82 E Washington St. DRB Decision Appeal - Decision on Motion

VERMONT SUPERIOR COURT
Environmental Division Docket No. 24-ENV-00088
32 Cherry St, 2nd Floor, Suite 303,
Burlington, VT 05401
802-951-1740
www.vermontjudiciary.org

E. Washington St. DRB Appeal
ENTRY ORDER
Title: Motion for Judgment (Motion: 1)
Filer: Thomas C. Bixby, Esq.
Filed Date: March 10, 2025
No response filed.
The matter is DISMISSED. The motion is MOOT.
In this matter, Susan Kelley appeals a decision of the City of Rutland (City) Development
Review Board (DRB) denying her appeal of the City Zoning Administrator’s issuance of a permit to
Frederick Watkins for a home occupation for cannabis cultivation. Ms. Kelley served Mr. Watkins
with her notice of appeal. Mr. Watkins did not file a notice of appearance in this matter and did not
appear until the final pre-trial conference in this matter, held on February 26, 2025 via the WebEx
platform.1 Because of Mr. Watkins’ late appearance, the Court then canceled the trial and directed
Mr. Watkins to either file a notice of appearance as a self-represented party or have an attorney
representing him file their notice of appearance.
On March 5, 2025, Mr. Watkins e-mailed the Court and Ms. Kelley’s counsel stating that he
“do[es] not wish to pursue this matter any further.” See Motion Ex. Thus, that Ms. Kelley “wins by
default.” Id. On March 10, 2025, Ms. Kelley moved for default judgment, citing this email, and
requesting the Court void the permit and grant default judgment in her favor.
The Court interprets the March 5, 2025 email as a withdrawal of the application giving rise to
the decision on appeal. Withdrawal of an application deprives this Court of jurisdiction over the
appeal. See In re Lakeview Inn Conditional Use Permit, No. 193-10-09 Vtec, slip op. at 2 (Vt. Super.

1 This pre-trial conference was set following a January 6, 2025 status conference. At this conference, the parties
and Court discussed Mr. Watkins’ failure to participate in this appeal of his permit application. The Court directed Ms.
Kelley’s counsel to file proof of service of her appeal, which was filed. The Court then directed the parties to file their
unavailable dates for trial. The Court then set the matter for a final pre-trial conference and trial, filing a courtesy copy
with Mr. Watkins and directing Ms. Kelley’s counsel to ensure duplicative service was made upon Mr. Watkins. This was
completed.
Ct. Envtl. Div. Nov. 24, 2010) (Durkin, J.) (citing In re Appeal of O’Donnell, Nos. 50-2-00 Vtec, 199-
9-00 Vtec, slip op. at 2 (Vt. Envtl. Ct. Apr. 20, 2001) (Wright, J.); In re S.N., 2007 VT 47, ¶ 9, 181 Vt.
641). When an application is withdrawn, the Court regards an approval appealed from as moot and
the permit issued below to be void without force or effect. Id. (citation omitted). Thus, we conclude
that the application has been withdrawn and this matter must be DISMISSED as the Court lacks
jurisdiction over the appeal. See V.R.C.P. 12(h)(3) (requiring this Court to dismiss an action sua sponte
“[w]henever it appears by suggestion of the parties or otherwise that the court lacks jurisdiction of the
subject matter . . ..”). The DRB’s decision that is the subject of the appeal is therefore VOID. Because
of this, Ms. Kelley’s motion for default judgment is MOOT.
This concludes the matter before the Court. A Judgement Order accompanies this Entry
Order.
Electronically signed this 14th day of May 2025, pursuant to V.R.E.F. 9(D).

Thomas G. Walsh, Judge
Superior Court, Environmental Division