Duval CU Denial - Decision on Motion ( 2019 )

STATE OF VERMONT
SUPERIOR COURT ENVIRONMENTAL DIVISION
Docket No. 93-8-18 Vtec
Duval CU Denial
ENTRY REGARDING MOTION
Count 1, Municipal DRB Conditional Use (93-8-18 Vtec)
Count 2, Municipal DRB Conditional Use (93-8-18 Vtec)
Title: Motion for Reconsideration (Motion 8)
Filer: Peter K. Duval
Attorney: Pro Se
Filed Date: June 18, 2019
Response in Opposition filed on 06/26/2019 by Attorney Eric G. Derry for party 3 Co-counsel
The motion is DENIED.
Peter K. Duval appeals a conditional use permit denial by the Town of Underhill
Development Review Board (DRB) related to his application to convert a single-family home with
an attached accessory dwelling into a 4-unit multi-family dwelling at his property in Underhill,
Vermont. The Town of Underhill (Town) subsequently cross-appealed. On May 21, 2019, this
Court issued an Entry Order motion to remand the appeal back to the Town
for further consideration of the application. Presently before the Court is
reconsider our May 21, 2019 Entry Order.
alter or
amend a judgment. The Court has identified four basic grounds for granting such a motion: (1)
In re
, Nos. 122-7-04 Vtec, 210-9-08 Vtec, 136-8-10 Vtec, slip op. at 10 11 (Vt.
Super. Ct. Envtl. Div. Apr. 12, 2011) (Durkin, J.) (quoting 11 Wright, Miller, & Kane, Federal
Practice and Procedure: Civil 2d § 2810.1).
arguments or present evidence that could have been raised pri
Appeal of Van Nostrand, Nos. 209-11-04 Vtec, 101-5-05 Vtec, slip op. at 4 (Vt. Envtl. Ct. Dec. 11,
2006) (Durkin, J.) (quoting Wright, Miller, & Kane, § 2810.1) (internal footnotes omitted).
Therefore, disagreement between t
granting such a motion. In re Boutin PRD Amendment, No. 93-4-05=6 Vtec, slip op. at 2 (Vt. Envtl.
Ct. May 18, 2007) (Wright, J.).
Mr. Duval raises two arguments in support of his motion. First, he argues it is outside the
DRB to review and set conditions related to wastewater systems. Second, he argues
that this Court improperly relied upon the DRB decision below when ruling on the motion to
remand.
Mr. Duval raised his arguments re systems
when first
The Court considered this argument at that time and his attempt to raise it again in the present
motion seeks to impermissibly relitigate this issue.
We again note that it is uncontested that the Town lacks authority to permit any
wastewater system design. The Town is not seeking to do so in this matter, however. As the
Court stated in our May 21, 2019 Entry Order, the Town is seeking to evaluate compliance with
relevant conditional use standards. Reviewing wastewater system designs during conditional use
We next turn
in issuing our May 21, 2019 Entry Order. Appeals to the Environmental Division are heard de
novo. See 24 V.S.A. § 4472(a); V.R.E.C.P. 5(g). In a de novo hearing, the Court is directed to
Chioffi v. Winooski Zoning Bd., 151 Vt. 9, 11 (1989) (quoting In re Poole, 136 Vt. 242, 245 (1978)).
based in the fact that the Town was unable to review
certain aspects of the proposed application in the first instance due to insufficient evidence.
Therefore, it could not conduct a full review of the proposal. The Court had received
representations from Mr. Duval that evidence on these issues would be forthcoming before this
Court. Therefore, on appeal, evidence beyond that which the Town received when conducting
its initial review of the project would be presented and the Court would be hearing certain issues
in the first instance. This is beyond our role as an appellate tribunal. See In re Maple Tree Place,
156 Vt. 494, 500 (1991).
In reviewing the DRB decision below, the Court did not rely upon the conclusions therein.
Instead, the Court reviewed the decision to determine whether the DRB had the opportunity to
conduct a full review of the proposal in the first instance. This review was required to rule on the
merits of a remand. We conclude this review was proper and, therefore, is not grounds to grant
For these reasons, we DENY
Entry Order as he has not presented adequate grounds to reconsider the decision.
So ordered.
Electronically signed on June 27, 2019 at 03:34 PM pursuant to V.R.E.F. 7(d).
_________________________________________
Thomas G. Walsh, Judge
Superior Court, Environmental Division
Notifications:
Appellant Peter K. Duval
Joseph S. McLean (ERN 2100), Attorney for Cross Appellant Town of Underhill
Interested Person John McNamara
Interested Person Catherine McNamara
Interested Person Steve Codding
Interested Person Dianne Terry
Interested Person John Koier
Interested Person Barbie Koier
Interested Person Nancy Hall
Interested Person John Hall
Interested Person Susan May
Interested Person Thomas May
Interested Person John Hardacre
Interested Person Marilyn Hardacre
Interested Person David Demuynck
Interested Person Cathy Leathersich
Eric G. Derry (ERN 5528), Attorney for party 3 Co-counsel
efilosa