Poultney Properties LLC Change of Use & SP App. - Decision on Motions ( 2021 )

STATE OF VERMONT
SUPERIOR COURT ENVIRONMENTAL DIVISION
Docket No. 98-7-17 Vtec
Poultney Properties LLC Change of Use & DECISION ON MOTIONS
SP App.
Poultney Properties, LLC (Applicant) appeals the partial denial of its application for change
of use and site plan approval by the Town of Poultney Development Review Board (DRB). The
DRB denied Applicant’s application for a retail store (the project) located at 61 Beaman Street,
Poultney, Vermont (the subject property). 1 Presently before the Court are motions to intervene
filed by John G. Swenor, Neal C. Vreeland, Linda Pepler, and Rebecca and Walter Riberio
(together, Neighbors). Neighbors assert that they are permitted to intervene in this matter as of
right, pursuant to V.R.C.P. 24(a).
In this matter, Poultney Properties is represented by David R. Cooper, Esq., and David
Carpenter, Esq. The Town of Poultney is represented by Gary R. Kupferer Esq. Mr. Vreeland, Mr.
Swenor, Ms. Pepler, and Mr. and Mrs. Riberio are self-represented. Concerned Citizens of
Poultney (CCP) is represented by its spokesperson, C.B. Hall.
On February 4, 2020, this Court issued a Decision (2020 Decision), concluding that
Neighbors did not satisfy the requirements for interested persons status under 24 V.S.A. §
4465(b)(3).2 See Poultney Properties LLC Change of Use & SP App., No. 98-7-17 Vtec, slip op. at
3–4 (Vt. Super. Ct. Envtl. Div. Feb. 4, 2021) (Walsh, J.) (citing In re Wright & Boester, No. 31-3-18
Vtec, slip op. at 3–6 (Vt. Super. Ct. Envtl. Div. Mar. 28, 2019) (Durkin, J.)). In the 2020 Decision,
we held that because the Neighbors did not allege that the DRB’s decision was inconsistent with
the policies, purposes, or terms of the Town Plan or Poultney Unified Bylaws, Neighbors did not
satisfy the third element for party status under § 4465(b)(3). Id. (noting that neighbors may seek
alternative means under V.R.C.P. 24 to participate in the present zoning appeal).
In consideration of the Neighbors’ participation as interested persons before the tribunal
below and their assertions that Applicant’s project adversely impacts their interests as adjoining
landowners and persons in the local community, we directed Neighbors to file representations
of material fact and memoranda of law as to why they are entitled to intervene in this appeal
pursuant to 10 V.S.A. § 8504(n)(6) and V.R.C.P. 24. See Poultney Properties LLC Change of Use &
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The 61 Beaman Street address is located on a single 1.76-acre parcel that includes four separate buildings at 53,
55, 57, and 61 Beaman Street.
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Interested person status under § 4465(b)(3) requires that Neighbors: (1) own or occupy property in “the immediate
neighborhood” of the subject property; (2) “demonstrate a physical or environmental impact on [their] interest
under the criteria reviewed”; and (3) allege that “the decision or act [of the municipality], if confirmed, will not be
in accord with the policies, purposes, or terms of the plan or bylaw of that municipality.” 24 V.S.A. § 4465(b)(3).
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SP App., No. 98-7-17 Vtec at 1 (Feb. 4, 2021). The present motion addresses Neighbors’ filings in
connection with this Court’s directive.
Discussion
As a threshold issue, a person may intervene in an action as of right “[u]pon timely
application.” V.R.C.P. 24(a)(1), (2). The timeliness of application to intervene as of right is a
matter within the Court’s discretion. Mohr v. Vill. Of Manchester, 161 Vt. 562, 562 (1993) (citing
Ernst v. Rocky Rd., Inc., 141 Vt. 637, 639–40 (1982)). In the 2020 Decision, this Court directed
Neal Vreeland, John Swenor, Linda Pepler, and Rebecca and Walter, Riberio to file
representations of material fact and memoranda of law as to why they are entitled to intervene
in this appeal pursuant to 10 V.S.A. § 8504(n)(6) and V.R.C.P. 24. See Poultney Properties LLC
Change of Use & SP App., No. 98-7-17 Vtec at 1 (Feb. 4, 2021) (affording Neighbors 30 days to file
and all other parties an opportunity to respond to any filings that Neighbors submitted in
accordance with V.R.C.P.). The Neighbors submitted their respective motions to intervene within
the 30 days allotted. As the need for intervention arose only after Applicant’s challenge to
Neighbors’ standing and this Court’s 2020 Decision directing Neighbors to file motions to
intervene, Neighbors’ motions are timely. See Capitol Plaza 2 Lot Subdivision & Capitol Plaza
Major Site Plan, Nos. 3-1-19 and 4-1-19 Vtec, slip op. at 10 (Vt. Super. Ct. Envtl. Div. Nov. 12,
2019) (Walsh, J.) (holding parties’ motions to intervene as timely after standing was challenged).
