210 Fishkill Permit Appeal - Decision on Motion

VERMONT SUPERIOR COURT
Environmental Division Docket No. 23-ENV-00130
32 Cherry St, 2nd Floor, Suite 303,
Burlington, VT 05401
802-951-1740
www.vermontjudiciary.org

210 Fishkill Permit Appeal

Motion: Emergency Motion to Dismiss (Motion: 7)
Filer: Alexander J. LaRosa, Esq.
Filed Date: November 23, 2024
Appellant’s Memorandum in Opposition, filed on November 24, 2024, by Scott Rank.
Reply in Support, filed on November 25, 2024, by Alexander J. LaRosa, Esq.
Town of Morristown Reply in Support of Motion and Opposition to Appellant’s Motion to Continue
Trial, filed on November 25, 2024, by L. Brooke Dingledine, Esq.
The motion is GRANTED.
In this matter, Scott Rank appeals a Town of Morrisville (Town) Development Review Board
(DRB) decision dated October 17, 2024 denying an appeal of Zoning Permit #2023-088. Zoning
Permit #2023-088 authorized Cordelia and Edward Ryan (Applicants) to host events on their farm as
an accessory on-farm business (the Project) at property having an address of 210 Fishkill Road,
Morrisville, Vermont (the Property). Presently before the Court is Applicants’ motion to dismiss Mr.
Rank on the grounds that he has sold his property in the immediate neighborhood of the Property
and Project and has since moved.1
A party's standing is a question of subject matter jurisdiction. Brod v. Agency of Nat. Res.,
2007 VT 87, ¶ 8, 182 Vt. 234. Therefore, the Court reviews Applicant’s motion under the standard
of review afforded by Vermont Rules of Civil Procedure (“V.R.C.P.”) Rule 12(b)(1). In re Main St.
Place LLC, Nos. 120-7-10 Vtec, 191-11-10 Vtec, et. al., slip op. at 2 (Vt. Super. Ct. Envtl. Div. Jun.
19, 2012) (Durkin, J.). That is, the Court accepts as true all uncontroverted factual allegations and

1 Applicants’ motion also addresses Amina Rank’s residence and standing. Ms. Rank is not a party to this action

and therefore, to the extent the motions address both Mr. and Ms. Rank, it is only Mr. Rank’s standing that is of import
to the present action.

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construes them in a light most favorable to the nonmoving party, Mr. Rank here. Rheaume v. Pallito,
2011 VT 72, ¶ 2, 190 Vt. 245.
An interested person who has participated in a municipal regulatory proceeding may appeal
the resulting to this Court. See 24 V.S.A. § 4471. Pursuant to 24 V.S.A. § 4465(b)(3), as applicable
here, an “interested person” is:
A person owning or occupying property in the immediate
neighborhood of a property that is the subject of any decision or act
taken under this chapter, who can demonstrate a physical or
environmental impact on the person's interest under the criteria
reviewed, and who alleges that the decision or act, if confirmed, will
not be in accord with the policies, purposes, or terms of the plan or
bylaw of that municipality.
24 V.S.A. § 4465(b)(3).
Section 4465 is specific to current landowners or occupiers of property in the immediate
neighborhood of a subject property. In re Shuyler NOV, No. 29-2-12 Vtec, slip op. at 3 (Vt. Super.
Ct. Envtl. Div. May 30, 2012) (Walsh, J.). This is because “affording interested person status to a past
owner or occupier could lead to absurd results because a past owner or occupier’s interest may be
adverse to those of a current owner or occupier.” Id. Further, while “immediate neighborhood” is
not defined by statute, in order to determine whether a property is in the immediate neighborhood of
a proposed project we “will consider the physical environment surrounding the project and the nexus
between the project, the potential party, and the potential” party's property. Two Bad Cats, LLC
Conditional Use, No. 169-12-14 Vtec, slip op. at 3 (Vt. Super Ct. Envtl. Div. May 29, 2015) (Walsh,
J.) aff'd. No. 2015-238 (Nov. 19, 2015) (unpub. mem.) (citations omitted). Distance between the
potential party's property and the proposed project is one factor that we consider in determining
“whether the party potentially could be affected by any aspects of the project which have been
preserved for review on appeal.” Id. (internal quotations omitted); see also In re Bostwick Rd.-2 Lot
Subdivision & Final Plan Application, No. 2006-128, slip op. at *2-3 (Jan. 2007) (unpub. mem.)
(affirming Environmental Court's decision that party's property was not in the immediate
neighborhood of a proposed project because the properties were not adjacent; they were separated by
“extensive acreage, dense vegetation, and rolling hills” so that one was not visible from the other; and
because there was no indication that traffic would be affected).
Applicants allege, and Mr. Rank does not legitimately dispute, that he sold his property that
was in the immediate neighborhood of the Property and has since moved out of Morrisville to Stowe.
To the extent that Mr. Rank alleges that he may be able to retain his appeal because he was a past

