34 Fitzsimonds Rd 3-Lot Subdivision 

ENTRY REGARDING MOTION

 

Title: Motion to Dismiss Joseph Verga (Motion 2) 

Filer: Brian Hehir 

Attorney: Self-represented 

Filed Date: September 26, 2018 

No response filed 

The motion is GRANTED. 

 Brian and Julie Hehir have applied to subdivide their property located at 34 Fitzsimonds 

Road in Jericho, Vermont, (“the Property”) into three lots. On June 18, 2018, the Town of Jericho 

(“Town”) Development Review Board (“DRB”) approved their application, with conditions, and 

denied their request for a waiver of a regulatory requirement limiting each lot in the Town to one 

curb-cut. On June 28, 2018, the Hehirs timely appealed one of the DRB’s conditions of approval—

a condition requiring the Hehirs to provide the Town with a recreational easement over part of 

the Property—as well as the denial of the waiver. Joseph Verga, a neighboring property owner, 

entered his appearance as a self-represented interested person on August 6, 2018. Presently 

before the Court is the Hehirs’ motion to dismiss Mr. Verga for lack of standing. 

 Standing is a “necessary component to the court’s subject matter jurisdiction.” Bischoff 

v. Bletz, 2008 VT 15, ¶ 15, 183 Vt. 235. Thus, we evaluate a motion to dismiss for lack of standing 

under the V.R.C.P. 12(b)(1) standard for motions to dismiss for lack of subject matter jurisdiction. 

See, e.g., In re Two Bad Cats, LLC Conditional Use, No. 169-12-14 Vtec, slip op. at 1-2 (Vt. Super. 

Ct. Envtl. Div. May 29, 2015) (Walsh, J.). When a V.R.C.P. 12(b)(1) motion is before this Court, we 

accept as true all uncontroverted facts set out by the nonmovant and construe them in the light 

most favorable to him or her. In re DeGraaf Change of Use, No. 62-5-14 Vtec, slip op. at 1 (Vt. 

Super. Ct. Envtl. Div. July 24, 2014) (Walsh, J.) (citing Rheaume v. Pallito, 2011 VT 72, ¶ 2, 190 Vt. 

245). 

 Parties that qualify as interested persons under 24 V.S.A. § 4465(b) have standing to 

appear before this Court. Pursuant to § 4465(b)(3), individuals who do not own the subject 

property can participate in an appeal as an interested person if they: (1) own or occupy property 

in the “immediate neighborhood” of the subject property; (2) can “demonstrate a physical or 

environmental impact on [their] interest under the criteria reviewed”; and (3) allege that the 

municipal decision, “if confirmed,” will not be in keeping with “the policies, purposes, or terms 

of the plan or bylaw of that municipality.” 

STATE OF VERMONT

SUPERIOR COURT ENVIRONMENTAL DIVISION

 Docket No. 68-6-18 Vtec
In re 34 Fitzsimonds Rd. 3-Lot Subdivision, No. 68-6-18 Vtec (EO on Motion to Dismiss) (04-19-2019) Page 2 of 3 

 To demonstrate a physical or environmental impact on their interests, parties do not need 

to definitively prove an injury, but they must show that there is the “reasonable possibility” of an 

impact that is particularized and non-speculative. See In re Goddard Coll. Conditional Use, No. 

175-12-11 Vtec, slip op. at 2-3 (Vt. Super. Ct. Envtl. Div. July 5, 2012) (Walsh, J.) (citing In re 

Bennington Wal-Mart Demolition/Constr. Permit, No. 158-10-11 Vtec, slip op. at 9-10 (Vt. Super. 

Ct. Envtl. Div. Apr. 24, 2012) (Walsh, J.) (describing the “reasonable possibility” requirement); In 

re Vt. Transco LLC Subdivision, No. 32-3-18 Vtec, slip op. at 1-2 (Vt. Super. Ct. Envtl. Div. Oct. 17, 

2018) (Walsh, J.) (detailing the particularized impact requirement) (citations omitted). 

 The Hehirs allege that Mr. Verga cannot show that their proposed subdivision will 

produce a physical or environmental impact on his interests. They assert that the Town proposes 

the recreational easement for the side of the Property opposite Mr. Verga’s land. Though Mr. 

Verga participated in a September 10, 2018 status conference conducted by this Court, he has 

not submitted a response to the motion to dismiss, or to any other motions pending in this 

matter. 

