Wheeler Parcel Act 250 Determination - Decision on Motion

VERMONT SUPERIOR COURT
Environmental Division Docket No. 22-ENV-00092
32 Cherry St, 2nd Floor, Suite 303,
Burlington, VT 05401
802-951-1740
www.vermontjudiciary.org

Wheeler Parcel Act 250 Determination
ENTRY ORDER

Title: Motion for Summary Judgment (Motion: 28)
Filer: James M. Leas, Alan Luzzatto, and Jeanne Zagursky
Filed Date: April 1, 2024

Memorandum in Opposition filed by Christopher D. Roy, Attorney for Blackrock
Construction, LLC, on April 12, 2024.
Neighbors Reply in Support of Motion filed by James M. Leas, Alan Luzzatto, and Jeanne
Zagursky on April 15, 2024.
The motion is DENIED.
This is an appeal of a District 4 Environmental Commission (District Commission)
decision approving an Act 250 permit issued to BlackRock Construction, LLC (BlackRock)
for the development of a 32-unit residential project at the intersection of Dorset Street and
Park Road in South Burlington, Vermont (the Project). Inverness Homeowners’ Association,
Glen Eagles Homeowners’ Association, Villas at Water Tower Hill Homeowners’
Association, Neighbors Committee to Stop Neighborhood Blasting, and James Leas
appealed the District Commission’s decision to this Court. 1 Presently before the Court is a
motion for an interlocutory appeal of the Court’s March 22, 2024 Decision on Motion for
Summary Judgment (the March Decision), filed jointly by Mr. Leas, Villas at Water Tower Hill

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Pursuant to this Court’s October 12, 2023 Decision on Motions and March 22, 2024 Decision on
Motion for Summary Judgment in this case, Inverness Homeowners’ Association and Glen Eagles
Homeowners’ Association have been converted from Appellant status to “For Informational Purposes Only”
such that they remain notified of all of the decisions in this docket, including this Entry Order. See In re Wheeler
Parcel Act 250 Determination, No. 22-ENV-00092 (Vt. Super. Ct. Envtl. Div. Oct. 12, 2023) (Walsh, J.); Wheeler
Parcel Act 250 Determination, No. 22-ENV-00092 (Mar. 22, 2024) (Walsh, J.).

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Homeowners’ Association, and Neighbors Committee to Stop Neighborhood Blasting
(together, Neighbors). Blackrock opposes the motion. In this matter, Mr. Leas is a Vermont
attorney representing himself in his individual capacity. Villas at Water Tower Hill
Homeowners’ Association has received approval to be represented by a non-attorney, Alan
Luzzatto. Neighbors Committee to Stop Neighborhood Blasting received similar approval
and is represented by Jeanne Zagursky.
Legal Standard
Interlocutory appeals are the exception to the typical rule limiting appellate
jurisdiction to the review of final judgments. In re Pyramid Co. of Burlington, 141 Vt. 294, 300
(1982). Interlocutory appeals are disfavored. Id. This is because they bypass the “weighty
considerations that support the finality requirement,” and result in “[p]iecemeal appellate
review [which] causes unnecessary delay and expense, and wastes scarce judicial
resources.” Id. To mitigate these concerns, the Vermont Rules of Appellate Procedure
(V.R.A.P.) have directed the Court to authorize such appeals only when the Court finds that:
(1) the order “involves a controlling question of law;” (2) there is “substantial ground for
difference of opinion” about that question; and (3) “an immediate appeal may materially
advance the termination of litigation.” V.R.A.P. 5(b)(1). A moving party’s failure to satisfy
any one of these criteria “precludes certification and appellate decision [. . . because]
appeal in such a case would contradict the purpose of V.R.A.P. 5(b).” Pyramid Co., 141 Vt.
at 302 (citing Castle v. Sherburne Corp, 141 Vt. 157 (1982)). With these legal standards in
mind, we turn to the merits of Neighbors’ motion.
Discussion
Neighbors assert that the following controlling question of law was addressed by the
Court in the March Decision and is the grounds for the basis of their motion: “Is the standing
of an appellant regarding the criteria in the case that was obtained automatically and/or by
order of this [C]ourt sufficient to establish their standing to raise concerns related to the
same criteria in this case?” Neighbors’ Motion for Interlocutory Appeal at 2 (filed on April 1,
2024). Neighbors assert that the Court reconsidered their standing in the March Decision.
Nothing within the March Decision considers, alters, or amends Neighbors’ standing.

