1

VERMONT SUPERIOR COURT

Environmental Division Docket No. 23-ENV-000130

32 Cherry St, 2nd Floor, Suite 303,

Burlington, VT 05401

802-951-1740

www.vermontjudiciary.org

210 Fishkill Road

ENTRY ORDER

Title: Motion to Dismiss (Motion: 1)

Filer: Alexander J. LaRosa, Esq.

Filed Date: November 28, 2023

Appellant’s Opposition to Motion to Dismiss, filed on December 11, 2023, by Scott Rank.

Applicants’ Reply in Support of Motion to Dismiss, filed on December 13, 2023, by 

Attorney Alexander J. LaRosa.

Title: Motion to Stay (Motion: 2)

Filer: Scott Rank

Filed Date: December 12, 2023

Applicants’ Memorandum in Opposition, filed on December 13, 2023, by Attorney 

Alexander J. LaRosa, Esq.

Appellant’s Reply in Support of Motion to Stay, filed on December 27, 2023, by Scott Rank.

The motions are DENIED.

This is an appeal by Scott Rank (Appellant or Mr. Rank) of a Town of Morrisville 

Development Review Board (DRB) decision dated October 17, 2023 denying an appeal of Zoning 

Permit #2023-088, which authorized Cordelia and Edward Ryan (Applicants) to host events as an 

accessory on-farm business at their property at 210 Fishkill Road, Morrisville, Vermont (the 

Property).1 Presently before the Court is Applicants’ motion to dismiss the appeal as untimely 

1 There is some confusion as to the Property’s exact E911 number. It has been most referred to as 210 

Fishkill Road. Thus, the Court references this number. 
2

and Appellant’s motion to stay the underlying permit during the pendency of the appeal. For the 

reasons set forth herein, both motions are DENIED.

Discussion

I. Motion to Dismiss

Applicants’ motion does not cite a rule of procedure. The Court does, however, 

understand that Applicants seek dismissal on the grounds that Appellant’s appeal was untimely. 

Because the timeliness of a party’s appeal impacts this Court’s jurisdiction, the Court interprets 

the motion as being made pursuant to Vermont Rules of Civil Procedure (V.R.C.P.) 12(b)(1). See 

In re Gulli, 174 Vt. 580, 583 (2002) (discussing timeliness and jurisdiction). When reviewing a 

motion to dismiss pursuant to V.R.C.P. 12(b)(1), we accept as true all uncontroverted factual 

allegations and construe them in the light most favorable to the nonmoving party, here, Mr. 

Rank. Rheaume v. Pallito, 2011 VT 72, ¶ 2, 190 Vt. 245. When ruling upon such a motion, the 

Court can consider evidence outside the pleadings. Conley v. Cristafulli, 2010 VT 38, ¶ 3, 188 Vt. 

11 (citing Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000)). For this Court to have 

jurisdiction over an appeal, the appealing party must file their notice of appeal within 30 days of 

the date of the final decision under appeal. V.R.E.C.P. 5(b)(1); In re Mahar Conditional Use 

Permit, 2018 VT 20, ¶ 13, 206 Vt. 559. 

The procedural background giving rise to the pending appeal is particularly important to 

this Court’s analysis of this motion. On July 5, 2023, Applicants applied to host events at the 

Property as an accessory on-farm business. The DRB held a noticed hearing on the application 

on July 26, 2023, which Mr. Rank attended. In advance of the hearing, Mr. Rank, among other 

interested persons, submitted comments on the application. The July 26, 2023 hearing was 

continued. On August 8, 2023, counsel then representing Mr. Rank and other interested persons 

submitted an additional letter to the DRB on the application. In a decision initially dated August 

18, 2023, the DRB issued a decision on the application (August DRB Decision).

2

 It stated that:

2 The DRB’s August decision was re-dated to August 21, 2023 when it was attached to the subsequently 

issued zoning permit. Compare Municipal Decision 2, attached to Appellant’s Notice of Appeal with Applicants’ Ex. 

