                                     STATE OF VERMONT
                  SUPERIOR COURT — ENVIRONMENTAL DIVISION

                                              }
In re Hawk’s Nest South, LLP                  }      Docket No. 84-5-10 Vtec
  Conditional Use/PUD Applications            }   (Appeal from St. Albans Town DRB)
                                              }

                           Corrected Decision on Multiple Motions

       This matter arises out of an appeal by individual appellants Pat Flanagan, Michael
Flanagan, Barbara Parent, Pierre Parent, Sandra Bushey, Thomas Bushey, Paul Tarte, Helen
Tarte, Stephen Begnoche, and Louise Ferland (collectively referred to as “Appellants”) of a
decision by the Town of St. Albans Development Review Board (“DRB”) granting conditional
use approval to Appellee-Applicant Hawk’s Nest South, LLP (“Applicant”). Appellants all
appear before the Court as self-represented litigants. Applicant is represented by William B.
Towle, Esq. The Town of St. Albans (“Town”) has also entered an appearance through its
attorney, Vincent A. Paradis, Esq.
       This Decision addresses three motions currently pending before this Court. Applicant
has filed a motion objecting to the entry of appearance of the pro se litigants, as well as a motion
to dismiss all non-appearing appellants. Applicant also has filed a motion to dismiss Appellants’
original Statement of Questions filed June 15, 2010. Appellants have responded in opposition of
each of these motions.

                                      Factual Background
       For the sole purpose of putting the pending motions into context, we recite the following
facts, which we understand to be undisputed unless otherwise noted:
1.     Applicant seeks conditional use approval for a 50-unit, three-story structure pursuant to
the Planned Unit Development (PUD) provisions of the Town of St. Albans Zoning Bylaws &
Subdivision Regulations (“Regulations”).
2.     Applicant proposes that its 50-unit structure would be used as elderly housing, some of
which would be offered at market rates of rental and some of which would be offered at below-
market rates of rental.
3.     Applicant previously developed a structure, commonly known as the “Hawk’s Nest”
development, on nearby property. The record currently before us does not reveal the number of



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units in the pre-existing “Hawk’s Nest” development or its structural characteristics, although it
appears to also be residential.
4.       The subject property is located on the south side of Upper Weldon Street and is owned by
Ingleside Equity Group. This property is located in what the DRB described as a “transitional
neighborhood” in the Commercial/Residential Zoning District. The subject property also lies
within the Designated Growth Center Overlay Zoning District.
5.       After due notice and a public hearing (which commenced on October 22, 2009, was
continued to January 14, 2010, and further continued to and completed on April 8, 2010), the
DRB resolved to grant conditional use approval for the project pursuant to Regulations §§ 305(3)
and 315(6), with certain conditions imposed by the DRB.
6.       Appellants’ appeal of the DRB’s decision to the Environmental Court was filed on May
20, 2010. Appellants claim to be abutting landowners and interested persons. Appellants also
claim party status pursuant to 24 V.S.A. § 4465(b)(3).1
7.       Appellants Thomas Bushey, Louise Ferland, and Stephen Begnoche were present during
the initial public DRB hearing concerning the project application. Stephen Begnoche gave
comments at the October 22, 2009 hearing. Louise Ferland and Thomas Bushey provided
testimony at the April 8, 2010 hearing.
8.       Appellants advised the Court in a letter dated June 23, 2010 of the designation of Thomas
Bushey and Paul Tarte as their spokespersons for pretrial conferences.
9.       Appellants’ original Statement of Questions was filed June 15, 2010.                            All of the
Questions include language derived from specific Act 250 criteria, although the last Question
(designated as Question 10) also asks whether the project conforms to §§ 305(3) and 315(6) of
the Regulations.
10.      During an initial telephone conference on June 28, 2010 in which all parties were in
attendance, it was suggested by Judge Durkin that Appellants correct their original Statement of
Questions, narrowing it to a question of whether the proposed project conforms to the applicable
provisions of the Regulations concerning conditional use approval.2

1
  24 V.S.A. § 4465(b)(3) defines an interested person as 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.”
2
   The Court expressed concern about the originally filed Statement of Questions since the Questions raised were
based upon the provisions of Act 250 and this appeal relates solely to a municipal approval.


