    

`MAR .l 2012

State of Vermont
Superior Court - Environmental Division

 

 

 

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=___-====____==_...._._-_===____._~=== ______________ ====____=MWNMME_BT"”;§
ENTRY REGARDING MOTION

In re Saman ROW Approval Docket No. 176-10-10 Vtec

 

(Appeal from Town of Plainfielcl Development Review Board decision)

Title: Motion to Alter or Amend (Filing No. 8)

Filed: February 23, 2012

Filed By: Appellant William Basa

Response in opposition filed on 2 / 23 / 12 by Appellee/ Applicant Peter Saman

_~_ Granted _X__ Denied __ Other

Before us is a motion by William Basa (”Appellant") requesting that the Court alter or
amend our final judgment in this appeal under V.R.C.P. 59(e). ln 2002, Peter Saman
(”Applicant”) filed an application seeking subdivision approval, which the Town of Plainfield
Zoning Administrator denied. At the same time, Applicant sought the Planning Commission's
approval of a fifty-foot right-of-way, which the Commission also denied ln 2010, Applicant
filed another application (”the 2010 application”) seeking only approval of a right-of-way. The
Town of Plainfield Development Review Board (”the DRB") reviewed the 2010 application and
unanimously approved the right-of-way, limiting its decision to approval of the right-of-way
and declining to consider any proposed subdivision Appellant then appealed the DRB’s
decision to this Court.

ln an on-the-record proceeding, the Court issued a February 6, 2012 Decision and
]udgment Order affirming the DRB's decision. Specifically, as it pertains to the motion before
us, the Court concluded that although the 2010 application presumably concerns the same right~
of-way for which approval was sought in 2002, the successive application doctrine does not bar
consideration of the 2010 application because the issue of right-of~way approval was never
finally decided on the merits.

ln his pending motion, Appellant requests that the Court alter or amend its decision and
find that Applicant requested subdivision approval in addition to approval of the right-of-way.
Appellant also asl<s that the Court find that the successive application doctrine barred the DRB
from considering the 2010 application because it was not substantially different from the
approval sought in 2002.

V.R.C.P. 59(€) allows parties to request that the Court alter or amend its judgment llto
rectify its own mistakes in the period immediately following the entry of judgment.” N. Sec.
lns. Co. v. l\/litec Elecs., Ltd., 2008 VT 96, 11 41, 184 Vt. 303. lt is ultimately within the Court's
discretion whether to grant a Rule 59 motion, and we have identified four principal reasons for
doing so: (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 l'intervening change in the controlling law.” Lathrop Ltd. P'ship l, Nos. 122-7~04

 

]n re Saman ROWAQQroval, No. , L)-IO-]O Vtec (EO on Motion to Alter) (Mar. l, l , !2) Pg. 2 0f2

Vtec, 210-9-08 Vtec, & 136-8-10 Vtec, slip op. at 10-11 (Vt. Super. Ct. Envtl. Div. Apr. 12, 2011)
(Durkin, j.) (quoting 11 Wright, Miller & l<ane, Federal Practice and Procedure: Civil 2d §
2810.1); Drumheller v. Drumheller, 2009 V'l` 23, jj 29, 185 Vt. 417 (”Vermont Rule 59(e) is
substantially identical to Federal Rule of Civil Procedure 59(e), and we have looked to federal
decisions interpreting the federal rule for guidance in applying the Vermont rule.”).

 

Here, Appellant has not made any showing of an error of law or fact, new evidence,
injustice, or change in the controlling law that would warrant an alteration of our previous
Decision and judgment Order. ln his motion to alter, Appellant refers to ”substantial evidence
in the record” which allegedly links the application for right-of-way approval to the proposed
subdivision application (Appellant's l\/lotion to Alter or Amend 1, filed Feb. 23, 2012). lie has
attached some of this evidence to his motion, None of the evidence, however, is newly
discovered or was previously unavailable ln fact, the evidence was part of the record that this
Court thoroughly reviewed in issuing its Decision and judgment ()rder.1

Appellant's arguments that the Court should have considered the right-of-way
application in conjunction with a subdivision application are unavailing The DRB’s decision
expressly emphasized that the right-of-way application was the sole application before it, that it
was not considering any subdivision application and that any action taken on the right-of~way
request was not to be construed as an approval or disapproval of any proposed subdivision l_n
re Saman Request for Right of Way Use Approval, Findings of Fact and Conclusions of Law 1
(Town of Plainfield Dev. Review Bd. l\lov. 5, 2010). in undertaking its on~the-record review,
this Court was limited to a review of the DRB's decision, and therefore the approval of a
subdivision application Was not before us.

 

Consequently we DENY Appellant’s request to alter or amend our Decision and
judgment Order in this appeal pursuant to V.R.C.P. 59(e). We UPHOLD our Decision and
judgment Order dated February 6, 2012.

     

 

 

w d '
/ gmi , b Mai-Ch 1,2012
Thomas G. Wals’le§ judge Date

 

 

Date copies sent to: 5 / ( l )z/ Clerk's lnitials `f' "*~
Copies sent to:

Elizabeth H. MaGill, Attorney for Appellant William Basa

Thomas Hayes, Attorney for Appellee/ Applicant Peter Saman

Robert Halpert, Attorney for lnterested Person Town of Plainfield

Brice C. Simon, Attorney for lnterested Person Brenda Lindemann

 

1 Appellant’s E)<hibit E, attached to his motion, was not part of the record on appeal However, by
Appellant's own admission, E)<hibit E is ”identical in substance” to E><hibit 61 of the original record
(Appellant’s l\/lotion to Alter or Amend 2, filed Feb. 23, 2012). Accordingly, it is not new evidence that we

can consider.