1. The Court does not know why this occurred and it makes little sense. As re-dated the zoning permit predates the 

revised date of the August DRB Decision by 3 days even though the August DRB Decision was the document that 

remanded the application back to the Zoning Administrator in the first instance. The Court uses the August 18 date 

for the August DRB Decision because it is the only logical timeline of events.
3

Based on the Findings and Conclusions set forth above Member 

Burnham . . . moved to determine that the application meets the 

definition of an accessory on-farm business, but remand the 

requested proposal for the decision of the Zoning Administrator, 

provided the Applicants are required to meet the following 

conditions in the administrative permit[.]

See Applicants’ Ex. 1 at 6.

On the same date, the Zoning Administrator issued Zoning Permit #2023-088 (the August 

Zoning Permit). Id. The August Zoning Permit attached the August DRB Decision to the permit. 

For an unknown reason, that decision was dated August 21, 2023. Id. 

On August 31, 2023, Appellant and other interested persons submitted a handwritten 

letter to the Town stating that they were appealing “Zoning [P]ermit # 2023-088.” Appellant Ex. 

3. The Town rejected the notice of appeal. On September 1, 2023, Mette Anderson submitted 

an email from herself, her husband and “the Green Mountain Drive Adjoiners” to the Zoning 

Administrator. Applicants’ Ex. 6. It stated that their appeal was pursuant to 24 V.S.A. § 4466. Id. 

The Zoning Administrator responded accepting the appeal and noting that the appeal would be 

referred to the DRB. Id. The DRB heard the appeal on October 11, 2023. Mr. Rank attended the 

hearing and presented comments. See Appellant Ex. 2. The DRB denied the appeal on October 

17, 2023 (the October DRB Decision) such that the August Zoning Permit remained effective. Mr. 

Rank appealed that decision to this Court on November 14, 2023.

Applicants assert that Mr. Rank’s appeal is untimely because he did not appeal the August 

DRB Decision within 30 days of its issuance and all of the issues raised on appeal effectively seek 

to challenge conclusions made in the August DRB Decision. The Court disagrees.

Effectively, the question before the Court is whether the August DRB Decision was 

appealable to this Court such that the failure to appeal must result in the dismissal of the action. 

This Court only has subject matter jurisdiction over an appeal pursuant to 24 V.S.A. §4471(a) if 

the decision or act appealed from is final. In re Saxon Partners LLC BJ’s Warehouse Sketch Plan, 

No. 5-1-16 Vtec, slip op. at 3 (Vt. Super Ct. Envtl. Div. July 15, 2016) (Walsh, J.). Municipal 

decisions are final when they resolve the “ultimate issue” before the municipal panel. In re Scott 

Farm Act 250, No. 48-4-17 Vtec, slip op. at 1-2 (Vt. Super. Ct. Envtl. Div. Aug. 22, 2017) (Walsh, J.) 

(citing Jordan v. State Agency of Transp., 166 Vt. 509, 513 (1997)). Thus, a municipal panel's 
4

commentary, guidance, or hypothetical discussion is not appealable to this Court. Saxon Partners, 

No. 5-1-16 Vtec at 2 (July 15, 2016) (citing In re Stowe Club Highlands Merger/Subdivision 

Application, No. 35-3-11 Vtec, slip op. at 6 (Vt. Super. Ct. Envtl. Div. Feb. 15, 2012) (Walsh, J.), 

aff'd, 2013 VT 4, 193 Vt. 142).

Applicants argue that the August DRB Decision was a final and binding decision and that 

the DRB’sremand to the Zoning Administrator was ministerial only such that the failure to appeal 

the August DRB Decision precludes the pending appeal. The Court disagrees. The August 

Decision refers to the application as the “requested proposal.” Applicants’ Ex. 1 at 6. There was 

no vote to approve the application, to grant conditional use or to grant site plan approval and 

there is no clear reference that any of the applied-for permits were so approved in the August 

DRB Decision. Id. The final action by the DRB was a motion to conclude that the application 

constituted an accessory on-farm business “but remand the requested proposal for the decision

of the Zoning Administrator, provided that Applicants are required to meet [the included] 

conditions in the administrative permit[.]” Id. This scope of remand was not for a ministerial act 

but appears to be for some level of decision making by the Zoning Administrator, with the caveat 

that any subsequently issued permit includes the conditions the DRB enumerated therein. The 

August DRB Decision did not dispose of all matters before the municipality.

