                                  STATE OF VERMONT

                              ENVIRONMENTAL COURT

                                                 }
In re: Vanishing Brook Subdivision               }      Docket No. 223-10-07 Vtec
        (Appeal of Hemmeter)                     }
                                                 }

                  Decision and Order on Motion to Reconsider or Alter

       Appellant Susan Hemmeter appealed from a September 19, 2007 decision of the

Development Review Board (DRB) of the Town of Warren, relating to signing of the final1

subdivision plat for the so-called “Vanishing Brook” subdivision proposed by Appellee-

Applicants Danforth and Elizabeth Newcomb. Appellant is represented by Paul S. Gillies,

Esq., Appellee-Applicants are represented by Carl H. Lisman, Esq., and the Town of

Warren is represented by Elizabeth H. MaGill, Esq.

       Appellant has moved to reconsider or alter this Court=s decision dismissing the

appeal for Appellant=s lack of standing. The Court has fully reviewed its decision and the

parties= memoranda, and declines to change the result.

       The two issues raised in Appellant=s Statement of Questions were solely:

       1. Whether the plat approved by the Warren DRB on September 19, 2007 was
       materially inconsistent with the Subdivision Permit issued by the DRB on
       June 20, 2007.2

1 After receiving final plan approval of a subdivision under § 6.4(C) of the ordinance, an
applicant is obligated under § 6.5 to file an archival plastic (mylar) copy and three paper
copies of the final subdivision plat for recording in the Town’s land records. Prior to plat
recording, the plat must be signed by at least two authorized members of the DRB. See
August 3, 2007 DRB Notice of Decision at p. 5.
2 The final subdivision approval appears to have been voted on by the DRB at its June 20,

2007 meeting, but the written decision was issued on August 3, 2007. For consistency, we
will continue to refer to it as the June 2007 DRB decision granting final subdivision
approval.

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and
       2. Whether the inconsistency between the plat and the permit justifies the
       invalidation of the DRB’s approval of the plat.


       As discussed in the Court=s decision, Appellant has not brought an action under 24

V.S.A. ' 4470(b) to enforce the terms of the DRB=s June 2007 decision granting final

approval to the subdivision or to require the final plat to conform to the June 2007 decision.

Rather, the scope of the present appeal is limited to the DRB=s review and signing of the

mylar copy of the final plat at its September 19, 2007 meeting. The scope of the present

appeal is further limited by the Statement of Questions, which have only to do with

unspecified discrepancies between the June 2007 DRB decision granting final approval to

the subdivision and the mylar copy of the final subdivision plat signed by the DRB in

September.

       Because the June DRB decision granting final approval to the subdivision was not

appealed by anyone (including the Conservation Commission, of which Ms. Hemmeter

was a representative in that proceeding), it cannot be challenged, either directly or

indirectly, in the present appeal. 24 V.S.A. '4472(d).

       Ms. Hemmeter stated in ¶ 20 of her December 2007 affidavit in support of her

standing in the present appeal that “[s]ince the final plat had not yet been approved by the

DRB, and since the updated plat showed much greater detail than what had been

presented to the DRB when the [final subdivision plan] had been approved, I saw an

opportunity for the DRB to reconsider whether they had adequately reviewed the impacts

of this subdivision on conservation areas as required in the regulations.” (Emphasis added.)

Regardless of whether Ms. Hemmeter qualifies for standing in the present appeal, this

Court in this appeal is precluded by § 4472(d) from reexamining the terms of the June 2007

granting final approval to the subdivision. The only issue in the present proceeding could

be whether the mylar copy of the final subdivision plat accurately reflects the terms of the

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June 2007 final subdivision approval. Cf. In re Appeal of Gulli, 174 Vt. 580, 583 (2002)

(limiting appeal to approval of final parcel map).

       The motion to dismiss for lack of standing made two arguments: that Appellant had

participated in the hearing only in her representative capacity on behalf of the

Conservation Commission, and that Appellant did not qualify under 24 V.S.A. § 4465(b)(3).

The Court rejected the first of these arguments and, as no party seeks reconsideration of

the decision on this issue, it will not be further discussed.

