Saman ROW Approval

State of Vermont
Superior Court—Environmental Division
======================================================================
ENTRY REGARDING MOTION
======================================================================
In re Saman ROW Approval Docket No. 176-10-10 Vtec
(Appeal from Development Review Board ROW application approval)
Title: Motion to Strike (Filing No. 7)
Filed: November 4, 2011
Filed By: Elizabeth H. MaGill, Attorney for Appellant William Basa
No Response filed
X Granted ___ Denied ___Other
William Basa (“Appellant”) appeals a 2010 decision by the Town of Plainfield
Development Review Board (“the DRB”) granting an application for approval of a fifty-foot
right-of-way in Plainfield, Vermont to Peter Saman (“Applicant”). Because this is an on-the-
record appeal, the parties have filed appellate briefs with this Court.
Appellant now moves to strike Applicant’s Reply to Appellant’s Response to
Applicant’s Brief (“Applicant’s Reply”), contending that it asks the Court to consider matters
that were not part of the record below. Specifically, Applicant’s Reply seeks to use an approved
2011 subdivision application in an effort to contradict Appellant’s argument that an approval of
Applicant’s right-of-way is linked to his desire for subdivision approval.
In an on-the-record appeal, we will consider only the record before us, which consists of
“the original papers filed with the municipal panel [and] any writings or exhibits considered by
the panel in reaching the decision appealed from . . . .” V.R.E.C.P. 5(h)(1)(A); see also V.R.A.P.
10(a); State v. Brown, 165 Vt. 79, 82 (1996) (“The documents were not among the original papers
and exhibits on file in the trial court and consequently are not part of the record on appeal.”).
Here, the DRB issued its determination in 2010, and therefore the 2011 subdivision
application was not before it. Accordingly, the subdivision application is not part of the record
below, and we cannot consider it.
We therefore GRANT Appellant’s Motion to Strike. The Court will not consider
Applicant’s Reply when making its final determination on the merits.
_________________________________________ November 9, 2011 _
Thomas S. Durkin, Judge Date
In re Saman ROW Approval, No. 176-10-10 Vtec (EO on Motion to Strike) (11-09-11) Pg. 2 of 2.
=============================================================================
Date copies sent to: ____________ Clerk's Initials _______
Copies sent to:
Elizabeth H. MaGill, Attorney for Appellant William Basa
Thomas Hayes, Attorney for Appellee Peter Saman
Robert Halpert, Attorney for Interested Person Town of Plainfield
Brice C. Simon, Attorney for Interested Person Brenda Lindemann