                                            STATE OF VERMONT
SUPERIOR COURT                                                              ENVIRONMENTAL DIVISION
Vermont Unit                                                                   Docket No. 20-2-13 Vtec

                         Rockingham School District Permit Revocation

                                     ENTRY REGARDING MOTION

Title:             Motion to Dismiss Fred Yates RENEWED (Motion 6)1
Filer:             Town of Westminster
Attorney:          Lawrence Slason
Filed Date:        February 18, 2014

Response in Opposition filed on 02/21/2014 by Interested Person Fred W. Yates
Response in Support filed on 02/24/2014 by Attorney Richard K. Bowen for Interested Person
Ruth Gale

The motion is GRANTED.

         The above-referenced docket concerns an appeal and cross-appeal from the decision by
the Town of Westminster Development Review Board (“DRB”) to revoke a previously-issued
permit (Permit #12-20) that authorized the Rockingham School District (“School District”) to
install a lighting system at the Bellows Falls Union High School (“BFUHS”) athletic field, known
as Hadley Field.2 Ruth Gale, who owns and lives in a home near Hadley Field, filed the petition
for revocation of Permit #12-20. When the DRB concluded that the lighting system installation
was not in accordance with all representations made in support of the original application, the
DRB decided to revoke Permit #12-20. As a consequence of that DRB decision, the School
District filed a timely appeal with this Court; the Town of Westminster (“Town”) cross-appeals.
       This appeal is currently on inactive status, based upon the School District’s
representation that it intended to submit a new permit application for a modified lighting
system for Hadley Field. See June 11, 2013 Scheduling Order. Most recently, the School District

1
  Mr. Fred Yates filed a motion for judgment on the pleadings, which the Court set for hearing on January 27, 2014.
See Rockingham School Dist. Permit Revocation, No. 20-2-13 (Vt. Super. Ct. Envtl. Div. Dec. 17, 2013) (Durkin, J.)
(directing that all other parties file any responses to Mr. Yates’s motion no later than January 8, 2014). In their
respective responses, both the Town of Westminster and the Rockingham School District objected to Mr. Yates’s
motion and asked that the Court dismiss Mr. Yates as a party to this appeal. Thereafter, the Town renewed its
request that the Court dismiss Mr. Yates as a party; this supplemental filing by the Town was docketed on
February 18, 2014 as a renewed motion to dismiss. We have considered all motions, memoranda, and responsive
letters concerning Mr. Yates’s party status in this Entry Order.
2
    The Hadley Field facilities are located in the Town of Westminster.
Rockingham School Dist. Permit Revocation, No. 20-2-2013 (EO on Motion to Dismiss)(04-24-2014)   P. 2 of 3.


(on March 12, 2014) filed a Status Report that summarized the District’s efforts to receive a
state land use (“Act 250”) permit.
       Now pending before the Court is the Town’s renewed motion that Fred Yates be
dismissed as a party to the pending appeal. The School District and Ms. Gale concur with the
Town’s motion. Mr. Yates has responded to the pending motion by letter.
       We first note that a party’s standing can affect this Court’s subject matter jurisdiction.
Bischoff v. Bletz, 2008 VT 16, ¶ 15, 183 Vt. 235. As such, we review motions to dismiss for lack
of standing under the standard of review afforded by V.R.C.P. 12(b)(1), meaning that we accept
as true all uncontroverted factual allegations and construe them in the light most favorable to
the nonmoving party, which in this instance is Mr. Yates. E.g., In re Goddard Coll. Conditional
Use, No. 175-12-11 Vtec, slip op. at 1 (Vt. Super. Ct. Envtl. Div. July 5, 2012) (Walsh, J.). We
therefore review the Town’s motion and Mr. Yates’s responses in that light.
        Parties by right under 10 V.S.A. § 8502(5) and interested persons under 24 V.S.A. § 4465
have the right to appear in appeals filed by others. 10 V.S.A. § 8504(n)(5); Vermont Rule for
Environmental Court Proceedings (“V.R.E.C.P.”) 5(c); see In re Main St. Place, LLC, Nos. 46-3-10
Vtec, 120-7-10 Vtec, 191-11-10 Vtec, and 168-11-11 Vtec, slip op. at 5 (Vt. Super. Ct. Envtl. Div.
June 19, 2012) (Durkin, J.). Fred Yates timely entered his self-represented appearance in the
pending appeal in accordance with V.R.E.C.P. 5(c). Pursuant to V.R.E.C.P. 5(d)(2), any “person
who appears as provided in [Rule 5(c)] will be accorded party status unless the court otherwise
determines on its own motion, [or] on [a] motion to dismiss” filed by another party. Mr. Yates
is not a party by right under 10 V.S.A. § 8502(5). Thus, Mr. Yates must satisfy the requirements
for interested person party status, which the Town challenges.
       Section 4465(b) sets forth five definitions of “interested person,” only two of which may
be applicable here:
        (1) A person owning title to property . . . affected by a bylaw, who alleges that
        the bylaw imposes on the property unreasonable or inappropriate restrictions of
        present or potential use under the particular circumstances of the case.
        (3) 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.
24 V.S.A. § 4465(b)(1), (b)(3).
       The Town asserts that Mr. Yates fulfills none of these statutory criteria for interested
person status. It appears from the somewhat scant record now before the Court that Mr. Yates
was instrumental in securing the funding for the lighting system that was installed on Hadley
Field and that his efforts were voluntary, all in an effort to fulfill a benefactor’s desire to see
that Hadley Field was someday lit for BFUHS athletic activities. Mr. Yates also attended all of
the DRB hearings on the School District’s initial permit application and Ms. Gale’s petition to
Rockingham School Dist. Permit Revocation, No. 20-2-2013 (EO on Motion to Dismiss)(04-24-2014)   P. 3 of 3.


revoke Permit #12-20. Nevertheless, Mr. Yates has not provided the Court with any evidence
relevant to the standards for interested person party status established by § 4465(b)(1) or
§ 4465(b)(3).
       Perhaps Mr. Yates could prove to be a valuable witness when this matter goes to trial.
But having failed to show that he has standing to continue in this litigation as a party, he cannot
present that testimony on his own accord; he may only offer relevant testimony if asked to do
so by one of the remaining parties.
       For all these reasons, Mr. Yates is hereby DISMISSED as a party and the Town’s motion
is GRANTED.
        The Court wishes to understand the current status of the application now before us in
this de novo appeal, as well as the status of any related proceedings. We therefore direct that
the Rockingham School District, by Monday, May 12, 2014, file a written report of the status of
any state or municipal land use applications pending before an appropriate panel. The Court
will thereafter conduct a follow-up conference with the parties in the pending appeal to
determine how this appeal may be set for trial or other means of resolution. A Notice of
Hearing is attached for that follow-up conference.



Electronically signed on April 24, 2014 at 01:42 PM pursuant to V.R.E.F. 7(d).



________________________________
Thomas S. Durkin, Judge
Superior Court, Environmental Division

Notifications:
Andrew C. Boxer (ERN 1018), Attorney for Appellant Rockingham School District
Fred W. Yates, Interested Person
Richard K. Bowen (ERN 3850), Attorney for Interested Person Ruth Gale
Lawrence Slason (ERN 2443), Attorney for Cross-Appellant Town of Westminster
J. Justin Sluka, Co-Counsel for Appellant Rockingham School District
tdurkin
