                                       State of Vermont
                            Superior Court—Environmental Division

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                   ENTRY REGARDING MOTION
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In re Rockingham School District Permit Revocation                 Docket No. 20-2-13 Vtec
Title: Motion to Remand (Filing No. 1)
Filed: April 15, 2013 (orally at status conference)
Filed By: Cross-Appellant Town of Westminster
Response in Opposition filed on 4/30/2013 by Appellant Rockingham School District
Response in Opposition filed on 4/30/13 by Interested Person Fred W. Yates
Response in Support filed on 5/6/2013 by Interested Person Ruth Gale


 ___ Granted                    X Denied              ___ Other

        In the case at hand, the Rockingham School District (“Appellant”) appeals a decision by
the Town of Westminster Development Review Board (“DRB”) revoking Zoning Permit No. 12-
20, which permitted an outdoor sports lighting system. At a pre-trial telephone status
conference held on April 15, 2013, the Town of Westminster (“the Town”), through its attorney,
requested that this Court remand the pending case to the DRB over concerns that Appellant did
not provide proper notice of his appeal to his neighbors. We chose to treat the Town’s request
as a formal motion and invited all interested parties to file written responses to the motion. We
received and considered responses from Appellant as well as two interested parties in this
appeal.
        At the April 15 status conference, the Town raised concerns that (1) Appellant failed to
provide proper notice to all interested persons in accordance with V.R.E.C.P. 5(b)(3) and 24
V.S.A. § 4471(c) and (2) that due in part to the Town’s own administrative error, the notice of
appeal that Appellant provided to at least some interested persons included a draft of the DRB’s
final decision, rather than the final decision itself. Based on these alleged procedural problems,
the Town suggested that we remand the pending case to the DRB to render a new decision. No
party claims that another procedural defect has occurred.
       Although at the April 15 status conference the Town alleged that notice to neighbors of
Appellant’s appeal was improper, the Town has offered no specific evidence that Appellant did
not provide proper notice to all interested persons. Furthermore, Appellant challenges the
Town’s assertions in its opposition to the Town’s motion for remand. Without more than
claims made by the Town at a pre-trial status conference, we decline to find that Appellant did
not properly notice all interested persons or that the defect claimed warrant remand.
        We do acknowledge, however, that there is some confusion over which DRB decision is
the final decision on appeal to this Court, and which decision Appellant sent to all interested
persons as part of its notice of appeal. At the April 15 status conference, the Town appeared to
suggest that the true final decision was signed, dated, and issued on January 3, 2013. We see no
evidence of such a decision in the record before us.
In re Rockingham Sch. Dist. Permit Revocation, No. 20-2-13 Vtec (EO on Mot. for Remand) (5-16-13)      Pg. 2 of 2.

        Instead, Appellant has provided the Court with two copies of a DRB decision in this
matter, both of which are dated January 18, 2013. The first decision includes the signature
“Cathy” on its final page, and it appears to include a number of formatting irregularities and
occasional spelling errors. The second decision includes the signature “Cathy Mullins” on its
final page, and its formatting appears significantly more polished. Aside from these
differences, the decisions are substantively identical.
       Of the two decisions, the second decision, signed “Cathy Mullins,” appears to be the
decision meant for issuance. Because both decisions are substantively identical, however, we
find that no noticed party was prejudiced by the receipt of the unpolished draft rather than the
polished draft. The reason Appellant was in possession of a signed DRB decision meant to be
an unpublished draft is somewhat of a mystery, but the Town appears to acknowledge that it
was the result of a Town or DRB error. Because Appellant opposes the Town’s motion for
remand, and because Appellant’s error in sending interested persons the less polished of two
signed decisions created no prejudice, we see no grounds for remanding this case pursuant to
V.R.E.C.P. 5(i).
       Accordingly, we DENY the Town’s motion for remand. So that all parties in this matter
will subsequently work from identical DRB decisions, however, we also ORDER Appellant to
provide all noticed parties, within 15 days (whether or not they have appeared thus far in this
appeal), copies of the DRB decision dated January 18, 2012 and signed “Cathy Mullins.”




_________________________________________                                      May 16, 2013
       Thomas S. Durkin, Judge                                                     Date
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Date copies sent: ____________                                             Clerk's Initials: _______
Copies sent to:
  Andrew C. Boxer, Attorney for Appellant Rockingham School District
  Interested Person Fred W. Yates
  Richard K. Bowen, Attorney for Interested Person Ruth Gale
  Lawrence Slason, Attorney for Cross-Appellant Town of Westminster
