                           Environmental Court of Vermont
                                  State of Vermont

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                  E N T R Y R E G A R D I N G M O T I O N
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In re Huntington Remodeling Application            Docket No. 210-10-07 Vtec
Project:     Huntington Remodeling Application-Newbury
Applicant:   George Huntington
             (Appeal from Planning Commission determination)

Title: Motion for Reconsideration, No. 4

Filed:         November 17, 2008

Filed By: Marc D. Nemeth, Attorney for Appellant George Huntington

Response filed on 12/02/08 by Appellee Town of Newbury

         ___ Granted               _X_ Denied               ___ Other

      Granting a motion for reconsideration is “an extraordinary remedy that
should be used sparingly.”   In re Bouldin Camp – Noble Road, No. 278-11-06
Vtec, slip op. at 1 (Vt. Envtl. Ct. Sept. 13, 2007) (Wright, J.); S. Vill.
Cmtys., LLC, No. 74-4-05 Vtec, slip op. at 1 (Vt. Envtl. Ct. Sept. 14, 2006)
(Durkin, J.). The decision to grant relief in such a motion is “committed to
the [trial] court’s sound discretion.”   Rubin v. Sterling Enters., 164 Vt.
582, 588 (1996).
      Appellant seeks by his current motion to have the Court remove the
“finding” from our November 5, 2008 Decision and Judgment Order (“Decision”)
that Appellant’s failure to timely appeal a prior notice of violation (“NOV”)
“cannot now be challenged, either directly or indirectly, in any subsequent
proceeding, including this one.” Decision at 7 (citing City of S. Burlington
v. Dep’t of Corr., 171 Vt. 587, 588-89 (2000) (mem.)).     We first note that
Appellant’s   characterization  of  the   cited  provision   as   a  “factual
determination” is inaccurate; it is a legal conclusion based upon this
Court’s analysis of the very Planning Commission decision that Appellant
appealed. The Court did not make a factual determination. Rather, the Court
merely recited material facts that the parties represented as undisputed
(namely, that Appellant (1) had been served with an NOV, referencing his re-
establishment of a third apartment in his building without the needed site
plan approval and (2) had failed to file an appeal of that NOV). The Court
then recited the controlling legal standard and applied that standard to the
parties’ undisputed facts.
      It would not have been proper for this Court to render factual findings
within the context of assessing summary judgment motions.    See Fritzeen v.
Trudell Consulting Eng’rs, Inc., 170 Vt. 632, 633 (2000) (mem.).          Our
November 5, 2008 Decision contained no factual findings, but rather a section
entitled “Factual Background” in which we recited the undisputed material
facts, as represented by the parties.      In any event, the provision about
which Appellant now complains was contained in the “Discussion” section of
our Decision and constituted a legal conclusion.
In re Huntington Remodeling Application, Docket No. 210-10-07 Vtec (Jan. 21, 2009 Entry Order)   Page 2 of 2.


      We next turn to addressing Appellant’s request that this legal
conclusion be removed from our prior Decision. As noted below, we conclude
that it should not be removed.
      Appellant argues that this Court exceeded its authority by making a
statement that Appellant believes to be outside the scope of this appeal. In
short, Appellant appears to claim that the statement in question is dicta,
and Appellant is concerned that it will be used against him in future
proceedings.   If and when such future proceedings occur, Appellant is of
course then free to argue that the statement in question is dicta and
therefore not binding upon him (a question on which we express no opinion
today).
      Amending this Court’s November 5, 2008 Decision to remove the
complained-of statement would not change the outcome of our Decision and
would serve no purpose, other than to remove this Court’s reference to one of
the foundations for its legal conclusions.   When amending a judgment serves
no useful purpose, the motion asking a trial court to do so should be denied.
S. Vill. Cmtys., LLC, No. 74-4-05 Vtec, slip op. at 2 (citing 11 Wright,
Miller, & Kane, Federal Practice and Procedure: Civil 2d § 2810.1). For all
these reasons, we conclude that Appellant’s motion for reconsideration and
relief from judgment must be DENIED.




___________________________________________      __January 21, 2009____
      Thomas S. Durkin, Judge                            Date
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Date copies sent to: ____________               Clerk's Initials _______
Copies sent to:
    Marc D. Nemeth, Attorney for Appellant George Huntington
    Charles D. Hickey, Attorney for the Town of Newbury
