Hopkins Certificate of Compliance

ENTRY REGARDING MOTIONS 

Title: Motion for Summary Judgment (Motion 4) 

Filer: Bernard J. Boudreau 

Attorney: Self-represented 

Filed Date: March 29, 2019 

Response in Opposition filed on 04/28/2019 by Attorney Cristina L. Mansfield for Appellee 

Edward H. Hopkins 

Reply filed on 05/08/2019 by Bernard J. Boudreau, Appellant 

****************************************************************************** 

Title: Cross-Motion for Summary Judgment (Motion 5) 

Filer: Edward H. Hopkins 

Attorney: Cristina L. Mansfield 

Filed Date: April 28, 2019 

Response in Opposition filed on 05/08/2019 by Bernard J. Boudreau, Appellant 

The motions are MOOT. The matter is DISMISSED. 

 In April 2017, Edward Hopkins requested and received a permit from the Town of 

Manchester Department of Planning and Zoning allowing him to change the use of his property 

at 47 School Street in Manchester Center, Vermont, from a residence to a professional office. 

Bernard Boudreau, an adjoining property owner, participated in the permit review process. Mr. 

Boudreau’s participation primarily revolved around the evergreen plantings Mr. Hopkins 

proposed for screening along their shared property line. Presently before the Court are the 

parties’ cross-motions for summary judgment, which relate to the adequacy of the arborvitae 

screening planted by Mr. Hopkins relative to the terms of the permit and the Town of Manchester 

Zoning Ordinance (Ordinance). 

STATE OF VERMONT

SUPERIOR COURT ENVIRONMENTAL DIVISION

 Docket No. 108-10-18 Vtec
In re Hopkins Certificate of Compliance, No. 108-10-18 Vtec (EO on XMSJ) (06-20-2019) Page 2 of 5 

 While this Court evaluates cross-motions for summary judgment under the standards 

inherent to V.R.C.P. 56, we are always under the “independent obligation to determine whether 

subject-matter jurisdiction exists.” In re Verizon Wireless Barton Permit, No. 133-6-08 Vtec, slip 

op. at 8 (Vt. Envtl. Ct. May 20, 2009) (Durkin, J.) (quoting Arbaugh v. Y & H Corp., 546 U.S. 500, 

514 (2006)). Thus, “[w]henever it appears by suggestion of the parties or otherwise that the 

court lacks jurisdiction of the subject matter, the court shall dismiss the action.” V.R.C.P. 12(h)(3). 

 With this in mind, we begin with the procedural history relevant to this appeal, which has 

important implications for our jurisdiction over its subject matter. 

 Mr. Hopkins received his change of use permit on July 17, 2017. The permit, as well as 

the Town of Manchester Development Review Board’s (DRB) decision approving the application, 

went unappealed. 

 On January 30, 2018, the Zoning Administrator granted Mr. Hopkins a first Temporary 

Certificate of Compliance (First Temporary Certificate) for his property, which allowed Mr. 

Hopkins to use the building as a professional office while he continued to work to complete the 

exterior improvements required by the permit. The First Temporary Certificate denoted an 

expiration date of July 31, 2018, before which date Mr. Hopkins needed to obtain a final 

certificate of compliance. 

 On August 3, 2018, just after the expiration of the First Temporary Certificate, the Zoning 

Administrator issued Mr. Hopkins a second Temporary Certificate of Compliance (Second 

Temporary Certificate)—the decision that originated the present appeal. The Second Temporary 

Certificate sets an expiration date of July 31, 2019. 

 Mr. Boudreau filed his notice of appeal to the DRB on August 15, 2018. In a September 

20, 2018 decision, the DRB determined that the Zoning Administrator improperly granted the 

Second Temporary Certificate because it functioned as an impermissible extension of the First 

Temporary Certificate and, further, the requirements for a temporary certificate were not met. 

Having reached this conclusion, the DRB stated that “the Landowner must either come into full 

compliance with the Permit and approved Site Plan immediately[,] taking into consideration the 

following determinations, or cease use and occupancy of the Property until a Certificate of 

Occupancy has issued.” The DRB then went on to assess the property’s compliance with the 

permit and accompanying site plan. It determined that the arborvitae screening complied but 

other requirements—outdoor lighting, installation of a fence, and removal of a trailer—remained 

outstanding. The DRB then ordered compliance or disuse within 30 days. 

 Mr. Boudreau appealed that decision to this Court on October 15, 2018. On October 24, 

2018, while the present appeal was pending, the Zoning Administrator granted Mr. Hopkins a 

final certificate of compliance (Final Certificate). The Final Certificate was not appealed. 

 Turning to the present cross-motions, Mr. Boudreau claims that the arborvitae screening 

does not comply with the permit as interpreted with a view to the Ordinance, the municipal 

decisions leading to the permit’s approval, and representations made at the municipal hearings. 

