                          Environmental Court of Vermont
                                 State of Vermont

=============================================================================
                  E N T R Y R E G A R D I N G M O T I O N
=============================================================================

Choquette Zoning Permit Amendment                 Docket No. 199-9-08 Vtec
Project:     Choquette Cross Rd. Amendment
Applicant:   Ernest & Louise Choquette
             (Appeal from Municipal ZBA Decision)

Title: Motion to Dismiss, (No. 2)

Filed:        September 23, 2008

Filed By: Coe, Sara Davies, Attorney for Appellee Town of Newport

Response filed on 10/28/08 by Appellants Ernest & Louise Choquette

___ Granted                 _X_ Denied                 ___ Other


      This matter arises from a decision by the Town of Newport Zoning Board
of Adjustment (“ZBA”), denying Appellants Ernest and Louise Choquettes’
application for an amended zoning permit. The Town of Newport (“Town”) has
moved to dismiss the Choquettes’ appeal, and the Choquettes have responded
with their objection.   The Town raises two arguments in its motion for why
the Choquettes’ appeal should be dismissed: (1) failure to timely serve the
Town with notice of their appeal, and (2) consideration of the pending
application is barred by the doctrine of res judicata.   We address each of
the Town’s arguments below.
      The Town’s claim that the Choquettes failed to timely serve the Town is
based upon what appears to be a selective reading of this Court’s procedural
rules, and it ignores the Town’s own duties under those rules.       The ZBA’s
decision denying the Choquettes’ amendment application was made on August 11,
2008.   On August 25, the Choquettes (who were pro se at the time) filed a
Notice of Appeal with the Town, rather than sending it to this Court.       On
September 10, the Town notified the Choquettes that they needed to file their
appeal with the Environmental Court.     The Choquettes did so that day, but
they failed to serve the new Notice of Appeal on the Town.      The Choquettes
then retained counsel, and their lawyer served the Town on September 24.
      The Town now argues that the September 24 service was untimely, since
it was done two weeks after the Choquettes filed their September 10 Notice of
Appeal with this Court.    See V.R.E.C.P. 5(b)(4)(A) (requiring that service
happen “at the same time” as the filing of the Notice of Appeal).     We find
that service was timely.    Although the Choquettes on August 25 mistakenly
sent their Notice of Appeal to the Town (rather than to this Court), our
procedural rules provide that “[i]f a notice of appeal is mistakenly filed
with the tribunal appealed from, . . . the appropriate officer of the
tribunal, board, or panel shall note thereon the date on which it was
received and shall promptly transmit it to the clerk of the Environmental
Court.” V.R.E.C.P. 5(b)(1) (emphasis added).
      The Town does not     dispute the fact that it failed to follow this
procedure.   Rather than    immediately forwarding the Choquettes’ Notice of
In re Choquette Zoning permit Amendment, Docket No. 199-9-08 Vtec (Jan. 7, 2009 Entry Order)   Page 2 of 3.


