                          Environmental Court of Vermont
                                 State of Vermont

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                  E N T R Y R E G A R D I N G M O T I O N
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Mastelli Construction Application                Docket No. 220-10-07 Vtec
Project:     Mastelli Construction Application
Applicant:   Richard Mastelli
       (Appeal from ZBA denial of appeal from Zoning Admin. determination)

Title: Motion for Reconsideration, No. 7

Filed:        September 30, 2008

Filed By: Pro Se, Attorney for:
            Appellant Richard Mastelli

Response: NONE

___ Granted                 _X_ Denied                 ___ Other


      On September 19, 2008, this Court issued its decision on the
parties’ competing requests for summary judgment, finding that material
facts were either disputed or not fully presented to the Court, such that
summary judgment was inappropriate for either party as to Appellant’s
Questions 1 and 2 from his Statement of Questions.     The Court further
concluded that the undisputed material facts warranted summary judgment
in the Town’s favor as to Appellant’s remaining Question (#3). Appellant
thereafter requested that the Court reconsider its determination as to
Question 3. For the reasons stated below, we conclude that Appellant has
not put forth new evidence or legal arguments sufficient to warrant a
change to our September 19 Decision.
      We first note that our prior Decision was in response to pre-trial
motions and did not result in a final judgment being rendered; we
specifically concluded that a trial remains necessary prior to the entry
of a final judgment in this appeal. As such, the September 19 Decision
and any reconsideration of it is not governed by V.R.C.P. 59 or 60, as
those Civil Rules only pertain to judgments after trial or verdict.
While Rules 59 & 60 provide some help by analogy, we consider Appellant’s
motion as governed not by a specific procedural Rule, but by this Court’s
inherent powers to reconsider interim decisions, so as to avoid error or
manifest injustice.
      In that regard, we note that while Appellant puts forth specific
indications of where he disagrees with the Court’s interpretation of the
applicable law or believes that the Court misapplied the applicable law,
Appellant has put forth no new factual representations upon which he
bases his reconsideration request.      Thus, we are asked to adopt a
different legal analysis than that announced in our September 19
Decision. We have previously noted that disagreement between the moving
party and the Court is not grounds for reconsideration. In re Boutin PRD
Amendment, No. 93-4-06 Vtec, slip op. at 2 (Vt. Envtl. Ct. May 18, 2007)
In re Mastelli Construction Application, Docket No. 220-10-07 Vtec (Nov. 14, 2008)   Page 2 of 3.



