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### Heney Zoning Permit Approval

ENTRY REGARDING MOTION

Count 1, Municipal DRB Appeal from ZA (157-11-17 Vt ec)

Title: Motion to Defer Case (Motion 1)
Filer: Daren and Tara Smith Attorney: Pro Se Filed Date: January 18, 2018

Response in Opposition filed on 01/31/2018 by Attor ney William Heney for Appellee Stephen Heney Opposition

**The motion is DENIED.**

This appeal by Darren and Tara Smith challenges a R ichmond Development Review Board decision granting their neighbors, Stephen and Jenn ifer Heney, permission to build a fence along a shared property boundary.

The Smiths move to “defer” this matter before the E nvironmental Division of the Superior Court pending the outcome of a separate case in the Civil Division of the Superior Court. We infer from the filings that the Smiths and Heneys a re engaged in a property or boundary line dispute involving an adverse possession claim in th e area where the Heneys plan to build their
fence.

The Smiths’ motion effectively asks the Court to st ay or continue the Environmental Division proceedings until the related Civil Divisi on proceeding is resolved. If granting the stay would harm another party, the Smiths “must make out a clear case of hardship or inequity in being required to go forward” in order for the Cour t to grant their motion. In re Woodstock Cmty. Tr. & Hous. Vermont PRD, 2012 VT 87, ¶ 36, 19 2 Vt. 474. (quotation omitted). Stays are disfavored where lesser measures are available to p rotect the moving party’s interest. Id. (citation omitted).

In this case, the Heneys have applied for a permit to build a fence. They request a final decision on that application. Staying the Environm ental Division proceedings would harm that interest. The degree of harm is unclear, in part b ecause it is unclear when the Civil Division matter
will be resolved.

The Smiths assert that suspending the Environmental Division matter pending an
outcome in the Civil Division will save time for th e parties. We disagree, as the disposition of the Civil Division matter is grounded in property and t ort law which are beyond our jurisdiction in 

## S TATE OF 

## V ERMONT

SUPERIOR COURT ENVIRONMENTAL DIVISION Docket No. 157-11-17 Vtec2

this appeal. The issues before the Court in this d e novo appeal are those preserved by Appellant’s Statement of Questions and relate solely to whether the Heneys are entitled to a permit. If we stay this matter, and the outcome in the Civil Divi sion is favorable to the Heneys, the Heneys then have to continue litigation in this Division to obt ain a decision on their permit application. Rather than saving time, the effect of a stay would be to add significant delay to the permitting process.

Fairness and efficiency require that an applicant h ave some discretion in how it proceeds through the permitting process; neither the Court n or permit opponents should prevent this process from moving forward unless appropriate to a void unnecessary cost or delay. The Heneys oppose the Smiths’ motion and express a strong inte rest in having this appeal resolved expeditiously. Staying this appeal would further d elay the permitting process with little savings

in cost.

We therefore decline to continue this appeal on the chance that resolution of the parties’ Civil Division matter may have some effect on the p ermit application. Because the Smiths have not demonstrated why moving forward in this case wo uld cause them hardship or inequity, their

motion to continue is **DENIED**

.

So ordered.

**Electronically signed on February 07, 2018 at 11:12 AM pursuant to V.R.E.F. 7(d).** 

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

Notifications: Appellant Daren Smith Appellant Tara L. Smith William Heney (ERN 9255), Attorney for Appellee Ste phen Heney Amanda S. E Lafferty (ERN 5113), Attorney for Inter ested Person Town of Richmond

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