                                   STATE OF VERMONT
SUPERIOR COURT                                              ENVIRONMENTAL DIVISION
Environmental Division Unit                                    Docket No. 11-2-16 Vtec


110 East Spring Street CU                                 DECISION ON MOTION



       Pending before the Court is Appellant Chittenden Housing Corporation’s motion for a
stay of construction and Applicants John and Mary Wilson and Steven Polli’s cross-motion to
dismiss Appellant for lack of standing. The underlying matter is an appeal of a decision by the
Development Review Board (DRB) of the City of Winooski approving Applicants’ conditional use
permit to convert their commercial building at 110 East Spring Street into a five-unit residential
apartment building (the Project). The Project entails interior and exterior renovations to the
existing structure; adding eight parking spaces to Applicants’ property, two in front and six in
back; and construction of an elevated access road running from Applicants’ property to East
Spring Street. The proposed access road will run across the northwest corner of Appellant’s
property, over a right-of-way Appellant’s predecessor in title granted Applicants’ predecessor in
title in the late 1960s. Applicants currently use the right-of-way once or twice a year for
property maintenance. At its closest point, the proposed road will run within 15 feet of
Appellant’s building.

                                           DISCUSSION

I.     Motion to Dismiss for Lack of Standing
       Applicants argue that Appellant lacks statutory and constitutional standing to bring this
appeal. Because constitutional standing is jurisdictional, we treat a motion to dismiss for lack of
standing as motion to dismiss for lack of subject matter jurisdiction under V.R.C.P. 12(b)(1). See
In re Goddard College Conditional Use, No. 175-12-11 Vtec, slip op. at 1 (Vt. Super. Ct. Envtl.
Div. July 5, 2012) (Walsh, J.). We will therefore “accept as true all uncontroverted factual
allegations, and we will construe those factual allegations in the light most favorable to the
nonmoving party.” Id.



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         Vermont courts only have jurisdiction over “cases and controversies.” Bischoff v. Bletz,
2008 VT 16, ¶ 15, 183 Vt. 235. A case or controversy is only present when a plaintiff or
intervenor has constitutional standing to bring its claim. Id. To demonstrate standing, a party
must show (1) a concrete and particularized injury (2) caused by the other party’s allegedly
wrongful conduct (3) that is capable of redress by the court. Parker v. Town of Milton, 169 Vt.
74, 77 (1998).
         The purpose of the constitutional case or controversy requirement is to confine the
judiciary to its proper role, and to prevent it from becoming a free-roaming auditor of
legislative and executive action. See id. To further advance this policy, courts enforce self-
imposed “prudential” standing requirements in addition to the core requirements of
constitutional standing. See Franklin Cnty. Sheriff’s Office v. St. Albans City Police Dept., 2012
VT 62, ¶ 12, 192 Vt. 188. To have prudential standing, a party’s claimed injury must fall into the
“zone of interests” protected by the substantive law invoked. Id.
         The statutory requirements for standing in appeals of municipal decisions reflect these
constitutional and prudential requirements. Under 24 V.S.A. § 4471, an “interested person”
who has participated in the proceedings below may appeal a decision to the Environmental
Division. An interested person is defined as, in relevant part:
         A person owning or occupying property in the immediate neighborhood of a property
         that is the subject of any decision or act taken under this chapter, who can demonstrate
         a physical or environmental impact on the person's interest under the criteria reviewed,
         and who alleges that the decision or act, if confirmed, will not be in accord with the
         policies, purposes, or terms of the plan or bylaw of that municipality.1
24 V.S.A. § 4465(b)(3).
         Under the Winooski Zoning Ordinance, the criteria relevant to conditional use review
include whether a proposed development will have an undue adverse effect on the character of
the area; whether it will have an undue adverse effect on traffic and roads; whether it will


