                                   State of Vermont
                        Superior Court — Environmental Division

======================================================================
                 ENTRY REGARDING MOTION
======================================================================

In re Lakeview Inn Conditional Use Permit,                   Docket No. 193-10-09 Vtec
Project: Request for conditional use approval for additional uses of Inn.
Applicant: Lakeview Inn Enterprises, LLC
           (Appeal from Town of Greensboro ZBA conditional use determination)

Title: Motion to Dismiss (Filing No. 2)
Filed: October 7, 2010
Filed By: Norman C. Williams, Attorney for Appellee/Applicant Lakeview Inn
       Enterprises, LLC
Response in Opposition filed on 10/25/10 by Appellants Nancy Sullivan and
       Leonard Schiavone
Reply in Support of Motion to Dismiss filed on 11/1/10 by Appellee/Applicant
Lakeview Inn Enterprises, LLC

_X_ Granted                      ___ Denied                             ___ Other

        By its pending motion, Appellee/Applicant Lakeview Inn Enterprises, LLC
(“Applicant”) requests an order from this Court dismissing the appeal of Nancy
Sullivan and Leonard Schiavone (“Appellants”). Appellants appealed the September 2,
2009 decision of the Town of Greensboro (“Town”), which granted conditional use
approval to Applicant (albeit with no specified conditions), to use the Inn to host a
variety of events, including, but not limited to, dinners, cheese tastings, wedding
receptions, and special food events. The Inn had previously been issued a conditional
use permit in 1997, authorizing its prior owners to utilize the premises as an 11-room
inn, bakery, deli/café, retail business, and banquet/reception facilities.1 Appellants,
who are abutting property owners, allege that the evening events held at the Inn are
unreasonably noisy and disruptive and are not among the Inn’s permitted activities
under either the 1997 or 2009 permits. Appellants allege that Applicant is, therefore,
violating the Town’s Zoning Bylaws and Vermont law.
       Subsequent to the conclusion of a separate municipal enforcement action
regarding the 1997 permit (Docket No. 125-7-09 Vtec), Applicant sought to withdraw
its 2009 permit application and now moves for dismissal of the pending appeal. (See
Appellee’s Mot. to Dismiss, filed Oct. 7, 2010). Based on the concern that Applicant
continues to operate the Inn in nonconformance with the 1997 permit―by advertising
for and hosting evening events, dinners, and weddings―Appellants oppose Applicant’s
Motion to Dismiss and seek adjudication of the merits of this case. (See Appellant’s



1   See 1997 Town of Greensboro Zoning Permit, approved July 8, 1997.
In re Lakeview Inn CU Permit, No. 193-10-09 Vtec (Entry Order on motion to dismiss)(11-24-10)   Page 2



Opp’n to Applicants’ Mot. To Dismiss, filed Oct. 25, 2010). For the reasons explained
below, we GRANT Applicant’s Motion to Dismiss, subject to the condition stated below.
       We begin our analysis with a tenet we regard as undisputed: that a decision-
making body, including this Court, cannot force an applicant to proceed with a project
that the applicant wishes to abandon. In re Appeal of Handy, No. 96-6-01 Vtec, slip
op. at 1 (Vt. Envtl. Ct. Mar. 18, 2002) (Wright, J.). An applicant may choose to
withdraw its application, but, in so doing, must accept the consequences of that
withdrawal (i.e., dismissal of any approval based upon the application they now seek
to withdraw). Id. Thus, while we recognize Applicant’s prerogative to abandon its
project by withdrawing its application (which is now contested on appeal), we must
issue an order vacating the Town’s conditional use approval since the foundation for
such approval (i.e., the application) no longer exists. See In re Appeal of O’Donnell,
Nos. 50-2-00 and 199-9-00 Vtec, slip op at 2 (Vt. Envtl. Ct. Apr. 20, 2001) (Wright, J.).
       Once the application is withdrawn and the approval is vacated, there is no
remaining case or controversy for the Court to adjudicate.               In fact, any
pronouncement on the withdrawn application would constitute an impermissible
advisory opinion. Id.; see also In re S.N., 2007 VT 47 ¶ 9, 181 Vt. 641 (“The Vermont
Constitution confers judicial authority only ‘to determine actual controversies arising
between adverse litigants,’ and issuing an advisory opinion . . . would exceed our
constitutional mandate.”) (citation omitted). Where such applications and approvals
have been withdrawn, this Court has regarded any approval appealed from as moot,
and any permit null and void and of no further force or effect. See In re Bessette &
Mayo Construction Permit, No. 16-1-10 Vtec (Vt. Envtl. Ct. Oct. 20, 2010) (Durkin, J.).
       Appellants are correct that once an appeal is filed, exclusive jurisdiction over a
municipal land use determination is transferred to this Court. 24 V.S.A. §§ 4471,
4472. Thus, we are not aware of the authority for the municipality, or Applicant for
that matter, to “vacate” an appealed application or underlying permit. However, even
Appellants acknowledge that this Court has the discretion, if not the obligation, to
dismiss an appeal where the applicant gives notice that it wishes to withdraw its
application. (See Appellant’s Opp’n to Applicants’ Mot. To Dismiss 5–6, filed Oct. 25,
2010). We conclude that dismissal is appropriate and necessary here, since neither
this Court, nor the opposition, can force Applicant to defend a withdrawn application
that it does not wish to pursue. Any further declaration on the issue is beyond this
Court’s jurisdictional authority.
       Appellants, anticipating that Applicant’s dismissal motion might be granted,
request that the Court order Applicant to cease conducting business activities not
specifically permitted, and that the Court direct the Town to commence zoning
enforcement proceedings against Applicant based upon the operation of alleged
unpermitted business activities. We decline to enter the requested orders since we are
not authorized to assume jurisdiction over these requests in this limited land use
appeal proceeding. In so ruling, we are not opining upon the merits of such actions
but merely upon our jurisdictional authority to entertain such requests.
       Therefore, for the reasons articulated above, the Court hereby GRANTS
Applicant’s motion to dismiss, and approves Applicant’s withdrawal of its 2009
application. The pending appeal is hereby DISMISSED. As a consequence of
Applicant’s withdrawal, the Court does hereby render NULL AND VOID the September
In re Lakeview Inn CU Permit, No. 193-10-09 Vtec (Entry Order on motion to dismiss)(11-24-10)   Page 3



2, 2009 conditional use approval issued by the Town Zoning Board of Adjustment;
such approval is now of no further force or effect.
       This completes the current proceedings in this Court concerning this appeal.




___________________________________________                       November 24, 2010___
       Thomas S. Durkin, Judge                                          Date

======================================================================
Date copies sent to: ____________                            Clerk's Initials _______
Copies sent to:
  Daniel P. Richardson, Attorney for Appellants Nancy Sullivan and Leonard
  Schiavone
  Norman C. Williams, Attorney for Appellee/Applicant Lakeview Inn Enterprises, LLC
  Sara Davies Coe, Attorney for the Town of Greensboro
