State of Vermont Superior Court—Environmental Division

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University Mall, LLC & 205 DS LLC v. City of South B urlington Docket No. 102-8-12 Vtec (Declaratory judgment action; original case filed w ith the Environmental Division)

Title: Motion to Clarify or Transfer (Filing No. 2 )

Filed: February 12, 2013

Filed By: Daniel P. O'Rourke, Attorney for Plainti ff University Mall, LLC

Response: None

X Granted ___ Denied ___ Other

By Entry Order filed on January 29, 2013, this Cour t dismissed each of the five Counts in the declaratory judgment action originally filed wi th this Division of the Vermont Superior Court by University Mall, LLC and 205 DS, LLC (here inafter collectively referred to as “Petitioners”). Petitioners thereafter sought clar ification of this Court’s dismissal or, in the alternative, transfer of their declaratory judgment action to the Civil Division of the Superior Court. We have reviewed again our January 29, 2013 determinations and offer the following as a further explanation and clarification of the reas ons for our dismissal of Petitioners’ declaratory judgment action. Our prior Order analyzed each Cou nt of Petitioners’ declaratory judgment action and concluded that each was beyond the scope of our jurisdiction. For the reasons stated below, however, we conclude that transfer of this a ction to the Civil Division is appropriate in
this case.

As stated in our prior Entry Order, Petitioners pre sented claims in this action that are beyond the scope of this Court’s jurisdiction, whic h includes the de novo and on-the-record review of land use determinations that are appealed to this Court. See 4 V.S.A. § 34(2) and 24 V.S.A. §§ 4471 and 4472(a). A subset of that juris diction includes the review of constitutional challenges to specific provisions of a land use reg ulation. 24 V.S.A. § 4472(b).

Petitioners make no such claims in this action; the ir declaratory judgment action does not seek appellate review of municipal land use det erminations. 1 Rather, Petitioners’ claims here are stated in the nature of an original declar atory judgment action that challenges whether the City Council of the City of South Burlington im plemented interim zoning regulations in conformance with 24 V.S.A. § 4415(a) (Count I); whe ther some of the conditional use provisions in the interim regulation are authorized by the ena bling statute (Court II); and whether the manner in which the City Council adopted the City’s interim zoning regulations constituted procedural improprieties or violations of Petitione rs’ constitutional due process rights (Counts III, IV, and V). Even if this Court were to consid er Petitioners’ constitutional challenges within

1 In fact, Petitioners have filed a separate action with this Court requesting appellate review of the determinations made on their municipal land use app lication. See In re Univ. Mall, LLC & 205 DS LLC CU Application Appeal, No. 100-7-12 Vtec.Univ. Mall, LLC v. City of So. Burlington, No. 102- 8-12 Vtec (EO on Mot. to Clarify or Transfer) (04-0 9-13) Pg. 2 of 3.

the context of an actual appeal from a decision on Petitioners’ land use application, 2 it would be improper for this Court to address the claims alleg ed in Counts III, IV, and V, since our consideration of Petitioners’ actual appeal from th e decision on their permit application must be
heard de novo.

Appellate review on a de novo basis requires that w e ignore the action taken by the panel appealed from and render our own determinatio ns on the legal issues preserved for our review, based upon the evidence presented at a de n ovo hearing before this Court. In re Poole, 136 Vt. 242, 245 (1978) (explaining that de novo re view under 24 V.S.A. § 4472(a) requires that the appeal “is heard as though no action whatever h ad been held prior thereto[;] [a]ll the evidence is heard anew,” and the court renders its decision “as though no decision had been previously rendered.”) While the Poole precedent i s nearly thirty-five years old, it is continually cited by this Court and the Vermont Sup reme Court; the directives of Poole remain illustrative to this day.