       As to the second argument, the Court’s decision examined the three elements of

standing required of an individual appellant by 24 V.S.A. ' 4465(b)(3). That section

requires appellant to own or occupy property “in the immediate neighborhood” of the

proposed project, to “demonstrate a physical or environmental impact on the person=s

interest under the criteria reviewed,” and to allege that the DRB=s decision or act, if upheld,

“will not be in accord with the policies, purposes, or terms of the [municipal] plan or

bylaw.”

       In Appellant’s initial response to the motion to dismiss, she argued only that “she

has a legitimate concern about the impact of this development on [the] highway that she

uses to reach her home,” and that her “standing is not based on aesthetics or a view, but on

the likely impact to the highway which she uses to reach her job.” Her attached affidavit

described the likely effect of the proposal on traffic.3 In her further reply to the motion to

dismiss, she emphasized that she “will suffer a direct impact from the increased traffic.”

       The Court’s decision determined that Ms. Hemmeter’s property was in the

“immediate neighborhood,” but ruled that she had not asserted an impact on her interest

under the criteria reviewed; the Court analyzed that interest with respect to the issue of


3 The affidavit also stated that Appellant will “be affected by this subdivision due to the
loss of critical wildlife habitat.” This statement refers only to the effect of the subdivision,
which was approved and not appealed, and is not before this Court in the present appeal.

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traffic asserted by Appellant in her responses to the motion to dismiss.

       Despite Appellant’s arguments in her motion memoranda that her standing was

based on traffic impacts, she now argues that the Court should infer that she was also

claiming standing based on wildlife habitat, simply from the reference in her affidavit to

her being “affected by this subdivision due to the loss of critical wildlife habitat,” and the

fact that her summary judgment motion focused on the asserted discrepancy between the

documents with respect to deeryards.

       A motion to reconsider or to alter or amend should be used sparingly. In re: Bouldin

Camp – Noble Road, Docket No. 278-11-06 Vtec, slip op. at 2 (Vt. Envtl. Ct. Sept. 13, 2007).

Such a motion should “not be used to relitigate old matters, or to raise arguments or

present evidence that could have been raised prior to the entry of judgment.” 11 Wright,

Miller, & Kane, Federal Practice and Procedure: Civil 2d § 2810.1 (construing F.R.C.P. 59).

Such a motion may be used 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. Id.; accord, In re: Boutin PRD Amendment, Docket No. 93-4-06 Vtec,

slip op. at 1-2 (Vt. Envtl. Ct. May 18, 2007) (a motion for reconsideration may not be used to

again raise already-rejected arguments, but may be used to address other alleged defects);

In re: Britting Wastewater/Water Supply Permit, Docket No. 259-11-07 Vtec, slip op. at 2

(Vt. Envtl. Ct. May 9, 2008); In re: Dodge Farm Community, LLC, Concept Plan, Docket

No. 155-7-07 Vtec slip op. at 1–2 (Vt. Envtl. Ct. July 3, 2008).

       The present motion does not contain any previously unavailable evidence or

argument, and has not demonstrated any manifest errors of law or fact. In any event, the

present appeal cannot be used to review or reexamine whether the final subdivision as

approved by the DRB in June 2007 should have been approved or should contain any

different conditions, as that DRB decision became final without appeal. Therefore the

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present ruling does not address whether Appellant may have been able to qualify for

standing on both traffic and deeryards if such an appeal had been taken.

      Nor is the present appeal a proceeding to enforce the June 2007 DRB subdivision

approval decision. Therefore, the present ruling does not address whether Appellant may

or may not have standing to bring such an action.

      Rather, the “criteria to be reviewed” in the present appeal only raise the ministerial

question of whether the mylar copy of the final subdivision plan reflects the terms of the

June 2007 subdivision approval. The Statement of Questions properly do not deal with

whether the mylar copy of the final subdivision plan adequately protects deeryards or

other wildlife habitat, as the June 2007 subdivision approval became final without appeal.

      Appellant has not asserted or “demonstrate[d] an impact on [her] interest under the

criteria reviewed” and therefore does not qualify as an interested person with standing to

bring this appeal. Accordingly, based on the foregoing, it is hereby ORDERED and

ADJUDGED that Appellant=s Motion to Reconsider or Alter is DENIED. The appeal

remains dismissed for lack of standing.


             Done at Berlin, Vermont, this 10th day of July, 2008.




                                  _________________________________________________
                                        Merideth Wright
                                        Environmental Judge




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