Duval CU Denial - Decision on Motion (Reopen) ( 2020 )

STATE OF VERMONT
SUPERIOR COURT ENVIRONMENTAL DIVISION
Docket No. 126-10-19 Vtec
Duval CU Denial
ENTRY REGARDING MOTION
Count 1, Municipal DRB Conditional Use (126-10-19 Vtec)
Count 2, Municipal DRB Conditional Use (126-10-19 Vtec)
Title: Motion Revised Motion to Reopen (Motion 4)
Filer: Peter K. Duval
Attorney: Pro Se
Filed Date: February 3, 2020
No response filed
The motion is DENIED.
This decision addresses Applicant-Appellant Peter Duval’s (Applicant) motion to reopen
Docket No. 93-8-18 Vtec. and merge it with No. 126-10-19 Vtec., pursuant to V.R.C.P. 60(b) and
V.R.E.C.P. 2(b). The Town of Underhill (Town) does not object to coordination, pursuant to
V.R.E.C.P. 2(b).
Town is represented by Joseph S. Mclean, Esq. Applicant is self-represented.
Important to our present analysis of the pending motion is the factual background of this
matter. The prior appeal, No. 93-9-18 Vtec. concerns an appeal of a conditional use permit denial
by the Town of Underhill Development Review Board (DRB) which sought to convert a single-
family home with an attached accessory dwelling into a 4-unit multi-dwelling at 25 Pine Ridge
Toad in Underhill, Vermont. Duval CU Denial, 93-8-18 Vtec slip op. at 2 (Vt. Super. Ct. Envtl. Div.
May 21, 2019) (Walsh, J.). This Court remanded the prior appeal to the DRB for further review
of the wastewater system design and issued a Judgment Order that concluded the matter. Id.;
V.R.E.C.P. 5(j).
The present appeal before this Court concerns the same property and permit, having now
undergone a conditional use analysis for the wastewater system design before the DRB. The DRB
concluded Applicant failed to satisfy Art. III §3.13 and Art. V §5.3.B.6 the 2014 Underhill Unified
Land Use & Development Regulations and noted that Applicant’s original application was
incomplete “as the Applicant failed to submit information requested in the Board’s February 15,
2018 memorandum.” Duval CU Denial, Conditional Use Review Findings & Decision at 11–12
(Town of Underhill Dev. Review Bd. Sept. 27, 2019). Applicant appealed the DRB’s denial and
now seeks to reopen and coordinate the present appeal with the prior concluded matter in the
interest of efficiency.
This Court has discretion to coordinate appeals “where the same violation or project
involves multiple proceedings that have resulted or may result in separate hearings or appeals in
the Environmental Court, or where different violations or projects involve significant common
issues of law or fact.”1 V.R.E.C.P. 2(b)(stating coordination “promote[s] expeditious and fair
proceedings and avoid[s] unnecessary delay”; see also 10 V.S.A. § 8504(g) (“The Environmental
Division may consolidate or coordinate different appeals where those appeals all relate to the
same project.”). When this Court has issued a final judgment concluding a separate matter, as
we have here, an appeal can no longer be coordinated. The Court may, however, grant relief
from a judgment upon a motion to reopen and then coordinate the appeals.
In such instances, a Rule 60(b) motion to reopen is the proper procedural mechanism.
The Court is permitted to reopen a judgment in a variety of situations including mistake,
inadvertence, excusable neglect, newly discovered evidence, fraud, or for “any other reason
justifying relief from the operation of the judgment.” V.R.C.P. 60(b); see also Pella Products, Inc.
v. Krutak, 150 Vt. 81, 83 (1988) (noting that Rule 60(b) is solely within the discretion of the Court).
Here, Applicant states reopening serves the interest of efficiency. While this Court has
discretion to reopen, we see no reason here to justify such an action. The prior appeal was
remanded to the DRB because Applicant had failed to submit a wastewater system design plan
and sufficient factual evidence demonstrating the ability to attain a wastewater system & potable
water supply permit. Duval CU Denial, 93-8-18 Vtec at 1–2 (May 21, 2019). When a DRB is not
afforded the full opportunity to evaluate Applicants’ proposal, remand is appropriate. In re
Maple Tree Place, 156 Vt. 494, 500 (1991); Timberlake Assocs. v. City of Winooski, 170 Vt. 643,
644 (2000) (mem.). Applicant presents no evidence of mistake, inadvertence, excusable neglect,
new evidence, or fraud in the prior action.2 We therefore DENY Applicants’ motion to V.R.C.P.
60(b) reopen.
So ordered.
Electronically signed on June 30, 2020 at 10:35 AM pursuant to V.R.E.F. 7(d).
_________________________________________
Thomas G. Walsh, Judge
Superior Court, Environmental Division
Notifications:
Appellant Peter K. Duval
Interested Person John Koier
1
This rule gives the Court a “flexible case management tool,” allowing us to coordinate the conferences and hearings
for multiple appeals concerning the same project. Reporter's Notes, V.R.E.C.P. 2.
2
The Town notes that it has a pending motion for summary judgment in No. 98-8-18 Vtec. This is incorrect. The
Town filed a motion for summary judgment on Jan. 2, 2020, after the Judgment Order and Entry Order were issued
in No. 98-8-18 Vtec. on May 21, 2019. We therefore decide the Town’s motion in a separate Entry Order under
Docket No. 126-10-19 Vtec.
Interested Person Barbara Koier
Interested Person John Hardacre
Interested Person Marilyn Hardacre
Interested Person John McNamara
Interested Person Cathy McNamara
Joseph S. McLean (ERN 2100), Attorney for Cross Appellant Town of Underhill
Interested Person Dianne Terry
Interested Person Steve Codding
Interested Person Nancy Hall
Interested Person John Hall
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