As the motion for intervention is timely, the question remaining before the Court whether
Neighbors are interested persons pursuant to V.R.C.P. 24 and 10 V.S.A. § 8504(n)(6). Intervention
as of right must be granted if (1) the intervenor has “an interest relating to the property or
transaction” that is the subject of the underlying action; (2) the intervenor would be impaired or
impeded in his or her ability to protect that interest depending on the outcome of the action;
and (3) the intervenor's interest is not adequately represented by the existing parties. V.R.C.P.
24(a); 10 V.S.A. § 8504(n)(6); see State v. Quiros, 2019 VT 68, ¶ 16 n.3; see also Randolph Town
Office Zoning Appeal, No. 106-6-05 Vtec, slip op. at 3–4 (Vt. Super. Ct. Mar. 30, 2006) (Durkin, J.)
(applying V.R.C.P. 24(a) as an alternative method to intervene where a party did not qualify as an
interested person under 24 V.S.A. § 4465). With this in mind, we assess each of the motions to
intervene below.
I. Neal C. Vreeland
Neal C. Vreeland (Vreeland) owns and resides in property located at 27 Church St. in
Poultney, Vermont. Vreeland’s southern property line abuts the subject property and Vreeland’s
property has a direct view of the north face of the subject property. Vreeland contends that
Applicant’s use of the subject property raises concerns “about traffic circulation and parking,
fumes and noise” resulting from the operation of the project. Vreeland argues that these
interests are not adequately represented by either the other pro se litigants, due to the differing
property locations, or the Town, as the Town’s appearance is limited to “monitoring” the case.
Applicant counters that Vreeland (1) raises lighting impacts experienced when the subject
property was operated by a prior owner, which are unrelated to this proceeding, and (2) alleges
only generic interests under site plan criteria that are adequately represented by the Town.
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Here, Vreeland has an interest relating to the subject property. Vreeland’s concerns
regarding the traffic and noise resulting from the operation of the retail facility on his adjoining
property represent a sufficient interest. See V.R.C.P. 24(a) (providing for intervention of right
where “an interest relating to the property or transaction which is the subject of the action and
the [party] is so situated that the disposition of the action may as a practical matter impair or
impede the [party’s] ability to protect that interest, unless the [party’s] interest is adequately
represented by existing parties”); see also In re: Appeals of Shantee Point Estates, Inc., No. 169-
9-98 Vtec, slip op. at 1 (Vt. Envtl. Ct. Jan. 17, 2000) (Wright, J.) (granting party status to an
adjoining landowner that used a disputed segment of road that was constructed without site plan
approval). While Vreeland does not have an ownership interest in the property, Vreeland has
“demonstrate[d] a greater interest in the subject matter of the [matters on appeal] than . . . other
member[s] of the public.” See Diverging Diamond Interchange SW Permit/Diverging Diamond
Interchange Act 250/R.L. Vallee, Inc. et al MS4, Nos. 50-6-16 Vtec, 169-12-16 Vtec, and 122-10-
16 Vtec, slip op. at 3 (Vt. Super. Ct. Envtl. Div. Apr. 28, 2017) (Walsh, J.) (citing Chittenden
Recycling, 162 Vt. 84, 88 (1994) (assessing an intervenor’s “interest” for purposes of V.R.C.P.
24(a)); In re Appeal of Nanak Hospitality PUD & Site Plan, No. 64-3-05 Vtec, slip op. at 2–3 (Vt.
Super Ct. Envtl. Div. Jan. 4, 2006) (Durkin, J.) (granting abutting property owners the right to
intervene).
Additionally, Vreeland’s concerns addressing lighting do not solely arise from the prior
owner’s use as Vreeland addresses the project’s “nighttime retail operations” which would
“intrusively illuminat[e] the living areas of my house.” Indeed, the DRB noted, in considering
affects of lighting on adjacent lots under the Poultney Uniform Bylaws (PUB) § 711M and § 7110,
that the project included proposed changes to outdoor lighting and increased hours of operation.
Vreeland’s lighting concerns are therefore within the scope of site plan review criteria for the
proposed project.
