Sports Venue Foundation, Inc.

STATE OF VERMONT
ENVIRONMENTAL COURT
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In re: Sports Venue Foundation, Inc. } Docket No. 168-8-07 Vtec
Act 250 Land Use Permit }
(Appeal of Ronald Dwinell) }
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Decision and Order on Motion to Dismiss and Motion for Clarification
Appellant Ronald Dwinell appealed from a decision of the District #3 Environmental
Commission (“District Commission”), granting Applicant Sports Venue Foundation, Inc.
(“SVF”) an Act 250 Land Use Permit to construct an indoor aquatic center and related fitness
facilities. Now pending before the Court is SVF’s two pre-trial motions, the first to dismiss the
pending appeal based on defective notice and the second to clarify and/or strike Appellant’s
Question #2. Appellant filed a reply to both motions. As the Court was awaiting Appellant’s
replies to the pending motions, SVF advised that Appellant no longer owned the abutting
commercial property which was the basis for our prior determination of his status as an
interested person, having relinquished ownership in the property through the involuntarily act of
foreclosure. Appellant is pro se; Appellee SVF is represented by C. Daniel Hershenson, Esq. C.
Robert Manby, Esq. represents the Town of Hartford (“Town”), which has chosen to not actively
participate in these pre-trial proceedings.
The undisputed facts that are material to the pending motions are listed below.
Factual Background
1. SVF applied for an Act 250 Land Use Permit (Permit Application 3W0943-1) to
construct a 40,000 square-foot building, including a competitive pool and exercise studio, in the
Town of Hartford.
2. The circumstances surrounding the nature of Mr. Dwinell’s appeal of SVF’s Act 250
permit are detailed in our prior Decision of October 24, 2007. The outline of undisputed facts
contained in that prior Decision are incorporated here by this reference.
3. By the October 24th Decision, this Court announced that it was denying SVF’s two prior
motions to dismiss, the second of which was based upon SVF’s assertion, not initially disputed
by Appellant, that Appellant had failed to give proper notice of his appeal or certify the same to
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the Court. Accordingly, the Court afforded Mr. Dwinell the opportunity to clarify whether he
wished to proceed with the appeal in his individual capacity and directed that he provide a
corrected notice of his appeal and file a certificate of service with the Court evidencing the same.
The Court directed that Appellant complete the corrected notice and certification within twenty
days of the October 24th Decision (i.e.: no later than November 13, 2007).
4. Appellant failed to complete the corrected notice of his appeal within the deadline
directed by this Court. Fifteen days after the deadline, on November 28, 2007, Mr. Dwinell
published a copy of his notice of appeal in the Valley News, a newspaper of general circulation
in the Hartford area. He has not provided the Court with a completed certificate of service
evidencing his notice; we are left to conclude that he has not mailed copies of his corrected
notice to the interested persons identified by the Town.
5. Meanwhile, on November 13, 2007, a Judgment Order and Decree in Foreclosure was
issued by the Windsor County Superior Court against Defendants Dwinell Enterprises, LLC,
Satlow, Inc., Ronald Dwinell and Lynn Dwinell (“Dwinell Defendants”). Merchants Bank v.
Dwinell Enterprises, LLC, et al, Docket No. 386-6-07 Wrcv (Windsor Sup. Ct., Nov. 13, 2007).
The Complaint was filed by Merchants Bank and concerns the Fountain of Youth Health Club
facility and the real estate upon which it sits. The Dwinell Defendants waived their rights of
redemption on or about November 1, 2007, thus surrendering control of the subject property to
the plaintiff Bank. No appeal of this Judgment Order and Foreclosure Decree has been presented
to this Court.
6. Upon the expiration of the applicable appeal period, Merchants Bank is authorized to
dispose of the property at a public or private sale. The Judgment Order and Foreclosure Decree
further directs that “Defendants Dwinell [E]nterprises, LLC, Ronald Dwinell and Lynn Dwinell,
their successors, assigns and all persons claiming by from or on behalf of the said Dwinell
Enterprises, LLC, Ronald Dwinell and Lynn Dwinell are hereby foreclosed of and from all right,
title and interest and demand in the said premises and every part thereof . . ..” Id. at 2.
7. SVF’s currently pending motion, filed on November 21, 2007, seeks dismissal of this
appeal, asserting that Appellant’s defective notice was not cured within the time-frame directed
by this Court in its October 24th Decision. SVF filed a companion motion, seeking an order that
Appellant be directed to clarify his Question #2, or that the Question be stricken. Finally, in a
supplemental filing, SVF provided the Court with a copy of the Judgment Order and Foreclosure
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Decree referenced in paragraphs #7 and #8, above, and asked that the Court consider the
implications of the Dwinells’ loss of title to their commercial property “in connection with [the
Court’s review of SVF’s] pending motions.” Corresp. of Attorney Hershenson, dated Dec. 3,
2007.
8. Appellant replied to SVF’s motions on the service and clarification issues but has not
addressed the loss of title to his commercial property through foreclosure. The pending motions
are now ripe for our review.
