Appeals of National Realty & Development Corp. (Decision and Order re: Motion to Dismiss for Lack of Standing)

STATE OF VERMONT
ENVIRONMENTAL COURT
Appeals of National Realty & }
Development Corp. } Docket Nos. 22-2-03 Vtec,
} 61-4-03 Vtec, 68-5-03 Vtec
} and 114-7-03 Vtec
}
Decision and Order re: Motion to Dismiss for Lack of Standing
Appellant National Realty and Development Corporation appealed from two decisions of the
Zoning Board of Adjustment and two decisions of the Planning Commission of the Town of
Derby, all relating to a proposal by Omer Choquette, Doug Nelson, and Derby Properties, LLC,
to construct a Price Chopper supermarket and four attached retail stores off Route 5 between
Quarry Road and Shattuck Hill Road. Appellant is represented by Duncan Frey Kilmartin, Esq.;
Appellee-Applicants Omer Choquette, Doug Nelson, and Derby Properties, LLC are represented
by Alan B. George, Esq.; the Town of Derby is represented by William B. Davies, Esq.
Appellee-Applicants have moved to dismiss this appeal, arguing that Appellant lacks standing to
appeal under 24 V.S.A. ' 4464(b)(3)1. Appellee-Applicant=s property is located on Route 5
between Quarry Road and Shattuck Hill Road. Appellant occupies property just under a quarter
of a mile east of Appellee-Applicant=s property, also on Route 5. Five curb cuts serving
commercial properties are located between Appellant=s property and Quarry Road.
Both parties improperly conflate the two requirements for standing of 24 V.S.A. ' 4464(b)(3), as
well as the substantive requirements of the Town of Derby= s ordinances applicable to this
project.
To have standing to appeal under ' 4464(b)(3), a party must meet only the following two
requirements: that the party own or occupy property > in the immediate neighborhood= of the
proposed project, and that the party allege that if the decision on appeal is upheld, it > will not be
in accord with the policies, purposes or terms of the plan or bylaw of the municipality.= In the
present case Appellant has met the second requirement of ' 4464(b)(3)2. The only issue in the
motion to dismiss is whether Appellant has met the first requirement; that is, whether the
property owned or occupied by Appellant is Ain the immediate neighborhood@ of the project.
There is no specific physical radius or distance, either as the crow flies or along the roadways,
for determining whether an appellant= s property is > in the immediate neighborhood= of a project.
No such specific distance is provided in the statute, and it makes sense that differences in
topography or the configuration of the nearby road network could under some circumstances
insulate the one from the other, or relate the one to the other. Rather, to determine whether a
putative appellant is > in the immediate neighborhood= under ' 4464(b)(3), we look to the
physical proximity of the two properties, and examine other factors as well.
In Appeal of Brodhead, Docket No. E95-057 (Vt. Envtl. Ct., August 3, 1995), the Court ruled
that:
[t]he only sensible way of interpreting A immediate neighborhood@ is to examine if [the
appellant] would be potentially affected by any of the aspects of the project which the zoning
laws regulate. To interpret the phrase otherwise would be to destroy the statutory distinction
between individual standing for persons owning or occupying property in the immediate
neighborhood, but only group standing for ten or more residents of the municipality who do not
otherwise qualify as being in the immediate neighborhood. 24 V.S.A. ' 4464(b)(4). We must
determine whether Appellant is threatened by some harm from the decision on appeal and is
within the A zone of interests@ protected by the Town= s zoning ordinance.
The appellant who was denied party status in Brodhead owned a home and a competing kennel
business approximately 12 miles along the road from the proposed use; the two properties were
located .7 of a mile apart, across country. That appellant, however, did not assert that she would
be affected by the project in any way other than as a resident of the same town or as a competitor
in a similar business. Applying the same test in Appeals of Hoisington & Gladstone, Docket Nos.
177-9-99 Vtec, 189-10-99 Vtec and 190-10-99 Vtec (Vt. Envtl. Ct., November 29, 1999), the
appellants were found to have standing to bring the appeal, because both their properties were
potentially affected by the traffic to be generated from the proposed project. In those cases, the
Court then went on to hold a hearing on the merits of the proposal and to determine from the
evidence what the traffic impacts of the proposed project would be and whether the project met
the criteria of the zoning and subdivision ordinances.
In the present case, we examine whether Appellant= s property could be affected by any of the
aspects of the proposed project which are regulated by the Derby zoning ordinance. Appellant= s
property is located a quarter mile east on Route 5. Even according to the affidavit of Appellee-
Applicants= traffic consultant, Appellee-Applicants= project will have some effects on the traffic
on Route 5, and could potentially affect the use of the roads by Appellant and/or its customers or
employees. The question of whether the proposal= s effects on Route 5 are adverse or unduly
adverse, or meet or fail to meet the standards of the applicable sections of the ordinance are for
the merits of these proceedings, and not for the determination of Appellant= s standing.
Appellant therefore has standing to bring these appeals, and to present evidence in support of its
position at the hearing on the merits. That hearing remains scheduled for August 13 and 14,
2003. Based on the foregoing analysis, Appellee-Applicants= Motion to Dismiss for lack of
standing is DENIED.
Done at Barre, Vermont, this 25th day of July, 2003.
___________________
Merideth Wright
Environmental Judge
Footnotes
1.
Appellant cannot assert standing under 24 V.S.A. §4464(b)(4), as that section requires a
group of ten or more property owners.
2.
We note that Appellant is quite correct that under this second prong of the standing test it
does not need to show any particular effect of the proposed project on its own property. Rather,
as discussed below, the potential for Appellant to be affected in some way by the project is only
pertinent to the question of whether Appellant is "in the immediate neighborhood."