                                      State of Vermont
                           Superior Court—Environmental Division

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                   ENTRY REGARDING MOTION
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In re Main St. Place, LLC (50 & 58 Main St.)                            Docket No. 46-3-10 Vtec
(Appeal of ZBA denial of conditional use approval)

In re Main St. Place, LLC Demolition Application                     Docket No. 120-7-10 Vtec
(Appeal of ZBA denial of demolition permit)

In re Main St. Place, LLC Demolition Permit                         Docket No. 191-11-10 Vtec
(Appeal of Planning Commission grant of demolition permit)

In re Main St. Place, LLC (PC tie vote)                             Docket No. 168-11-11 Vtec
(Appeal of claimed non-decision by Planning Commission)

Title: Motion to Dismiss
Filed: January 13, 2012
Filed By: Main Street Place, LLC
Response filed on 2/9/12 by Village of Derby Line
Reply filed on 2/21/12 by Main Street Place, LLC
Supplemental memoranda filed on 5/7/12 and 5/14/12 by Village of Derby Line
Supplemental memoranda filed on 5/8/12 and 5/15/12 by Main Street Place, LLC

 ___ Granted                       X Denied                 ___ Other

        Currently before the Court are five separate, but related, appeals concerning municipal
land use permits for development activities on the same two lots: 50 and 58 Main Street in the
Village of Derby Line, Vermont. Now pending before the Court is a motion by Main Street
Place, LLC (“Applicant”) to dismiss the Village of Derby Line (“the Village”) as an appellant in
two of these appeals and as an interested person in two others.
        The Village is an appellant in Docket No. 191-11-10 Vtec, an appeal of a decision by the
Town of Derby Planning Commission (“the Planning Commission”) granting Applicant site
plan approval to raze existing buildings on 50 and 58 Main Street, level the site, and build a
convenience store. The Village is also an appellant in Docket No. 168-11-11 Vtec, an appeal of a
tie vote by the Planning Commission in response to Applicant’s subsequent application for site
plan approval to raze the existing buildings, bring the areas to grade, and replant the areas.
       The Village appears as an interested person in Docket No. 46-3-10 Vtec, an appeal by
Applicant of a decision by the Town of Derby Zoning Board of Adjustment (“ZBA”) denying
Applicant conditional use approval to build a convenience store on the two lots. The Village
also appears as an interested person in Docket No. 120-7-10 Vtec, an appeal by Applicant of a
Main St. Place, LLC, Multiple Docket Nos. (EO on Mot to Dismiss) (06-19-12)                    Pg. 2 of 5.


decision by the ZBA denying Applicant a demolition permit to raze existing buildings on the
two lots and level the site.
         Applicant challenges the Village’s ability to appear in these appeals, arguing that its
notices of appeal were faulty1 and that the Village is not a separate municipality that can appeal,
or appear as an interested person, as a municipality. Applicant also argues that, if the Village
qualifies to participate as an interested person in Applicant’s appeals as a nearby property
owner, its participation should be limited to those issues for which it can demonstrate an impact
on its interests.
         The Village responds by arguing that it is a municipality that is within, and therefore
adjoins, the Town of Derby (“the Town”) and, as such, it is entitled to appeal in the two matters
in which it has done so and to appear as an interested person in Applicant’s appeals of the other
two matters addressed in Applicant’s motion. The Village further argues that, because it is
entitled to appear as a municipality, it need not allege an impact upon itself as a property
owner.

