                               STATE OF VERMONT
                    SUPERIOR COURT - ENVIRONMENTAL DIVISION

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In re UVM – Certificate of Appropriateness {                   Docket No. 90-7-12 Vtec
(Appeal of Porter)                           {
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                                  Decision on Motion to Alter
       Appellant Pike Porter and interested person Chris Flinn, both appearing pro se,
separately move to alter or amend the Court’s February 26, 2013 decision on multiple motions
and cross motions for summary judgment. This matter is an appeal of the decision of the City
of Burlington (City) Development Review Board (DRB) to grant Applicant University of
Vermont (UVM) a certificate of appropriateness under the City Development Ordinance (CDO)
for UVM’s plans to improve an existing athletic field with open air bleachers, lights, a press box,
bathrooms, locker rooms, a concession stand, paving, and landscaping (the Project).

I.     The Legal Standard for Reconsideration
       V.R.C.P. 54(b) provides that in the absence of a final judgment by this Court, any
interlocutory decision adjudicating fewer than all of the claims of fewer than all the parties in an
action “is subject to revision at any time before the entry of judgment adjudicating all the claims
and the rights and liabilities of all the parties.” In addressing a motion to alter made pursuant
to Rule 54(b), we apply the legal standard applicable to ruling on a Rule 59(e) motion to alter or
amend a final judgment. In re Bennington Wal-Mart Demolition/Const. Permit, No. 158-10-11
Vtec, slip op. at 4 (Vt. Sup. Ct. Envtl. Div. Aug. 17, 2012) (Walsh, J.). We have identified four
principal reasons for granting such a motion: (1) to correct manifest errors of law or fact; (2) to
allow a party to provide “newly discovered or previously unavailable evidence”; (3) to “prevent
manifest injustice”; and (4) to respond to an “intervening change in the controlling law.”
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.) (citing 11 Wright, Miller & Kane, Federal
Practice and Procedure: Civil 2d § 2810.1).
       The grant of a motion to reconsider is “an ‘extraordinary’ remedy that should be used
‘sparingly’.” In re Appeal of Berezniak, No. 171-9-03 Vtec, slip op. at 3–4 (citing 11 Wright,
Miller, & Kane, Federal Practice and Procedure: Civil § 2810.1). The disposition of a motion to
reconsider “is committed to the court's sound discretion,” and its narrow function is to correct


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“the mistake or inadvertence of the court and not the fault or neglect of a party.” Rubin v.
Sterling Enterprises, Inc., 164 Vt. 582, 588 (1996) (citing In re Kostenblatt 161 Vt. 292, 302 (1994)).
See also Bennington Wal-Mart, No. 158-10-11 Vtec, slip op. at 4. Mere disagreement with the
decision is not grounds for reconsideration. In re Boutin PRD Amendment, No. 93-4-06 Vtec,
slip op. at 2 (Vt. Envtl. Ct. May 18, 2007) (Wright, J.).

II.     Mr. Flinn’s Motion for Reconsideration.
        In his motion for reconsideration, Mr. Flinn reiterates his belief that the Project
constitutes a “Recreational Facility – Outdoor Commercial,” which requires conditional use
review in the Institutional Zoning District in which the Project is located, in contrast to a
“Recreational Facility – Outdoor” use, which does not require such review. In our February 26,
2013 decision, we determined that the distinction was not dispositive, because regardless of the
categorization the Project might have if it were not part of the University, the Project constitutes
a post-secondary school use. The Project lies within the ICC-UVMS overlay district, where
post-secondary school uses “shall be treated as permitted uses.” See CDO § 4.5.2(f)(7). Nothing
in Mr. Flinn’s filing convinces us to alter our conclusion regarding the import of the distinction
between Outdoor and Outdoor Commercial facilities.
        Mr. Flinn further argues that all post-secondary uses in the Institutional Zoning District,
including those within the ICC-UVMS overlay district, require conditional use review. For this
proposition, he points to the Use Table in the CDO’s Appendix A. The table lists the City’s base
districts and their allowable uses, but does not include overlay zones, which appear in a
separate section of the CDO along with their overlay-specific allowable uses. Under Appendix
A’s base district table, post-secondary school uses are conditional uses in the Institutional
Zoning District. The Project lies both within the Institutional Zoning District and within the
ICC-UVMS overlay.
        Mr. Flinn argues that the more specific language of the ICC-UVMS overlay district
should not apply, as he reads CDO § 4.3.21 to suggest that overlay districts are necessarily
subordinate to the base zones they cover. This contention is incorrect. Overlay districts are



1 CDO § 4.3.2 lists the seven types of overlay districts in the City and provides a brief description of the
concept of overlay districts generally, stating that they are “overlaid upon [the City’s base districts], and
the land so encumbered may be used and altered in a manner permitted in the underlying district only if
and to the extent such use or alteration is permitted in the applicable overlay district.”

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often more restrictive than the base layers they cover, but they can be more permissive as well.2
The CDO’s drafters specifically provided that the institutional core campus overlay districts are
designed to “allow[] increased development than would typically be found in the underlying
districts. Development is intended to be more intense than the surrounding neighborhoods
with higher lot coverage and larger buildings.” CDO § 4.5.2. As we discern no manifest error
of law or other grounds for modifying our conclusion as to the necessity of conditional use
review, we DENY Mr. Flinn’s motion to amend or alter our decision.

