
(1) Will the project conform to the setback requirements set forth in Chapter 210, Figure 2-
01, as limited by § 3103?
2(b). Chapter 220 of the Ordinance (Design Control Overlay District)
(1) Will the project comply with the standards found under §§ 2201.D(1), D(2), and D(7), as
limited by § 3103?
2(c). Chapter 300 of the Ordinance (General Standards) and § 1203.G
(1) Will the project comply with §§ 3002.G, 3005.D, and 3005.E, pertaining to setback from
the river, as limited by § 3103?
(2) Will the changes to off-street parking in the nonconforming Heney Lot, including the
landscaping and screening of the off-street parking, comply with §§ 1203.G and 3011.J as
limited by § 3103?
2(d). Chapter 320 of the Ordinance (Additional Standards for Site Plan Review)
(1) Will the project, including the Heney Lot, comply with the minimum width and internal
walkway standards of §§ 3202.A and 3202.B, as limited by §3103?
(2) Will the project, including the Heney Lot, comply with the street-tree, parking-lot
landscaping and screening standards of §§ 3203.F, 3203.H, and 3203.I, as limited by §
3103?
The forthcoming summary judgment decision will consider Appellants’ Amended
Statement of Questions as construed above, along with the parties’ briefs, to determine the
scope of the regulations as limited by UDR § 3103.
In conclusion, Appellants’ motions to amend their Statements of Questions is GRANTED.
In Docket No. 3-1-19 Vtec, the City’s motion to strike and clarify is GRANTED as to legal
arguments, language going to the substance of the issues, Amended Question 4(1)(C) concerning
obligations on the Heney Lot, and Amended Questions 1(3), 3(3), and 5(2); and DENIED in all
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other respects. The City’s motion to strike and clarify in Docket No. 4-1-19 is GRANTED as to legal
arguments or language going to the substance of the issues and DENIED in all other respects.
Electronically signed on February 4, 2020 at 02:55 PM pursuant to V.R.E.F. 7(d).
_________________________________________
Thomas G. Walsh, Judge
Superior Court, Environmental Division
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