The Village’s Ability to Appeal
        The pending motion to dismiss the Village, insofar as it questions the Village’s ability to
act as an appellant in Docket Nos. 191-11-10 Vtec and 168-11-11 Vtec, is a challenge to the
Village’s standing to appeal. Whether a party has standing goes to a court’s subject-matter
jurisdiction. Bischoff v. Bletz, 2008 VT 15, ¶ 15, 183 Vt. 235. Thus, we review this portion of
Applicant’s motion under the standard of review afforded by Rule 12(b)(1), which governs
motions to dismiss for lack of subject matter jurisdiction. See V.R.C.P. 12(b)(1). That is, we
accept as true all uncontroverted factual allegations and construe them in a light most favorable
to the nonmoving party (here, the Village). Rheaume v. Pallito, 2011 VT 72, ¶ 2 (mem.).
        It is undisputed that the Village is an incorporated village that has not adopted its own
municipal plan or bylaws. It is also undisputed that the Village is spatially within the
boundaries of the Town. Additionally, Applicant concedes that the Trustees of the Village
participated in the Planning Commission proceedings that led to the two decisions that the
Village has appealed. We accept as true these uncontroverted factual allegations, facts which
are material to our analysis below.
        We turn next to the legal question presented by Applicant—whether, applying these
facts to the statutory limitations on who can appeal a municipal land use decision, the Village
has the ability to appeal in Docket Nos. 191-11-10 Vtec and 168-11-11 Vtec. To answer this
question, we must construe provisions in 24 V.S.A., Chapter 117. In interpreting statutory
provisions such as this one, we are directed to give effect to the intent of the Vermont
Legislature. Town of Killington v. State, 172 Vt. 182, 188 (2001). To do this we refer to the
common and ordinary meaning of the statute’s plain language, taking into account the statute

1 One of Applicant’s arguments is that the notices of appeal filed by opposing counsel in Docket Nos.
191-11-10 Vtec and 168-11-11 Vtec were filed on behalf of the Trustees of the Village but do not indicate
how the Trustees individually have standing to appeal. We do not understand these two notices of
appeal to indicate that the Trustees are appealing in their individual capacities. Rather, we understand
them to indicate that the Village itself is appealing with its Trustees as its representatives. Unlike a
zoning board of adjustment, planning commission, or other municipal panel (which are neutral, quasi-
judicial bodies), municipal legislative bodies can have interests in a matter before this Court and are,
indeed, the entities whose interests are represented in appeals filed pursuant to 24 V.S.A., Chapter 117.
Main St. Place, LLC, Multiple Docket Nos. (EO on Mot to Dismiss) (06-19-12)                Pg. 3 of 5.


as a whole. Delta Psi Fraternity v. City of Burlington, 2008 VT 129, ¶ 7, 185 Vt. 120. We accept
this interpretation unless doing so would make a provision ineffective or create irrational
results. Town of Killington, 172 Vt. at 188.
        Parties who fall within the definition of “interested person” and who participate in a
proceeding before a municipal panel have the right to appeal to this Court the decision reached
by that municipal panel. 24 V.S.A. § 4471(a). There are multiple, alternative definitions for
“interested person[s]” listed in 24 V.S.A. § 4465(b). Subsection (b)(2) of § 4465 defines an
interested person to include “[t]he municipality that has a plan or a bylaw at issue in an appeal
brought under this chapter or any municipality that adjoins that municipality.” Subsection
(b)(3) defines an interested person to include property owners in the immediate neighborhood
of a proposed development.
        The Village argues that it is an interested person under subsection (b)(2) of § 4465
because the Village is located within, and therefore adjoins, the Town. It does not assert that it
qualifies under subsection (b)(3). Applicant argues that the Village is entirely within the Town
and is, therefore, not a distinct, adjoining municipality for the purposes of 24 V.S.A., Chapter
117.
       The parties’ disagreement, while initially framed by the parties as a dispute about the
term “adjoining,” is, in fact, principally a disagreement about how the term “municipality” is
defined for the purposes of 24 V.S.A., Chapter 117. Chapter 117 defines municipality this way:
        “Municipality” means a town, a city, or an incorporated village or an
        unorganized town or gore. An incorporated village shall be deemed to be within
        the jurisdiction of a town for the purposes of this chapter [Chapter 117], except to
        the extent that a village adopts its own plan and one or more bylaws either
        before, concurrently with, or subsequent to such action by the town, in which
        case the village shall have all authority granted a municipality under this chapter
        and the plans and bylaws of the town shall not apply during such period of time
        that said village plan and bylaws are in effect.
24 V.S.A. § 4303(12).
        Applicant argues that the second sentence qualifies the extent to which an incorporated
village constitutes a municipality. Specifically, Applicant asserts that an incorporated village is
not a municipality for the purposes of Chapter 117 unless it adopts its own plan and bylaws.
The Village argues that the first sentence stands alone.
        The plain language of the first sentence of 24 V.S.A. § 4303(12) definitively describes an
incorporated village as a type of municipality. The second sentence is separate from this
statement, and we do not interpret it as a qualification to the first sentence. Rather, we interpret
the second sentence to explain that an incorporated village is subject to the land use regulations
of the town in which the incorporated village lies spatially, unless the village adopts its own
municipal plan and bylaws.
        Consequently, we conclude that the Village is a distinct “municipality” for the purposes
of 24 V.S.A. Chapter 117, but that it is subject to the Town’s municipal plan and bylaws, as the
parties agree that the Village lies spatially within the Town and has not adopted its own plan or
bylaws. Stated simply, we conclude that the Village is a separate municipality that is governed
by the Town’s land use regulations.
Main St. Place, LLC, Multiple Docket Nos. (EO on Mot to Dismiss) (06-19-12)                Pg. 4 of 5.