Discussion
SVF’s motion to dismiss was based on Mr. Dwinell’s alleged defective notice. Pursuant
to the Court’s October 24, 2007 Decision, specifically in reference to an appellant’s obligations
under 10 V.S.A. § 8504(c)(1) and V.R.E.C.P. 5(b)(4)(B), Mr. Dwinell was awarded additional
time,* until November 13, 2007, to remedy the defective notice. Fifteen days after the November
13, 2007 deadline, on November 28, 2007, Mr. Dwinell published a notice of appeal in the local
Hartford newspaper. There is no evidence that Appellant individually served any interested
parties with a corrected notice, so as to comply with 10 V.S.A. § 8504(c)(1) and V.R.E.C.P.
5(b)(4)(B). In addition to his delay and omission, Appellant failed to provide the Court with the
requisite certificate of service. We are still left to wonder who of the necessary parties received
Appellant’s corrected notice of his appeal, some four months after it was first filed.
Our appeal notice provisions are much like the service obligations imposed upon a
plaintiff in civil proceedings. This Court has a certain amount of discretion when addressing a
motion to dismiss based on defective service. See Mountainview Association, Inc., v. Town of
Wilmington, 147 Vt. 627, 629 (1987) (where service is defective, the trial court has discretion to
allow the service or notice defects be cured). While we are mindful that Appellant appears
before us pro se, and has made efforts to retain legal counsel (although no counsel has appeared
on his behalf to date), we are concerned that the continued delay and, in fact, Appellant’s failure
to provide adequate and correct notice of his appeal has unfairly prejudiced Applicant and
unnecessarily expended Court resources. Thus, we conclude that the proper exercise of our
discretion in response to this specific set of facts is to dismiss this appeal. However, because we
*
This appeal was filed on August 14, 2007. Timely notice of this appeal should have been completed on
September 4, 2007. V.R.E.C.P. 5(b)(4(B) and V.R.C.P. 5.
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also believe there are additional, separate grounds for dismissal, we address those additional
issues below.
We are particularly concerned with Appellant’s continued desire to prosecute this appeal,
given the unchallenged representation that Appellant no longer owns the abutting commercial
property which was the basis for our prior determination of his status as an interested person.
Thus, we now address the new question of whether Appellant continues to be entitled to party
status.
To appeal a decision of the District Commission to this Court, an individual or entity
must satisfy the statutory thresholds for party status. The standards for determining individual
party status in state land use proceedings are found in 10 V.S.A. § 6085(c)(1)(E) and are read
together with the standards for intervention found in V.R.C.P. 24. See, In re: Appeal of David
Miner, Docket No. 148-8-99 Vtec (Vt. Envtl. Ct., March 30, 2007). Section 6085(c)(1)(E)
provides that an individual who is an “adjoining property owner or other person who has a
particularized interest protected by this chapter that may be affected by an act or decision by a
district commission.” We understand the “particularized interest[s] protected by this chapter”
referenced in § 6085(c)(1)(E) to be the specific land use interests enumerated in the ten criteria
and sub-criteria of Act 250. See 10 V.S.A. § 6086.
Mr Dwinell has made some reference to his nearby residence, although he has not
specified its proximity to Applicant’s proposed facility, nor has he stated with any clarity the
“particularized interest” in his residential property protected by a specific Act 250 criterion that
SVF’s proposed facility impacts. Thus, we conclude that based upon the evidence presented to
us, only Mr. Dwinell’s interest in his former commercial property provided the basis for his party
status. Since his interest in the Fountain of Youth facility, and the real estate upon which it sits,
have now been extinguished by the foreclosure proceedings, the foundation upon which his party
status rested no longer exists.
Mr. Dwinell continues to have objections to SVF’s proposed development that appear on
their face to be sincere and substantial, but are outside of the limited scope of this Court’s subject
matter jurisdiction. Had he retained title to his property, we would not have this basis for
granting SVF’s motion to dismiss, but we are not entirely certain that all of the issues raised in
Mr. Dwinell’s Statement of Questions could have been adjudicated by this Court in this appeal.
We must leave that question unanswered, because the foundation for Mr. Dwinell’s individual
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party status has now been lost. As we have previously stated, it is imperative for the fair and
proper adjudication of land use disputes that this Court respect the statutory limits of its subject
matter jurisdiction. “This Court cannot rewrite those standards to allow party status to persons
who fail to meet the statutory standards.” Miner, Docket No. 148-9-99 Vtec at 2 (Vt. Envtl. Ct.,
March 30, 2007). Once a party falls beneath the statutory threshold for party status, namely by
losing an interest in the land upon which their original party status determination was based, they
can no longer raise a controversy that the Court has the authority to adjudicate. See In re:
Appeal of Emanuel, Docket No. 24-1-00 Vtec (Vt. Envtl. Ct., March 21, 2000).
Because we reach this determination on Mr. Dwinell’s party status, we do not address
SVF’s motion to clarify because it is now moot.
Conclusion
Accordingly, based on the foregoing, it is hereby ORDERED and ADJUDGED that
SVF’s motion to dismiss is GRANTED. Appellant failed to abide by the directives of this Court
in providing notice of his appeal to the necessary interested persons and submitting the required
certificate of service. He also lost his individual party status when his interest in the abutting
commercial property was foreclosed. The current proceedings before this Court are therefore
concluded. A Judgment Order accompanies this Decision.
Done at Berlin, Vermont, this 18th day of December, 2007.
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Thomas S. Durkin, Environmental Judge
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