Mr. Boudreau goes on to request summary judgment on the question of whether he is entitled 

to a writ of mandamus compelling the Town of Manchester (Town) to require Mr. Hopkins to 

install arborvitae screening conforming to the specifications Mr. Boudreau asserts. He also 
In re Hopkins Certificate of Compliance, No. 108-10-18 Vtec (EO on XMSJ) (06-20-2019) Page 3 of 5 

argues that the Court should declare the Final Certificate void as incorrect because the arborvitae 

screening is not in compliance. 

 Mr. Hopkins cross-moves, asserting that the arborvitae screening complies, there is no 

violation of the Ordinance or any other relevant authority, and Mr. Boudreau is not entitled to 

mandamus. 

 Though the parties did not brief the issue, our review of the record and the procedural 

history of this case gives rise to a threshold jurisdictional question of mootness that must be 

addressed.1

 For this Court to have jurisdiction, an appeal must involve an actual or “live” controversy 

between adverse litigants with a legally cognizable interest in the outcome of the case. Paige v. 

State, 2013 VT 105, ¶ 8, 195 Vt. 302; see also Chase v. State, 2008 VT 107, ¶ 11, 184 Vt. 430. A 

case becomes moot, and this Court loses jurisdiction, when there is no longer an actual 

controversy or any legally cognizable interest in the disposition. Id., ¶ 7 (citing In re S.H., 141 Vt. 

278, 280 (1982)). 

 We must dismiss issues or whole appeals for mootness because the Court is unable to 

grant effective relief. Paige, 2013 VT 105, ¶ 8 (quotation omitted). Any opinion we might issue 

would be only advisory and therefore unconstitutional. See Paige v. State, 2017 VT 54, ¶ 6, 205 

Vt. 287 (citing Doria v. Univ. of Vt., 156 Vt. 114, 117 (1991)). Significantly, even if an issue or 

claim was not moot when the appeal began, intervening events that occur after the appeal is 

launched can render the proceedings moot. See In re Collette, 2008 VT 136, ¶ 4, 185 Vt. 210; 

State v. Rooney, 2008 VT 102, ¶¶ 8-10, 184 Vt. 620; In re Moriarty, 156 Vt. 160, 163 (1991). 

 The parties both acknowledge the existence of the Final Certificate issued by the Zoning 

Administrator after the initiation of this appeal, but do not discuss its implications in the pending 

matter. No party appealed the Final Certificate. While Mr. Boudreau challenges the validity of 

the Final Certificate in this docket through his Statement of Questions and motion, alleging that 

it is void because it improperly certifies the compliance of the arborvitae screening, the Final 

Certificate is not the subject of this appeal. Our consideration is limited to the Zoning 

Administrator’s decision to issue the Second Temporary Certificate.2 

 

1

 Mr. Hopkins poses a challenge to Mr. Boudreau’s standing in his cross-motion, which is a separate 

jurisdictional question. This Court has observed that “there is no mandatory sequencing of jurisdictional issues.” In 

re Petition of the Intervale Ctr., Inc., & Half Pint Farm, No. 89-5-08 Vtec, slip op. at 4-5 (Vt. Envtl. Ct. Feb. 24, 2009) 

(Durkin, J.) (internal quotation marks omitted) (quoting Sinochem Int’l Co. v. Malaysia Int’l Shipping Corp., 549 U.S. 

422, 431 (2007)). Thus, we begin with the mootness issue. 

2

 While a single jurisdictional disqualification requires dismissal, and, as stated in footnote 1, there is no 

sequencing for jurisdictional issues, we here note an additional jurisdictional flaw with the present appeal. 

 Contrary to the premise of Mr. Boudreau’s appeal, the Zoning Administrator’s decision to issue the Second 

Temporary Certificate was not synonymous with a conclusion that the property complied and no enforcement was 

needed. Instead, by definition, issuance of a temporary certificate meant that the Zoning Administrator did not 

consider the property in compliance or take a stance on enforcement, but wanted to provide Mr. Hopkins with more 

time to comply while enabling use. Mr. Boudreau’s appeal is focused on the compliance certified by the Final 

Certificate. 
In re Hopkins Certificate of Compliance, No. 108-10-18 Vtec (EO on XMSJ) (06-20-2019) Page 4 of 5 

 Appeal is the exclusive statutory remedy for parties aggrieved by local zoning decisions. 

24 V.S.A. § 4472(a). Unappealed zoning decisions cannot be collaterally attacked, either directly 

or indirectly, in any other proceeding, including proceedings to enforce a permit or zoning 

ordinance under Chapter 117 of Title 24. See 24 V.S.A. § 4472(d). This Court must “strictly 

enforce” the exclusivity of remedy rule. See In re Smith, 2006 VT 33, ¶¶ 5-6, 179 Vt. 636. These 

principles of finality apply even where it is alleged that the unappealed decision was ultra vires, 

otherwise erroneous, or even void ab initio. See City of S. Burlington v. Dep’t of Corr., 171 Vt. 

