State of Vermont 

Superior Court—Environmental Division 

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E N T R Y R E G A R D I N G M O T I O N 

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In re Main St. Place, LLC Demolition Application Docket No. 120-7-10 Vtec 

(Appeal of ZBA denial of demolition permit) 

Title: Motion for Summary Judgment (Filing No. 2) 

Filed: December 23, 2011 

Filed By: Applicant/Appellant Main Street Place, LLC 

Response filed on 1/30/12 by Interested Person Village of Derby Line 

Reply filed on 2/13/12 by Main Street Place, LLC 

Supplemental memorandum filed on 5/8/12 by Main Street Place, LLC 

Supplemental memorandum filed on 5/14/12 by Village of Derby Line 

 ___ Granted X Denied ___ Other 

Currently before the Court are five separate, but related, appeals concerning municipal 

land use permits for development activities on the same two lots: 50 and 58 Main Street in the 

Village of Derby Line, Vermont. The above Docket is an appeal by Main Street Place, LLC 

(“Applicant”) of a decision by the Town of Derby Zoning Board of Adjustment (“the ZBA”) 

denying Applicant a demolition permit to raze existing buildings on the two lots and level the 

site. 

The ZBA’s decision currently on appeal follows this Court’s previous remand in a prior 

appeal from an earlier decision by the ZBA granting a demolition permit to Applicant. Both the 

current and prior appeals concern a permit application referencing the same or similar 

development proposal. In the prior appeal, Docket No. 163-8-09 Vtec, this Court determined 

that remand of Applicant’s application to the ZBA was appropriate because an adjoining 

property owner had not been notified of the ZBA’s public hearing on Applicant’s original 

proposal, as required by 24 V.S.A. § 4464(a)(1)(C), and thus, the ZBA had not had an 

opportunity to receive and consider that party’s testimony. See In re Main St. Place, LLC 

Demolition Permit, No. 163-8-09 Vtec (Vt. Envtl. Ct. Feb. 12, 2010) (Durkin, J.) (ruling on request 

for remand). That adjoining property owner was the only appellant in that appeal and has not 

chosen to appear in the current appeal. 

Following remand, the ZBA issued a new decision denying Applicant a demolition 

permit, and Applicant appealed that decision in this appeal, Docket No. 120-7-10 Vtec. Now 

pending is Applicant’s summary judgment motion requesting that the Court determine that the 

appeal in Docket No. 163-8-09 Vtec was incorrectly filed by the only appellant in that case, the 

adjoining property owner, and that, therefore, the original decision granting the demolition 

permit should stand. 
Main St. Place, LLC Demolition App, No. 120-7-10 Vtec (EO on Mot. for Summ. J.) (06-19-12) Pg. 2 of 3.

We will grant summary judgment to a moving party (here, Applicant) only if that party 

shows that “there is no genuine dispute as to any material fact and the movant is entitled to 

judgment as a matter of law.” V.R.C.P. 56(a); V.R.E.C.P. 5(a)(2).1 In determining whether this 

standard is met, we “accept as true the [factual] allegations made in opposition to the motion 

for summary judgment,” as long as they are supported by reference to admissible evidence, and 

give the opposing parties (here, the Village) the benefit of all reasonable doubts and inferences. 

Robertson v. Mylan Labs., Inc., 2004 VT 15, ¶ 15, 176 Vt. 356; see V.R.C.P. 56(c). 

Applicant argues that the original appeal by the adjoining property owner was not 

properly filed because it was not accompanied by a motion for party status. Applicant supports 

its argument by reference to our decision in In re Verizon Wireless Barton Permit, where we 

dismissed the appellants for failure to file such a motion. No. 133-6-08, slip op. at 7–10 (Vt. 

Envtl. Ct. May 20, 2009) (Durkin, J.), aff’d, 2010 VT 62, 188 Vt. 262. Applicant argues that, 

because a decision by this Court to remand an application to a municipal panel is not a final 

judgment (rather, the original application is returned to the ZBA for further review and possible 

return to this Court on appeal), we have jurisdiction in the current appeal to consider the 

validity of the adjoining property owner’s appeal in Docket No. 163-8-09 Vtec. 

