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STATE OF VERMONT 

ENVIRONMENTAL COURT 

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In re Martin & Perry, LLC } Docket No. 222-10-08 Vtec 

Final Plat Application } 

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Decision on Motions for Reconsideration & Clarification

Applicant Martin & Perry, LLC (“Applicant”) appealed a decision by the Town of 

Westford Planning Commission (“Commission”), which denied Applicant’s request for final plat 

approval of a three-lot subdivision along Route 128 in Westford, Vermont. The narrow issue 

raised in the appeal was whether Applicant’s final plat application complies with the steep slopes 

provisions in §§ 6.1.1 and 7.9.7 of the Town of Westford Subdivision Regulations 

(“Regulations”). Applicant is represented by Vincent A. Paradis, Esq.; the Town of Westford 

(“Town”) is represented by Joseph S. McLean, Esq. 

On August 13, 2009, the Court issued an Interim Decision (“Decision”) on the Town’s 

then-pending summary judgment motion in which we determined that Regulations §§ 6.1.1 

and 7.9.7 did not absolutely prohibit all development of steep slopes with a grade greater than 

twenty-five percent. In re Martin & Perry, LLC, Final Plat Application, No. 222-10-08 Vtec, 

slip op. at 5–6 (Vt. Envtl. Ct. Aug. 13, 2009) (Durkin, J.). We also concluded that whether 

Applicant was entitled to a waiver from the requirements of §§ 6.1.1 or 7.9.7 was a legal issue 

not properly before the Court. Id. at 7. Applicant had not submitted a list of requested waivers 

as part of its original application, as specifically required under Regulations § 5.1(18). 

Therefore, the Commission had not considered the waiver request in its proceedings, thereby 

negating this Court’s ability to consider Applicant’s waiver request on appeal. Id. at 6–8. We 

then invited Applicant to advise the Court if it wished to proceed to trial without the Court 

considering a waiver request. Id. at 8. In filings after our Decision, Applicant advised that it did 

not wish to proceed to trial at this time, but rather wished to submit a list of requested waivers for

consideration by the Commission. 

After Applicant notified the Court that it wished to seek a waiver under § 5.1(18) before a 

trial on the merits of its subdivision application, the Town filed two separate motions seeking 

reconsideration and clarification of the August 13 Decision. In its first motion, the Town has 

asked the Court to reverse its interpretation of Regulations §§ 6.1.1 and 7.9.7, contending that 
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these provisions unconditionally prohibit all development of steep slopes greater than twentyfive percent. In its second motion, the Town contends that our decision on the waiver issue was 

inappropriate, maintaining that Applicant is precluded from now submitting a list of waivers. 

The Applicant has filed responses in opposition to both motions. 

We first note that the Town’s motions for reconsideration are not specifically governed 

by Vermont Rules of Civil Procedure 59 or 60 because our August 13 Decision did not result in a 

final judgment; these procedural Rules only pertain to judgments after trial or verdict. In re 

Sisters & Bros. Inv. Group, LLP, No. 106-5-06 Vtec, slip op. at 1 n.1 (Vt. Envtl. Ct. June 27, 

2007) (Durkin, J.), aff’d, 2009 VT 58. Rather, reconsideration of our Decision is governed by 

this Court’s inherent power to reconsider interim decisions to avoid error or manifest injustice. 

See e.g., In re Mastelli Constr. Application, No. 220-10-07 Vtec, slip op. at 1 (Vt. Envtl. Ct.

Nov. 14, 2008) (Durkin, J.), aff’d, Supreme Ct. No. 2009-072 (Sept. 4, 2009) (unpub. mem.). 

Nevertheless, the standards behind Rules 59 and 60 guide our analysis by analogy. 

Motions to reconsider serve the narrow purpose of giving a trial court the opportunity to 

respond to an intervening change in controlling law, the availability of new evidence not 

previously available, or the need to correct a clear error of law or to prevent manifest injustice. 

In re Vanishing Brook Subdiv., No. 223-10-07 Vtec, slip op. at 4 (Vt. Envtl. Ct. July 10, 2008) 

(Wright, J.) (citing 11 Wright, Miller, & Kane, Federal Practice and Procedure: Civil 2d § 2810.1 

(construing F.R.C.P. 59)). They should “not be used to relitigate old matters, or raise arguments 

or present evidence that [was or] could have been raised prior to entry of the judgment.” Id. 

Disagreement between the moving party and the Court is not grounds for reconsideration. In re 

Rivers Dev., LLC Appeals, Nos. 7-1-05 Vtec, 183-8-07 Vtec, 248-11-07 Vtec, & 157-7-08 Vtec, 

slip op. at 5 (Vt. Envtl. Ct. Nov. 21, 2008) (Durkin, J.). Given this strict standard of review, 

motions to reconsider are rarely granted. Id. We review both of the Town’s pending motions in 

this light. 

