State of Vermont
Superior Court - Environmental Division

' In re Hartland Group RE Dev., LLC (Completion Extension) Docket No. 94-7-11 Vtec
(Appeal from City of Burlington Development Review Board decision)

Title: Motion for Permission to Supplement Pleadings and to Set Aside Dismissal (Filing No. 5)
Filed: November 8, 2011
Filed By: Appellants Alan A. Bjerke and Edward Winant

Response in opposition filed on 11 / 23 / 11 by Appellee l-lartland Group Real Estate Dev., LLC

__ Granted LDenied _ Other

Alan Bjerke and Edward Winant (”Appellants") appealed a decision of the City of
Burlington Development Review Board (”the DRB") granting Hartland Group Real Estate
Development, LLC (”Hartland") a second one-year extension of time to complete construction of a
project in Burlington, Vermont. By Entry Order dated November 1, 2011, this Court concluded
that Appellants had failed to present the minimum showing necessary for the Court to conclude
that Appellants had standing to maintain this appeal. The Court therefore granted the dismissal
requested by Hartland, thereby disposing of this appeal.

Appellants have now filed a request for permission to supplement their prior filings made
in response to Hartland's motion to dismiss and ask that the Court set aside its prior dismissal and
allow their appeal to proceed. ln support of their request, Appellants admit that they
”overlooked” their obligation to present some evidence as to an essential standing requirement
found in 24 V.S.A. §4465(b)(3): the requirement that, to have standing, a person must
”demonstrate a physical or environmental impact on the person's interest [that is protected] under
the criteria reviewed.”

Appellants assert that their failure to make this showing when responding to I-lartland’s
dismissal request should be regarded as ”excusable neglect,” that the Court should consider their
supplemental showing (an alleged decrease in Appellant Bjerke's 2009 property tax assessment,
alleged to be caused by Hartland's proposed neighboring development), and that the Court should
now conclude that Appellants have standing to maintain this appeal. For the reasons detailed
below, the Court DENIES Appellants’ motion and leaves undisturbed the prior dismissal of their
appeal.

Before addressing Appellants’ pending motion, we believe it important to frame the
procedural context to the now-dismissed appeal.1 ln 2004, Hartland first presented its plans for the
adaptive reuse of an existing industrial warehouse and new construction to house twenty-five new
residential condominiums, an enclosed parking area, and a retail café. l-Iartland's former
warehouse is located at 237 North Avenue in the City of Burlington, which is located in a
Residential Medium Density Zoning District,' the former warehouse then represented a pre-
existing use that did not conform to the current zoning regulations

 

1 The facts recited here are detailed in the decisions of this Court and the Vermont Supreme Court, cited below.

In re Harz‘land Group RE Dev. (Completz'on Ext.), No. 94-7-]] Vtec (EO on Mot. to Set Asz'a’e) (03-01-12) Pg. 2 0f3.

On ]une 10, 2005, the DRB granted a zoning permit to l-Iartland for its adaptive reuse
project. Appellants here, joined by several of their concerned neighbors, appealed that
determination to this Court, which ultimately ruled in l-lartland's favor by a Decision and Order
dated August 31, 2007. See ln re Hartland Group, 237 No. Ave. Proje@ No. 120-6-05 Vtec (Vt.
Envtl. Ct. Aug. 31, 2007) (Wright, ].). The neighboring landowners, including Appellants here,
thereafter appealed this Court’s judgment to the Vermont Supreme Court, and the Supreme Court
affirmed the approval Of Hartland’s project. See ln re Hartland Group N. Ave. Permit, 2008 VT 92, '
184 Vt. 606.

Hartland began work on its project within a year after the Supreme Court issued its 2008
decision. However, when it became apparent that Hartland's work would not be completed
within the permit timelines, Hartland sought a one-year extension of the time limits for completion
of construction The DRB granted the extension request on ]une 23, 2010. No appeal was taken
from this first timeline extension approval

When it became apparent that Hartland’s project work would not be completed by the
extended deadline, Hartland requested a second one-year extension of its construction completion
timeline under the previously issued permit The DRB granted this second one-year extension
request on june 22, 2011,' Appellants thereafter filed the above-referenced appeal with this Court.
Appellants filed their Statement of Questions on August 1, 2011.