         1
             Applicants argue that, “[b]ecause in conditional use cases the adverse impacts test prohibits only
substantial and material adverse effects the particularized impact on the appellant’s asserted personal interest
must be substantial and material.” See Applicants’ Cross-Motion to Dismiss Appeal for a Lack of Standing at 1, filed
Feb. 19, 2016 (citation omitted). But this conclusion does not follow: the standard for showing “particularized
impacts” under the standing doctrine is not automatically the same as the standard for showing environmental
impacts under the applicable substantive law. For instance, an interested party objecting to traffic under Criterion
9(K) need not show that traffic will “materially jeopardize” her interest in order to establish standing, even though
this is the substantive standard under Criterion 9(K). For a more extreme example, a plaintiff-intervenor in a
federal Clean Water Act suit must still show a particularized interest, even though the Clean Water Act is a strict
liability statute, and no proof of impacts at all is required to make out a substantive claim of violation.
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reduce the capacity of the land to hold water; whether it will have an undue adverse effect on
the scenic or natural beauty or the area, historic sites, or rare and irreplaceable natural areas;
and whether the project is in compliance with other zoning and subdivision regulations. See
Ordinance § 8.102, Appellant’s Mot. for Stay, app. I, filed Feb. 11, 2016.
        Appellant’s chief objection to the Project is Applicants’ proposal to build a road across
Appellant’s property. The right-of-way across Appellant’s property is currently blocked by a
fence (which Appellant lawfully installed) for most of the year. There is no curb cut on East
Spring Street, and Applicants currently use the right of way only once or twice a year for
property maintenance. To build the proposed road, Applicants will build up an embankment,
install retaining walls, and pave the road. Applicants also propose to build an opaque safety
fence on the side of the road closest to Appellant’s building. The access road will connect to
East Spring Street at a 36.5 degree angle, and will require a 35-foot curb cut. At its closest
point, the road will run within 15 feet of Appellant’s building, directly outside the windows of
Appellant’s lower-level tenants.
        Appellant argues that, if the elevated roadway and safety fence are constructed, tenants
in the lower floors of Appellant’s building will lose their view, and will only be able to see the
fence and road. Should the connection to East Spring Street prove unsafe, Appellant fears that
cars in traffic accidents on East Spring Street may roll down the embankment into Appellant’s
building. Appellant alleges that the elevated roadway over Appellant’s land will reduce the
capacity of the land to hold water, and may cause stormwater to run down the access road
embankment towards Appellant’s building. Appellant also argues that the access road will
effectively cut off its access to the northwestern corner of its property. Finally, Appellant
objects to the proposed parking area, arguing that it may affect the historic character of the
area.
        All of these impacts would have a direct, concrete, and particularized impact on
Appellant, and all of these impacts are relevant to criteria for conditional use review, namely:
the general and historic character of the area; safety of traffic and roads; and the capacity of
the land to hold water.2



        2
           In its reply to Applicants’ cross-motion, Appellant cites cases from other jurisdictions stating that the
“zone of interests” protected by municipal zoning laws is broad, and it includes any interest protected under the
general purpose of municipal zoning. The words “under the criteria reviewed” suggest that the statutory standard
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         Applicants argue that Appellant’s identified interests are no more than “generalized
grievances.” We disagree. Appellant may argue against the Project on the general basis that it
does not conform to the town bylaws, but its grievance is specific and concrete: the Project, as
proposed, may affect the general and historic character of the area, and Appellant is a primary
beneficiary of that character; may adversely affect traffic safety outside its building,
endangering Appellant’s tenants; and may compromise its land’s ability to hold water,
endangering Appellant’s building. Indeed, as the fee simple owner of the land on which
Applicant proposes to build a road, it is difficult to imagine a party with a more particularized
interest in the Project than Appellant.3
         Applicants imply, by the structure of their memorandum, that Appellant must have
standing to assert each individual argument against the Project, i.e., that it can only challenge
particular aspects of the Project’s noncompliance if those instances of noncompliance
particularly impact Appellant. We disagree. The prudential standing doctrine broadly limits the
substantive law Appellant may invoke to attack the Project.                           But, having established
particularized interests protected by the conditional use criteria, Appellant may challenge the
Project’s general compliance with conditional use standards without particular reference to its
own interests at every rhetorical turn.
         Finally, Applicants argue that Appellant fails the “causation” and “redressability”
elements of standing because Appellant’s injuries are “a self-created consequence of the
location of the easement granted.” In other words, Applicants argue that the root cause of
Appellant’s injuries is the right-of-way and its location, not Applicant’s proposed Project. But all
of the injuries Appellant has identified come from Applicants’ proposal to build an access way,
not from the fact that Applicants have a right-of-way. If the proposed access way is not built,



