Dresner Home Occupation Permit - Decision on Motion ( 2020 )

STATE OF VERMONT
SUPERIOR COURT ENVIRONMENTAL DIVISION
Docket No. 36-4-20 Vtec
Dresner Home Occupation Permit
ENTRY REGARDING MOTION
Count 1, Municipal DRB Appeal from ZA (36-4-20 Vtec)
Title: Motion to Dismiss (Motion 1)
Filer: Susan Dresner
Attorney:
Filed Date: July 1, 2020
Response filed on 07/15/2020 by Attorney Antonietta A. Girardi for party 2 Co-counsel
Partial Opposition
Response filed on 07/29/2020 by Susan Dresner, Appellee
Reply
The motion is GRANTED.
This decision addresses Ms. Susan Dresner’s (Applicant) motion to dismiss an appeal
brought by Wayne Kelly, Debra Kelly, and J. Patrick Frei (together, Appellants) concerning the
Town Wallingford Development Review Board’s (DRB) decision to approve Applicant’s Home
Occupation Permit request.1 The DRB approved Applicant’s permit for short-term rentals at 394
Hounds Hill Lane, Wallingford, Vermont (the Property). At a status conference before this Court
conducted on June 29, 2020, Applicant articulated that she no longer intended to use the
Property for short-term rentals.2 On July 1, 2020, Applicant filed a motion to dismiss with
prejudice. Appellants partially oppose Applicant’s motion, seeking to clarify this Court’s authority
to dispose of this case in its entirety in contrast to remanding back to the DRB. 3
Appellants are represented by David R, Cooper, Esq. and Antonietta A. Girardi, Esq.
Applicant is self-represented.
1
Appellants have also filed a civil case, Docket No. 161-4-20 Rdcv, that alleges that Applicant’s use of the Property
for short term rentals constitutes a breach of restrictive real covenants. See Wayne Kelly ct al. v. Susan Dresner, No.
161-4-10 Rdcv (Vt. Super. Ct. Apr. 7, 2020) (Mello, J.).
2
Applicant intends to rent the Property for rental periods of one month or more.
3
Appellants also do not concede the issue of mootness raised in Applicant’s motion to dismiss. See Wayne Kelly ct
al. v. Susan Dresner, No. 161-4-10 Rdcv (Vt. Super. Ct. June 9, 2020) (Mello, J.) (denying Applicant’s motion to dismiss
for mootness and granting Applicant leave to file and interlocutory appeal on this issue).
1
We begin by noting when parties are self-represented, the Court is careful to ensure self-
represented litigants are not “taken advantage of by strict application of the rules of procedure.”
Town of Washington v. Emmons, 2007 VT 22, ¶ 7, 181 Vt. 586 (mem.). Although we afford self-
represented litigants greater flexibility, “[t]his does not mean that [they] are not bound by the
ordinary rules of civil procedure.” Vahlteich v. Knott, 139 Vt. 588, 590–91 (1981); In re Waitsfield
Public Water System Act 250 Permit, No. 33-2-10 Vtec, slip op. at 2 (Vt. Super. Ct. Envtl. Div. Sep.
15, 2010) (Durkin, J.).
Presently before the Court is Applicant’s motion to dismiss with prejudice. Applicant’s
motion seems to assert that the DRB will regain jurisdiction over this issue upon this Court’s
dismissal.4 Appellants do not object to the dismissal of the appeal but seek to dispose of the case
here rather than remand back to a municipal panel.
Here, the most appropriate course of action is to dismiss and conclude this matter, rather
than remand to the DRB. Pursuant to V.R.E.C.P. 5(i), this Court has discretion to remand “as a
practical tool to allow the specific body that made the determination on appeal to recognize a
mistake that it made and request a ‘do over.’” In re Irish Construction Application, No. 44-3-08
Vtec, slip op. at 13 (Vt. Envtl. Ct. Apr. 6, 2009) (Durkin, J.). Here, there is no allegation that DRB
below made such a mistake or request. This Court may also remand absent a request from the
lower tribunal. See In re Maple Tree Place, 156 Vt. 494, 498 (1991) (holding that courts have the
inherent authority to issue a remand to a municipal panel); see also V.R.E.C.P. 5(j). It appears
Applicant’s primary concern in seeking remand to the Town of Wallingford is to allow Applicant
to apply for revocation of the permit. This Court, however, also has authority to void the permit.
See In re Montpelier WWTF Discharge Permit, No. 22-2-08 Vtec, slip op. at 3 (Vt. Envtl. Ct. Aug.
10, 2009) (Durkin, J.) (voiding a permit); In re Losier Variance Application, No. 233-10-08 Vtec,
slip op. at 7–9 (Vt. Envtl. Ct. Nov. 05, 2009) (Durkin, J.). In this case, given that all parties have
agreed to a dismissal with prejudice, the DRB’s lack of request, and this Court’s ability to revoke
the permit, we find no reason to conclude that remand would be appropriate.
Applicant’s motion to dismiss with prejudice is GRANTED. Applicant’s Home Occupation
Permit No. 20-01 is therefore VOIDED. A Judgment Order accompanies this decision. This
completes the current proceedings before the Court.
So ordered.
Electronically signed on September 02, 2020 at 11:45 AM pursuant to V.R.E.F. 9(d).
_________________________________________
Thomas G. Walsh, Judge
Superior Court, Environmental Division
4
Applicant states that “once proceedings conclude, and the Town has jurisdiction again, [Applicant] will ask that
the permit be revoked.” Applicant’s Motion to Dismiss at 2, filed July 1, 2020.
2
Notifications:
Municipality Town of Wallingford
David R. Cooper (ERN 4756), Attorney for Appellant Wayne Kelly
David R. Cooper (ERN 4756), Attorney for Appellant Debra Kelly
David R. Cooper (ERN 4756), Attorney for Appellant J. Patrick Frei
Rodney E. McPhee (ERN 3612), Attorney for party 2 Co-counsel
Rodney E. McPhee (ERN 3612), Attorney for party 3 Co-counsel
Rodney E. McPhee (ERN 3612), Attorney for party 4 Co-counsel
Appellee Susan Dresner
Interested Person Robert P. Long
Antonietta A. Girardi (ERN 10270), Attorney for party 2 Co-counsel
svalcour
3