In its first motion, the Town has asked us to reconsider and reverse our interpretations of 

Regulations §§ 6.1.1 and 7.9.7. In our August 13 Decision, we rejected the Town’s assertion that 

Applicant’s subdivision proposal did not comply with Regulations §§ 6.1.1 and 7.9.7 as a matter 

of law. In rendering this determination, based upon a view of the facts in a light most favorable 

to Applicant, as the non-moving party, we noted that Applicant asserted that “the Town cannot 

show that [Applicant’s] proposal has any roadways, building sites or utilities on a grade 
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exceeding 25%.” Decision at 3 (quoting Applicant’s Resp. to Town’s Mot. for Summ. J. at 5–6). 

Other statements from Applicant seemed to concede that some portion of its development would 

occur upon or impact slopes in excess of twenty-five percent, but we made the final 

determination that summary judgment was not then appropriate, since material facts appeared in 

dispute. Id. at 3–4. 

We further rejected the Town’s argument that Regulations §§ 6.1.1 and 7.9.7 provide an 

absolute bar to Applicant’s proposal, concluding that neither provision used language sufficiently 

clear to give an average person reasonable notice of an absolute prohibition on all development 

of steep slopes. Id. at 5–6. The Town asserts in its first motion that we erred in our legal 

interpretation of Regulations §§ 6.1.1 and 7.9.7. 

We have reconsidered our legal interpretation of Regulations §§ 6.1.1 and 7.9.7 and 

concur that our legal analysis was incorrect. While we continue to believe that Regulations 

§ 6.1.1 is “far from a model of clarity,” id. at 4, we take this opportunity to correct our rejection 

of established rules of statutory construction and interpretation. 

First, in regards to Regulations § 6.1.1, our prior legal conclusion that its last phrase 

(“which will reasonably be harmful to the safety, health, and general welfare of the present or 

future inhabitants of the subdivision and/or its surrounding areas”) modifies all nine prior 

phrases, and not only the immediately preceding phrase (“or other features”), directly contradicts 

an established rule of statutory construction: the last antecedent rule. Under the last antecedent 

rule, “a limiting clause or phrase . . . should ordinarily be read as modifying only the noun or 

phrase that it immediately follows,” not each of the preceding nouns in a list. Barnhart v. 

Thomas, 540 U.S. 20, 26 (2003). We now realize that these last two phrases actually constitute a 

single last phrase, since they are not separated by a comma or other punctuation. See In re Estate 

of Cote, 2004 VT 17, ¶ 7, 176 Vt. 293 (explaining the exception to the last antecedent rule). We 

conclude that our prior legal conclusion was in error and that this final phrase should be read as 

one of nine references where “land shall not be subdivided.” Regulations § 6.1.1. The portion of 

this ordinance that may control Applicant’s subdivision application should be read as follows: 

Land shall not be subdivided in such a way that building, including structures, 

roads, and utilities, occurs on land that is unsuitable due to . . . steep slopes 

greater than 25% . . . . 

Id. Such an interpretation of Regulations § 6.1.1 is more appropriate and aligned with accepted 

rules of statutory construction than the interpretation we announced in our prior Decision. 
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Similarly, we now recognize that we conflated the phrases “lot layout” and 

“development” in our prior interpretation of Regulations § 7.9.7. Decision at 5–6. The former 

phrase is used in the first sentence of Regulations § 7.9.7, which provides direction on what 

should be “considered”; the latter phrase is used in the second sentence, which make the 

following specific determination: “[s]teep slopes of 25% grade or grater are unsuitable [for] 

development of structures, roads, and public utilities.” Regulations § 7.9.7. Our conflation was 

in error; we now recognize that these two sentences should be read separately and afforded their 

own interpretation. 

We regret our incorrect prior legal interpretation of these regulatory provisions and take 

this opportunity to correct this error. Rule 60 affords the opportunity for relief from “mistakes,” 

which is a wholly separate basis for relief from the “newly discovered evidence” provisions of a 

later subsection. Compare V.R.C.P. 60(b)(1) and (2). Thus, while the Town has repeated and 

expanded upon the legal arguments it offered in its initial motion for summary judgment, we 

may entertain such arguments again when asked to reconsider a mistake in our prior legal 

determination. We do so here. 

Our correction here should not, however, be regarded as a reversal of the legal outcome, 

because we continue to be left with our determination that material facts remain in dispute as to 

whether Applicant’s proposed subdivision will cause the “building, including structures, roads, 

and utilities” or “development of structures, roads, and public utilities” that is prohibited on steep

slopes of twenty-five percent or greater by Regulations §§ 6.1.1 and 7.9.7. Further, as noted by 

the Town in its first motion, the barrier against such building or development may be avoided 

when an appropriate waiver request is granted under Regulations § 5.1(18). Whether Applicant 

may now seek such a waiver request is the subject of the Town’s second motion. 