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11.      Appellants filed a Corrected Statement of Questions on July 16, 2010, limiting the scope
of the appeal to the DRB’s decision granting Applicant conditional use approval.

                                                   Discussion
         Our analysis of Applicant’s motions to dismiss requires a deferential standard of factual
review. See In re Agri-Mark Indirect Discharge Permit Amendment, No. 63-4-10 Vtec, slip op.
at 2 (Vt. Envtl. Ct. July 20, 2010) (Durkin, J.). In order to grant a motion to dismiss we must
conclude that, once taking all of the factual allegations presented by the non-moving party (here,
Appellants) as true, it remains beyond doubt that the moving party is entitled to relief. See Alger
v. Dep’t of Labor and Indus., 2006 VT 15 ¶ 12, 181 Vt. 309 (citations omitted). We must regard
as true “all well-pleaded factual allegations in the nonmovant’s pleadings and all reasonable
inferences to be drawn from them, and take[] as false all contravening assertions in the movant’s
pleadings.” Knight v. Rower, 170 Vt. 96, 98 (1999). We are cautioned that motions to dismiss
are “not favored and rarely granted.” Gilman v. Maine Mutual Fire Ins. Co., 2003 VT 55, ¶ 14,
175 Vt. 554 (citation omitted). In light of these standards, and for the reasons detailed below, we
conclude that the extraordinary relief of complete dismissal of this appeal is not appropriate at
this time.

      A. Applicant’s Objection to the Entry of Appearance for Pro Se Litigants
         Applicant, by its first pending motion, seeks the dismissal of all Appellants as improper
parties to this appeal. In a subsequent filing, Applicant admits that Louise Ferland, Steven
Begnoche, and Thomas Bushey “are proper parties to this appeal.” (See Applicant’s Reply to
Objections to Entry of Appearance for Pro Se Individuals by William Towle on June 23, 2010
Heading IV, filed Aug. 4, 2010). We begin our analysis of this motion by reviewing the
prerequisites for appealing the decision of a municipal land use regulatory proceeding.
         In order to appeal a decision of an appropriate municipal panel to the Environmental
Division of the Superior Court,3 two statutory requirements must be satisfied. See 10 V.S.A.
§ 8504(b)(1).4 First, the individual must qualify as an “interested person” as that status is
defined by 24 V.S.A. § 4465(b). See 10 V.S.A. § 8504(b)(1). In this case, interested person

3
   As of the July 1, 2010 implementation of legislation that restructured the Vermont judiciary, this Court is now
officially known as the Environmental Division of the Vermont Superior Court.
4
  10 V.S.A. § 8504(b)(1) provides that “[w]ithin 30 days of the date of the act or decision, an interested person, as
defined in 24 V.S.A. § 4465, who has participated as defined in 24 V.S.A. § 4471 in the municipal regulatory
proceeding under that chapter may appeal to the environmental division an act or decision made under that chapter
by a board of adjustment, a planning commission, or a development review board . . ..”


