                                      STATE OF VERMONT
SUPERIOR COURT                                                        ENVIRONMENTAL DIVISION
Vermont Unit                                                           Docket No. 133-10-13 Vtec

                             Bilotta Revised Permit Application

                                ENTRY REGARDING MOTION

Title:          Motion to Dismiss Appeal (Motion 2)
Filer:          Alban Wolin
Attorney:       Neal C. Vreeland
Filed Date:     June 16, 2014

Title:          Motion to Enforce Settlement Agreement
Filer:          James Bilotta
Attorney:       David R. Cooper
Filed Date:     July 2, 2014

Response filed on 07/02/2014 by Attorney David R. Cooper for Appellee Melissa Allard
      Opposition

The Wolins’ motion is GRANTED and the Bilottas’ motion is DENIED.
         Appellants Alban and Helga Wolin (the Wolins) timely appealed the Poultney
Development Review Board’s (the DRB) approval of James and Melissa Bilotta’s (the Bilottas)
revised permit application to replace a 720-square-foot camp with a 936-square-foot single
family home on property located at 1664 Westlake Road in Poultney, Vermont.1 The Wolins
filed a Statement of Questions on October 21, 2013, challenging the project’s conformance with
Poultney Zoning Regulations.
        In an attempt to resolve the issues on appeal, the Wolins and the Bilottas entered into
mediation on February 4, 2014. A Mediation Agreement was signed by both parties. Despite
good faith efforts, the parties were unable to agree on a final settlement agreement. The
Wolins filed a motion on June 16, 2014 requesting that this Court dismiss the appeal without
prejudice pursuant to the Vermont Rules for Environmental Court Proceedings (V.R.E.C.P.) and
the Vermont Rules of Civil Procedure (V.R.C.P.). That motion is now before the court. The
Bilottas oppose the motion to dismiss. Additionally before the Court is the Bilottas’ July 2, 2014
motion to enforce a settlement agreement.

1
 The DRB approved the permit on September 5, 2013 with conditions as follows: the Bilotta’s must obtain a
Vermont Potable Water/Wastewater permit for a new septic system or holding tank and must submit an Erosion
Control plan in accordance with Section 1232 of the Poultney Zoning Ordinance.


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                                  Appellant’s Motion to Dismiss
        Pursuant to the V.R.C.P., absent pending counterclaims, a plaintiff may move for and a
trial court may order the dismissal of litigation without prejudice. V.R.C.P. 41(a)(2). Rule
41(a)(2) states:
       Except as provided in paragraph (1) of this subdivision of this rule [dismissal by
       plaintiff or stipulation], an action shall not be dismissed at the plaintiff's instance
       save upon order of the court and upon such terms and conditions as the court
       deems proper. If a counterclaim has been pleaded by a defendant prior to the
       service upon the defendant of the plaintiff's motion to dismiss, the action shall
       not be dismissed against the defendant's objection unless the counterclaim can
       remain pending for independent adjudication by the court. Unless otherwise
       specified in the order, a dismissal under this paragraph is without prejudice.
Because the V.R.C.P. govern proceedings before this Court as applicable and unless otherwise
modified by the V.R.E.C.P., Rule 41(a)(2) applies to the motion now pending. V.R.E.C.P. 5(a)(2)
(“Except as modified by this rule and by subdivisions (b)-(e) of Rule 2, the Vermont Rules of Civil
and Appellate Procedure, so far as applicable, govern all proceedings under this rule”).
        We conclude that an appellant may withdraw its appeal as of right. As an appellant’s
Questions serve as the legal foundation for the Court’s review, the appellant’s withdrawal of its
appeal could leave this Court with no Questions to consider in a de novo trial. See In re Main
St. Place, LLC, Nos. 46-3-10, 168-11-11, 70-5-11, 191-1-10, 120-7-10 Vtec, slip op. at 2 (Vt.
Super. Ct. Envtl. Div. Apr. 3, 2013) (Durkin, J.) (holding that an Applicant may dispose of an
appeal by withdrawing its application and therefore the legal foundation for review in this
Court). This Court will not, however, dismiss an appeal simply because the original appellant is
unwilling or unable to proceed with the case. If additional interested parties seek resolution of
the original appellant’s Statement of Questions, the Court will not dismiss the matter entirely,
only the original appellant, and will maintain the appeal for the remaining parties. E.g. In re
Willowell Foundation CU, No. 142-10-12 Vtec, slip op. at 12–13 (Vt. Super. Ct. Envtl. Div. July 10,
2014) (Walsh, J.) (citing In re Garen, 174 Vt. 151, 156 (2002); Village of Woodstock v.
Bahramian, 160 Vt. 417, 424 (1993)). The Bilottas therefore have a right to continue this appeal
with respect to the issues raised in the Wolins’ Statement of Questions. The Biolottas do not
pursue this right. As discussed below, the Bilottas’ interest in enforcing a purported settlement
agreement is the only proffered grounds for denying Appellants’ motion to dismiss this appeal.
                  The Bilottas’ Motion to Enforce the Settlement Agreement
        Also before the Court is the Bilottas’ motion to enforce a “settlement agreement.” The
Bilottas argue that the February 4, 2014 mediation resulted in a binding settlement. The Wolins
assert, however, that despite good faith efforts by both parties they were unable to finalize a
settlement either immediately after or in the several months following mediation.
       Mediation is governed by the Vermont Mediation Act (12 V.S.A. §§ 5711–5723).
Mediation is a non-binding process absent a clear showing that an enforceable settlement
agreement was created during the mediation process. See Rogers v. Rogers, 135 Vt. 111, 112
(1977) (establishing that settlement agreements are governed by contract law); Starr Farm


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Beach Campowners Ass'n., Inc. v. Boylan, 174 Vt. 503, 505 (2002) (holding that a contract is
enforceable if the court finds that the parties agreed to the same terms and conditions and
intended to be bound by those terms and conditions); Vermont State Colleges Faculty
Federation, et al. v. Vermont State Colleges, 141 Vt. 138, 144, (1982) (holding that courts
cannot create or remake contracts, only construe their provisions). This typically entails a
written settlement agreement signed by all parties. The Bilottas submit that the Mediation
Agreement itself created a binding contract. Assuming this is true, the only contract that was
created was to undergo mediation. By no means can the Mediation Agreement be read as a
requirement to settle or to contain the necessary terms of a settlement agreement. The
Bilottas have offered no further evidence of a written settlement agreement between the
Wolins and the Bilottas. Thus, this Court is without a settlement to enforce.
                                             Conclusion
      For the reasons stated above, we GRANT the Wolins’ motion to dismiss the appeal and
DENY the Bilotta’s motion to enforce a settlement agreement and request for hearing.
           The DRB’s September 5, 2013 decision stands as final.
      A Judgment Order accompanies this Entry Order.               This completes the current
proceedings before this Court.
Electronically signed on October 03, 2014 at 02:10 PM pursuant to V.R.E.F. 7(d).



_________________________________________
Thomas G. Walsh, Judge
Superior Court, Environmental Division


Notifications:
Neal C. Vreeland (ERN 2734), Attorney for Appellant Alban Wolin
Neal C. Vreeland (ERN 2734), Attorney for Appellant Helga Wolin
David R. Cooper (ERN 4756), Attorney for Appellee James Bilotta
David R. Cooper (ERN 4756), Attorney for Appellee Melissa Allard

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