III.      Mr. Porter’s Motion for Reconsideration Regarding Major Impact Review.
          Mr. Porter’s motion asks us to “reconsider the reviewing Question 2 to determine if the
Project is within [] 1,000 feet and 12-months of other projects and if such proximity triggers
major impact review.” (Mr. Porter’s Mot. for Reconsideration at 1, filed Mar. 5, 2013.) The CDO
requires major impact review under eight enumerated circumstances. CDO § 3.5.2(b). The last
of the enumerated circumstances is “[m]ultiple projects by the same applicant or responsible
party within any consecutive twelve (12) month period on the same property or on a property
within 1000 feet of the subject property that in the aggregate equal or exceed [circumstances 1—
7]3.” CDO § 3.5.2(b)(8) (emphasis added). Mr. Porter provided no evidence that UVM has
undertaken multiple projects on the same property or on a property within 1000 feet of the
subject property within any consecutive twelve month period, much less has he offered any
evidence suggesting that any aggregated developments equal or exceed the other criteria in
CDO § 3.5.2(b). Mr. Porter nonetheless argues that we should address the issue at trial.


2 Indeed, the City’s seven overlays include both more restrictive and more permissive overlays: Design

Review, Institutional Core Campus (five individual districts), RH Density Bonus, Natural Resource
Protection (four individual districts), RL Larger Lot, Mouth of the River, and Centennial Woods. See
CDO § 4.3.2 and subsequent descriptions of each overlay in CDO § 4.5.
3   Circumstances 1-7 are:
          1. The construction of five (5) or more dwelling units or the creation through adaptive reuse,
          substantial rehabilitation or conversion of ten (10) or more dwelling units;
          2. The creation of five (5) or more lots;
          3. The construction or substantial rehabilitation of fifteen thousand (15,000) s.f. or more of gross
          floor area of non-residential development;
          4. Land disturbance involving one acre or more;
          5. Site improvements involving fifty (50) or more parking spaces;
          6. Site improvements and land development on parcels that contain designated wetlands as
          regulated pursuant to Article 4, or natural areas of state or local significance as identified in the
          municipal development plan;
          7. Site improvements and land development on parcels seeking a waiver under Article 5, Part 4,
          Sec. 5.4.9 – Brownfields.

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       In this case, we do not reach the question of whether UVM has undertaken multiple
projects because, as explained in our February 26, 2013 decision, the CDO specifically exempts
from major impact review “[p]rojects that do not result in a change of use or increased parking
demand as determined by the administrative officer.” CDO § 3.5.3(d). Both before and after the
proposed renovations, the Project site remains a post-secondary school use; therefore there is no
change in use. Further, Mr. Porter has not established a dispute of material fact regarding
whether the Project, which provides for parking in UVM’s existing parking facilities, would
result in increased parking demand. We see no manifest error of law or other grounds for
modifying our decision to grant UVM summary judgment under V.R.C.P 56 on the issue of
major impact review, thus, we DENY Mr. Porter’s motion to amend or alter our decision
regarding Question 2.

IV.    Mr. Porter’s Motion for Reconsideration Regarding Lack of Standing to Bring Claims
       of a Notice Violation on Behalf of Third Parties.
       Mr. Porter asks us to reconsider our determination to dismiss his Question 9 for lack of
standing to raise the question of whether “the public [was] properly warned about the project”
in accordance with notice-related sections of the CDO as well as with the notice requirements of
24 V.S.A. § 4464. Mr. Porter was one of 240 landowners that UVM notified of the hearing, and
Mr. Porter participated in the hearing. Thus, he does not seek to assert his own legal rights
regarding the alleged defect in notice, but rather to assert the rights of other individuals or
entities not involved in this case.
       Well-established principles of standing prevent a party from bringing claims on behalf
of a third party. The Vermont Supreme Court has adopted the federal constitutional and
prudential components of the standing doctrine enunciated by the United States Supreme
Court. See Hinesburg Sand & Gravel Co. v. State, 166 Vt. 337, 341 (1997). The prudential
component includes, among other things, “the general prohibition on a litigant’s raising another
person’s legal rights . . . .” Id. Mr. Porter misinterprets Warth v. Seldin, 422 U.S. 490 (1975) and
Sierra Club v. Morton, 405 U.S. 727 (1972) as supporting his contention that because he has
standing to bring his own claims on substantive issues such as whether light from the athletic
facility may reach his particular residence, he may serve as a “private attorney general” to bring
notice-based claims on behalf of third parties not involved in the appeal. Although federal
standing law contains certain narrow and well-delineated exceptions on the prohibition against
third party standing, we see nothing to suggest that they would apply to this situation.

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Moreover, it is far from clear that Vermont had adopted federal standing exceptions for persons
seeking to enforce rights created by state and municipal laws, particularly those governing land
use. To the contrary, specific statutory requirements establish who may appeal an act of an
appropriate municipal panel. See 24 V.S.A. § 4465. Accordingly, we DENY Mr. Porter’s motion
to amend our decision to dismiss his Question 9.


       Done at Burlington, Vermont this 19th day of March, 2013.



                                                      Thomas G. Walsh,
                                                      Environmental Judge




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