Appeal to this Court, the Town sent the Choquettes a letter, fifteen days
later, telling them that their appeal had to be filed with this Court. The
Town’s letter to the Choquettes appears to have been sent on the day that the
Choquettes’ right to appeal would otherwise have expired.
      Our Rule 5(b)(1) states that when notices of appeal are mistakenly
filed with a town, the town is obligated to note when the notice was received
and forward it to this Court, and the notice of appeal “shall be deemed filed
with the Environmental Court on the date so noted” by the Town. Id. Thus,
under our Rule, the Choquettes’ Notice of Appeal must be considered to have
been filed on August 26 (the day the Town received the Choquettes’ August 25
letter). See id. The Choquettes’ August 25 letter also served to notice the
Town of their appeal.     We therefore conclude that the Choquettes timely
served the Town with notice of their appeal, thereby fulfilling the
requirements of V.R.E.C.P. 5(b)(4)(A).
      We also note that even if the Choquettes had failed to timely serve the
Town, our Rules provide no basis for the harsh penalty of dismissal for such
failure.   Our Rules note that “[f]ailure of an appellant to take any step
other than the timely filing of the notice of appeal does not affect the
validity of the appeal but is ground only for such action as the court deems
appropriate.” V.R.E.C.P. 5(b)(1); accord V.R.E.C.P. 5(b)(1) reporter’s notes
(“Only the filing deadline is jurisdictional.”).       Although this Court’s
response to untimely service “may include dismissal of the appeal” under
V.R.E.C.P. 5(b)(1), dismissal would be inappropriate here, particularly since
the Town had actual notice that the Choquettes had appealed the ZBA decision.
      The Town’s second basis for seeking dismissal rests on the doctrine of
res judicata, also known as claim preclusion.       The Town claims that the
Choquettes’ current application asks the Town to reevaluate a land use plan
that the Choquettes already presented in 1999.     The Town asserts that the
Choquettes’ current proposal is nothing more than a repetition of the prior
project that they agreed to pursue only after they acquired an adjoining
0.63± acre parcel, so as to make their already undersized lot larger.    The
Town therefore asserts that the Choquettes’ current proposal is an
impermissible successive application and should be dismissed.
      We first note that the Vermont Supreme Court has stated that motions to
dismiss are generally disfavored and that in reviewing such motions, we must
take all of the nonmoving party's factual allegations as true and determine
whether ‘“it appears beyond doubt’ that there exist no facts or circumstances
that would entitle the plaintiff to relief.” Amiot v. Ames, 166 Vt. 288, 291
(1997) (quoting Levinsky v. Diamond, 140 Vt. 595, 600-01 (1982)); accord
Alger v. Dep’t of Labor & Indus., 2006 VT 115, ¶ 12, 181 Vt. 309.         The
Supreme Court has also recently reiterated that the doctrine of claim
preclusion should not be strictly applied to zoning decisions. In re Dunkin
Donuts S.P. Approval, 2008 VT 139, ¶ 10.       Rather, towns and courts are
directed to apply the successive-application doctrine, which “is an attempt
to balance the competing concerns of flexibility and finality in zoning
decisions.” Id. at ¶ 9.
      Under the successive-application doctrine, the ZBA must entertain the
Choquettes’ request for a permit amendment if “‘a substantial change of
conditions ha[s] occurred or other considerations materially affecting the
merits of the request have intervened between the first and second
applications.’” Id. (alteration in original) (citing In re Carrier, 155 Vt.
152, 157–58 (1990)). The Choquettes have the burden to proving that such a
change in circumstances has occurred. In re Carrier, 155 Vt. at 158. This
burden of proof can be substantial, since the Choquettes must not only show
In re Choquette Zoning permit Amendment, Docket No. 199-9-08 Vtec (Jan. 7, 2009 Entry Order)   Page 3 of 3.


that such a change has occurred, but also that the change warrants relieving
them from the requirement to increase the size of their lot, in consideration
for receiving the authority to increase their property from a two-unit
residential structure to a five-unit one.        The Choquettes have already
completed this expansion, but have not acquired the adjoining land.
      The Choquettes have alleged that a change in circumstances has occurred
here, either because of a change in the intervening law or because of a
change in the character of the neighborhood. At this relatively early stage
of this litigation, we must treat the Choquettes’ factual allegations as
true. See, e.g., Alger, 2006 VT 115, ¶ 12. In doing so, we do not hold that
facts or circumstances exist that would entitle the Choquettes to relief, but
rather that the law entitles the Choquettes to have an opportunity to fulfill
their burden of proof. We therefore conclude that dismissal is inappropriate
at this time. See id.
      For all of the reasons more fully explained above, we decline to
dismiss the Choquettes’ appeal; the Town’s motion to dismiss is therefore
DENIED. We look forward to discussing the proper scheduling for this matter
with the parties at the telephone conference, now scheduled for 10:00 a.m. on
January 15, 2009.




___________________________________________      ______________________
              Judge                                Date
========================================================================
Date copies sent to: ____________               Clerk's Initials _______
Copies sent to:
    Attorney Stephen A. Reynes for Appellant Ernest & Louise Choquette
    Attorney Sara Davies Coe for Appellee Town of Newport
    Co-Counsel for Appellant Jesse L. Moorman
