AHL Investments LP Site Plan Approval-Decision on Motion ( 2021 )

VERMONT SUPERIOR COURT
Environmental Division Docket No. 21-ENV-00023
32 Cherry St, 2nd Floor, Suite 303,
Burlington, VT 05401
802-951-1740
www.vermontjudiciary.org
AHL Investments LP Site Plan Approval
ENTRY REGARDING MOTION
Title: Motion to Dismiss Appeal (Motion: 1)
Filer: L. Brooke Dingledine, attorney for AHL Investments, LP
Filed Date: May 03, 2021
No response filed.
The motion is GRANTED.
AHL Investments LP (“Applicant”) received site plan approval for its proposed
redevelopment on a parcel of land in the High Residential Density Zoning District (“HDR District”)
in the Town of Morrisville. The approved plan calls for an existing residential duplex to be razed
and replaced with a 16-unit residential apartment building. When the Town of Morrisville
Development Review Board (“DRB”) approved Applicant’s site plan application, Craig Santenello
(“Appellant”) filed a timely appeal of the DRB approval with this Court.
Normally, a development such as Applicant here proposes would be required to receive both
site plan and conditional use approval, pursuant to the applicable provisions of the Town of
Morrisville 2021 Zoning and Subdivision Bylaws (“Bylaws”).1 However, since a separate 9-unit
apartment building that is presently being constructed on the same parcel of land already received
conditional use and site plan approval just last year, Applicant alleges that the applicable Bylaw
provisions do not require conditional use approval for Applicant’s proposed second development
on the site (the 16 unit apartment building). Rather, Applicant asserts that the second development
merely is required to receive site plan approval pursuant to Bylaws § 500. 2
In the motion now pending before the Court, Applicant suggests that Appellant’s appeal
must be dismissed because Appellant has failed to present sufficient allegations to show that he has
standing to prosecute this appeal. Applicant first notes that Appellant failed to specify the statutory
basis “under which [Appellant] claims party status,” as required by V.R.E.C.P. 5(b)(3). Second,
1
Applicant filed a copy of the 2021 Bylaws as Exhibit A to its Motion to Dismiss.
2 While this legal interpretation of the applicable Bylaw provisions is not relevant to our analysis of the pending motion
to dismiss, we reference it here for procedural context.
Entry Regarding Motion Page 1 of 3
AHL Investments LP Site Plan Approval, No. 21-ENV-00023 (Vt. Super. Ct. Envtl. Div. June 4, 2021) (Durkin, J.)
Applicant alleges that Appellant has not satisfied any of the statutory provisions for establishing
party status, since Appellant (1) has not demonstrated that he owns or occupies property in the
immediate neighborhood of the proposed project and (2) has failed to “demonstrate a physical or
environmental impact [from the proposed project] on the person’s interest under the criteria
reviewed.” 24 V.S.A. § 4465(b)(3).
Because standing is an element of subject matter jurisdiction, we review a motion to dismiss
for lack of standing pursuant to Rule 12(b)(1) of the Vermont Rules of Civil Procedure. Parker v.
Town of Milton, 169 Vt. 74, 76 (1998); V.R.C.P. 12(b)(1). In considering the motion, we must
accept “all uncontroverted factual allegations [made by the nonmoving party]… as true and construe
[them] in the light most favorable to the nonmoving party.” Rheaume v. Pallito, 2011 VT 72, ¶ 2,
190 Vt. 245 (citation omitted). When viewing the non-moving parties’ representations, we are also
cautioned that a “motion to dismiss . . . should not be granted unless it is beyond doubt ‘that there
exists no facts or circumstances [presented to the trial court] that would entitle the [non-moving
party] to relief.’” Richards v. Town of Norwich, 169 Vt. 44, 48 (1999) (citing Ames v. Ames, 166 Vt.
288, 291 (1997)). We therefore review Applicant’s pending dismissal motion in this light and with
these concerns in mind.
Our principal hurdle here is that we have no representations from Appellant concerning his
alleged party status or standing to prosecute this appeal. Appellant’s Notice of Appeal is deficient in
that it does not contain any references that could satisfy the mandate that he specify how he claims
party status. Further, while our Rule 5(b)(3) does not require that an appellant include in their notice
of appeal how it is that they have standing to prosecute the appeal, an appellant is expected to
respond to another party’s claim that the appellant lacks standing. Given that Appellant here chose
not to respond to Applicant’s motion to dismiss, we are left to search the pleadings for
representations of how Appellant may establish his standing to bring this appeal. Our search reveals
none.
We are constitutionally limited to adjudicating disputes to “actual cases or controversies.” In
re Capital Plaza Act 250 Appeal, No. 59-5-19 Vtec, slip op. at 3 (Vt. Super. Ct. Envtl. Div. June 2,
2021) (Walsh, J) (citing Bischoff v. Bletz, 2008 VT 16, ¶ 15, 183 Vt. 235) (other citations omitted). This
constitutional standard is supplemented by the statutory requirements to establish party status and
standing to prosecute a land use appeal before this Court. Specifically, 24 V.S.A. § 4465(b)(3)
(which appears to provide the clearest avenue for Appellant’s standing here) defines an “interested
person” as:
A person owning or occupying property in the immediate neighborhood of a
[proposed project] . . ., who can demonstrate a physical or environmental impact on
the person’s interest under the criteria reviewed, and who alleges that the decision or
act, if confirmed, will not be in accord with the policies, purposes, or terms of the of
the plan or bylaw of that municipality.
Appellant here has not alleged that he lives in the immediate area. He has not provided this
Court with any demonstration that Applicant’s proposed project may have any physical or
Entry Regarding Motion Page 2 of 3
AHL Investments LP Site Plan Approval, No. 21-ENV-00023 (Vt. Super. Ct. Envtl. Div. June 4, 2021) (Durkin, J.)
environmental impact upon Appellant or his interests, much less an interest that may be regarded as
particular to him.3
Given the absence of any representations from Appellant that satisfy the minimum
standards established by V.R.E.C.P. 5(b)(3) and 24 V.S.A. § 4465(b)(3), we must conclude that
Appellant Craig Santenello lacks standing to bring this appeal and that this appeal must therefore be
DISMISSED.
For all these reasons, Applicant AHL Investments LP’s motion to dismiss is GRANTED.
A Judgment Order accompanies this Entry Order. This concludes the matter before the Court.
So Ordered.
Electronically signed on June 4, 2021, at Newfane, Vermont, pursuant to V.R.E.F. 7(d).
________________________________
Thomas S. Durkin, Superior Judge
Environmental Division
3 See In re Hinesburg Hannaford Act 250 Permit, No. 113-8-14 Vtec, slip op. at 5 (Vt. Super. Ct. Envtl. Div. Feb. 4,
2015) (Walsh, J.) (noting that a “particularized interest” must be specific to an appellant, and not merely a “general policy
concern shared with the public.”).
Entry Regarding Motion Page 3 of 3
AHL Investments LP Site Plan Approval, No. 21-ENV-00023 (Vt. Super. Ct. Envtl. Div. June 4, 2021) (Durkin, J.)