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status requires that an individual own or occupy property in the “immediate neighborhood” of a
proposed land use project; demonstrate a physical or environmental impact on that “person’s
interest under the criteria reviewed;” and allege that the decision of the municipal panel is not in
accordance with the “policies, purposes, or terms of the plan or bylaw of that municipality.” 24
V.S.A. § 4456(b)(3). Second, the individual must have participated in the proceeding below.
See 10 V.S.A. § 8504(b)(1). The term “participation” is defined under 24 V.S.A. § 4471(a) as
“offering, through oral or written testimony, evidence or a statement of concern related to the
subject of the proceeding.”
           Thus, we are called upon in the initial phase of this proceeding to determine whether each
individual Appellant satisfies these two requirements and whether they can therefore properly
participate as appellants in this case. As noted above, Applicant concedes that three of the
individual Appellants satisfy both criteria and are therefore proper appellants to this appeal:
Louise Ferland, Stephen Begnoche, and Thomas Bushey. (See Applicant’s Reply to Objections
to Entry of Appearance for Pro Se Individuals by William Towle on June 23, 2010 Heading IV,
filed Aug. 4, 2010).
           Applicant concedes that Ms. Ferland and Mr. Begnoche own or occupy neighboring
properties—103 and 113 Upper Weldon Street, respectively.                           We note, however, that Mr.
Bushey’s initial claim of neighborhood property ownership is based upon his assertion that he is
the spouse of an heir who is likely in the future to receive distribution of an interest in the
property located at 111 Upper Weldon Street.5 However, we have found no statutory authority
for a person to be deemed an “interested person” because that person or that person’s spouse may
acquire an interest in neighboring real estate sometime in the future. Unless and until Mr.
Bushey can show a conveyance to him of an interest in this property, he cannot use that claim to
future ownership for purposes of securing interested person status in these proceedings.
However, Applicant also concedes that Mr. Bushey resides at 93 Upper Weldon Street, which is
within the immediate area of the project, and is therefore entitled to be regarded as an interested
person under § 4465(b)(3).
           Applicant also concedes that Ms. Ferland, Mr. Begnoche, and Mr. Bushey each satisfy
the participation requirement because each provided testimony in the prior DRB proceedings.
Because Louise Ferland, Stephen Begnoche, and Thomas Bushey have met the two statutory


5
    This property is currently the subject of proceedings before the local probate court.


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requirements, they are proper appellants. The Applicant’s motion to dismiss them from this
appeal is therefore DENIED.
         The circumstances concerning the remaining Appellants require further analysis. The
Flanagans live over a mile away from the subject property, and the Parents live over sixteen
miles away in the Town of Enosburg. No representation has been made as to why these
individuals should be regarded as “interested persons” under § 4465(b)(3).                              Since these
individuals do not own or occupy property within the immediate neighborhood of the project, we
cannot define them as interested persons. Consequently, they each lack standing to appeal. See,
e.g., Bostwick Road Two-Lot Subdivision, No. 211-10-05 Vtec, slip op. at 6 (Vt. Envtl. Ct. Feb.
24, 2006) (Durkin, J.), aff’d, No. 2006-128 (Vt. Jan. 25, 2007) (unpublished mem.).
         Helen Tarte, Paul Tarte, and Sandra Bushey own or occupy property within the
immediate neighborhood, but they have presented no evidence to support a conclusion here that
they participated in the proceedings below. In the absence of such a showing, they have no
standing to appeal to this Court. See In re Verizon Wireless Barton Permit, 2010 VT 62, ¶ 15.
(“Interested party status alone, without participation, does not qualify for automatic standing to
appeal”) (citing In re Appeal of Carroll, 2007 VT 19, ¶ 14, 181 Vt. 383). We are therefore
compelled to GRANT Applicant’s motion and dismiss Mr. and Ms. Flanagan, Mr. and Ms.
Parent, Mr. and Ms. Tart, and Ms. Bushey as Appellants in this proceeding.6

    B. Applicant’s Motion to Dismiss Appellant’s Statement of Questions
         Applicant has also requested that the Court disallow Appellants’ Corrected Statement of
Questions that was filed on July 16, 2010. Applicant additionally moves the Court to disallow
four questions and to order clarification of the remaining question in Appellants’ original
Statement of Questions, filed on June 15, 2010.
         Concerning the original statement, a majority of the Questions stated by Appellants are
not applicable to the conditional use application now before this Court on appeal. Questions 1,
4, 8, and 97 are identified as having been based upon specific Act 250 criteria; their contents

6
  An individual who does not qualify as an appellant may nonetheless be able to participate as an interested person
in a case that is appealed by someone else. See In re Mad River Valley Ambulance Service, No. 137-7-05 Vtec, slip
op. at 4 (Vt. Envtl. Ct. Dec. 1, 2005) (Wright, J.) (“[T]he requirement that a party have participated in the hearing
below, 24 V.S.A. § 4471(a), is only a prerequisite for bringing an appeal; it is not required in order to participate as
an interested person in an appeal brought by another . . ..”).
7
  Appellants’ original Statement of Questions only contains five Questions (numbered 1, 4, 8, 9, and 10). They are
not numbered sequentially; we assume that this numbering procedure was used to correspond to the numbered
criteria of Act 250.


