109-111 Shelburne St/97 Locust St CU - Decision on Motions ( 2019 )

STATE OF VERMONT
SUPERIOR COURT ENVIRONMENTAL DIVISION
Environmental Division Unit Docket No. 67-5-17 Vtec
109-111 Shelburne St./97 Locust St. CU DECISION ON MOTIONS
Appellant Margaret Murray seeks to appeal a decision by the City of Burlington Development
Review Board (“DRB”) granting Champlain Housing Trust (“CHT”) a conditional use permit. CHT applied
to convert a former motel into apartments for homeless and marginally-housed individuals with health
complications. This matter comes to us on remand from the Vermont Supreme Court. See In re 109-111
Shelburne St./97 Locust St. CU, No. 2018-046 (Vt. July 2018) (mem.). As discussed further below, the
Supreme Court directs us to determine whether Ms. Murray’s untimely appeal should be allowed to
proceed. Id. at 3. Presently before the Court is CHT’s motion to dismiss Ms. Murray’s appeal, which
asserts that her appeal is improper because it was untimely and she lacks standing. Also before the Court
is Ms. Murray’s motion for summary judgment on the issues of timeliness and standing.
Ms. Murray is represented by Stephen F. Coteus, Esq. CHT is represented by Jonathan T. Rose,
Esq., and Brian S. Dunkiel, Esq. Kimberlee J. Sturtevant, Esq., represents the City of Burlington (“City”).
Legal Standard
The timeliness of an appeal and a party’s standing to bring an appeal both implicate this Court’s
subject matter jurisdiction. See In re Gulli, 174 Vt. 580, 583 (2002) (discussing timeliness and jurisdiction);
In re Pelkey Final Plat Major Subdivision, et al., No. 172-12-12 Vtec, slip op. at 1 (Vt. Super. Ct. Envtl. Div.
July 3, 2013) (Durkin, J.) (citing Bischoff v. Bletz, 2008 VT 16, ¶ 15, 183 Vt. 235) (discussing standing and
jurisdiction). Thus, we review CHT’s motion under V.R.C.P. 12(b)(1) as a motion to dismiss for lack of
subject matter jurisdiction, accepting all uncontroverted factual allegations as true and construing them
in the light most favorable to the nonmoving party. Rheaume v. Pallito, 2011 VT 72, ¶ 2, 190 Vt. 245. This
Court can consider evidence outside the pleadings when resolving such a motion. Conley v. Crisafulli,
2010 VT 38, ¶ 3, 188 Vt. 11 (citing Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000)).
In regard to Ms. Murray’s motion, summary judgment is only appropriate when the movant shows
that there is “no genuine dispute as to any material fact” and the movant “is entitled to judgment as a
matter of law.” V.R.C.P. 56(a). In considering a motion for summary judgment, we accept the factual
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allegations made in opposition to the motion as true and give the nonmovant the benefit of all reasonable
doubts and inferences. In re UVM Certificate of Appropriateness, No. 90-7-12 Vtec, slip op. at 2 (Vt. Super.
Ct. Envtl. Div. Feb. 26, 2013) (Walsh, J.) (citing Robertson v. Mylan Labs., Inc., 2004 VT 15, ¶ 15, 176 Vt.
356).
Factual Background
This Court sets out the following facts only to decide the motions pending before us and to define
the context of the present appeal. These are not factual findings, which can only occur after the Court
has conducted a trial. See Fritzeen v. Trudell Consulting Eng’rs, Inc., 170 Vt. 632, 633 (2000) (citing Booska
v. Hubbard Ins. Agency, Inc., 160 Vt. 305, 309 (1993)).
1. CHT is a community land trust that develops and maintains affordable housing.
2. In 2017, CHT applied for approval for its conversion of the former Bel Aire motel—located at 109-
111 Shelburne Street in Burlington, Vermont—into eight apartments for homeless and marginally-housed
individuals with acute medical needs (“the Project”).
3. CHT also applied to the DRB for approval to modify the Project’s parking lot. The new parking
configuration provides spaces for the community gardens located at 97 Locust Street. While the gardens
are adjacent to the Project, they are not owned by CHT.
4. The Project involved internal changes to the existing building, some minor external building
changes, and minimal site work related to the parking configuration. No significant excavation or site
work was proposed.
5. At no point in time have contaminated soils been identified on the Project site.
6. Ms. Murray owns a rental property at 150 Shelburne Street. Her property is on the other side of
Route 7, a four-lane highway, from the Project and approximately 500 feet to the south.