This Court held its initial conference on August 22, 2011 and issued its initial Scheduling
Order on August 31, 2011. The parties advised the Court at the initial conference that they
anticipated filing motions for summary judgment that could dispose of their dispute, and the
Court established a timeline for the filing of pre-trial motions in its August 31, 2011 Scheduling
Order. Pursuant to that Order, l-lartland filed a motion that included three prayers for relief: (1)
dismissal of the appeal due to Appellants' lack of standing; (2) summary judgment, based upon
Hartland’s assertion that the terms of the underlying permit were not at issue in the timeline
extension application; and (3) as an alternative request, dismissal Of the second of two Questions
from Appellants' Statement of Questions, given that the Question improperly asked this Court, in
the course of its de novo review, to rule that the DRB’s actions were improper

Appellants filed their own summary judgment motion but did not file a reply to Hartland’s
motion. The Court then considered the pending motions, conducted its own research, and issued
three Entry Orders on November 1, 2011. In the first of these three Entry Orders, the Court
concluded that because Appellants had not made any showing under the second party status
criteria of 24 V.S.A. § 4465(b)(3), Appellants failed to establish that they had standing and their
appeal therefore must be dismissed As a consequence of this dismissal, the Court addressed
l~lartland’s and Appellants' summary judgment requests in the two remaining Entry Orders by
concluding that those motions were moot.

Appellants assert that they were ”surprised” by I-lartland’s dismissal request within its
September 9, 2011 motion and that their failure to respond should be regarded as ”excusable
neglect,” With this characterization of their actions in mind, we understand Appellants' post-
judgment motion to be in the nature of a request pursuant to V.R.C.P. 59(e) to alter or amend a
judgment, But our Supreme Court has explained that our authority to alter or amend a judgment
due to mistake, inadvertence, or excusable neglect is limited to instances where the trial court
acknowledges its own mistakes, not those of a party, and that the judgment alternation is
necessary to avoid ”manifest injustice.” See N. Sec. lns. Co. v. Mitec Elecs., LFL 2008 VT 96, 111
41~42, 184 Vt. 303.

In re Hartland Group RE Dev. (Comz)lez‘l`on Ext. ), No. 94-7-]] Vtec (EO on Mot. to Sez‘ Asz'de) (03-0]-]2) Pg. 3 of 3.

Even if we were authorized to alter a judgment due to the mistake or neglect of a party, and
we have found no legal authority to do so, we would decline to grant such relief here. First, we
note that Appellants chose not to file an opposition to Hartland’s motion, but rather relied solely
upon their own summary judgment motion. Second, While we note that Appellants were
obligated to file any opposition to Hartland’s motion by September 26, 2011 (as noted in the
Scheduling Order of August 31, 2011), the Court did not render its decisions on the pending
motions until November 1, 2011. Appellants could have, but did not, file a request for an
extension of time either before September 26, 2011 or at any time prior to the Court’s November 1,
2011 Entry Orders.

Even despite these deficiencies in Appellants’ arguments, we have reviewed the summary
of additional evidence they offer in support of their request that the Court vacate its dismissal We
find Appellants’ offer unavailing Appellants present a generalized assertion that they will suffer a
physical or environmental impact from the Hartland project In support of this generalized
assertion, they assert that a reduction in the assessed grand list value of Appellant Bjerke's
neighboring property is attributable to the prospect of Hartland’s development

Appellants’ assertion misses the sole focus of the appealed application We were not
charged With determining whether the Hartland project conforms to the applicable provisions of
the City of Burlington Comprehensive Development Ordinance (”the Ordinance”); that
determination was already rendered by the Vermont Supreme Court in 2008, as noted above.
Subsequent to the Supreme Court determination, Hartland was issued a zoning permit for its
project (#05-401CA/MA). Since that permit has not been appealed, it has become final. See 24
V.S.A. § 4472(d) (one who fails to appeal a municipal land use decision ”shall be bound by that
decision . . . and shall not thereafter contest, either directly or indirectly, the decision”).

Thus, our review in this appeal is limited to determining whether the Ordinance allows for
the timeline extension request sought by Hartland. See Ordinance § 3.2.9 (concerning time limits
on zoning permits and their extension). Appellants’ concerns appear to be continuing objections to
the now-final Hartland zoning permit,' they do not provide objections to the extension of time b
request, but rather only to the project as previously approved.

For these reasons, we must DENY Appellants’ pending motion, The November 1, 2011
Entry Order dismissing Appellants’ appeal remains unaltered. Hartland’s request for an extension
of the timeline for construction completion shall run from the date our determination here
becomes final (i.e., thirty days from today, or at the finality of any appeal properly taken).

Thom\as S. Durkin, ]udge Date

 

 

Date copies sent to: Clerk‘s Initials
Copies sent to:
Alan A. Bjerke, Attorney for himself as Appellant and Appellant Edward Winant
Brian S. Dunkiel, Attorney for Appellee Hartland Group Real Estate Development, LLC
Geoffrey H. Hand, Co-counsel for Appellee Hartland Group Real Estate Development, LLC
E]izabeth H. Catlin, Co-counsel for Appellee Hartland Group Real Estate Development, LLC
Kimberlee ]. Sturtevant, Attorney for lnterested Person City of Burlington