       Having determined that the Village qualifies as a distinct “municipality” for the
purposes of 24 V.S.A., Chapter 117, we turn now to whether the Village, as a distinct
municipality, has a right to appeal under 24 V.S.A. § 4465(b)(2) and § 4471. As stated above,
these statutory provisions collectively grant appellant rights to a municipality, provided that
the municipality has participated in the proceedings below and is “[t]he municipality that has a
plan or a bylaw at issue in an appeal brought under this chapter or any municipality that
adjoins that municipality.” 24 V.S.A. § 4465(b)(2).
        For the purpose of adjudicating this pre-trial motion, we have accepted as true the
allegation that the Trustees of the Village participated in the Planning Commission proceedings
below. We note that the meeting minutes submitted by the Village as attachments to their
filings also reflect the presence of the Trustees in both proceedings. Because the concerns
expressed by the Trustees during the proceedings below are those of the Village rather than of
the Trustees as individuals,2 we understand the Trustees’ presence to be as representatives of
the Village. We therefore conclude that the Village has met the participation requirement
necessary to appeal in Docket Nos. 191-11-10 Vtec and 168-11-11 Vtec.
        Turning to the final remaining requirement for the Village to appeal, that the Village is a
type of municipality granted appellant rights under subsection (b)(2) of § 4465, we conclude
that it does qualify as either type of municipality described in subsection (b)(2) and thus has
appellant rights. The Village qualifies as a municipality with a bylaw at issue because the
Village is subject to the Town’s bylaws, the bylaws regulating the proposed development in the
matters before us. Alternatively, if the Town is considered to be the sole municipality with a
bylaw at issue here, the Village qualifies as a municipality that adjoins that municipality
because the parties agree that the Village is spatially within the boundaries of the Town and,
thus, the boundaries of the two municipalities touch each other in the classic sense of adjoining.
See, e.g., Black Law’s Dictionary (9th ed. 2009) (defining “adjoining” as “[t]ouching; sharing a
common boundary; CONTINGUOUS”).
       Accepting as true the uncontroverted factual allegations made by the parties here, we
conclude that the Village has appellant rights in both Docket Nos. 191-11-10 Vtec and 168-11-11
Vtec. We therefore DENY Applicant’s motion insofar as it requests dismissal of the Village as
an appellant in Docket Nos. 191-11-10 Vtec and 168-11-11 Vtec.