7. Ms. Murray’s property formerly hosted a gas-filling station, which resulted in petroleum
contamination of the subsurface soils on her land. This has led to extensive testing on her property, as
well as litigation. See, e.g., In re Bilmar Team Cleaners, 2015 VT 10, ¶¶ 1-2, 198 Vt. 330; Murray v. City of
Burlington, 2012 VT 11, ¶ 3, 191 Vt. 597.
8. The DRB held a public hearing on CHT’s application on March 8, 2017.
9. Ms. Murray attended this public hearing and spoke about her concerns: that the Project would
result in an increased tax burden on nearby property owners and that the Project site should be evaluated
for contaminated soils.
10. Ms. Murray did not sign the sign-in sheet that the DRB provided at the hearing to keep track of
who should be notified of its decision.
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11. The DRB approved CHT’s application at a deliberative meeting on March 13, 2017. The approval
contained conditions that are not relevant to this appeal.
12. Ms. Murray attended this meeting and was aware that the meeting resulted in the approval of
CHT’s permit.
13. The DRB issued a written decision memorializing its approval of CHT’s conditional use permit on
March 17, 2017.
14. The DRB did not send Ms. Murray a copy of its decision, nor did CHT.
15. During the thirty-day appeal period after the DRB’s approval, CHT conducted some exploratory
interior demolition to evaluate the structural integrity of the building. It did not carry out any other
Project work during this time period.
16. On March 24, 2017, Ms. Murray read an article in the Burlington Free Press reporting that work
on the Project was underway.
17. After the close of the thirty-day appeal period, CHT pursued the exterior, interior, and parking
construction in full.
18. During construction, Ms. Murray did not personally observe a permit poster on the Project site or
any construction that indicated to her that the DRB had approved CHT’s permit.
19. On May 15, 2017, Ms. Murray visited the City’s zoning office in Burlington and, after a search of
the file, obtained a copy of the DRB’s written decision.
20. Ms. Murray filed her appeal with this Court on May 26, 2017.
21. In her notice of appeal, Ms. Murray acknowledged that the thirty-day period for filing a notice of
appeal had passed.
22. She requested permission to proceed with the appeal because the DRB did not mail her a copy of
its March 17, 2017 written decision.
23. While her request was pending before this Court, CHT completed the Project. CHT procured a
certificate of occupancy on August 18, 2017.
24. The first residents moved into the Project building at the beginning of September 2017.
25. On December 27, 2017, this Court issued an Entry Order denying Ms. Murray permission to
appeal. See In re 109-111 Shelburne St./97 Locust St. CU, No. 67-5-17 Vtec (Vt. Super. Ct. Envtl. Div.
Dec. 27, 2017) (Durkin, J.).
26. Ms. Murray appealed that decision to the Vermont Supreme Court on January 26, 2018.
27. In a decision dated July 16, 2018, a three-justice panel of the Vermont Supreme Court reversed
this Court’s decision and remanded the matter back to this Court for further consideration.
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28. As of October 2018, the Project housed six permanent residents in five apartments, with the
potential to accommodate up to seven other residents for shorter-term stays.
Discussion
As stated above, this matter is presently before us on remand from the Vermont Supreme Court.
109-111 Shelburne St./97 Locust St., No. 2018-046 (July 2018). Because it is undisputed that Ms. Murray
filed her appeal outside of the thirty-day period that 10 V.S.A. § 8504(b)(1) and V.R.E.C.P. 5(b)(1) require
for appeals, this Court, in its December 27, 2017 Entry Order, and the Vermont Supreme Court, in its
review of that decision on appeal, evaluated whether Ms. Murray was entitled to proceed with her appeal
under an exception to the thirty-day limit. See id. at 1-2; see also 109-111 Shelburne St./97 Locust St. CU,
No. 67-5-17 Vtec at 1-2 (Dec. 27, 2017) (denying Ms. Murray’s motion for permission to proceed with the
appeal).
The first alternative available to Ms. Murray was 10 V.S.A. § 8504(b)(2)(C), which requires this
Court to allow an appeal if we determine that “some other condition exists which would result in manifest
injustice” if the appeal was barred. The Vermont Supreme Court stated that it was within this Court’s
discretion to conclude that a denial of her untimely appeal would not result in manifest injustice because
Ms. Murray had actual or constructive notice of the DRB’s approval through her presence at the March
13, 2017 hearing—where the DRB announced its approval of CHT’s application—but failed to act right
away. 109-111 Shelburne St./97 Locust St., No. 2018-046 at 4 (July 2018).