for prudential standing is more limited in Vermont. See 24 V.S.A. § 4465(b)(3). We need not address the issue,
however, since Appellant’s cited interests fall squarely under the criteria relevant to conditional use approval.
         3
           In their motion, Applicants appear to argue that Appellant’s status as the servient estate holder
disqualifies it from bringing this appeal, under a theory that servient estate holders owe a duty not to interfere in
dominant estate holders’ zoning applications. See Applicants’ Cross-Mot. to Dismiss Appeal for Lack of Standing, at
4, filed Feb. 19, 2016 (citing Sweezey v. Neel, 2006 VT 38, ¶¶ 27–28, 179 Vt. 507). It is unclear whether Applicant
argues that this duty undermines Appellant’s standing or whether Applicants seek dismissal on a separate,
estoppel-type basis. As to the former, even if Appellant had some legal duty not to appeal, that would not
undermine its constitutional, prudential, or statutory standing. As to the latter, we will not address the argument
in this appeal because such duty would arise out of property rights, and is beyond our jurisdiction to consider. See
In re Frantz Waste Water & Water Supply Permit, No. 173-10-10 Vtec, slip op. at 4 (Vt. Super. Ct. Envtl. Div. July 6,
2012). If such a duty exists, the proper course is to seek an injunction in the Civil Division.
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Appellant’s injuries will be redressed.                Appellant therefore meets the causation and
redressability elements.
        Because we find that the Project does pose a risk of a concrete, particularized injury to
Appellant’s identified interests “under the criteria reviewed” for conditional use approval, see
24 V.S.A. § 4465(b)(4), we DENY Applicants’ motion to dismiss for lack of standing.

II.     Motion to Stay
        Appellant has moved to stay construction of the Project during the pendency of this
appeal. In their cross-motion, Applicants focus exclusively on standing, and do not offer any
argument against the motion to stay.4 Under V.R.E.C.P. 5(e), the Court may “on its own motion,
or on motion of a party, stay the act or decision and make such other orders as are necessary to
preserve the rights of the parties upon such terms and conditions as are just.” In deciding
whether to grant a stay, the Court must consider four factors: (1) likelihood of success on the
merits; (2) irreparable harm to the moving party should the stay be denied; (3) substantial harm
to other parties should the stay be granted; and (4) the best interests of the public. In re Tariff
Filing of New England Tel. and Tel. Co., 145 Vt. 309, 311 (1984). These are the same factors
used in deciding whether to grant preliminary injunctions under the civil rules. See In re J.G.,
160 Vt. 250, 255 n.2 (1993). As with preliminary injunctions, a stay pending appeal is an
extraordinary remedy appropriate only when the movant’s right to relief is clear. In re Howard
Ctr. Renovation Permit, No. 12-1-13 Vtec, slip op. at 1 (Vt. Super. Ct. Envtl. Div. Apr. 12, 2013)
(Walsh, J.).



        a.       Likelihood of Success on the Merits
        The first prong of the test for a stay is the most critical in the sense that, if the movant’s
appeal is plainly unlikely to succeed, that will have great weight in our decision. Cf. In re Search
Warrants, 2011 VT 88, ¶ 4, 190 Vt. 572 (Dooley, J., dissenting). But that does not mean we
examine likelihood of success in great detail—to do so would run the risk of trying the merits in
the early stages of litigation. See In re Howard Ctr. Renovation Permit, No. 12-1-13 Vtec, slip

        4
           Applicants response to Appellant’s motion to stay simply said, “The applicants Mary and John Wilson
and Steven Polli objection [sic] to CHC’s Motion for Stay for the reasons set forth in their Cross Motion to Dismiss
for Lack of Standing and the supporting Memorandum of Law.” Applicants’ Opp. to Mot. to for Stay at 1, filed Feb.
19, 2016. The cross-motion to dismiss for lack of standing did not outline any reasons why the stay should be
denied.
                                                         5
op. at 2 (Vt. Super. Ct. Envtl. Div. Apr. 12, 2013) (Walsh, J.). Thus, we emphasize that our
discussion of the merits under this prong is not binding, and is relevant to this motion only. See
In re Allen Road Land Co., Act 250 Permit, Nos. 62-4-11, 63-4-11 Vtec, slip op. at 6 (Vt. Super Ct.
Envtl. Div. July 6, 2011) (Durkin, J.).
        Appellant argues that the Project does not comply with the off-street parking
requirements in the Winooski Zoning Ordinance, see §§ 9.302–02, in that: (1) the off-street
parking requirements require parking area access roads to be perpendicular to streets and have
curb cuts no wider than 25 feet, and the proposed access way meets East Spring Street at an
acute angle with a 35-foot curb cut; (2) the front parking violates the applicable setback; (3)
four of the eight parking spaces are less than the required 18 feet long; (4) the drive aisle in the
parking area is only 14 feet wide in places, and the Ordinance requires it to be 20 feet wide.
        In its motion, Appellant anticipates, based on the reasoning in the DRB’s decision, that
Applicants will argue that the access way is a lawful nonconforming use and that its parking lot
should be excused from the setback and dimensional requirements for general policy reasons.
        It is unlikely that the access road is excused from meeting the off-street parking
requirements because it is a nonconforming use. First, the existing right-of-way likely does not
meet the definition of a nonconforming use or structure. The Zoning Ordinance defines
“nonconforming use” as “[a] use of land or structure which does not comply with one or more
zoning regulations enumerated in this regulation but where such use conformed to all
applicable laws, ordinances, and regulations prior to the enactment of these regulations.”
Ordinance § 2.040. There is no indication that the present use of the right-of-way violates any
provision of the Ordinance—it is a fully complying, lawful use. Applicants’ property will only be
nonconforming if it is allowed to convert its building to residential apartments without creating
an access road.
        Second, even if the right-of-way were a nonconforming use, the proposed changes to
the right-of-way would not be allowed. Under the Ordinance, “non-conforming uses and non-
complying structures may not be altered, moved, enlarged, extended or reconstructed.”
Ordinance § 8.402. Applicants propose to add a substantial curb cut, an elevated roadway, and
a retaining wall to the right-of-way, and they propose to go from using the right-of-way once or
twice a year to daily use. This is a substantial expansion, and would not be allowed under the
Ordinance’s nonconforming use provisions.