587, 589 (2000); Phillips Constr. Servs., Inc. v. Town of Ferrisburg, 154 Vt. 483, 485 (1990). Thus, 

pursuant to 24 V.S.A. § 4472, we conclude that the Final Certificate became final, binding, and 

impervious to collateral attack when it was not appealed. 

 While we cannot subject the conclusions of the unappealed Final Certificate to a collateral 

challenge, we must consider its consequences for the present matter. Despite Mr. Boudreau’s 

allegation that the Final Certificate is void because it was incorrect, we can only consider what 

the Final Certificate conclusively resolved and, by extension, the issues we are precluded from 

reaching in this decision. 

 As is apparent from the title of the Final Certificate of Compliance, its content, and the 

parties’ concessions, the Final Certificate concluded that Mr. Hopkins’ property meets the 

requirements of the original change of use permit which is the origin of this land use dispute. 

 Mr. Boudreau’s appeal—as evinced in his motion for summary judgment and Statement 

of Questions—focuses solely on the issue of the compliance of the arborvitae screening. The 

parties and this Court, however, are bound by the Final Certificate’s unappealed conclusion that 

the property, including the arborvitae, is in compliance with the permit terms and Ordinance. 

We could not determine otherwise; Mr. Boudreau’s attempt to collaterally attack the conclusions 

of the Final Certificate are barred by 24 V.S.A. § 4472(d). Because we could not grant Mr. 

Boudreau the relief he requests, we are without jurisdiction, and legal issues presented in the 

present appeal must be considered MOOT.

3

 

 Because the DRB treated the Zoning Administrator’s issuance of the Second Temporary Certificate as a 

decision not to proceed with enforcement, the DRB itself evaluated compliance and set out enforcement directives. 

Municipal panels, however, cannot initiate enforcement proceedings in the first instance. See In re Sweet Bldg. 

Permit, No. 19-2-12 Vtec, slip op. at 2 (Vt. Super. Ct. Envtl. Div. Jan. 25, 2013) (Walsh, J.) (dismissing enforcementrelated questions because the appellant did not first raise the issues with the zoning administrator). That power lies 

with the municipality’s administrative officer—here, the Zoning Administrator. See id.; Riverview Mews, LLC v. 

Richard Elec., Inc., No. 251-11-07 Vtec, slip op. at 2-3 (Vt. Envtl. Ct. Apr. 7, 2008) (Wright, J.); 24 V.S.A. §§ 4451, 4452, 

4460(e). We addressed this issue as recently as May of this year in Perham Right of Way Determination and 

dismissed the action in its entirety. No. 72-7-18 Vtec (Vt. Super. Ct. Envtl. Div. May 8, 2019) (Durkin, J.). 

3

 Mr. Boudreau also moves for summary judgment on the question of whether he is entitled to a writ of 

mandamus compelling the Town to require Mr. Hopkins to install arborvitae screening according to the terms of the 

permit as Mr. Boudreau interprets them. 

 Moving for summary judgment on whether mandamus is appropriate is not the equivalent of filing for 

mandamus. Given this framing, Mr. Boudreau asks us to provide an advisory opinion on the question of whether a 

writ of mandamus would be meritorious. We cannot discuss the viability of motions that are not before us. See, 

e.g., In re Investigation into Programmatic Adjustments to Standard-Offer Program, 2018 VT 52, ¶ 17 (recognizing 

the bar against advisory opinions on prospective disputes). Further, Mr. Boudreau asks us to appraise a motion 
In re Hopkins Certificate of Compliance, No. 108-10-18 Vtec (EO on XMSJ) (06-20-2019) Page 5 of 5 

 Having reached this conclusion, we must DISMISS this appeal for lack of jurisdiction. 

Further, our ultimate conclusion in this matter MOOTS Mr. Hopkins’ March 18, 2019 motion for 

clarification and Mr. Boudreau’s March 29, 2019 motion for a site visit by the Court concerning 

his motion for summary judgment. 

 This concludes the current proceedings before the Court. A Judgment Order accompanies 

this Entry Order. 

So Ordered. 

Electronically signed on June 20, 2019 at Newfane, Vermont, pursuant to V.R.E.F. 7(d). 

________________________________ 

Thomas S. Durkin, Superior Judge 

Environmental Division 

Notifications: 

Appellant Bernard J. Boudreau 

Merrill E. Bent (ERN 5013), Attorney for Interested Person Town of Manchester 

Cristina L. Mansfield (ERN 7113), Attorney for Appellee Edward H. Hopkins 

rmaher 

 

under V.R.C.P. 75. The Rule contains specific procedural steps for initiating and noticing such an action that Mr. 

Boudreau has not carried out in the present proceedings. See V.R.C.P. 75(b).