                                      State of Vermont
                           Superior Court—Environmental Division

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                   ENTRY REGARDING MOTION
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In re Whiteyville Properties, LLC                                  Docket No. 179-12-11 Vtec
(Appeal of City of Burlington DRB decision)

Title: Motion to Alter or Amend Judgment (Filing No. 6)
Filed: January 6, 2014
Filed By: City of Burlington
Response in Opposition to Motion filed on January 22, 2014 by Whiteyville Properties, LLC

   X Granted (in part)                          X Denied (in part)                    Other

        In its post-judgment motion, the City of Burlington (“City”) asks the Court to alter or
amend its December 19, 2013 Judgment Order in two ways. First, the City asks the Court to add
a provision to its December 19 Judgment Order allowing Applicant’s proposed Management
Plan to be amended in the event that the Management Plan and its implementation by
Whiteyville Properties, LLC (“Applicant”) fail to mitigate the potential adverse noise and other
impacts caused by tenants and Applicant’s property. Second, the City asks the Court to amend
its Judgment Order to specifically reference standard permit conditions incorporated in to most
zoning permits issued by the City.
        We have discretion in deciding whether to grant a motion to alter or amend a judgment
under Vermont Rule of Civil Procedure 59(e). We recognize the correction of “manifest errors
of law or fact” and the prevention of “manifest injustice” to be among the grounds for granting
such a motion. In re Lathrop Ltd. P’ship I, Nos. 122-7-04 Vtec, 210-9-08 Vtec, and 136-8-10 Vtec,
slip op. at 10–11 (Vt. Super. Ct. Envtl. Div. Apr. 12, 2011) (Durkin, J.) (internal quotation
omitted). For the reasons stated below, we DENY the City’s first request, but GRANT the
City’s second request.
       As we noted in our December 19 Merits Decision, we share the City’s concerns that
adverse impacts may emanate from Applicant’s improved property. In re Whiteyville Prop.,
LLC, No. 179-12-11 Vtec, slip op. at 9–11 (Vt. Super. Ct. Envtl. Div. Dec. 19, 2013) (Durkin, J.).
Our concerns have four principal foundations: (1) Applicant’s tenants have already caused
adverse impacts, even before the increase in tenants authorized by this Court’s Merits Decision;
(2) Applicant and its members consistently resisted the suggestion that their property needed a
formal management plan and an on-site manager to enforce its terms; (3) Applicant and its
members showed less than serious attention to detail in drafting the proposed management
plan; and (4) the Court remains unsure of whether the best drafted and most conscientiously-
enforced management plan will actually dampen or eliminate the noise and other adverse
impacts caused by Applicant’s tenants.
       The application limited the Court’s review to the propriety of adding two more tenants
to a property that already hosted fifteen tenants in the four on site dwelling units. We
In re Whiteyville Prop., LLC, No. 179-12-11 Vtec (E.O. on Town’s post-judgment motion) (02-26-14)   Pg. 2 of 3.


maintained our focus on the proposal to add two additional tenants to the property. The City’s
rationale in filing its post-judgment motion to amend is based upon legitimate concerns, but
those concerns appear to arise from the general operation and use of the property, rather than
the two additional tenants.
       In denying the City’s request, we do not suggest that the City is without recourse,
should its concerns about adverse impacts upon neighbors become real. Even if Applicant
employs a properly-worded management plan1 and a diligent on-site manager, noise and other
adverse impacts may emanate from the property. However, our conditional approval was not
intended to shield Applicant and its members from their continuing obligation to comply with
any noise or other restrictions in any duly-adopted City ordinance. Our conditional approval of
Applicant’s increase in tenants does not substitute or supersede Applicant’s obligation to
manage the property in conformance with all applicable municipal ordinances.
       We therefore caution Applicant and its members to conscientiously maintain and
manage their property, to conform with the Management Plan, and to take all steps necessary to
assure both that tenants do not distress the neighbors and that the neighbors know how to
contact Applicant’s members when a material adverse impact arises. If Applicant and its
members are not successful in this regard, they may face some punitive response from the City,
including the City’s proposal that Applicant’s management plan must be amended to include
more restrictive terms and conditions.
      For all these reasons, we DENY the City’s request that we incorporate its suggested
language concerning revisions to the Management Plan in an Amended Judgment Order.
        In reviewing the City’s second request, we note that our original Judgment Order did
not direct that City officials issue a zoning permit in conformance with the terms and conditions
of our Merits Decision and the unappealed determinations of the City of Burlington
Development Review Board (“DRB”).2 This omission was an error on our part; an Applicant
may have the authority sought in its application only when a fully compliant permit is issued.
We therefore issue today an Amended Judgment Order that remands this matter to the
appropriate City official, solely to complete the ministerial act of issuing a permit in
conformance with our Merits Decision and the unappealed provisions of the DRB Decision. In
that regard, we also direct that the City follow its usual practice of including in the issued
permit the standard permit conditions. We have reviewed the standard conditions submitted
by the City and find no term that interferes with Applicant’s planned use of its property; these
standard conditions appear to be in the form of explanations and reminders of a permittee’s
continuing obligations under the City ordinances. We therefore GRANT the City’s motion and
amend our Judgment Order accordingly.



_________________________________________                                 February 26, 2014
       Thomas S. Durkin, Judge                                                  Date

1 Applicants and its members already complied with the first directive in our Merits Decision by revising
and correcting their management plan and submitting copies to the Court and the City.
2 We noted in our Merits Decision that the DRB rendered some positive findings and legal conclusions in
favor of the pending application that were needed for Applicant to obtain approval. See In re Whiteyville
Prop., LLC, No 179-12-11 Vtec, slip op. at 7–8 (Vt. Super. Ct. Envtl. Div. Dec. 19, 2013) (Durkin, J.).
In re Whiteyville Prop., LLC, No. 179-12-11 Vtec (E.O. on Town’s post-judgment motion) (02-26-14)        Pg. 3 of 3.


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Date copies sent: ____________                                               Clerk's Initials: _______
Copies sent to:
  Attorney Edward D. Fitzpatrick for Appellant Whiteyville Properties, LLC
  Attorney Kimberlee J. Sturtevant for City of Burlington
  Interested Person John Douglas
  Interested Person Eleanor Lanahan
