53 North Pleasant Street Denial - Decision on Motion

VERMONT SUPERIOR COURT
Environmental Division Docket No. 23-ENV-00124
32 Cherry St, 2nd Floor, Suite 303,
Burlington, VT 05401
802-951-1740
www.vermontjudiciary.org

53 North Pleasant St. Denial

ENTRY ORDER
Title: Motion to Deny Town of Middlebury’s Participation (Motion: 1)
Filer: Kevin E. Brown, Esq.
Filed Date: January 9, 2024
Memorandum in Opposition filed by Benjamin W. Putnam, Esq. on January 18,
2024.
The motion is DENIED.
This is an on-the-record appeal of a October 10, 2023 decision of the Town of
Middlebury Development Review Board (DRB) denying Richard Tinsley’s (Applicant)
application to covert the second floor of a garage at property located at 53 North Pleasant
Street, Middlebury, Vermont (the Property) into a recreational room for residential
tenants. Presently before the Court is Applicant’s motion to deny the Town of
Middlebury’s (Town) participation in this appeal. The Town opposes the motion.
The motion does not state what rule it is being made pursuant to, but the Court
interprets the motion as to dismiss the Town for lack of standing to appear before the
Court. Because standing is an element of subject matter jurisdiction, we review a motion
to dismiss for lack of standing pursuant to V.R.C.P. 12(b)(1). Parker v. Town of Milton, 169
Vt. 74, 76 (1998); V.R.C.P. 12(b)(1). In considering a Rule 12(b)(1) motion, we accept “all
uncontroverted factual allegations… as true and construe [them] in the light most
favorable to the nonmoving party.” Rheaume v. Pallito, 2011 VT 72, ¶ 2, 190 Vt. 245 (citing
Jordan v. State Agency of Transp., 166 Vt. 509, 511 (1997)).
To appeal a zoning permit to this Court, one must be an interested person as that
term is defined by 24 V.S.A. § 4465(b)(1)—(5). An interested person in this context
includes “[t]he municipality that has a plan or a bylaw at issue in an appeal brought under
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this chapter . . . .” 24 V.S.A. § 4465(b)(2). Appealing a decision, however, is not the only
means by which a person or entity may participate in proceedings before this Court.
Pursuant to 10 V.S.A. § 8504(n), “[a]ny person may intervene in a pending appeal if that
person . . . is a party by right.” A party by right includes “the municipality in which the
project site is located . . . .” 10 V.S.A. § 8502(5)(C).
The Court has addressed the differences between these two provisions as they
relate to municipalities in In re Champlain Oil Co. & MacDuff. No. 19-2-16 Vtec (Vt. Super.
Ct. Envtl. Div. Aug. 1, 2016) (Walsh J.). In that case, when concluding the at-issue
municipality lacked standing to appeal the underlying decision to this Court, the Court
specifically noted that:
We pause to note that the standing requirement we discuss
in this opinion—that [a] town plan or bylaw be “at issue”—
applies only when a town appeals a decision of a municipal
panel; it does not apply when towns participate as
interested parties in municipal appeals initiated by other
parties with standing because, under Title 10, towns may
intervene as “parties by right” in appeals of projects within
their borders. See 10 V.S.A. § 8504(n)(2) (allowing parties by
right to intervene in municipal appeals); 10 V.S.A. §
8502(5)(C) (defining “party by right” as, among others, “the
municipality in which the project site is located, and the
municipal and regional commissions for that
municipality.”).
Id., slip op. at 3 (emphasis in original).
Unlike the municipality in Champlain Oil Co., the Town is not an appealing party
in this matter and, therefore, the provisions of § 4465(b) are not the operative law.
Instead, the Town’s participation is governed by §§ 8502 and 8504. The Town is a party by
right because it is the municipality in which Applicant’s project is located. The Town may
participate in the appeal in this capacity. Thus, Applicant’s motion to deny the Town’s
participation before this Court is DENIED.
Electronically signed this 1st 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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