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owner or occupier of property in the immediate neighborhood of the Property, his past ownership
and occupation of a property in the immediate neighborhood of the Project does not afford him
standing after he has sold such a property and moved from the area. Shuyler NOV, No. 29-2-12 Vtec,
slip op. at 3 (May 30, 2012) (Walsh, J.). Thus, to the extent that Mr. Rank asserts that he retains
interested person status based on his past ownership of his previous residence, § 4465 is limited to
current, not past, ownership or occupation.
Further, Applicants assert that Mr. Rank’s new residence is outside the immediate
neighborhood of the subject property and Mr. Rank does not assert that his new residence is within
the immediate neighborhood of the Property or dispute Applicants’ assertion to the contrary. Thus,
it appears undisputed that Mr. Rank’s new property is outside of the immediate neighborhood of the
Property.
To the extent, however, that Mr. Rank asserts that his new property is within the immediate
neighborhood such that he may maintain his appeal, we conclude that it is not. Applicants reply in
support of the pending motion shows that Mr. Rank’s new home is approximately one mile from the
Property “as the crow flies,” and is more than 4 miles away from the Property by car. While distance
itself is not determinative of whether a property is within the “immediate neighborhood” of a subject
property, an aerial photo provided show there are extensive woodlands, fields, and development
between the Project and Mr. Rank’s new property, including Route 100. Mr. Rank does not assert
that he can see the Property from his new residence, or that he will be impacted from any aspect of
the Project at his new residence. He has therefore failed to provide any allegation to support that his
new residence in Stowe is within the immediate neighborhood of the Property and that the Project
will result in any impact to him at this location.
Instead, Mr. Rank asserts that he may maintain his suit “based on persistent environmental
concerns, which are inherently tied to the neighborhood despite changes in property ownership.”
Appellant Memorandum in Opposition (filed on Nov. 24, 2024). This assertion is connected to his
prior residence and neighborhood and not his current residence and neighborhood.2 For the reasons

2 The Court notes that Mr. Rank’s assertion and reasoning that he is entitled to maintain the appeal despite

moving from the immediate neighborhood, and the injury he seeks to present in this appeal, violate the long-standing
prohibition against third party standing. Put simply, Appellant does not have standing to assert the rights of others not
before the Court. See Baird v. City of Burlington, 2016 VT 6, ¶ 15, 201 Vt. 112; Bischoff v. Bletz, 2008 VT 16, ¶ 16, 183
Vt. 235. Further, this Court’s jurisdiction is limited to “actual cases and controversies.” Parker v. Town of Milton, 169
Vt. 74, 76—77 (1998). Read together, these cases address constitutional limitations that require that a party, here an
appellant, demonstrate injury in fact, causation, and redressability in order to have standing in court. Baird, 2016 VT 6,
¶ 13. Mr. Rank’s assertion in opposition to the pending motion is that he intends to raise alleged injuries and impacts to
those not before the Court in this appeal. Having moved from the immediate neighborhood and sold his property therein,

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set forth above, his prior ownership of property is insufficient to afford him standing to appeal the
underlying zoning decision to this Court. Thus, even construing the facts in a light most favorable to
Mr. Rank, we conclude that his new property is not in the immediate neighborhood of the Property.3
For the forgoing reasons, Applicants’ motion is GRANTED and Mr. Rank is DISMISSED.
This concludes the matter before the Court. A Judgment Order accompanies this Entry
Order.
Electronically signed this 26th day of November 2024, pursuant to V.R.E.F. 9(D).

Thomas G. Walsh, Judge
Superior Court, Environmental Division

Mr. Rank lacks standing at a broader level to raise alleged impacts to the neighborhood or its residents not before the
Court when he is no longer a resident thereof or owner of property therein.
3 The Court notes that Mr. Rank’s response to the pending motion requests both denial of the motion and a

postponement of this Court’s merits hearing, presently scheduled for next week, to allow him additional time to provide
an additional response to the pending motion. This request must be denied because additional time will not remedy the
fundamental flaws with Mr. Rank’s standing. First, that he no longer owns or occupies property in the immediate
neighborhood of the Project, which he largely does not dispute in his response to the pending motion. Second, that his
allegations of injury and standing in this appeal are based on his past ownership of such a qualifying property, which is not
grounds to afford him standing in this appeal and to raise issues on behalf of his former neighborhood.

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