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clearly reference provisions in 10 V.S.A. § 6086(a) and the applicable criteria used to review Act
250 permit applications. However, no such application is presently before us in this appeal.
Although Appellants may present legal issues under Act 250 criteria in a separate permit
proceeding brought under Act 250 (should such a permit be required), the scope of this appeal is
limited to the decision of the DRB to grant conditional use approval for the project under the
applicable Regulations.8 Thus, the original Statement contains legal issues that are not relevant
to the pending municipal conditional use application, and are therefore beyond this Court’s
authority to address in this appeal. As such, the original Statement of Questions is largely
inapplicable to this appeal, as Applicant contends in its motion.
        Applicant is also correct that Appellants may be barred from submitting new legal issues
not presented in their original Statement of Questions, since our procedural rules so provide. See
V.R.E.C.P. 5(f). However, this Court is also provided with some discretion in allowing an
amended or corrected statement of questions to be filed, pursuant to V.R.E.C.P. 5(f). We
conclude that, in this appeal at least, such discretion should be exercised, since doing so may
protect pro se litigants from unfair disadvantage due to their inexperience with our legal
procedures. See Vahlteich v. Knott, 139 Vt. 588, 590 (1981) (stating that, in the context of
procedural irregularities, the court “will not ‘permit unfair imposition or unconscionable
advantage to be taken of one who acts as his own attorney’”) (quoting State Highway Bd. v.
Sharrow, 125 Vt. 163, 164 (1965). Although self-represented litigants are still subject to the
ordinary rules of civil procedure, trial courts should be cautious that they are not “taken
advantage of by strict application of the rules of procedure.” In re Verizon Wireless Barton
Permit, 2010 VT 62, ¶ 22 (citation omitted); see also Vahlteich, 139 Vt. at 591.
        In fact, Appellants have not presented entirely new legal issues in their Corrected
Statement of Questions; their original Question 10 presented the legal issue of whether the
pending application conformed to certain provisions of the Regulations. For this reason, we
conclude that the more appropriate exercise of discretion is to allow the Corrected Statement of
Questions to stand, particularly in light of the fact that Appellants are self-represented litigants
who are admittedly unfamiliar with the legal procedures required by this Court, including
V.R.E.C.P. 5(f).



8
 24 V.S.A. § 4414(3) grants authority to municipalities to regulate conditional uses; Regulations § 305 outlines the
process by which the Town may authorize conditional uses.


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       Furthermore, as Applicant admits in its own motion, the failure to raise proper legal
issues in the initial statement of questions is not always fatal to an appellant’s case. V.R.E.C.P.
2(d)(2)(iv) and 5(f) allow a statement of questions to be clarified upon approval by the Court.
Appellants explain that they filed their Corrected Statement of Questions in accordance with
instructions given by the presiding judge at the initial telephone conference of June 28, 2010.
The undersigned has a similar recollection, and regrets not memorializing this direction in a
subsequent entry order. Upon reviewing the tape recording of that conference, it is clear by the
discussions that the Court suggested to Appellants’ spokespersons Thomas Bushey and Paul
Tarte that Appellants could respond to Applicant’s motion to dismiss their Statement of
Questions in a number of ways, including submittal of a “corrected” statement of questions that
narrowed the issues to “applicable zoning regulations.” (See Pretrial Telephone Conference
(tape recording), June 28, 2010). This suggestion served as the Court’s authorization, provided
within the bounds of this Court’s discretion, for Appellants to correct their Statement in order to
be permissible for this Court’s review. See V.R.E.C.P. 2(d)(2)(iv), 5(f); see also In re Northeast
Kingdom Cmty. Action, Inc., Nos. 123-6-07, 128-6-07, 152-7-07 Vtec., slip op. at 2 (Vt. Envtl.
Ct. Nov. 14, 2008) (Durkin, J) (referring to the Court’s discretionary authority to allow
expansion of the legal issues to be addressed in an appeal).
       Appellants’ corrected filing is permissible under V.R.E.C.P 2(d)(2)(iv) and 5(f). Because
of this Court’s duty to consider Appellants’ pro se status and unfamiliarity with legal procedure,
and because of the permission granted to Appellants during the initial conference, the Court will
allow this appeal to proceed under the Corrected Statement of Questions, thereby rendering
Applicant’s motion to dismiss the original Statement of Questions moot. As such, Applicant’s
request for a ruling to disallow the Corrected Statement of Questions is DENIED.

