Georgia Development Regulations Appeal - Decision on Motion

VERMONT SUPERIOR COURT
Environmental Division Docket No. 25-ENV-00127
32 Cherry St, 2nd Floor, Suite 303,
Burlington, VT 05401
802-951-1740
www.vermontjudiciary.org

Georgia Development Regulations Appeal
ENTRY ORDER
Title: Motion to Dismiss (Motion: #2)
Filer: David W. Rugh, Esq.
Filed Date: April 10, 2026
Cross-Motion Regarding Motion to Dismiss, filed on May 11, 2026, by Kenneth C. Minck.
Memorandum in Opposition to Cross-Motion and in Support of Motion to Dismiss, filed
on May 20, 2026, by David W. Rugh, Esq.
Reply in Support of Cross-Motion and in Opposition to Motion, filed on May 26, 2026, by
Kenneth C. Minck.
The motion is GRANTED.
In this matter, Kenneth Minck appeals the zoning bylaw adopted by the Town of Georgia
(Town) Selectboard on October 13, 2025. Through his Statement of Questions, filed February 6,
2026, Mr. Minck challenges whether amended provisions of the zoning bylaws comply with the
Vermont Shoreland Protection Act (SPA) (Questions 1 and 2) and whether a reduction in lot size in
a zoning district is inconsistent with the applicable Town Plan (Question 3). The Town moves to
dismiss this appeal as outside the scope of this Court’s jurisdiction. Mr. Minck opposes the motion.1
When considering a motion to dismiss for lack of subject matter jurisdiction, the Court applies
the standards within V.R.C.P. 12(b)(1). The Court accepts all uncontroverted factual allegations as
true and construes them in the light most favorable to the nonmoving party, here Mr. Minck.
Rheaume v. Pallito, 2011 VT 72, ¶ 2, 190 Vt. 245.
This Court is one of limited jurisdiction. See 4 V.S.A. § 34. There are various challenges a
party can make to a municipality’s zoning regulations. Not all of those challenges are within the scope

1 On May 11, 2026, Mr. Minck filed a “cross-motion” to the Town’s motion to dismiss. Given that Mr. Minck

opposes dismissal of this appeal and his motion functionally requests that the Court decline to dismiss the docket, the
Court interprets his “cross-motion” as an opposition to the Town’s motion to dismiss.

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of this Court’s jurisdiction. First, a party can make a facial constitutional challenge to a zoning
regulation without appealing a specific zoning decision. The Civil Division, not this Court, has
jurisdiction over such cases. See 24 V.S.A. § 4472(b). Conversely, a party can make a constitutional
challenge to a zoning regulation in this Court as-applied within the context of a case that already falls
within the scope of this Court’s jurisdiction, like an appeal of a decision on a permit application. See
e.g., In re Appeal of JAM Golf, LLC, 2008 VT 110, ¶ 17, 185 Vt. 201; see also 24 V.S.A. § 4472(b).
There is no allegation that Mr. Minck makes any constitutional challenges to the Regulations. Thus,
the Court briefly touches on these types of challenges for the sake of completeness.
Having outlined constitutional challenges, the Court now turns to statutory challenges to
zoning regulations. The Vermont Supreme Court in Gould v. Town of Monkton, 2016 VT 84, held
that a “statutory challenge is governed by 24 V.S.A. § 4472(a), and our case law concerning the effect
of that statute is clear: suits that challenge the procedural enactment of municipal planning laws must
be brought before the Environmental Division.” Id. at ¶ 16 (citing Harvey v. Town of Waitsfield, 137
Vt. 80, 83 (1979) overruled on other grounds 161 Vt. 562 (1993) and 24 V.S.A. § 4472(a)).
It is not clear to the Court that this matter concerns “the procedural enactment” of the
Regulations. With respect to the matter as raised in Mr. Minck’s Statement of Question and Notice
of Appeal, for the reasons set forth below, it appears highly likely that no aspect of this appeal concerns
the procedural enactment of the challenged bylaws. Even assuming that were the case, this Court’s
precedent makes clear that a challenge contemplated by Gould must first involve an appeal to the
appropriate municipal panel, then an appeal to this Court. See Bennington Plan Entergy Element,
No. 20-2-18 Vtec, slip op. at 5–6 (Vt. Super. Ct. Envtl. Div. July 11, 2018) (Walsh, J.) (citing 24 V.S.A
§§ 4465(a), 4471(a), 4472(a)).
Mr. Minck’s notice of appeal states he is appealing the adoption of the Regulations by the
Selectboard. The Selectboard is not an appropriate municipal panel under 24 V.S.A. § 4465, and can
only be so considered when it acts as “a legislative body performing development review.” Id. at 6.
Adopting the amended Regulations is a legislative act, not one of development review. Thus, no
cognizable appeal to or from an appropriate municipal panel to this Court exists under these
circumstances.
On March 10, 2026, Mr. Minck moved to amend his Statement of Questions. The document
states that his appeal is against the Town’s Planning Commission who “approved” the zoning
amendment in September 2025. First, this is inconsistent with his Notice of Appeal, which states that
he is appealing the amendment “passed by the Georgia [S]elect [B]oard” on October 13, 2025, Notice