The second option left to Ms. Murray derives from V.R.A.P. 4(c), which is applicable in an appeal
before this Court through V.R.E.C.P. 5(a)(2). Under V.R.A.P. 4(c), the Court “may, upon motion, reopen
the time to file an appeal” for a lack of notice if three criteria are met. These criteria are: (1) the motion
to reopen is “filed within 90 days of entry of the judgment or order or within [7] days of receipt of notice
of the judgment or order, whichever is earlier”; (2) the party seeking to reopen was “entitled to notice of
the entry of the judgment or order [but] did not receive that notice from the clerk or any party within 21
days of its entry”; and (3) the Court determines that “no party would be prejudiced” by reopening the
appeal period.1 V.R.A.P. 4(c).
The Vermont Supreme Court concluded that Ms. Murray met the first and second criteria of
V.R.A.P. 4(c).2 109-111 Shelburne St./97 Locust St., No. 2018-046 at 3 (July 2018). Because this Court did
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V.R.A.P. 4 was amended to change the seven-day period provided for in V.R.A.P. 4(c)(1) to fourteen days,
effective January 1, 2018. See Reporter’s Notes—2018 Amendment, V.R.A.P. 4 (explaining that the seven-day period
was changed to fourteen days to correspond with the day-is-a-day change in V.R.C.P. 6(a)). We apply the seven-day
period that was in place at the time Ms. Murray initiated this action.
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More specifically, the Vermont Supreme Court reversed this Court’s conclusion that an appeal under
V.R.A.P. 4(c) was not available to Ms. Murray. This Court reasoned that the actual or constructive notice Ms. Murray
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not reach the question of whether reopening the appeal period would cause prejudice under the third
criterion, the Supreme Court remanded the matter. Id.
The Supreme Court further advised that even if this Court concludes that Ms. Murray satisfies all
three criteria of V.R.A.P. 4(c), we “must exercise [our] discretion to determine whether to allow the
motion to reopen.” Id. at 3-4 (citation omitted); see also Mahar, 2018 VT 20, ¶ 29 (“[T]he trial court has
discretion to deny a motion to reopen even where all of the requisite criteria are met.”) (citations
omitted).
In light of its decision to remand, the Supreme Court also declined to reach the question of Ms.
Murray’s standing, leaving it to this Court to consider in the first instance. 109-111 Shelburne St./97
Locust St., No. 2018-046 at 4 (July 2018) (citing In re Appeal of MDY Taxes, Inc., 2015 VT 65, ¶ 7, 199 Vt.
248).
Thus, on remand, we are directed to first consider whether reopening the appeal period for Ms.
Murray would unfairly prejudice any party. If not, we must exercise our discretion and determine whether
other considerations weigh against reopening the appeal period. Should we allow Ms. Murray’s appeal
to proceed, we must then turn to the issue of her standing.
I. Whether reopening the appeal period to accommodate Ms. Murray’s untimely appeal
would prejudice any party.
Under V.R.A.P. 4(c)(3), this Court must consider whether any prejudice would result from granting
Ms. Murray’s motion to reopen the appeal period. CHT asserts that it would be prejudiced if this Court
reopened the appeal period because, aside from some exploratory interior demolition to assess structural
integrity, it waited to commence work on the Project until the thirty-day appeal period expired; its interior
and exterior renovations were well underway by the time Ms. Murray filed her notice of appeal; it has
since completed the Project, and did so while this Court was originally considering the timeliness of Ms.
Murray’s appeal; and the Project’s formerly-homeless or marginally-housed residents have lived there for
nearly two years.
The decision to reopen an appeal prejudices a party if it results in “some adverse consequence”
aside from “the cost of having to oppose the appeal and encounter the risk of reversal, consequences that
are present in every appeal.’” See Mahar, 2018 VT 20, ¶ 22 (citation omitted); Advisory Committee
received of the permit approval (through her attendance at the March 13, 2017 hearing where the DRB approved
the Project) triggered the seven-day time period for filing a motion to reopen under V.R.A.P. 4(c)(1), which would
have expired before she filed her notice of appeal in May 2017. The Supreme Court reversed because the seven-
day period is only triggered by notice provided under V.R.C.P. 77(d), which does not include inquiry notice and which
Ms. Murray did not otherwise receive. See 109-111 Shelburne St./97 Locust St., No. 2018-046 at 2-3 (July 2018)
(quoting In re Mahar Conditional Use Permit, 2018 VT 20, ¶ 19 n.5).
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Notes—1991 Amendment, F.R.A.P. 4.3 As stated in the Advisory Committee Notes to F.R.A.P. 4,
“[p]rejudice might arise, for example, if the appellee had taken some action in reliance on the expiration
of the normal time period for filing a notice of appeal.”