   C. Applicant’s Motion to Dismiss Non-Appearing Parties
       Applicant’s last motion alleges that the appearances of Paul Tarte and Thomas Bushey in
the case thus far constitute an impermissible appearance on behalf of the other Appellants, and
thus seeks to dismiss those appellants not appearing on their own behalf.
       The right to represent oneself in litigation before the Court is codified in V.R.C.P.
79.1(d). In order to maintain adequate self-representation, pro se litigants must file their Entry of
Appearance as a self-represented litigant, must individually sign all official documents filed with
the Court, and must appear at trial in order to present testimony and other evidence relevant to
their interests in the appeal. Each of the self-represented litigants has completed each of these

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tasks on their own behalf thus far in these proceedings. They have not participated individually
in the initial pretrial conference, but they are not required to do so by our procedural rules or
applicable statute.
        Appellants properly filed a letter on June 23, 2010 advising the Court of their designation
of Mr. Bushey and Mr. Tarte as their spokespersons, which would only pertain to pre-trial
conferences. To remain parties in this proceeding, each Appellant is obligated to sign and file
individual pleadings and appear at trial to present their own testimony and other evidence.
Allowing designation of a spokesperson or representative among multiple pro se litigants for pre-
trial conferences is an efficiency measure frequently employed by the Court, and has become
common practice. See In re Champlain Marina, Inc., Dock Expansion, No. 28-2-09 Vtec, slip
op. at 2 n.2 (Vt. Envtl. Ct. July 31, 2009) (Durkin, J) (noting that where multiple pro se
appellants had obtained representation in the midst of their appeal, “the Court could have
exercised its discretion to ask Neighbors to appoint a representative to receive documents and
distribute them to other appellants. The Court has done so in the past when an appeal involves a
large number of unrepresented parties who have a common interest or neighborhood.”).
        A spokesperson’s responsibilities extend to non-representational, pretrial matters; they
serve as the contact point for other parties and serve as a spokesperson in pretrial conferences
with the Court. The spokesperson does not “represent” the remaining litigants or their interests
in any official capacity. Applicant’s argument that Mr. Bushey and Mr. Tarte are representing
others in violation of the privilege that is reserved only for licensed attorneys is unfounded. (See
Applicant’s Motions to Dismiss Questions and Non-Appearing Parties 3, filed July 27, 2010).
Therefore, Applicant’s motion to dismiss all “non-appearing” Appellants is DENIED.

                                                  Conclusion
        For all of the reasons more fully discussed above, we DENY Applicant’s motion to
dismiss Louise Ferland, Stephen Begnoche, and Thomas Bushey as Appellants in this
proceeding, but GRANT Applicant’s motion to dismiss Barbara Parent, Pierre Parent, Pat
Flanagan, Michael Flanagan, Paul Tarte,9 Helen Tarte, and Sandra Bushey as Appellants in this
proceeding. In the event that these individuals wish to participate as interested persons in this
proceeding, we will consider their standing as interested persons once they file the appropriate
motion to intervene.
9
  Given that Paul Tarte is no longer an appellant in this proceeding, we no longer regard him as a spokesperson for
the remaining Appellants.


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       With regard to Applicant’s motion to dismiss the original Statement of Questions and
disallow the Corrected Statement, we DENY Applicant’s motion, concluding that Appellants’
filing of the Corrected Statement of Questions renders that motion moot. Lastly, Applicant’s
motion to dismiss all parties they regarded as “non-appearing” is DENIED, given that that is an
inaccurate description of their appearance in this proceeding.

       Done at Berlin, Vermont, this 29th day of November, 2010.




                                                       Thomas S. Durkin, Judge




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