3

In fact it is unclear 

to this Court if the decision fully disposed of anything before the DRB. Instead, the August DRB 

Decision contemplated an additional level of decision making at the municipal level. Thus, the 

Court concludes that the August DRB Decision was not a final decision appealable to this Court.4

3 What’s more, the August DRB Decision does not contain any language as to the right to appeal its decision. 

See Applicants’ Ex. 1; Municipal Decision 2, attached to Appellant’s Notice of Appeal. Instead, on the cover page of 

the August Zoning Permit issued by the Administrative Officer, it states that the permit would take effect on 

September 2, 2023 “*Or if a notice of appeal is filed with the Development Review Board by such date, it shall not 

take effect until the DRB issues its final decision. ** And the time for filing an appeal to the Environmental Court 

must have passed.” Id. at 1. It does not identify which appellate route would be relevant here. The Court will note, 

however, that the Town did proceed to accept and move forward with the DRB appeal. 

4 Applicants assert that this conclusion results in the impermissible extension of the appeal period. The 

Court disagrees. The Court’s conclusion in this decision is limited to the unique facts presented in this appeal’s 

procedural history and the Town’s fragmented approach to this permit application. Further, to the extent that the 

Applicants assert that Mr. Rank’s Statement of Questions challenges aspects of the August DRB Decision, as set forth 

above, those issues were not final in August and, thus, remain before the Court. We note that the Court has not 

been presented with any other motion to dismiss any individual Question in the Statement of Questions.
5

After August Zoning Permit was issued, interested persons appealed that permit to the 

DRB. The DRB held a hearing on that appeal. Meeting minutes note that Mr. Rank attended the 

hearing and submitted comments. To the extent that Applicants assert that Mr. Rank is not an 

interested party that may appeal the October DRB Decision, the Court disagrees.

For the above reasons, Applicants’ motion to dismiss is DENIED.

II. Motion to Stay

Mr. Rank moves to stay the permit during the pendency of this appeal. An appeal from a 

decision issued by a municipal panel or officer, such as the DRB’s denial of interested persons 

appeal of the August Zoning Permit, does not stay that decision or the underlying permit. See 10 

V.S.A. § 8504(f); V.R.E.C.P. 5(e). This Court may still issue a discretionary stay at the request of a 

party or on its own motion “as necessary to preserve the rights of the parties.” V.R.E.C.P. 5(e). 

A stay, however, is an “extraordinary remedy appropriate only when the movant’s right to relief 

is clear.” Howard Ctr. Renovation Permit, No. 12-1-13 Vtec, slip op. at 1 (Vt. Super. Ct. Envtl. Div. 

Apr. 12, 2013) (Walsh, J.). The appropriateness of a stay request depends on four factors, “(1) 

[the moving party’s] likelihood of success on the merits; (2) irreparable harm to the moving party 

should the stay be denied; (3) substantial harm to other parties should the stay be granted; and 

(4) the best interests of the public.” 110 E. Spring St. CU, No. 11-2-16 Vtec, slip op. at 5 (Vt. Super. 

Ct. Envtl. Div. Apr. 22, 2016) (Walsh, J.) (citing In re Tariff Filing of New England Tel. & Tel. Co., 

145 Vt. 309, 311 (1984)). The moving party bears the burden of demonstrating that a stay is 

warranted under these relevant factors. See In re Search Warrants, 2011 VT 88, n. 2, 190 Vt. 572.

Mr. Rank has failed to meet his burden of demonstrating that a stay is warranted in this 

appeal. The motion does not address any of the relevant standards. Instead, it addresses 

alleged procedural deficiencies in the process before the Town, concerns about Applicants’ 

application, and the Town’s adoption of updated zoning bylaws. Thus, the Court will not grant 

the extraordinary remedy that is a stay of the underlying permit and the motion is DENIED.

Conclusion

For the forgoing reasons, Applicants’ motion to dismiss this appeal is DENIED. Mr. Rank’s 

motion to stay is also DENIED.

The Court will set this matter for a status conference to discuss how this case will proceed.
6

Electronically signed January 23, 2024 in Montgomery, Vermont pursuant to V.R.E.F. 9(D).

Thomas G. Walsh, Judge

Superior Court, Environmental Division