Courts assessing motions to reopen have been careful to note that F.R.A.P. 4(a)(6)—V.R.A.P. 4(c)’s
federal counterpart—does not include an excusable neglect standard. See, e.g., Benavides v. Bureau of
Prisons, 79 F.3d 1211, 1214 (1996). The party moving to reopen does not need to explain or justify their
tardiness. “That is because, by supposition, [the party’s] tardiness is not his [or her] fault.” Id.; cf. V.R.A.P.
4(d) (introducing an “excusable neglect or good cause” standard for motions to extend the time to appeal).
By the terms of the Rule, the lack of notice itself explains the delay.
Further, we conclude that V.R.A.P. 4(c) requires us to evaluate the prejudice that would result
from reopening the appeal period given the present circumstances of the parties, not from the date Ms.
Murray’s motion was filed. The plain language of the Rule does not qualify or toll the period during which
prejudice should be assessed. See State v. Villar, 2017 VT 109, ¶ 7, 206 Vt. 236 (“In construing a procedural
rule, we look first to the rule’s plain language, just as with statutory construction.” (citing State v. Amidon,
2008 VT 122, ¶ 16, 185 Vt. 1)). V.R.A.P. 4(c) requires us, unconditionally, to evaluate whether prejudice
would result from reopening the appeal period at the present moment.
We also note that V.R.A.P. 4(c) is a general rule that governs appeals in a variety of legal contexts,
not just appeals to this Court. See, e.g., Coles, 2013 VT 36, ¶¶ 6-9 (applying the Rule in a child support
case). Accordingly, as with other general legal principles, we must adapt the purposes of the Rule to the
unique setting of land development permitting appeals. See, e.g., In re Application of Lathrop Ltd. P’ship
I, 2015 VT 49, ¶¶ 56-66, 199 Vt. 19 (discussing the unique principles of finality that are specific to the
permitting of development projects).
An applicant before this Court “constructs at its own risk during any appeal.” In re Champlain
Coll., Inc. 304-306 Maple St. Dormitory Project, No. 145-7-05 Vtec, slip op. at 3 (Vt. Envtl. Ct. Apr. 17, 2017)
(Wright, J.). In other words, absent a stay, permits approved by a municipal panel take effect while an
appeal is pending before this Court. See V.R.E.C.P. 5(e) (describing automatic stays and motions to stay).
Applicants can proceed with their development while litigating an appeal, but they bear the risk of an
adverse decision by this Court that invalidates the underlying permit.
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We rely, in part, upon the corresponding federal rule and its relevant case law to guide us in our
application of V.R.A.P. 4(c). Federal cases interpreting the Federal Rules of Appellate Procedure are “an authoritative
source for the interpretation of [the V.R.A.P.]” where Vermont rules adopt federal provisions. Reporter’s Notes,
V.R.A.P. 1; see Coles v. Coles, 2013 VT 36, ¶ 6, 193 Vt. 605 (consulting F.R.A.P. 4 and case law interpreting it when
applying V.R.A.P. 4(c) because the rules are “substantively identical,” aside from an irrelevant exception); see also
Reporter’s Notes, V.R.A.P. 4 (“This rule is substantially identical to Federal Appellate Rule 4.”).
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On the basis of this principle, Ms. Murray asserts that the relative progress, or completion, of the
Project should not be a factor that this Court considers in our assessment of prejudice. She argues that
applicants who receive a permit that is not appealed during the thirty-day appeal period will nearly always
start construction. Thus, in her view, weighing the prejudice to applicants who build after the appeal
period has closed effectively forecloses relief under V.R.A.P. 4(c) for prospective appellants before this
Court.
Ms. Murray’s assessment is misplaced. Factoring the progress of the development into the
prejudice analysis will not have the effect of nullifying V.R.A.P. 4(c) that Ms. Murray cautions against.
There will be situations where a lack of notice causes an interested person to miss the opportunity to
appeal and prejudice will not result from reopening the appeal period because the applicant has not
begun, or is in the early stages of, development. The fact that prejudice may frequently be a factor when
V.R.A.P. 4(c) is applied in the permitting context does not warrant ignoring the practical harms that
allowing tardy appeals and disrupting the finality of land permitting decisions can incur.
Applying the legal considerations outlined above to the circumstances before us, we first conclude
that CHT carried out its early construction activities, however limited, during the thirty-day appeal period
with the same background risk as any other applicant facing the prospect of a potential appeal. 4 Before
the appeal period closed, CHT faced the normal “risk of reversal” that does not qualify as prejudice under
the Rule. Advisory Committee Notes—1991 Amendment, F.R.A.P. 4. No prejudice would result from
reopening the appeal period if we were to only consider CHT’s actions during this time.
