                                            State of Vermont
                                 Superior Court—Environmental Division

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                   ENTRY REGARDING MOTION
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Town of North Hero v. Herrington                                       Docket No. 125-9-12 Vtec
Title: Consented-to Motion Reconsider and Correct “Findings” (Filing Nos. 3)
Filed: May 22, 2013.
Filed By: Defendant Larry Herrington, by his attorney, Erin M. Heins, Esq.
The Town of North Hero consented to Defendant’s motion, as noted by Attorney Heins.

          X Granted                          ___ Denied                ___ Other
        The Court thanks the parties for bringing to its attention the error in its recitation of the
factual background that was relevant to its May 10, 2013 Entry Order concerning the parties’
cross-motions for summary judgment. For the reasons stated in Defendant’s motion, the Court
hereby STRIKES from its May 10, 2013 Entry Order the factual background paragraphs
numbered 17 and 18 and hereby replace them with the following paragraphs:
    17. On June 30 of 2012, the current Zoning Administrator sent Defendant a letter alleging
        several zoning violations. A copy of this June 30, 2012 NOV was presented as Town
        Exhibit 12. The parties have stipulated that this letter did not constitute a formal notice
        of alleged zoning violations.
    18. Since the Town’s June 30, 2012 letter did not constitute a notice of alleged zoning
        violations, Defendant filed no appeal of that letter. The zoning violations alleged in the
        Town’s June 30, 2012 letter have therefore not become final and may be contested.

       We wish to make clear that none of the paragraphs itemized in the Court’s May 10, 2013
Entry Order should be regarded as “factual findings.” The Court made no factual findings in
rendering that pre-trial determination on the parties’ competing motions for summary
judgment. Rather, the Court was merely reciting the material facts that appeared to be
undisputed from its reading of the parties’ respective motions, legal memoranda, affidavits and
other evidence.
        It is improper for a trial court to make factual findings before the parties are afforded an
opportunity to present evidence at an evidentiary hearing; within the context of reviewing pre-
trial summary judgment motions, the trial court should merely recite its determination of which
material facts appear to be undisputed. See All Cycle, Inc. v. Chittenden Solid Waste Dist., 164
Vt. 428, 437 (1995) (citing Crosby v. Great Atl. & Pac. Tea Co., 143 Vt. 537, 539 (1983)).



_________________________________________                                  June 19, 2013
       Thomas S. Durkin, Judge                                                 Date
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Date copies sent: ____________                                         Clerk's Initials: _______
Copies sent to:
  Paul Gillies, Esq., attorney for Plaintiff, the Town of North Hero
  Erin M. Heins, Esq., attorney for Defendant Larry Herrington