 The Vermont Supreme Court has decisively stated that a decision by this Court to 

remand a matter to the municipal panel is not a final judgment by this Court. See e.g., In re 

Appeal of Cliffside Leasing Co., 167 Vt. 569, 570 (1997). However, we do not understand this 

determination to give parties an absolute license to raise any issue about a remanded 

proceeding in a subsequent appeal from the new decision resulting after remand. All, or 

portions, of the original decision on appeal may be vacated upon remand, and, as is the case 

here with the adjoining property owner, parties to the remanded matter may choose not to 

appeal the new decision or to appear in another party’s appeal of a new decision. 

 We need not determine the exact limits to Applicant’s ability to raise issues concerning 

the remanded proceeding, however, because, in an Entry Order we issued in that previous 

appeal, we effectively addressed Applicant’s current argument challenging the validity of the 

adjoining property owner’s appeal. See Main St. Place LLC Demolition Permit, No. 163-8-09 

Vtec (Vt. Envtl. Ct. Feb. 12, 2010) (Durkin, J.) (ruling on motion for summary judgment). In that 

Entry Order, we concluded that the adjoining property owner’s appeal was timely filed under 

the exception to the 30-day time period found in 10 V.S.A. § 8504(b)(2). Id., slip op. at 2. We 

found that the adjoining property owner had not been notified of the public hearing on 

Applicant’s original proposal and that this “absence of notice ‘prevented [CNB] from obtaining 

party status or participating in the [ZBA] proceeding.’” Id. (emphasis added). 

Applicant’s current motion effectively asks the Court to reconsider this previous ruling 

based on our prior ruling in Verizon Wireless Barton Permit. Specifically, Applicant asserts that 

we should conclude that the adjoining property owner’s appeal was not valid because the 

appellant failed to file a motion for party status along with its notice of appeal. 

 

1

 We note that an updated version of V.R.C.P. 56 took effect on January 23, 2012, subsequent to the filing 

of the pending motion. We analyze the pending motion, and all other motions for summary judgment 

filed in the four related appeals concerning 50 and 58 Main Street in the Village of Derby Line, under the 

current version of the rule because the rule change does not affect our analysis and at least one of these 

motions for summary judgment was filed after the rule change. 
Main St. Place, LLC Demolition App, No. 120-7-10 Vtec (EO on Mot. for Summ. J.) (06-19-12) Pg. 3 of 3.

We do not agree that the situation in Docket No. 163-8-09 Vtec is analogous to that in 

Verizon Wireless Barton Permit. In Verizon Wireless Barton Permit, the dismissed parties’ 

notice of appeal did not request party status or state a basis for claiming that they had a right to 

appeal. See 2010 VT 62, ¶ 20. Nor did any other filing by the parties ask the Court to grant 

them party status. See id. In Docket No. 163-8-09 Vtec, the adjoining property owner explicitly 

asked for a right to appeal under 10 V.S.A. § 8504(b)(2) and indicated that its basis for doing so 

was its lack of notice for the public hearing leading to the decision it sought to appeal. 

The situation in Docket No. 163-8-09 Vtec is similar to that in In re Granville 

Manufacturing Co. where the party filed its motion for party status shortly after filing its notice 

of appeal rather than at the same time. See No. 2-1-11 Vtec, slip op. at 4 (Vt. Super. Ct. Envtl. 

Div. July 1, 2011) (Durkin, J.). In both Granville Manufacturing Co. and Docket No. 163-8-09 

Vtec, the Court and other parties were put on clear notice, at the same time as or shortly after 

the filing of a notice of appeal, that the party appealing sought to do so under an exception to 

the normal requirements and on what basis the party claimed such a right. 

Because we do not agree that our ruling in Verizon Wireless Barton Permit, or any of the 

arguments presented by Applicant in its current motion for summary judgment, requires us to 

revisit our previous ruling that the adjoining property owner’s appeal in Docket No. 163-8-09 

Vtec was valid, we DENY Applicant’s motion for summary judgment. 

_________________________________________ June 19, 2012 

 Thomas S. Durkin, Judge Date 

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Date copies sent to: ____________ Clerk's Initials _______ 

Copies sent to: 

Jon T. Anderson, Attorney for Main Street Place, LLC 

William E. Simendinger, Co-counsel for Main Street Place, LLC 

Robert Halpert, Attorney for Town of Derby 

Paul S. Gilles, Attorney for Village of Derby Line