Bart Industries, Inc. Zoning Permit - Decision on Motion ( 2019 )

STATE OF VERMONT
SUPERIOR COURT ENVIRONMENTAL DIVISION
Docket No. 136-12-18 Vtec
Bart Industries, Inc. Zoning Permit
ENTRY REGARDING MOTION
Count 1, Municipal DRB Other (136-12-18 Vtec)
Title: Motion to Dismiss Appeal (Motion 1)
Filer: B-A-R-T Industries, Inc.
Attorney: Stephen C. H. Cassarino
Filed Date: January 10, 2019
Response in Opposition filed on 01/10/2019 by Attorney James Valente for Appellant Carol Young
The motion is DENIED.
B-A-R-T Industries, Inc., (Bart Industries) seeks a permit to add a fueling facility and two
30,000-gallon propane tanks to its parcel located at 19 Transport Park in Rockingham, Vermont.
The Town of Rockingham Development Review Board (DRB) approved the permit on November
29, 2018. On December 17, 2018, Carol Young, an abutting property owner, timely appealed the
DRB’s decision to this Court. Bart Industries filed the present motion to dismiss on January 10,
2019, asserting that this Court should dismiss Ms. Young’s appeal because she did not file her
Statement of Questions on time.
When considering a motion to dismiss, this Court accepts as true all uncontroverted
factual allegations and construes those factual allegations in the light most favorable to the
nonmoving party. In re Goddard Coll. Conditional Use, No. 175-12-11 Vtec, slip op. at 1 (Vt. Super.
Ct. Envtl. Div. Jul. 5, 2012) (Walsh, J.), aff’d, 2014 VT 124, 198 Vt. 85.
V.R.E.C.P. 5(f) requires appellants to file their Statement of Questions “[w]ithin 21 days
after the filing of the notice of appeal.” The parties agree that Ms. Young’s Statement of
Questions was due on January 7, 2019, and that she did not file them until January 10, 2019. Bart
Industries asks us to dismiss Ms. Young’s appeal because of the delay. Ms. Young admits that
she filed three days late but asks that we allow this matter to proceed to the merits. Her attorney
explained that a calendaring error caused the delay.
This Court is required to apply the Vermont Rules for Environmental Court Proceedings
to make a “full and fair determination” of the issues that come before us. V.R.E.C.P. 1. Our Rules
prescribe that “[f]ailure of an appellant to take any step other than the timely filing of the notice
of appeal does not affect the validity of the appeal but is ground only for such action as the court
deems appropriate, which may include dismissal of the appeal.” V.R.E.C.P. 5(b)(1). Thus, it is
within our discretion to dismiss an appeal because of a late Statement of Questions, but we will
only do so when the circumstances so require. In re Putney Park & Ride Project, No. 148-11-13
Vtec, slip op. at 1-2 (Vt. Super. Ct. Envtl. Div. Apr. 22, 2014) (Walsh, J.). This Court has previously
accepted Statements of Questions that were filed a few days late after considering the length of
the delay and any prejudice that might result. See, e.g., Id.; see also In re 114 Coll. St. Permit
Amendment, No. 227-09-06 Vtec, slip op. at 6 (Vt. Envtl. Ct. Apr. 20, 2007) (Wright, J.), rev’d on
other grounds sub nom. In re McGrew, 2009 VT 44, 186 Vt. 37.
In the matter at hand, Ms. Young filed her Statement of Questions three days after the
deadline but well before the initial conference in this appeal. Bart Industries does not identify
any prejudice that will result if the appeal proceeds. Justice is better served by seeing this matter
through to the merits. Accordingly, Bart Industries’ motion to dismiss is DENIED.
So ordered.
Electronically signed on January 28, 2019 at 08:59 AM pursuant to V.R.E.F. 7(d).
_________________________________________
Thomas G. Walsh, Judge
Superior Court, Environmental Division
Notifications:
Municipality Town of Rockingham
James Valente (ERN 4847), Attorney for Appellant Carol Young
Stephen C. H. Cassarino (ERN 6348), Attorney for Appellee B-A-R-T Industries, Inc.
Erin Gilmore (ERN 1593), Attorney for party 3 Co-counsel
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