Vreeland’s interests are not adequately represented by the Town or other parties. As an
adjoining landowner, and one that is impacted by the light, traffic, and noise generated by the
subject property, he has an interest in the effects of the subject property on his use and
enjoyment of his property, which differs from the interest of the Town in ensuring compliance
with the PUB. See In re: Appeals of Shantee Point Estates, Inc., No. 169-9-98 Vtec at 1–2 (Jan. 17,
2000) (distinguishing an adjoining landowner’s property interest from the Town’s interest in
enforcing the standards in the zoning regulations); see also Wright & Boester Conditional Use
App. Appeal, No. 31-3-18 Vtec, slip op. at 1 (Vt. Super Ct. Envtl. Div. Sept. 3, 2020) (Durkin, J.)
(permitting adjoining landowners that expressed agreement with a DRB’s denial and were denied
interested party status under 24 V.S.A. § 4465 as intervenors); see also Wright & Boester
Conditional Use App. Appeal, No. 31-3-18 Vtec, slip op. at 5 (Vt. Super Ct. Envtl. Div. Mar. 28,
2019) (Durkin, J.) (denying interested party status under 24 V.S.A. § 4465). Here, the Town’s
interest in ensuring proper enforcement and administration of its bylaws does not adequately
represent or encompass adjoining landowners’ particular personal interests in impacts arising
from Applicant’s project. See Diverging Diamond Interchange, Nos. 50-6-16 Vtec, 169-12-16
Vtec, and 122-10-16 Vtec at 2 (Apr. 28, 2017). Moreover, Vreeland’s interests are distinguishable
from those of the other Neighbors because the specific impacts attributable to his particular
location in proximity to the subject property. See id. (distinguishing an intervenor’s interest as
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“limited to a small portion” of a project in comparison to “the project as a whole”). Vreeland
has noted that the proposed entrance to the project is approximately 50 ft. from his property
and that Applicant’s building is 10 ft. from his south property line, such that Vreeland can view
the north face of Applicant’s building from the living space within Vreeland’s residence. Given
this particular proximity and the nature of Vreeland’s concerns, his interests are particular and
not adequately represented by existing parties.
For the reasons articulated above, we GRANT Vreeland’s motion to intervene pursuant
to V.R.C.P. 24(a) and 10 V.S.A. § 8504(n)(6).
II. Linda Pepler
Linda Pepler (Pepler) owns and resides in property located at 80 Beaman St. in Poultney,
Vermont. Pepler’s property is directly across the street from Applicant’s property. Pepler’s
property has a direct view of the Applicant’s parking area and main entrance of the Project. In
her motion, Pepler contends that use of the subject property for retail would decrease her
property’s value and significantly increase vehicle and foot traffic, noise, light, and gas fumes. As
an adjoining property owner directly across the street from the subject property, Pepler notes
that she can “see and hear” Applicant’s property from every room in her residence and raises
particular concern with potential noise and light impacts.
Applicant again argues that the alleged lighting impacts relate to when the subject
property was operated by a prior owner and are therefore not relevant in this proceeding.
Applicant also counters that decrease in property value is not a relevant criterion under site plan
review and the interests expressed are adequately represented by the Town.
Pepler provides a sufficient showing of interest as an adjoining property owner in the
Applicant’s use of the subject property for parking purposes and the resulting impacts upon
traffic circulation, noise, and light. See In re Appeal of Nanak, No. 64-3-05 Vtec at 2–3 (Jan. 4,
2006). Of particular concern to Pepler is the proposed change in operational hours and associated
traffic safety issues arising from an increase in “up to 84” parking spaces. We do, however, note
that impacts upon property value are not an issue pertinent to site plan review standards.
Margaret Pratt Assisted Living Site Plan, Conditional Use and Act 250 Approvals, No. 100-8-15
Vtec, slip op. at 22 (Vt. Super. Ct. Envtl. Div. June 21, 2016) (Durkin, J). Additionally, as indicated
above, while any lighting concerns directed at prior use of the property are not relevant in this
proceeding, light impacts from the proposed project are a criterion of site plan review. Here,
Pepler has demonstrated both an interest related to the subject property and “is so situated that
the disposition of th[is] action may as a practical matter impair or impede” the protection of this
demonstrated interest. See Diverging Diamond Interchange, Nos. 50-6-16 Vtec, 169-12-16 Vtec,
and 122-10-16 Vtec at 3 (Apr. 28, 2017).
For the same reasons addressed above, Pepler’s interest is distinguishable from that of
the Town and other parties due to particular location of her property and its associated impacts
from the subject property. For these reasons, we GRANT Pepler’s motion to intervene pursuant
to V.R.C.P. 24(a) and 10 V.S.A. § 8504(n)(6).
