                               STATE OF VERMONT
                    SUPERIOR COURT - ENVIRONMENTAL DIVISION

Moran Plant Site Amendment                                        Docket No. 154-10-11 Vtec

                                       Judgment Order

       On October 19, 2011, 47 individuals (Appellants) appealed the City of Burlington (City)
Development Review Board’s (DRB’s) September 22, 2011 approval of an amendment to the
Moran Plant Project. Appellants filed an amended appeal on November 7, 2011, along with
their Statement of Questions. On January 6, 2012, Appellants filed a Motion for Party Status,
accompanied by a proffer of evidence; however, they provided no evidenced through affidavits
or otherwise. As justification for not “participating” before the DRB, Appellants argue in their
motion that all but three of the 47 individuals did not receive notice from the City as required
by 24 V.S.A. Section 4464(a)(2). The three remaining Appellants were present and spoke at the
DRB hearing.
       The City filed a Motion to Dismiss the appeal, a Motion to Strike the Statement of
Questions, and an Opposition to Appellants’ party status request. The City supported its filings
with affidavits and exhibits.
       On December 13, 2011, the Court held an initial status conference. That conference was
followed by a motions hearing on February 9, 2012 for all pending motions. The hearing was
held at the Superior Court, Civil Division, Burlington, Vermont; Judge Thomas G. Walsh
presiding. Attorney Samuel Hoar, Jr. appeared on behalf of Appellants. Attorneys Kimberlee J.
Sturtevant and Gregg Mayer appeared on behalf of the City.
       The Court heard evidence and argument relating to Appellants’ Motion for Party Status
and the City’s Motion to Dismiss and Motion to Strike the Statement of Questions. The City
called three witnesses who provided testimony and further evidence relating to issues of notice,
adjoining landowner identification, and the scope of the permit amendment. None of the
Appellants appeared, testified or provided evidence. Counsel for Appellants offered argument
and cross-examined the City’s witnesses.
       At the conclusion of the evidentiary hearing, the Court took a brief recess to conduct its
research and deliberations. Judge Walsh returned to the courtroom to announce his findings of
fact and conclusions of law on the record of the hearing. This Judgment Order memorializes
the legal determinations made at the hearing.
       The Court concluded that Appellants’ appeal of the DRB’s permit amendment approval
was timely filed. However, only three of the 47 Appellants appeared at the DRB proceedings,
and the remaining 44 Appellants therefore had the burden of proving why they failed to
“participate” below.1 The Court recognized Attorney Hoar’s proffer that these 44 Appellants
received no notice of the 2011 DRB proceedings.           The Court then found, based upon the
evidence in the parties’ pleadings and presented at the hearing, that the City complied with the
notice requirements of 24 V.S.A. §4464(a)(1).2 With respect to Appellant Vera B. Brodman,
whose written notice was returned undeliverable, the Court found that the City also sent
written notice to Ms. Brodman’s sister Dorothy Brodman, a co-owner of the subject real
property, and therefore the City had undertaken reasonable efforts in compliance with 24 V.S.A.
§4464(a)(5). Thus, the Court concluded that the 44 Appellants received adequate notice. As
such, the Court found that these 44 Appellants who did not “participate” below were without
standing to appeal.     The Court DENIED the 44 Appellants’ Motion for Party Status and
GRANTED the City’s Motion to Dismiss these 44 Appellants.
       As to the three Appellants who were present for the DRB proceedings, the Court found
that regardless of whether their presence satisfied the “participation” requirement of party
status, these three Appellants failed to provide any evidence of a physical or environmental
impact under the Statement of Questions as related to the scope of the 2011 amendment
proceedings. Based upon the evidence, the Court therefore DENIED these Appellants’ Motion
for Party Status and GRANTED the City’s Motion to Dismiss, thereby concluding this case.3
       This completes the proceedings before the Court in this matter.
       Done at Berlin, Vermont this 15th day of February, 2012.




                                                       Thomas G. Walsh,
                                                       Environmental Judge

1
  10 V.S.A. § 8504(b) 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 . . . development review board.” (emphasis added).
2 While Appellants argue that they were due notice pursuant to 24 V.S.A.§4464(a)(2), as the 2011 DRB

proceeding was an amendment to conditional use approval, notice was required under 24 V.S.A.
§4464(a)(1).
3 As the matter was dismissed, the City’s Motion to Strike the Statement of Questions was rendered moot.
