                                    STATE OF VERMONT
SUPERIOR COURT                                                ENVIRONMENTAL DIVISION
Environmental Division Unit                                    Docket No. 150-10-14 Vtec


Wagner & Guay Permit                                        DECISION ON MOTION




       In an October 1, 2015 merits decision, this Court approved an application from William
and Barbara Wagner and Christopher Guay (Applicants) to construct a single-family home and
detached garage (the Project) on merged lots 3 and 4 of a previously approved six-lot
subdivision located on Dodge Terrace in the Town of Grand Isle, Vermont (the development).
Mary Bourassa (Appellant) resides in a single-family home located on lot 2 of the development.
On October 1, 2014, the Town of Grand Isle (Town) granted Applicants’ zoning permit. On
October 14, 2014, Appellant timely appealed the Town’s decision to this Court. The Court held
a two-day trial and conducted a site visit; all giving rise to our October 1, 2015 decision.
       In the Court’s 2015 decision, we concluded that the development complies with the
Town’s 1995 Plat Plan condition that the location of houses on lots 2 through 6 be within the
tree line. We also ordered that within 30 days of our 2015 decision becoming final, Applicants
shall file a final Mylar with the Town Planning Commission for the sole purpose of ensuring
compliance with our 2015 decision. We also specifically noted that our 2015 decision does not
address compliance with other potentially relevant town and state reviews, including, but not
limited to, wetland and wastewater programs.
       Appellant has appealed our 2015 decision to the Vermont Supreme Court and
simultaneously filed a Motion to Stay asking that the Court prevent Applicants from proceeding
with construction or tree-clearing pending resolution of the appeal.
       Pursuant to Section 5(e) of the Vermont Rules of Environmental Court Proceedings,
when a decision appealed from is not automatically stayed, this Court, on its own or upon the
motion of a party, may issue a stay when it is “necessary to preserve the rights of the parties.”
V.R.E.C.P. 5(e); cf. V.R.C.P. 62(d)(2). In determining whether the equities weigh in favor of
issuing a stay, we consider: (1) whether the appealing party has a strong likelihood of success
on the merits, (2) whether denying the stay will cause irreparable harm to the moving party, (3)
whether the issuance of the stay will substantially harm other parties, and (4) whether the stay
would serve the best interests of the public. See In re Allen Road Land Co., Nos. 62-4-11 Vtec
and 63-4-11 Vtec, slip op. at 5 (Vt. Super. Ct. Envtl. Div. July 6, 2011) (Durkin, J.); In re Search
Warrants, 2011 VT 88, ¶ 2, 190 Vt. 572. We note that “[a]s with an injunction, we view a stay
as an extraordinary remedy appropriate only when the movant’s right to relief is clear.” In re
Howard Center Renovation Permit, No. 12-1-13 Vtec, 2013 WL 4404974 (Vt. Super. Ct. April 12,
2013).

         Turning to the first factor, Appellant argues that there is a strong likelihood that she will
succeed on the merits because she can demonstrate that the 1995 Plat Plan and the scalloped
tree line depicted on the 1995 Plat Plan are largely irrelevant. The thrust of Appellant’s support
for this conclusion is that the Court should have accepted her testimony over other witnesses’
testimony and evidence as a whole. We are unconvinced that the evidence considered by the
Court, as presented by the parties, demonstrates that Appellant has a strong likelihood of
succeeding in her appeal.

         When analyzing the second factor, whether the moving party will suffer irreparable
injury if the stay is denied, we ask if the moving party has “made a case that such injuries are
likely and if [the moving party] would have an adequate remedy at law, should the injuries they
allege actually occur.” Allen Road Land Co., Nos. 62-4-11 Vtec and 63-4-11 Vtec, slip op. at 6.
Appellant argues that she will suffer an irreparable injury if a stay is not granted because trees
may be cut if construction pursuant to the zoning permit moves forward. While it is true that
tree cutting can qualify as irreparable injury, this conclusion depends on the facts of each
individual case. In the matter before the Court, there is no prohibition on tree cutting with or
without a stay. Rather, the issues before the Court specifically relate to locating new houses.
Appellant has no ownership interest in the two lots or the trees at issue in this matter.
Furthermore, neither the Town’s approvals nor this Court’s 2015 decision speaks to a
prohibition against the cutting of trees. As such, we conclude that Appellant will not suffer an
irreparable injury if her request for a stay is denied.

         The third factor we consider is whether granting the stay will substantially harm other
parties, and the fourth factor is whether the stay will serve the best interests of the public.
Appellant argues that granting the stay will not substantially harm Applicants because delay will
not result in major additional costs or substantial harm. Evidence at trial showed that Appellant
opposed a similar development proposal in 2005. Ultimately, that proposal was terminated, in
part due to Appellant’s opposition. Applicants offer that granting a stay will prolong the delay
and harm which they have experienced for many years.

       Appellant also argues that granting the stay will serve the best interests of the public
because enforcing subdivision regulations and conditions within subdivision permits serves the
public interest. Although this matter was a de novo appeal and we are not bound nor do we
defer to proceedings below, we do note that the Town’s Zoning Administrator, the Town’s DRB,
and this Court each concluded that the development complies with the Town’s regulations and
prior conditions of approval. Thus, we conclude that granting the stay has the potential to
create further harm to other parties and would not be in the public interest.

       Taking into account the four factors discussed above, we find that the equities weigh
against granting a stay. Accordingly, we DENY Appellant’s motion for a stay.




Electronically signed on November 06, 2015 at 03:07 PM pursuant to V.R.E.F. 7(d).



_________________________________________
Thomas G. Walsh, Judge
Superior Court, Environmental Division
