                                   STATE OF VERMONT

                               ENVIRONMENTAL COURT

                                                   }
In re: Century Partners, LP                        }      Docket Nos. 136-7-08 Vtec and
        Certificate of Occupancy Application       }            201-9-08 Vtec
                                                   }

    Decision and Order on Motion to Reconsider and/or Alter or Amend Judgment

       In Docket No. 136-7-08 Vtec, Appellant-Applicant Century Partners, LP appealed

from a decision of the Development Review Board (DRB) of the City of South

Burlington remanding to the Administrative Officer Appellant-Applicant’s application

for Certificate of Occupancy for 2 Market Street, which the Administrative Officer had

denied in a March 18, 2008 decision. In Docket No. 201-9-08 Vtec, Appellant-Applicant

Century Partners, LP appealed from a decision of the DRB upholding the

Administrative Officer’s June 30, 2008 denial of a Certificate of Occupancy for 2 Market

Street. Appellant-Applicant (Applicant) is represented by Erin Miller Heins, Esq.; the

City is represented by John Klesch, Esq.

       The City has moved for the Court to reconsider its January 30, 2009 Decision and

Order on Cross-Motions for Summary Judgment (January 2009 Decision), which

granted Applicant’s Motion for Summary Judgment in both appeals, and the related

February 4, 2009 Judgment Order, which required the Administrative Officer to issue a

Certificate of Occupancy for 2 Market Street. By agreement of the parties, the decision

on this motion was coordinated with the motions in the two Notice of Violation cases,

Docket Nos. 177-8-08 Vtec and 191-8-08 Vtec, also issued today.

       Relief pursuant to a motion to reconsider is an “extraordinary remedy that

should be used sparingly.” Appeal of Van Nostrand, Nos. 209-11-04 Vtec, 101-5-05

Vtec., slip op. at 4 (Vt. Envtl. Ct. Dec. 11, 2009) (Durkin, J.) (internal quotations omitted).



                                              1
The limited functions of a motion to reconsider are “’to correct manifest errors of law or

fact’ on which the decision was based, to allow the moving party to present newly

discovered or previously unavailable evidence, to prevent manifest injustice, or to

respond to an intervening change in the controlling law.”         In re Vanishing Brook

Subdivision, No. 223-10-07 Vtec, slip op. at 4 (Vt. Envtl. Ct. July 10, 2008) (Wright, J.)

(quoting 11 Wright, Miller, & Kane, Federal Practice and Procedure: Civil 2d § 2810.0).

The decision to grant relief pursuant to a motion to reconsider is “committed to the

court’s sound discretion.” Rubin v. Sterling Enters., 164 Vt. 582, 588 (1996).

       The Court has thoroughly reviewed its January 2009 decision and the parties’

briefs on the motion to reconsider, and declines to reconsider the result. However, it is

important for the parties to understand the scope of that decision, in relation to the

decision in the Notice of Violation cases involving the same property, also issued today.

       As discussed in the January 2009 Decision, the then-Planning Commission

approved Applicant’s application for an amendment to a Planned Unit Development

(PUD).   The Planning Commission’s PUD approval decision contained a condition

which required Applicant subsequently to submit a revised landscaping plan for

approval by the City Planner, rather than for the Planning Commission’s approval.

The January 2009 Decision determined that a landscaping plan, which was allegedly

submitted to the City Planner but never approved by the Planning Commission, was

neither part of the application nor part of the Planning Commission’s decision, so that

failure to comply with this landscaping plan could not be the basis for denying

Applicant’s Certificate of Occupancy twelve years after the Planning Commission’s

approval.

       The present motion argues that the Court’s ruling amounts to an invalidation of

the Planning Commission’s condition that required Applicant’s subsequent submission




                                             2
of a landscaping plan. Such invalidation would be prohibited by 24 V.S.A. § 4472(d).1

However, the January 2009 Decision did not rule that the Planning Commission’s

approval of the PUD amendment was invalid, or that any of its conditions was invalid.

       Rather, the Court ruled that the disputed landscaping plan, submitted after

Planning Commission approval of the PUD amendment, and never itself approved by

the Planning Commission, was not enforceable. The decision stated that “there is no

authority for the Planning Commission (or any municipal panel) to delegate to a staff

member such as the City Planner the subsequent approval of plans that are within the

jurisdiction of the Planning Commission (or that panel).” January 2009 Decision, slip

op. at 5 (citing In re Woodstock Cmty. Trust, Inc., Nos. 263-11-06 Vtec, 126-6-07 Vtec,

slip op. at 8–9 (Vt. Envtl. Ct. Oct. 3, 2007) (Wright, J.)).

       The issue of whether the landscaping associated with the 2 Market St. building is

in compliance with any approved site plan remains for Docket No. 177-8-08 Vtec and

for the related enforcement case: Docket No. 271-11-08 Vtec.

       Accordingly, it is hereby ordered and adjudged that the City’s Motion to

Reconsider and/or Alter or Amend Judgment is DENIED.



       Done at Berlin, Vermont, this 15th day of September, 2009.




                              _________________________________________________
                                    Merideth Wright
                                    Environmental Judge


1
  Under 24 V.S.A. § 4472(d), unappealed decisions of municipal boards are final and
cannot be challenged, “directly or indirectly.” Section 4472(d) applies even where the
municipal board’s decision was outside the scope of its authority. See In re Ashline,
2003 VT 30, ¶ 10, 175 Vt. 203 (citing Levy v. Town of St. Albans Zoning Bd. of
Adjustment, 152 Vt. 139, 143 (1989)).


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