(Wright, J.).    Motions to reconsider should not be used to repeat
arguments that have been raised and rejected by this Court in a prior
decision.    Id. at 1.     Rather, motions to reconsider serve narrow
purposes, and for this reason such motions are usually denied.      In re
South Village Community, LLC, No. 74-4-05 Vtec, slip op. at 2 (Vt. Envtl.
Ct. Sept. 14, 2006) (Durkin, J.) (citing 11 Wright, Miller, & Kane,
Federal Practice and Procedure: Civil 2d § 2810.0). To the extent that
we do not touch upon each of Appellant’s legal arguments here, it
indicates that we concluded that his reconsideration arguments do not
provide a new or sufficient legal basis for disturbing our original legal
determinations.
      Appellant’s additional legal arguments asserting that concepts of
equitable estoppel should apply here, so that his proposed construction
on an undersized lot must be approved, omits consideration of the first
requirement in 24 V.S.A. § 4412(2) and Town Zoning Regulations article
III, § 2 that to qualify as a lawful, pre-existing small lot, the parcel
must be held “in individual and separate and non-affiliated ownership
from surrounding properties on the effective date of” the zoning
regulations. (Emphasis added.)
      As we noted in the Decision, Appellant’s motion for summary
judgment must be denied on all three Questions.         Here, we have a
representation that when Appellant’s 12.2± acre parcel was first created
as a single lot in 1989, the then owner represented that the entire 12.2±
acres would be held as one parcel. Thus, while we note that this may be
a contested fact and therefore subject to resolution only through trial,
this fact, when viewed in a light most favorable to the Town for the
purposes of considering Appellant’s prior motion, precludes summary
judgment in his favor. See V.R.C.P. 56(c)(3).
      We know of no representation that Appellant’s 1.2± acre parcel was
held separately when the Zoning Regulations went into effect in 1982. In
fact, the sole representation before us on this point is that Appellant’s
predecessor in title specifically represented when he was first seeking a
permit to create the 12.2± acre parcel that the entire 12.2± acres would
be held as one parcel.    If this fact is proved true at trial, then it
appears that Appellant’s 1.2± acres are unable to meet the regulatory
definition for a pre-existing small lot, as contained in 24 V.S.A.
§ 4412(2) and Regulations article III, § 2. To the extent that Appellant
is claiming that he should be allowed to assert that his 1.2± acres
became a separate, undersized lot after zoning came into effect and
should nonetheless be regarded as a lawful, separate lot, we await the
opportunity at trial to determine the accuracy and legal strength of this
argument.
      We have again reviewed the September 19 Decision and the applicable
precedent concerning the application of equitable estoppel against a
government entity. We have not discovered a material flaw in our prior
reasoning that would warrant a modification in our prior Decision.     In
particular, we note that the foundation for Appellant’s arguments here is
not a prior permit issued to him and upon which he relied, but rather
advice he received from prior Town officials concerning the legal
concepts of undersized lots. When a subsequent zoning administrator was
called upon by Appellant in 2007 to recognize his 1.2± acre parcel as a
separate lot, the administrator expressed a contrary opinion.       Thus,
In re Mastelli Construction Application, Docket No. 220-10-07 Vtec (Nov. 14, 2008)   Page 3 of 3.



while it is unfortunate for Appellant that the current zoning
administrator interprets the evolving law relating to pre-existing small
lots differently than his predecessors did in 2006, we cannot categorize
the verbal advice he received in 2006, on the record now before us, as
anything other than advisory in nature and therefore not sufficient to
apply the doctrine of equitable estoppel.       In this regard, we find
helpful the precedent noted in In re Lyon, 2005 VT 63, 178 Vt. 232.
      While the Court in Lyon determined that extraordinary facts,
including the systematic misapplication of the law by a state-wide
agency, warranted the application of equitable estoppel against the
state, which had revoked a prior permit issued to Mr. and Mrs. Lyon, the
Court noted several prior cases to support its continuing belief that
equitable estoppel should only be applied against government entities in
extraordinary cases. In particular, the Court in Lyon noted that it had
previously declined to apply the equitable estoppel doctrine where a
zoning administrator had provided mistaken advice, but not a final
decision. Id. at ¶ 29 (citing Wesco, Inc. v. City of Montpelier, 169 Vt.
520, 524 (1999)).     Similarly, the Court in Lyon noted that it had
previously declined to apply the equitable estoppel doctrine where an Act
250 District Coordinator had mistakenly advised that a proposed project
would not need a state land use permit.      Id. at ¶ 30 (citing In re
McDonald’s Corp., 146 Vt. 380, 384–85 (1985)).
      The Lyon Court did not reject the precedent announced in either
Wesco or McDonald’s, but rather relied upon those prior cases in
stressing the need to apply equitable estoppel against government
entities only in extraordinary cases.
      Because we again cannot say that the facts presented to us meet
that extraordinary threshold, we cannot apply the estoppel doctrine here.
While our entry here evidences that we have reconsidered our prior
determination, we DECLINE again to enter summary judgment in Appellant’s
favor on his Question 3.    The entry of summary judgment in the Town’s
favor as to Appellant’s Question 3 remains.




____________________________________            __November 14, 2008__
      Thomas S. Durkin, Judge                            Date
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Date copies sent to: ____________               Clerk's Initials _______
Copies sent to:
    Appellant Richard Mastelli
    Bruce Bjornlund, Esq., Attorney for the Town of East Montpelier