However, CHT continued with construction after the appeal period closed without the filing of a
timely appeal by any party. This Court, and the Vermont Supreme Court, have repeatedly emphasized
the importance of finality in the unique context of land development. See, e.g., City of S. Burlington v.
Dep’t of Corr., 171 Vt. 587, 588-89 (2000) (concluding that finality prevails even where the municipal
decision may be in error); In re Feeley Constr. Permits, Nos. 4-1-10 Vtec, 5-1-10 Vtec, slip op. at 13-14 (Vt.
Envtl. Ct. June 16, 2010) (Wright, J.); see also 24 V.S.A. § 4472 (providing for the finality of municipal
decisions when no appeal is filed). Given the need for finality in the land development context, and based
4
The parties appear to dispute the extent and nature of CHT’s early construction activities. CHT
acknowledges that it began exploratory work during the thirty-day appeal period but asserts that it waited until the
expiration of the appeal period to start working on the Project in earnest. Ms. Murray asserts that CHT does not
adequately support its claim that it relied upon the expiration of the thirty-day appeal period before proceeding with
the Project. To the extent the parties may dispute the degree of CHT’s construction activities during this period, or
the implications of the close of the appeal period for CHT’s construction plan, we conclude that this dispute is not
material. We focus instead on the progress CHT made on the Project after the appeal period closed without an
appeal being filed.
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upon CHT’s subsequent construction and eventual completion of the Project, we conclude that substantial
prejudice would result to CHT should we reopen the appeal period at this late date. Upon the expiration
of the appeal period, CHT was entitled to proceed with construction in reliance on the finality principles. 5
See Advisory Committee Notes—1991 Amendment, F.R.A.P. 4 (stating that prejudice might result if the
prevailing party took “some action in reliance on the expiration of the normal time period for filing a
notice of appeal.”).
By the time Ms. Murray began proceedings before this Court in May 2017, CHT had already made
substantial progress on the Project. CHT has since completed the Project, and did so while this Court was
considering the timeliness of Ms. Murray’s appeal in the first instance. A number of residents have lived
at the property for nearly two years. Accordingly, we conclude that prejudice would result if we reopened
the appeal period. Since Ms. Murray cannot proceed under V.R.A.P. 4(c), this Court does not have
jurisdiction over her untimely appeal and CHT’s motion to dismiss must be GRANTED. Ms. Murray’s
competing motion for summary judgment is DENIED.
II. Whether the appeal period should remain closed even if Ms. Murray satisfies the three
factors of V.R.A.P. 4(c).
While we conclude above that Ms. Murray cannot satisfy the third factor of V.R.A.P. 4(c), we also
proceed to the question of whether, if she could, this Court would exercise its discretion and decline to
reopen the appeal period. We engage in the following analysis in the alternative.
It is within this Court’s discretion to deny a motion to reopen the appeal period under V.R.A.P.
4(c) even if the moving party did not receive notice under V.R.C.P. 77(d), the party was entitled to such
notice, and no prejudice would result. See 109-111 Shelburne St./97 Locust St., No. 2018-046 at 3-4 (July
2018) (citing Mahar, 2018 VT 20, ¶ 29); see also V.R.C.P. 4(c) (“[T]he superior court may, upon motion,
reopen the time to file an appeal . . .” (emphasis added)).
In exercising our discretion, we “weigh any relevant factors” that might have bearing on whether
the appeal period should be reopened. Mahar, 2018 VT 20, ¶ 30. While Vermont case law on this specific
5
We note that under V.R.A.P. 4(c)(1), CHT could have triggered the seven-day period the Rule provides for
filing motions to reopen by providing Ms. Murray with notice of the DRB’s decision of its own accord. Ms. Murray
appears to claim that because CHT did not so, it cannot now assert that prejudice will result from reopening the
appeal period. While V.R.A.P. 4(c)(1) does provide prevailing parties with this option, it in no way obligates successful
applicants to duplicate the notice that municipal panels are statutorily required to provide. See 24 V.S.A. § 4464(b)
(placing the onus of informing relevant parties of municipal decisions on the municipality itself).
We further note that Ms. Murray had some responsibility for the DRB not providing her with notice of its
decision, since she chose not to sign the attendance sheet at the March 13, 2017 hearing. Municipalities commonly
rely upon these sign-in sheets to confirm who was in attendance and who is entitled to notice of subsequent
decisions.
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issue is limited, other jurisdictions have considered the factors pertinent to a discretionary decision on a
motion to reopen.