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       As to the setback and dimensional requirements, the DRB appeared to interpret the
statute that authorizes towns to implement off-street parking requirements, see 24 V.S.A.
§ 4414(4)–(5), to allow towns to deviate from those requirements on a case-by-case basis. This
is a misreading of the statute. The statute authorizes towns to establish off-street parking
requirements that “vary by district and by uses within each district.” Id. § 4414(4). It does not
authorize towns to vary these requirements for individual applications.          The Town also
appeared to excuse the parking area’s noncompliance because the DRB found that the parking
was not an “unhealthy or objectionable use” under Section 9.000 of the Ordinance. But that
provision is plainly a complement, not a substitute, for other, more specific performance
standards in the Ordinance. Applicants have offered no other reason why the parking layout
for the Project should be excused from the off-street parking requirements in the Ordinance.
Appellant has therefore demonstrated a strong likelihood of success on the merits.

       b.      Irreparable Harm
       In order to stay construction pending appeal, we must find that Appellant will suffer
“irreparable harm” if a stay is not granted. In re Tariff Filing of New England Tel. and Tel. Co.,
145 Vt. 309, 311 (1984). Harm is “irreparable” only when the “the threatened harm would
impair the court’s ability to grant an effective remedy.” 11A Wright, Miller & Kane, Federal
Practice and Procedure: Civil 3d § 2948.1 (discussing elements for grant of preliminary
injunction). Thus, if a movant has an alternative, monetary remedy for the threatened harm,
the harm is not irreparable. Id.
       Appellant argues that the construction itself—which will take place less than 15 feet
from some of Appellant’s tenants’ windows—would be highly disruptive to its elderly tenants.
Removing the road would only prolong the harm (because it would prolong construction). The
Court is not aware of any monetary remedy that could compensate Appellant for its harm, nor
have Applicants offered one. This factor therefore weighs in favor of Appellant.

       c.      Harm to Other Parties
       In their cross-motion, Applicants offer no argument as to why a stay will harm their
interests. Appellant acknowledges that there may be some harm to Applicants from delayed
construction, and suggests that a stay could be limited to “work affecting [Appellant’s]
property.”

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       d.      Best Interests of the Public
       Appellant argues that a stay serves the best interests of the public because removing
the fence and constructing the elevated road over the right-of-way poses a safety risk to traffic
on East Spring Street. Applicants offer no argument to the contrary. This factor weights in
favor of Appellant.

       e.      Conclusion
       All four factors weigh in favor of a stay and against allowing construction of the elevated
access road and associated improvements while this appeal is pending. Most important to the
Court’s consideration is the potential for irreparable harm to Appellant’s elderly tenants while
the proposed roadway is constructed and, if necessary, removed. The Court therefore GRANTS
Appellant’s motion in part and DENIES Appellant’s motion in part.           The Court will stay
construction on those aspects of the Project that pose the greatest threat of irreparable harm
to Appellant’s elderly tenants: the curb cut, removal of the fence, and elevated access road.
Applicants may proceed with construction of the parking area and any alterations to the
building itself while this appeal is pending. Should it prove impossible to continue construction
on the parking area and building without beginning construction on the proposed access way,
Applicant may move to lift this stay on grounds of necessity.

                                              CONCLUSION
       Appellant has demonstrated constitutional, prudential, and statutory standing to bring
this appeal. We therefore DENY Applicants’ motion to dismiss for lack of standing. Appellant
has demonstrated that construction of the access road and curb cut and removal of the fence
may cause irreparable harm to Appellant’s elderly tenants. We therefore GRANT in part
Appellant’s motion for stay with regard to these three features, and we DENY in part
Appellant’s motion with respect to construction of the parking area and building.


Electronically signed on April 22, 2016 at 11:47 AM pursuant to V.R.E.F. 7(d).




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

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