State of Vermont Superior Court—Environmental Division

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In re Lawrence Site Plan Approval Docket No . 166-10-10 Vtec (Appeal from Town of Brattleboro Development Review Board decision)

Title: Motion for Permission to File an Interlocuto ry Appeal and Request for Stay of Pending Appeal (Filing No. 12)

Filed: July 25, 2011

Filed By: Appellant Susan Rockwell

___ Granted X Denied ___ Other

Appellant Susan Rockwell has requested permission t o file an interlocutory appeal and has requested that the proceedings befor e this Court be stayed while that appeal is pending. For the reasons summarized belo w, and for the reasons detailed in the other entry orders issued today on other motion s of Appellant Rockwell and Appellee Lawrence, the Court DENIES Ms. Rockwell’s requests.

Appellant Rockwell correctly states the legal stand ard applicable to requests for interlocutory appeals: trial courts are directed to allow such appeals when (1) there is “substantial ground for difference of opinion” on a controlling question of law and (2) the “immediate appeal may materially advance the te rmination of the litigation.” V.R.A.P. 5(b)(1). However, Appellant has failed to provide sufficient grounds for this Court to render the necessary determinations.

First, the controlling question of law appears undi sputed: an “interested person” has the authority to intervene and particip ate in an appeal before this Court. See 10 V.S.A. § 8504(n)(5) (“Any person may interve ne in a pending appeal [before the Environmental Division] if that person . . . qualif ies as an ‘interested person’” under the applicable statutory criteria.). Here, there i s no dispute that the Town of Brattleboro, as the municipality where the subject property lies and whose zoning regulations govern the application before us in thi s on-the-record appeal, qualifies as an “interested person” pursuant to 24 V.S.A.§ 4465( b)(2). 1

Appellant offers no foundation for disputing the le gal standard for interested person intervention/participation in environmental appeals, as established by 10 V.S.A. § 8504(n). Rather, Appellant appears confus ed by the distinction between a party that is merely an interested person and a par ty who has additionally fulfilled the requirements to be an appellant; the former is merely entitled to participate in the

1 We note here, for clarity’s sake, that this Court uses the term “interested person” in two ways—as a statutory term of art to refer to parties who fall within the defi nitions listed in 24 V.S.A. § 4465(b) and informall y, to refer to parties who meet the requirements to participate, o r “intervene” in appeals brought by other parties u nder any of the categories in 10 V.S.A. § 8504(n), including the on e that references 24 V.S.A. § 4465(b). Here, the T own is both— an interested person under the definition in 24 V.S .A. § 4465(b)(2) and, as a result, an interested pe rson who can participate in this appeal via 10 V.S.A. § 8504(n)( 5).In re Lawrence Site Plan Approval, No. 166-10-10 Vt ec (Interlocutory Appeal Request) (7-27-11) Pg. 2 of 2

proceedings; the latter initiates the proceedings a nd establishes the legal issues the Court is to review on appeal. See 24 V.S.A. § 4471 (a) (requiring that one who wishes to appeal must both qualify as “an interested perso n” pursuant to 24 V.S.A. § 4465(b)

and have “participated in the municipal regulatory pro ceeding”) (emphasis added); V.R.E.C.P. 5(f) (requiring “the appellant” and not all interested parties to file a statement of questions within 20 days of filing the ir notice of appeal) (emphasis added).

The applicable law is clear and Appellant has offer ed no basis for us to conclude that there is a difference of opinion on this legal standard. For this reason, we conclude that Appellant has failed to satisfy the f irst necessary requirement for receiving permission to file an interlocutory appea l.

In addition, we are unpersuaded that an interlocuto ry appeal will materially advance this litigation. Even if the Court is mist aken in its ruling that the Town is entitled to participate as an interested person her e, the principal parties will still need to adjudicate the substantive legal issues in this appeal. The appeal is at a stage close to disposition, as no hearing is required in this o n-the-record appeal and the Court has directed the parties to file their legal briefs . An interlocutory appeal, if granted, would unnecessarily delay the proceedings before th is Court, and it would not provide any more efficient path to the termination of this litigation than an appeal after a judgment order is issued.

Therefore, for all these reasons, Appellant’s reque st for permission to file an interlocutory appeal and request that the proceedin gs before this Court be stayed

must be DENIED

.

_________________________________________ July 27, 2011_____ Thomas S. Durkin, Judge Date

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Date copies sent to: ____________ Clerk's Initials _______

Copies sent to:

Appellant Susan Rockwell, Esq., Pro Se

Jodi P. French, Attorney for Interested Person Town of Brattleboro

Appellee Stephen Lawrence, Pro Se