Bennington High, LLC Development Agreement Amendment - Decision on Motion

Yermont Superior Court
Filed 04/28/25
Environmental Division

VERMONT SUPERIOR COURT
Environmental Division Docket No. 25-ENV-00016
32 Cherry St, 2nd Floor, Suite 303,
Burlington, VT 05401
802-951-1740
www.vermontjudiciary.org REGRET Ft

Bennington High, LLC Development Agreement Amendment
ENTRY ORDER
Motion: Motion to Reconsider and/or Transfer
Filer: Michael J. Malone, Attorney for Appellant PLH Vineyard Sky, LLC
Filed Date: April 3, 2025
Memorandum in Opposition, filed on April 17, 2025 by Merrill Bent, Attorney for the Town of
Bennington
The motion is DENIED.
This is an appeal of an "Amended and Restated Development Agreement" (Agreement)
between the Town of Bennington (Town) and Hale Resources, LLC for the acquisition and
redevelopment of the former Bennington High School. The Town Selectboard voted to approve the

Agreement and to authorize its signing by the Town Manager at a warned special meeting on January
28, 2025. PLH Vineyard Sky, LLC (Appellant) has appealed this vote by the Selectboard to approve
a contract to this Court.

In a decision dated March 6, 2025, this Court granted the Town's motion to dismiss this appeal
for lack of subject matter jurisdiction. Bennington High, LLC Development Agreement Amendment,
No. 25-ENV-00016 (Vt. Super. Ct. Envtl. Div. March 6, 2025) (McLean, J.). Presently before the Court
is Appellant's motion to reconsider the Court's March 6 Decision, and/or to transfer this appeal to

the Civil Division of the Vermont Superior Court.

Discussion
Vermont Rule of Civil Procedure 59(e) governs motions to alter or amend judgments. The
Court considers such motions to be an "extraordinary remedy that should be used sparingly.
Mountain Top Inn & Resort JO, No. 23-3-17 Vtec, slip op. at 1 (Vt. Super. Ct. Envel. Div. Feb. 14,

2019) (Durkin, J.) (citation omitted). This Court will only grant a Rule 59(e) motion for one of four
reasons: "[1] to correct manifest errors of law or fact on which the decision was based, [2] to allow

the moving party to present newly discovered or previously unavailable evidence, [3] to prevent
manifest injustice, or [4] to respond to an intervening change in the controlling law.” Id. at 2 (quoting
In re Vanishing Brook Subdivision, No. 223-10-07 Vtec, slip op. at 4 (Vt. Envtl. Ct. July 10, 2008)
(Wright, J.) (quoting 11 C. Wright, A. Miller, & M. Kane, Federal Practice and Procedure: Civil § 2810.1
(2d ed. 1995)). Importantly, Rule 59(e) motions are “not intended as a means to reargue or express
dissatisfaction with the Court’s findings of fact and conclusions of law” and cannot “merely repeat[]
arguments that have already been raised and rejected by the Court.” Town Clarendon v. Houlagans
MC Corp. of VT., No. 131-10-17 Vtec, slip op. at 1 (Vt. Super. Ct. Envtl. Div. Apr. 10, 2014) (Walsh,
J.); Appeal of Van Nostrand, Nos. 209-11-04 Vtec, 101-5-05 Vtec, slip op. at 4 (Vt. Envtl. Ct. Dec. 11,
2006) (Durkin, J.).
Appellant’s motion seeks to relitigate an issue already determined by the Court and does not
cite to any grounds which would allow the Court to entertain such a motion to reconsider. Appellant’s
motion argues that this Court has jurisdiction over the Agreement pursuant to 24 V.S.A. § 4464(b)(5)
(authorizing the legislative body of a municipality to enter into an agreement governing the timing,
financing, and coordination of private or public facilities in accordance with the terms and conditions
of a municipal land use permit.). The Court directly addressed the inapplicability of § 4464(b)(5) in
the March 6 Decision. Specifically, we noted that the Agreement was not entered into in accordance
with the terms and conditions of an existing municipal land use permit.1 If Appellant disagreed with
this conclusion, its remedy was to appeal the March 6 Decision. Appellant’s motion does not argue
that the March 6 Decision was based on an error of law or fact or that it would result in manifest
injustice. Absent such a showing, we decline to reconsider the March 6 Decision.
Appellant’s motion devotes substantial attention to whether the Agreement conflicts with the
Bennington Land Use & Development Regulations (LUDR). These arguments are not relevant to
whether the Court should reconsider the March 6 Decision pursuant to V.R.C.P. 59(e). As previously
explained, the Agreement is not a zoning permit that authorizes land development to occur pursuant
to the provisions of the LUDR. Rather, the Agreement is a contract entered into between the Town
and a private party. Before any land development may lawfully occur, all necessary permits must be
obtained in accordance with the applicable provisions of the LUDR. Those permit decisions can be
appealed to this Court. The Court is not aware of any such permits having been appealed.