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The Court is confused as to this proffered interpretation of the March Decision. The
March Decision on the motion for summary judgment did not impact any aspect of
Neighbors established standing in this case. The Court has again reviewed the March
Decision. The March Decision denied Neighbors’ motion for summary judgment in large part
on the grounds that Neighbors failed to meet their burden of supporting their own summary
judgment motion pursuant to V.R.C.P. 56 standards by establishing, through admissible
evidence, undisputed material facts that would be sufficient to allow this Court to grant
them judgment as a matter of law. 2 In so concluding, the Court stated:
Generally, Neighbors’ statement of undisputed material facts
seeks to lay out what Neighbors believe the applicable law is to
the issues before the Court and BlackRock’s evidence provided
with respect to its Project. Neighbors’ motion and supportive
filings, however, contains no specific record evidence as to how
the Project will impact Neighbors at their respective homes or
areas that they would have standing to raise concerns related
to these criterion. For example, no affidavits have been
provided to establish that Neighbors’ use of the nature park or
other area in the vicinity of the Project that would give rise to
their standing to raise these issues at this time. Further, and
more fundamentally, there is no record evidence as to the
location of any of their homes, or the homes of the members of
the respective organizations, relative to the Project.[] This is
foundational evidence that the Court must have to put the
provided record into context and analyze the Project under the
requisite Act 250 Criteria. The Court understands that
Neighbors are self-represented and may have believed that
such a fact was obvious, but the Court cannot fill in gaps in favor
of a moving party on summary judgment. The material facts
must be established by admissible evidence and the failure to
put the Project at all in context of their claims is deficient under
V.R.C.P. 56.[] Absent this record, the motion is merely
conclusory in its request for relief and the record is incomplete.

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The Court notes that the March Decision further concluded that the record on the motion presented
disputes of fact that would warrant denial of any summary judgment motion. See Wheeler Parcel Act 250
Determination, No. 22-ENV-00092, slip op. at n. 6 (Mar. 22, 2024) (Walsh, J.). While the pending motion clearly
disagrees with that conclusion, it is a factual one precluding both summary judgment and an interlocutory
appeal. See State v. McCann, 149 Vt. 147, 151 (1987) (quoting Pyramid Co., 141 Vt. at 304); accord Hubacz v.
Village of Waterbury, 2018 VT 37, ¶ 10 n.3, 207 Vt. 399 (“This Court's consideration of a question certified for
interlocutory review addresses only questions of law.”).

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Wheeler Parcel Act 250 Determination, No. 22-ENV-00092, slip op. at 4 (Mar. 22, 2024)
(Walsh, J.) (footnotes omitted).
This is the sole discussion of standing in the March Decision. It is simply a
demonstrative example of the deficiencies in Neighbors’ support for their motion. No
aspect of the decision required Neighbors to reprove their standing or reassessed the
standing previously established. Simply put, the Court noted that Neighbors were required
by Rule 56 to provide sufficient material facts established by admissible evidence to allow
the Court to establish that they were entitled to judgment as a matter of law. This would, for
example, include how the Project violates the Act 250 Criteria. 3 Neighbors failed to do so
when moving for summary judgment.
In sum, the March Decision contained no conclusion reassessing Neighbors’
standing. Neighbors retain standing under Criteria 1 (noise, particulates, exhaust, and
chemicals), 5A, 8 (aesthetics and noise), and 10. The March Decision was, instead, a
conclusion that Neighbors, as the moving party within the context of a motion for summary
judgment, failed to meet their burden in supporting such a motion. Thus, March Decision
did not involve the controlling question of law related to standing. The motion must fail. See
Pyramid Co., 141 Vt. at 302 (noting that the failure to satisfy any V.R.A.P. 5(b) criteria
precludes the certification of an interlocutory appeal) (citation omitted).