The District of Columbia Circuit Court has stated that “[i]f in a particular case the movant is at
fault—if the movant negligently failed to notify the clerk of his change of address, for example—then the
district court may, in its discretion, deny relief under [the companion federal Rule].” Benavides, 79 F.3d
at 1214. Additionally, in In re WorldCom, Inc., the Second Circuit stated that:
Rule 4(a)(6) was expressly amended in 2005 to make clear that the fourteen-day deadline
to move for Rule 4(a)(6) relief is triggered only if and when the litigant receives formal
notice of entry under Civil Rule 77(d), which as we have held did not occur here. See
Fed.R.Civ.P. 4 advisory committee's note to the 2005 amendments. But it is equally clear
that a district court may consider a litigant's diligence to some degree in its exercise of
discretion under Rule 4(a)(6). A litigant who never receives Civil Rule 77(d) notice but
becomes fully aware of the judgment a month after entry could not be entitled to a
favorable exercise of discretion if without justification he fails to move for Rule 4(a)(6)
relief until just before the 180–day deadline.
708 F.3d 327, 340 n.68 (2013).
We rely on this precedent, in combination with the purpose of V.R.A.P. 4(c) of “eas[ing] strict
sanctions now imposed on appellants whose notices of appeal are filed late because of their failure to
receive notice of entry of a judgment,” to conclude that relief under the Rule is not appropriate when the
failure to receive notice or the delay in filing is caused by the appellant. See Reporter’s Notes—1996
Amendment, V.R.A.P. 4 (citing Advisory Committee Notes—1991 Amendment, F.R.A.P. 77(d)).
Ms. Murray had actual or constructive notice of the DRB’s approval of the Project through her
attendance at the March 13, 2017 DRB hearing where the DRB announced that approval. Based on this
notice, this Court has already concluded that Ms. Murray’s untimely appeal should not be permitted under
10 V.S.A. § 8504(b)(2) because no manifest injustice would result from a denial of her appeal. 109-111
Shelburne St./97 Locust St. CU, No. 67-5-17 Vtec at 2 (Dec. 27, 2017). Implicit in our decision was the
conclusion that she did not adequately justify the delay between her receipt of actual notice and her tardy
filing of the notice of appeal. As noted previously, the Vermont Supreme Court considered this Court’s
conclusion that denial of Ms. Murray’s appeal would not result in manifest injustice to be within our
discretion.6 109-111 Shelburne St./97 Locust St., No. 2018-046 at 4 (July 2018).
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While the Vermont Supreme Court stated that this Court “did not abuse its discretion in concluding that
. . . it would not be manifestly unjust to disallow her untimely appeal,” it also introduced this holding by stating “[t]he
issue of whether there was a separate basis to allow an appeal to prevent manifest injustice will be reached on
remand only if the Environmental Division denies the motion to reopen.” 109-111 Shelburne St./97 Locust St., No.
2018-046 at 4 (July 2018). We interpret this as an affirmation of our decision on the manifest injustice question,
with the Supreme Court noting that it did not strictly need to reach the question because of the remand. See, e.g.,
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We apply the same reasoning when exercising our discretion under V.R.A.P. 4(c) to deny Ms.
Murray’s motion to reopen the appeal period. We are sensitive to the fact that our decision will deprive
Ms. Murray of a hearing on the merits of her appeal. She did not receive formal written notice under
V.R.C.P. 77(d). However, Ms. Murray contributed to the DRB’s failure to properly provide her with formal
notice, since she chose not to sign the attendance sheet. Without her sign-in, the DRB staff had little way
of understanding that she was entitled to notice.
Further, Ms. Murray knew that the Project could proceed before the DRB issued its written
decision, since the DRB announced its approval of the permit application at the hearing that Ms. Murray
attended. She also admitted to reading a newspaper article stating that the Project was underway. See
109-111 Shelburne St./97 Locust St. CU, No. 67-5-17 Vtec at 2 (Dec. 27, 2017). She cannot leverage the
DRB’s procedural error, which was obviated by the alternative notice she did receive, to initiate an appeal
that was late by a number of weeks. To conclude otherwise would elevate form over substance.
Further, the completed Project presently provides affordable housing. Some of the residents have
lived there for nearly two years. The Project also supplies short-term housing for those with acute medical
concerns for whom shelter, even on a temporary basis, is a significant boon. To return such a completed
and functioning housing project to the beginning of the appeals process, when the sole party in opposition
was aware of its approval from the start, contradicts the principles underlying V.R.A.P. 4(c).