 The Hehirs concede that Mr. Verga owns property in the immediate neighborhood. The 

boundaries of their respective properties do not overlap, but they do share a single point where 

the southwestern corner of the Hehirs’ property meets the northeastern corner of Mr. Verga’s 

property. We acknowledge that, as a general matter, adjacent property owners will typically be 

best situated to assert a strong claim for interested person status. Without a response from Mr. 

Verga, however, this Court cannot speculate or conceive of potential physical or environmental 

impacts on his behalf. While we will introduce some degree of procedural flexibility for selfrepresented litigants, it is not this Court’s place to craft an argument or supply an opposition 

memorandum where there is none. See In re Verizon Wireless Barton Permit, 2010 VT 62, ¶ 22, 

188 Vt. 262; In re Waitsfield Public Water System Act 250 Permit, No. 33-2-10 Vtec, slip op. at 8-

9 (Vt. Super. Ct. Envtl. Div. Nov. 2, 2010) (Durkin, J.). 

 To rule otherwise would place a burden on parties opposing the party status of nonappellant interested persons where there is not support for one. It is true that a presumption of 

party status attaches to interested persons who timely enter their notice of appearance, as with 

appellants who timely file a notice of appeal. See V.R.E.C.P. 5(d)(2). It is also true that an 

opponent challenging the party status of an appellant “has the burden of establishing the lack of 

status on motion to dismiss the party or the appeal . . . .” Reporter’s Notes—V.R.E.C.P. 5 

(discussing the burdens of claiming or challenging party status pursuant to Rule 5(d)(2)). 

 Non-appellant interested persons who timely appear, like Mr. Verga, are treated 

differently under the V.R.E.C.P. Parties in this category get the benefit of the presumption of 

party status upon entering their appearance “unless the court otherwise determines on its own 

motion, on motion to dismiss a party, or on a motion to intervene.” V.R.E.C.P. 5(d)(2); see also 

Reporter’s Notes—V.R.E.C.P. 5 (stating that parties who timely file a notice of appearance “will 

be accorded party status unless the court rules otherwise on motion to dismiss that person as a 

party.”). 

 We do not here decide the full extent of the burden that falls on parties challenging the 

party status of non-appellant interested persons who timely appear. We do, however, conclude 

that when an opponent challenges the standing of a non-appellant interested person with a 

motion to dismiss that offers more than conclusory restatements of the legal standard, and the 
In re 34 Fitzsimonds Rd. 3-Lot Subdivision, No. 68-6-18 Vtec (EO on Motion to Dismiss) (04-19-2019) Page 3 of 3 

challenged party does not oppose the motion, it is proper for this Court to grant the motion.1 

See V.R.C.P. 78(b) (“Any party opposed to the granting of a written motion shall file a 

memorandum in opposition thereto . . . . If a memorandum in opposition is not timely filed when 

required under this rule, the court may dispose of the motion without argument.”). 

 Proximity to the subject property alone does not guarantee party status. See In re UVM 

Certificate of Appropriateness, No. 90-7-12 Vtec, slip op. at 11-13 (Vt. Super. Ct. Envtl. Div. Feb. 

26, 2013) (Walsh, J.). “Even a person living mere inches from a project must still demonstrate a 

reasonable possibility of a ‘physical or environmental impact’ on his or her interests under the 

criteria reviewed.” Id. at 11. Because Mr. Verga has not done so here, and it is not proper for 

this Court to do so in his stead, we conclude that Mr. Verga has not shown that he is interested 

in retaining his interested person status. Therefore, we GRANT the Hehirs’ motion to dismiss Mr. 

Verga as a party in this appeal. 

So Ordered. 

Electronically signed on April 19, 2019 at Newfane, Vermont, pursuant to V.R.E.F. 7(d). 

________________________________ 

Thomas S. Durkin, Superior Judge 

Environmental Division 

Notifications: 

Appellants Brian and Julie Hehir 

Claudine C. Safar (ERN 3985) and James F. Conway (ERN 8706), Attorneys for the Tn. of Jericho 

Interested Person Joseph Verga 

rmaher 

 

1

 This Court has looked at other materials in the record when faced with an opposition to a motion to dismiss 

that failed to demonstrate the reasonable possibility of a physical or environmental impact. See In re UVM 

Certificate of Appropriateness, No. 90-7-12 Vtec, slip op. at 12-13 (Vt. Super. Ct. Envtl. Div. Feb. 26, 2013) (Walsh, J.) 

(concluding that a letter of concern sent by the interested person to the municipal panel below articulated potential 

impacts sufficient to establish standing, even though his opposition to the motion to dismiss did not). In the present 

matter, however, we cannot identify any similar assertions of an impact by Mr. Verga in oral or written form.