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III. Rebecca and Walter Riberio
Rebecca and Walter Riberio (together, the Riberios) own and reside in property located
at 55 Church St. in Poultney, Vermont. The south line of the Riberios’ property abuts Applicant’s
property, such that the north face Applicant’s property is visible from the rear of the Riberios’
residence. The Riberios raise particular concern with the potential lighting used for the parking
area, odors associated with the proposed location of dumpsters on the subject property affecting
the Riberios’ use and enjoyment of their property, and the associated noise with the operation
of the proposed retail building.
Applicant counters that the Riberios raise generic interests under the site plan review
criteria, which are adequately represented by the Town. We disagree. Consistent with our
analysis above, the Riberios’ have demonstrated an interest particular to their location, which
would not be adequately represented either by the Town or other parties.
Furthermore, the Ribeios have also demonstrated an interest greater than other
members of the general public as adjoining property owners. The Riberios express a keen
interest in the “unpleasant odors, pests, and insects” generated by the proposed dumpsters near
their property that would “affect how [the] family spends time in the backyard” and the
associated noise from the proposed operational hours of the project. Here, the Riberios have
demonstrated an interest related to the subject property and a reasonable likelihood that this
interest could be impaired by the outcome of this action. For these reasons, we GRANT the
Riberios’ motion to intervene pursuant to V.R.C.P. 24(a) and 10 V.S.A. § 8504(n)(6).
IV. John G. Swenor
John G. Swenor (Swenor) owns property located at 88 Main St. in Poultney, Vermont,
which borders Applicant’s property. Swenor’s property, an HUD Section 8 housing project for
elderly and disabled, is situated such that the apartments overlook the applicant’s property.
Swenor contends that the proposed project’s noise and traffic would disturb the livability of the
tenants, diminish Swenor’s property value, and impact Swenor’s ability to secure new tenants.
Applicant argues Swenor’s interests are adequately represented by the Town,
devaluation of property is not a relevant criteria under site plan review, and that Swenor is
improperly raising a claim on behalf of a third party, the tenants.3
This Court has previously recognized an adjoining landowner’s right to intervene where
the landowner raised a “property interest in the effect of the [subject property] on his property
and his tenants.” See In re: Appeals of Shantee Point Estates, Inc., No. 169-9-98 Vtec at 1 (Jan.
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Applicant also raises a concern that it is unclear whether the intervening party is Swenor or the entity “Schoolhouse
Apartments.” This concern arises as Swenor included a signature on his motion to intervene listing “Schoolhouse
Apartments, By: John Swenor.” We note here that Swenor has participated thus far in this proceeding and before
the DRB as an interested person in his individual capacity. See Poultney Properties LLC Change of Use & SP App., No.
98-7-17 Vtec, slip op. at 1 (Feb. 4, 2021). In his motion, Swenor states that his “interest in this matter is that [he is]
the owner of Schoolhouse Apartments, the adjoining property.” This, in addition to Swenor’s history of involvement,
indicates Swenor’s participation in this proceeding in his individual capacity.
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17, 2000) (emphasis added). Thus, as an adjoining landowner, and one impacted by the noise
and traffic of the proposed project, Swenor has an interest in the subject property’s impacts upon
his property. See In re Appeal of Nanak, No. 64-3-05 Vtec at 2–3 (Jan. 4, 2006) (noting that
abutting landowners may file for “intervention as of right”). The devaluation of Swenor’s
property, however, is not an issue pertinent to site plan review standards. See Margaret Pratt
Assisted Living Site Plan, No. 100-8-15 Vtec at 22 (June 21, 2016).
As noted above, the Town does not adequately represent the interests of adjoining
landowners’ properties where a landowner has raised impacts particular to their property’s
location. Thus, as Swenor’s interests in preserving the use and enjoyment of his property that
may be impacted by this matter’s ultimate disposition are not adequately represented, Swenor
may intervene as a matter of right. For these reasons, we GRANT the Swenor’s motion to
intervene pursuant to V.R.C.P. 24(a) and 10 V.S.A. § 8504(n)(6).
Conclusion
For the reasons above, we GRANT the motions to intervene filed by John G. Swenor, Neal
C. Vreeland, Linda Pepler, and Rebecca and Walter Riberio. As these persons are entitled to
intervene as a matter of right, we do not reach the issue of permissive intervention or
intervention as an aggrieved person. V.R.C.P. 24 (b).
This matter will be scheduled for a status conference. Please see the related notice. All
parties shall be prepared to discuss moving this matter to a merits hearing. The Court will address
the timing of potential in-person proceedings and also evaluate proceedings being held at
Costello Courthouse in Burlington, Vermont.
Electronically Signed: 6/23/2021 8:49 AM pursuant to V.R.E.F. 9(d).
Thomas G. Walsh, Judge
Superior Court, Environmental Division
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