Based on our discretionary weighing of the relevant factors, this Court would decline to reopen
the appeal period even if Ms. Murray satisfied the three factors of V.R.A.P. 4(c). This conclusion provides
alternative grounds for granting CHT’s motion to dismiss and denying Ms. Murray’s motion for summary
judgment.
III. Whether Ms. Murray has standing to appeal.
Even in light of our above conclusions, we address the issues surrounding standing. Ms. Murray’s
standing has been before this Court since the beginning of this matter and the parties have had a full and
In re Taft Corners Assocs., 160 Vt. 583, 593 (1993) (reaching issues likely to recur on remand in the interest of judicial
economy).
However, to the extent the Supreme Court directs us to return to the manifest injustice question, having
addressed the V.R.A.P. 4(c) issues, we incorporate by reference our prior decision that no manifest injustice would
result from a denial of Ms. Murray’s request that her appeal be allowed to proceed, as well as the reasoning
supporting it. See 109-111 Shelburne St./97 Locust St. CU, No. 67-5-17 Vtec at 1-2 (Dec. 27, 2017). We consider this
appropriate as no new evidence or arguments have supervened to undermine our prior rationale. Further, our
above analysis of the V.R.A.P. 4(c) questions does not refute, but in fact supports, our prior conclusion on the
separate legal issue of whether Ms. Murray will suffer manifest injustice if she is not allowed to proceed with her
appeal.
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fair opportunity to present their arguments on the issue.7 Thus, in the alternative, we also reach the
question of her standing to fulfill our obligation of ensuring “summary and expedited proceedings
consistent with a full and fair determination in every matter” before the Court. V.R.E.C.P. 1.
This Court’s jurisdiction only extends to “actual cases or controversies.” Franklin Cnty. Sheriff’s
Office v. St. Albans City Police Dep’t, 2012 VT 62, ¶ 11, 192 Vt. 188 (citing In re Constitutionality of House
Bill 88, 115 Vt. 524, 529 (1949)). The existence of a case or controversy depends, in part, on whether the
appellant “is suffering the threat of actual injury to a protected legal interest, or is merely speculating
about the impact of some generalized grievance.” Parker v. Town of Milton, 169 Vt. 74, 77 (1998) (quoting
Town of Cavendish v. Vt. Pub. Power Supply Auth., 141 Vt. 144, 147 (1982)).
The statutes defining the requirements for standing before this Court import and supplement the
traditional standing requirements applicable to all Vermont courts, including the injury-in-fact
requirement. See In re Lowre Variance, No. 19-2-11 Vtec, slip op. at 4-5 (Vt. Super. Ct. Envtl. Div. Oct. 31,
2011) (Durkin, J.); 24 V.S.A. § 4471; 24 V.S.A. § 4465; see also 10 V.S.A. § 8504(b). Pursuant to 24 V.S.A.
§ 4471(a), a party that qualifies as an “interested person” who participated before the municipal panel in
the proceeding below has standing to appeal acts or decisions of that municipal panel to this Court. See
also 10 V.S.A. § 8504(b).
24 V.S.A. § 4465(b) sets out the characteristics of “interested persons.” Relevant here, under
§ 4465(b)(3), a party who is not the owner of the subject property must satisfy three requirements to
have appellant standing. First, the party must own or occupy property in the immediate neighborhood of
the subject property. 24 V.S.A. § 4465(b)(3). Second, the party must be able to “demonstrate a physical
or environment impact” to his or her interests, effectively an injury-in-fact, “under the criteria reviewed”
by the municipal panel in reaching its decision. Id. Lastly, the party needs to take the position that the
act or decision of the municipal panel, “if confirmed,” will not “accord with the policies, purposes, or terms
of the plan or bylaw of that municipality.” Id.
The parties do not dispute that Ms. Murray participated before the DRB. Instead, CHT asserts
that Ms. Murray cannot identify a particularized physical or environmental impact to her interests
sufficient to confer standing under the second factor of § 4465(b)(3). Further, CHT argues that
contamination testing is controlled by the Vermont Agency of Natural Resources (“ANR”) and, because
7
CHT argues that Ms. Murray does not have standing in its V.R.C.P. 12(b)(1) motion to dismiss. Ms. Murray
defends her standing in a memorandum in opposition to the motion to dismiss, and also moves for this Court to
confirm her standing under V.R.C.P. 56. Accordingly, we proceed with our analysis with the standards for each type
of motion, as articulated above, in mind.
11
the DRB did not have the authority to address a need for testing in its permit review, any impacts related
to a deficiency in testing are not impacts “under the criteria reviewed.”