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of Appeal (filed Dec. 5, 2025), not the Planning Commission’s approval a month earlier. The motion
does not seek to amend the notice of appeal. Second, the Planning Commission does not adopt the
bylaw or amendment. Under Vermont law, the Planning Commission may direct the preparation of
a bylaw or amendment thereof. See 24 V.S.A §4441(a). It submits the proposed bylaw or amendment
and a written report to the legislative body of the relevant municipality, here the Selectboard. See 24
V.S.A. § 4441(g). After certain process, the Selectboard, not the Planning Commission, adopts a
bylaw or amendment. See 24 V.S.A. § 4442. While the Planning Commission’s report may be a part
of the process for the adoption of the amended regulations, the report is not the document or act that
adopts the amended zoning regulations. Thus, Mr. Minck cannot challenge the Regulations that were
ultimately adopted by attempting to challenge the Planning Commission’s approval of the report
addressing the adoption of the amended Regulations. This is because the Planning Commission is
not the relevant actor for formally adopting the zoning regulations Mr. Minck seeks to challenge.
Therefore, in this Court’s view, the report does not qualify as an appealable decision in the context of
the ultimate adoption of the amended Regulations.2
Next, Mr. Minck argues that the Planning Commission’s vote to approve the report on the
amended regulations was improper due to a conflict of interest such that the Regulations adopted by
the Selectboard are invalid. First, as set forth above, the report is one component that leads to the
adoption of the amended Regulations. Thus, a vote on this report, which does not adopt any given
set of regulations, does not appear to present grounds to appeal or otherwise challenge the amended
Regulations before this Court. Those regulations were ultimately adopted by the Selectboard
separately.
Second, concerns related to the Planning Commission vote are not properly raised before the
Court through Appellant’s Statement of Questions. Again, as set forth above, this Court is one of
limited jurisdiction. 4 V.S.A. § 34. The scope of our review of any given matter is further limited to
the legal issues preserved for our review by an appellant’s Statement of Questions. See. V.R.E.C.P.
5(f); 10 V.S.A. § 8504(h). The Court is therefore confined to those issues raised in Appellant's
Statement of Questions and cannot consider issues beyond the Questions. See Vill. Of Woodstock v.
Bahramian, 160 Vt. 417, 424 (1993). This review, however, does include matters intrinsic to the

2 For this reason, amendment, whether of the Statement of Questions or Notice of Appeal, would be futile and

the motion is DENIED. What’s more, Mr. Minck’s opposition to the pending motion states that he appealed the Planning
Commission’s decision on September 10, 2025. This gives the Court pause because the Planning Commission vote that
he takes issue with did not occur until September 13, 2025.

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Statement of Questions. In re LaBerge NOV, 2016 VT 99, ¶ 15 (citing In re Jolley Assocs., 2006 VT
132, ¶ 9, 181 Vt. 190); see also In re Atwood Planned Unit Dev., 2017 VT 16, ¶17.
Both iterations of Mr. Minck’s Statement of Questions indicate that he is seeking “a repeal of
the zoning bylaw adopted October 23, 2025 because of non-compliance with state statutes.”
Statement of Questions (filed Jan. 12, 2026); Revised Statement of Questions (filed Feb. 6, 2026).
Both go on to list the provisions of the statewide Shoreline Protection Act that Mr. Minck asserts
conflict with the amendment, as well as alleged inconsistencies between the Regulations and the
applicable Town Plan. Id. Assertions that the Planning Commission’s vote was improper in any
capacity are not explicitly raised in the Questions, nor are they intrinsic to any Question. Thus, the
assertion is beyond the scope of the Court’s review in this appeal.3
Finally, on May 26, 2026, Mr. Minck filed a portion of a petition of registered voters pursuant
to 24 V.S.A. § 4442(d) regarding the Selectboard’s adoption of the amendment.4 The Court held a
motion hearing on June 8, 2026 to discuss aspects of the petition that were unclear from the filing.
This petition does not alter the Court’s decision. It remains the case that this Court lacks jurisdiction
over an appeal of the Selectboard’s act. Section 4442(d) sets forth a process by which a group of
voters in a municipality may hold a vote at a public meeting on the effectiveness of the amendment.
That process remains legislative and outside the scope of this Court’s jurisdiction. To the extent that
Mr. Minck asserts that a § 4442(d) petition constitutes an “appeal to an appropriate municipal panel”
as discussed in Bennington Plan Entergy Element, the Court disagrees. No. 20-2-18 Vtec, slip op. at
5 (July 11, 2018) (Walsh, J.). The petition is neither an appeal to this Court, generally, nor to the
Town’s appropriate municipal panel or Planning Commission. The petition is a separate legislative
process outside this Court’s appellate process and does not go to an appropriate municipal panel but
instead, if properly filed, provides an avenue for an electoral process.
Thus, for these reasons, the Court lacks jurisdiction over Mr. Minck’s action. The Town’s
motion to dismiss is GRANTED and this matter is DISMISSED.5

3 Because the issue has not been raised in this appeal, the Court does not rule upon whether the vote was improper

due to an alleged conflict or whether the alleged conflict created any procedural deficiency in the adoption of the
amendment. The Court notes that it is unclear whether any issues with the vote on the Planning Commission’s report
would fall within the ambit of a statutory challenge to “the procedural enactment” of the amended regulations such that
it would be within the scope of this Court’s jurisdiction.
4 It is undisputed that the petition was not signed by the requisite amount of voters.

5 The Town asserts that Mr. Minck lacks standing to appeal the Regulations to this Court. Because the Court

concludes it lacks jurisdiction over the substance of the claim, the Court need not reach the issue of Mr. Minck’s standing.
Mr. Minck asserts that he has standing to appear before this Court because he owns property within the zoning district

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This concludes the matter before the Court. A Judgment Order accompanies this Entry
Order.
Electronically signed June 11, 2026 pursuant to V.R.E.F. 9(D).

Thomas G. Walsh, Judge
Superior Court, Environmental Division

that is the subject of Question 3. The Court notes that he has presented no allegation that he owns property within the
district or area impacted by the changes in the shoreland area challenged by Questions 1 and 2.

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