1 Appellant argues that the Agreement conflicts with an April 18, 2023 Zoning Permit issued by the Bennington

DRB. This unappealed Zoning Permit contains no terms or conditions which would apply to the Agreement at issue in
this appeal. Nor does the Agreement contain any reference to the Zoning Permit. Thus, we fail to understand the
relevancy of this Zoning Permit and its relationship to the Agreement.
In addition to the motion to reconsider, Appellant filed a document entitled “Second
Amended Notice of Appeal.” The document itself is 16 pages long and is accompanied by 12
separately filed exhibits. Despite its length, the document does not contain the required contents for
a Notice of Appeal by citing to the provisions under which Appellant claims party status. V.R.E.C.P.
5(b)(1).
In the Environmental Division, the Notice of Appeal functions as a pleading. In re Conlon
CU Permit, No. 2-1-12 Vtec, slip op. at 1 (Vt. Super. Ct. Envtl. Div. Aug. 30, 2012) (Durkin, J.).
Accordingly, a Notice of Appeal may only be amended pursuant to V.R.C.P. 15 (“Amended and
Supplemental Pleadings”). Under Civil Rule 15(a), Appellant was required to seek leave of the Court
before further amending the Notice of Appeal, which it did not do.2 Williamson Third Tier
Application, No. 55-4-12 Vtec, slip op. at 14 (Vt. Super. Ct. Envtl. Div. Oct. 7, 2013) (Walsh, J.)
(“Vermont Rules of Civil Procedure (V.R.C.P.) Rule 15(a) provides for leave of court to amend
pleadings when justice requires.”). Additionally, the Court is not aware of the grounds to amend a
notice of appeal after the appeal has already been dismissed. For these reasons, we decline to accept
or consider the Second Amended Notice of Appeal.
Lastly, Appellant asks that if the Court denies its motion to reconsider, that we transfer this
appeal to the Civil Division of the Vermont Superior Court. Appellant cites to no grounds that would
support transferring this appeal. The Vermont Legislature expressly contemplated that cases could
be transferred between divisions of the Vermont Superior Court, subject to rules promulgated by the
Vermont Supreme Court. 4 V.S.A. § 30(a)(2). To date, the Court is unaware of any such rules.
Furthermore, transfer of this case would be impractical since this case was initiated as an appeal arising
under Chapter 117 and was commenced by the filing of a notice of appeal. While we conclude that
we lack jurisdiction over the underlying decision, it does not make sense to transfer an attempted
appeal to the civil division. If Appellant disagrees with this Court’s legal conclusions, its remedy is to
appeal to the Vermont Supreme Court. If Appellant has a valid cause of action against the Town, it
may file a complaint in the Civil Division. Accordingly, we DENY Appellant’s request to transfer this
appeal to the Civil Division.
To conclude, Appellant has not cited to any grounds which would allow the Court to
reconsider its March 6, 2025 Decision. The March 6 Decision determined that the Agreement is a

2 Appellant filed its original Notice of Appeal on February 25, 2025. Six days later, on March 3, 2025, Appellant

filed its First Amended Notice of Appeal. Thereafter, Appellant filed a Second Amended Notice of Appeal on April 3,
2025. While Appellant’s initial amendment may have been allowed as a matter of course under V.R.C.P.15(a), its second
amendment required a motion under the Rule. V.R.C.P. 15(a). No such motion was filed with the Court.
private contract and is not an appealable decision under 24 V.S.A. § 4464(b)(5). Appellant has not
cited to any manifest errors of law or fact, newly discovered evidence, or manifest injustice resulting
from the March 6 Decision. Rather, Appellant was simply unaware of § 4464(b)(5) prior to the Court’s
discussion thereof, and Appellant now seeks to amend its pleadings and legal arguments by citing to
this provision for the first time. These are not sufficient grounds to reconsider the March 6 Decision.
Accordingly, Appellant’s motion is DENIED. Additionally, Appellant’s request to transfer this appeal
to the Civil Division is DENIED for the reasons discussed above.

Electronically signed on April 28, 2025, pursuant to V.R.E.F. 9(d).

Joseph S. McLean
Superior Court Judge
Environmental Division