The Village’s Ability to Appear as an Interested Person
        The remainder of Applicant’s motion questions the Village’s ability to appear as an
interested person in Docket Nos. 46-3-10 Vtec and 120-7-10 Vtec. Applicant requests that the
Court limit the Village’s participation to those issues for which the Village can demonstrate an
impact on its interests as a nearby property owner.
        We first note that the Village is not asserting that it qualifies as an “interested person”
under subsection (b)(3) of 24 V.S.A. § 4465, which requires a party to demonstrate an impact on
its interest. Instead, as discussed above, it asserts that it is a municipality and “interested
person” under subsection (b)(2), which describes the types of municipalities with appellant
rights and does not include the same requirement as subsection (b)(3). Therefore, we deny



2 The concerns expressed by the Trustees are on the order of Village traffic and stormwater capacity;
there are no concerns expressed that appear related to the Trustees as individuals.
Main St. Place, LLC, Multiple Docket Nos. (EO on Mot to Dismiss) (06-19-12)                              Pg. 5 of 5.


Applicant’s request to limit the Village’s participation to those issues for which it can
demonstrate an impact on its interests.
       We further conclude that the Village has a right to appear as an interested person in
Docket Nos. 46-3-10 Vtec and 120-7-10 Vtec pursuant to 24 V.S.A. § 4465(b)(2). Parties
qualifying as “interested person[s]” under 24 V.S.A. § 4465(b)(2) have a right to appear in the
appeals of others, regardless of whether they participate below. See 10 V.S.A. § 8504(n)(5);3
V.R.E.C.P. 5(4)(c). As discussed above, we have concluded that the Village is a type of
municipality described in 24 V.S.A. § 4465(b)(2). Thus, we conclude that the Village has a right
to appear as an interested person in Docket Nos. 46-3-10 Vtec and 120-7-10 Vtec.
        Consequently, we DENY Applicant’s motion insofar as it requests dismissal of the
Village as an interested person in Docket Nos. 46-3-10 Vtec and 120-7-10 Vtec or requests the
limitation of the Village’s ability to participate to those issues for which it can demonstrate an
impact on its interests. The Village can participate on all of the issues Applicant has preserved
for our review in these appeals.

          Conclusion
       In summary, we DENY Applicant’s motion to dismiss the Village as an appellant in
Docket Nos. 191-11-10 Vtec and 168-11-11 Vtec and as an interested person in Docket Nos. 46-3-
10 Vtec and 120-7-10 Vtec.
       The Court will schedule a follow-up conference to occur in the next thirty days for the
purposes of addressing the status of these four appeals, as well as the related appeal in Docket
No. 70-5-11 Vtec. At that conference, the parties should be prepared to discuss the wisdom of
mediation and should have collectively identified, prior to the conference, a mediator who is
acceptable to all of the parties so that mediation, if warranted, can proceed efficiently.




_________________________________________                                            June 19, 2012
       Thomas S. Durkin, Judge                                                            Date
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Date copies sent to: ____________                                             Clerk's Initials _______
Copies sent to:
    Jon T. Anderson, Attorney for Main Street Place, LLC
    Pietro J. Lynn, Attorney for Main Street Place, LLC
    William E. Simendinger, Co-counsel for Main Street Place, LLC
    Paul S. Gilles, Attorney for Village of Derby Line
    Robert Halpert, Attorney for Town of Derby



3  A “party by right,” which includes the “municipality in which the project site is located, and the
municipal and regional planning commission for that municipality,” can also appear in the appeals of
others. See 10 V.S.A. §§ 8501(5), 8504(n)(2); V.R.E.C.P. 5(4)(c). While the Village may also be able to enter
an appearance in Docket Nos. 120-7-10 Vtec and 46-3-11 Vtec under this provision, it has not made that
argument, and has not alleged that the project site is located within its boundaries. Thus, we refrain from
considering whether the Village is a party by right.