While Ms. Murray does not need to definitively prove an injury at this pre-trial stage of the
proceedings, she must offer evidence sufficient to show the “reasonable possibility” of “a non-
speculative” physical or environmental impact to her interests. In re Equinox Sq. Assocs. Change of Use
Permit, No. 64-5-14 Vtec, slip op. at 4 (Vt. Super. Ct. Envtl. Div. Oct. 31, 2014) (Durkin, J.) (citing UVM
Certificate, No. 90-7-12 Vtec at 12 (Feb. 26, 2013)). Generalized grievances that do not affect a party’s
interests in a way that is distinct from the impacts to the municipality’s citizenry more broadly do not
meet this requirement. In re Town Meadow, LLC, No. 110-5-06 Vtec, slip op. at 3, 4 n.3 (Vt. Envtl. Ct. Sept.
25, 2006) (Wright, J.); see also Riverview Mews, LLC v. Richard Elec., No. 215-11-17 Vtec, slip op. at 5 (Vt.
Envtl. Ct. Apr. 7, 2008) (Wright, J.).
Ms. Murray’s appeal relies on her assertion that her property was subjected to more intensive
soil testing than the Project site. She claims that this demonstrates the DRB applied the City of Burlington
Comprehensive Development Ordinance (“Ordinance”) inconsistently. This is the type of generalized
grievance that does not support standing. See In re Vt. Transco LLC Subdivision, No. 32-3-18 Vtec, slip op.
at 2 (Vt. Super. Ct. Envtl. Div. Oct. 17, 2018) (Walsh, J.) (dismissing the appellant because the injury he
asserted was based on “upset taxpayer expectations” resulting from the municipal panel’s improper
application of the ordinance). Without a particularized injury, Ms. Murray cannot here assert that the
permit is invalid because the DRB did not apply the Ordinance properly and ANR subjected her property
to a more intensive contaminant testing regime.
To the extent her claim relies on impacts to her property from alleged contaminated soils at the
Project site, Ms. Murray has not demonstrated that it is reasonably possible that CHT’s permitted work
disturbed the soils on the Project site such that contaminants, if there are any, affected, or will affect, her
property. First, the Project did not involve excavation. The only activity potentially disturbing soils was
the surface-level parking reconfiguration. Further, Ms. Murray speculates as to the presence of
contaminants at or around the Project site, but she provides no specific evidence to support her
speculation. She also lives across Route 7—a four-lane highway—and multiple houses down from the
Project site. Additionally, while not dispositive, CHT completed the Project nearly two years ago and Ms.
Murray has not advanced evidence of any supervening impacts.
12
For these reasons, we conclude that Ms. Murray does not satisfy the requirements of 24 V.S.A.
§ 4465(b)(3) that are necessary to her appellant standing. 8 Therefore, even if we had granted Ms.
Murray’s motion on the prejudice and discretion issues discussed above, we would be compelled to grant
CHT’s motion to dismiss her as a party and to deny Ms. Murray’s motion for summary judgment on her
standing.
Conclusion
As described in detail above, we conclude that CHT would be prejudiced if this Court reopened
the appeal period. Because a V.R.A.P. 4(c) motion is only viable if no prejudice would result, we cannot
reopen the appeal period. Without a timely appeal, this Court lacks jurisdiction. Thus, we GRANT CHT’s
motion to dismiss and DENY Ms. Murray’s motion for summary judgment.
Further, even if we had concluded that no prejudice to CHT would result, it is within our discretion
to decline to reopen the appeal period, even when all three factors of V.R.A.P. 4(c) are met. Because Ms.
Murray had actual notice of the permit approval before construction began and CHT completed and
opened the Project nearly two years ago, we decline to reopen to accommodate her untimely appeal.
This provides alternative grounds for granting CHT’s motion to dismiss and denying Ms. Murray’s motion
for summary judgment.
Finally, even if this Court did reopen the appeal period, we would be obligated to dismiss Ms.
Murray for lack of standing because she has not demonstrated the reasonable possibility of a physical or
environmental impact on her interests. This provides another alternative basis for granting CHT’s motion
and denying Ms. Murray’s motion.
Because Ms. Murray was the only appellant appearing in this matter, the foregoing conclusions
resolve the matter before this Court. A Judgment Order accompanies this Decision.
Electronically signed on May 10, 2019 at Montpelier, Vermont, pursuant to V.R.E.F. 7(d).
________________________________
Thomas S. Durkin, Superior Judge
Environmental Division
8
Because of this conclusion, we do not reach the question of whether the impacts Ms. Murray alleges are
impacts “under the criteria reviewed” by the DRB below.
13