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We note that Neighbors’ argument is unclear. To the extent that they are asserting that, by virtue of
being granted party status under any Act 250 Criteria, they are able to raise impacts from the Project in areas
where they would not have standing, such that the Court’s notation that their failure to provide admissible
evidence of impacts personal to them and their members as grounds to deny their motion under Rule 56 was
an error of law with respect to the scope of their standing, this assertion is not a correct statement of the law.
It is well-established that Courts “do not allow third-party standing.” Baird v. City of Burlington, 2016 VT 6, ¶ 15,
201 Vt. 112; see also Warth v. Selding, 422 U.S. 490, 499 (1975) (explaining that a litigant “cannot rest his claim
to relief on the legal rights or interests of third parties.”); see also U.S. Dep’t of Labor v. Triplett, 494 U.S. 715,
720 (1990) (same); see also In re Sugar Mountain Holdings, LLC Act 250 Permit Amendment, No. 22-ENV-
00117, slip op. at 11 (Vt. Super. Ct. Envtl. Div. July 19, 2023) (Walsh, J.) aff’d 23-AP239 (unpub. mem.)
(interpreting the scope of party’s standing to raise issues in the context of their party status). Thus, even putting
to the side the fact that the Court did not rule on Neighbors’ standing, to the extent they assert that, by virtue
of retaining party status in this matter they may challenge the Project in any location, even those in which they
would not have standing, this does not present grounds for an interlocutory appeal. There are no substantial
grounds for a difference of opinion on the prohibition of third-party standing.

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Despite reaching this conclusion, the Court is compelled to address additional
grounds requiring denial of the pending motion.
First, to the extent that Neighbors generally challenge the March Decision’s
conclusion that they failed to meet their burden with respect to their motion for summary
judgment or the merits of their underlying motion, this is not a pure legal question that the
Vermont Supreme Court could accurately resolve absent the record proffered in support of
the summary judgment motion. See Pyramid Co. 141 Vt. at 304 ("A question of law is one
capable of accurate resolution by an appellate court without the benefit of a factual record.
If factual distinctions could control the legal result, the issue is not an appropriate subject
for interlocutory appeal.") (citations omitted). Similarly, the Court concurrently concluded
that there were disputes of fact that required the denial of the motion for summary
judgment. This is a factual distinction precluding an interlocutory appeal of the March
Decision. Because the March Decision was based on the record before the Court on the
motion and the substantive arguments Neighbors raise in their motion for interlocutory
appeal require a reassessment of that record, interlocutory review is improper.
Second, and most importantly in the context of the pending motion, Neighbors’
motion concedes that even if they were meritorious on both the pending motion and on
appeal to the Vermont Supreme Court additional litigation would be required to terminate
the appeal. They state a decision on the merits of summary judgment could be made on the
record if they succeeded on the pending interlocutory appeal on the proffered standing
grounds. This statement ignores the Court’s conclusion that there were material facts in
dispute that prohibited the Court from granting Neighbors summary judgment in addition to
the conclusion that the motion was procedurally deficient to allow the Court to grant them
judgment as a matter of law. Wheeler Parcel Act 250 Determination, No. 22-ENV-00092, at
n. 6 (Mar. 22, 2024). The Court fails to see how it would materially advance this litigation to
place the parties and the Court back into a position of denying a motion on such
fundamental factual grounds and needing to proceed with a trial on the merits following
Neighbors interlocutory appeal, even if it were to be successful. This is particularly true

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when this matter is set for a multi-day merits trial beginning May 6, 2024 4 at which point the
Court can address all the issues before the Court in an efficient and complete manner to
allow for final judgment and, if required, appeal of all issues raised by the parties in this
matter. To grant the pending motion would be to delay this long-scheduled trial and
significantly delay a final decision on the merits of the complete appeal. Thus, interlocutory
appeal in this case, particularly with trial three weeks away, would only result in delayed
litigation, waste significant judicial and party resources, and would materially delay the
termination of this already long-running litigation in terms of months, if not years. This
presents additional grounds to deny the pending motion. See V.R.A.P. 5(b)(1)(B) (noting that
an interlocutory appeal may only be granted when “an immediate appeal may materially
advance the termination of the litigation.”) (emphasis added).
For these reasons, the motion is DENIED. The Court reminds the parties that this
matter is set for an April 17th hearing on the pending motion to continue trial

Electronically signed this 15th day of April 2024, pursuant to V.R.E.F. 9(D)

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

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The Court notes that on April 10, 2024, Neighbors moved to continue trial. The Court has scheduled
a motion hearing on the issue for Wednesday, April 17, 2024

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