In its second motion for reconsideration, the Town asks us to reconsider and clarify our 

decision regarding whether Applicant could seek a waiver of the steep slopes requirements 

contained in Regulations §§ 6.1.1 and 7.9.7. Our Decision announced a determination that 

whether Applicant could obtain such a waiver was a legal issue not properly before the Court, 

since Applicant had not sought such a waiver with its original application. Decision at 7. We 

opined that a waivers request would be a substantial change to Applicant’s application, not yet 

considered by the appropriate municipal panel below, and therefore not appropriate for the Court 

to consider in the first instance. Id. at 7–8 (citing In re Sisters & Bros. Inv. Group, 2009 VT 58, 
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¶¶ 19–21). We then invited Applicant to notify the Court if it wished to proceed to trial on its 

pending subdivision application without the benefit of a waiver request having been considered 

by the Planning Commission in the first instance. Id. at 8. On August 18, 2009, Applicant 

notified the Court that it wished to first submit a waiver request. 

The Town contends that it is inappropriate to allow Applicant to submit a request for 

waivers from Regulations §§ 6.1.1 and 7.9.7 to the Planning Commission (which has since been 

replaced by the Development Review Board (“DRB”)). The Town argues that the successiveapplication doctrine precludes Applicant from now seeking waivers when its original application 

omitted any waiver requests. Moreover, the Town posits that the doctrines of res judicata and 

collateral estoppel bar the relitigation Applicant now seeks, after a waiver request is first 

considered below. Finally, the Town argues that a waiver is unwarranted without first 

establishing noncompliance with the Regulations.1 For the following reasons, we seek to clarify 

our prior Decision, but conclude that its final outcome should remain unchanged. 

To begin, we note that the Town seeks a determination that any waiver request Applicant 

might file in the future with the DRB should be dismissed under the various doctrines prohibiting 

relitigation. We reject this argument, or rather decline to rule upon it, for two reasons. First, 

whatever waiver request Applicant may submit with its revised subdivision application is not 

presently before us and has yet to be acted upon by the appropriate municipal panel below. Our 

jurisdictional authority is limited to that which has first been reviewed by the appropriate 

municipal panel below; consideration of a land use application in the first instance on appeal 

would be improper. In re Torres, 154 Vt. 233, 235 (1990). Second, to render a determination 

upon an application not currently presented in this appeal could only be classified as an advisory 

opinion. Such advisory opinions “are outside our jurisdictional power.” In re 232511 

Investments, Ltd., 2006 VT 27, ¶ 19, 179 Vt. 409 (quoting In re Bennington Sch., Inc., 2004 VT 

6, ¶ 19, 176 Vt. 584 (mem.)). Our Constitution confers upon our courts a limited judicial 

authority: “the right to determine actual controversies arising between adverse litigants.” In re 

Bennington Sch., Inc., 2004 VT 6, ¶ 19 (quoting In re Constitutionality of House Bill 88, 115 Vt. 

524, 529 (1949). To render the advisory opinion that the Town now seeks, that a revised 

subdivision application including a list of waiver requests should be barred by the doctrine of 

 

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 In fact, a determination of nonconformance with regulations § 6.1.1 and 7.9.7 was already made by the 

Commission below; it was that determination that Applicant appealed to this Court. 
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improper successive applications, would be an advisory opinion and improper. We are therefore 

compelled to DENY the Town’s request. 

In light of our decision today, it is necessary to explain the consequences of Applicant’s 

August 18 letter. As we have explained, a list of requested waivers was not included in the 

original application appealed to this Court. We understand Applicant’s letter to be an indication 

that Applicant wishes to submit a new subdivision application, this time containing a waiver 

request, to the appropriate municipal panel. It follows that Applicant does not wish to proceed 

with the application currently before the Court. It is therefore appropriate to DISMISS the 

pending application and appeal, without prejudice to either party’s right to raise legal arguments 

in support of or in opposition to the revised subdivision application. If and when such an 

application is presented for our review on appeal, we will address the legal issues then properly 

presented to us, thereby respecting the constitution limitations of this Court’s jurisdictional 

authority to only render decisions upon actual cases and controversies properly before us. 

Conclusion

For all the reasons more fully discussed above, we have reconsidered our prior Decision 

and offer the clarification provided here. In light of Applicant’s desire to submit an application 

containing a list of requested waivers to the Town of Westford DRB, it is hereby ORDERED and 

ADJUGDED that this appeal is DISMISSED, without prejudice to either party’s right to raise 

legal arguments in support of or in opposition to the revised subdivision application. 

A Judgment Order accompanies this Decision. This completes the current proceedings 

before this Court. 

Done at Berlin, Vermont, this 22nd day of January 2010. 

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 Thomas S. Durkin, Environmental Judge