The evidence presented to and the action taken by t he municipal panel is not for our consideration in a de novo appeal. Id. Since we h ave no proper role in assessing the wisdom or legality of a lower tribunal’s land use determinati on in a de novo appeal, it is improper for this Court to adjudicate Petitioners’ declaratory judgme nt action.
We now turn to Petitioners’ request that, rather th an dismiss their action, we transfer it to the Civil Division. With the restructuring/unif ication of the Vermont Judiciary in 2010, all of
Vermont’s trial courts were reconstituted as one Su perior Court, with individual divisions entitled the Criminal, Civil, Family, Probate, and Environmental Divisions. 4 V.S.A. § 30(a)(1). Petitioners’ counsel correctly notes that “the tran sfer of cases between divisions” was anticipated in this restructuring process. See 4 V .S.A. § 30(a)(2) (“The supreme court shall promulgate rules, subject to review by the legislat ive committee on judicial rules under chapter 1 of Title 12, which establish criteria for the tra nsfer of cases between divisions.”)

This is the first occasion that this Court has beenasked to consider such a transfer. While the Supreme Court has not yet promulgated spe cific rules governing the transfer of cases from the Environmental Division, the Supreme Court itself recently directed that a case originally filed in the Family Division be transfer red to the Civil Division. See Gould v. Robinson, No. 2012-312 (Vt. Feb Term, 3 2013) (unpub. mem.). The Gould case involved a request for relief from abuse filed by someone who was not a domestic partner or co-habitator with the alleged abuser. Thus, jurisdiction over s uch emergency abuse claims had once been (and remains) within the sole jurisdictional author ity of the “superior court.” Id. at 2; see also 12 V.S.A. § 5132(a). The Gould Court concluded tha t the Civil Division was the proper venue for this abuse claim and not the Family Division. However, the Court reasoned that since authority to hear such claims now rests with the un ified Superior Court, the Supreme Court
directed that the claim be transferred to the Civil Division of the Superior Court and remanded

2 24 V.S.A. § 4472(b) authorizes the consideration of challenges to “the constitutionality of any one or more of the provisions of any [zoning] bylaw or mun icipal plan.” Petitioners’ Counts III, IV & V do n ot raise such a challenge. Rather, Petitioners’ claim s represent challenges to the actions taken and procedures followed by the City Council. Our criti que of the procedures followed by the City Council would be improper, as explained above.

3 This entry order of a three-justice panel has notyet been made available on the Vermont Judiciary w eb site or on any legal research sites available to th is Court. We have placed a copy of this entry orde r in the file of this declaratory judgment action, so that a ny individual who wishes to receive a copy may requ est one from the Court Operations Manager.Univ. Mall, LLC v. City of So. Burlington, No. 102- 8-12 Vtec (EO on Mot. to Clarify or Transfer) (04-0 9-13) Pg. 3 of 3.

the claim to that Division, so that it could proper ly address the claim. The question before us now is whether this Court may likewise transfer ven ue to a different division of the Superior Court when such transfer would be appropriate.

Although decisions by a three justice panel are not precedential, we believe that the Gould entry order provides helpful guidance that wo uld favor transfer in this case. Moreover,
we note that the Vermont Rules of Environmental Cou rt Procedure allow this Court to “make other orders that will promote expeditious and fair proceedings and avoid unnecessary costs or delay” when the same violation or project involves multiple proceedings before this Court or when different violations or projects share common issues of law and fact. V.R.E.C.P. 2(b). Although we generally rely on this provision in coo rdinating cases within our own docket, we
believe that under the facts and circumstances of t his case, it would not be inappropriate to read Rule 2(b) as enabling us to transfer a case to anot her division when the interests of justice, jurisdictional constraints, and judicial economy so require.
Here, Petitioners brought a declaratory judgment ac tion involving interim zoning regulations before this Court. Their decision to d o so can hardly be characterized as illogical, given the nature of cases that this Court typically considers. Indeed, the question of this Court’s jurisdiction was a complex one to answer. See Univ. Mall, LLC & 205 DS LLC v. City of So. Burlington, No. 102-8-12 Vtec (Vt. Super Ct. Envtl. Div. Jan. 29, 2013). While we could dismiss this action, we believe it best to GRANT Petitioners’ request to transfer their declaratory judgment action to the Civil Division, Chittenden U nit, of our Superior Court. Jurisdiction over declaratory judgment actions, or at least “venue” ( to use the parlance of Gould), rests with the respective civil divisions of our Superior Court. See 12 V.S.A. § 4711. Given the specific directives established during the restructuring/uni fication of the Vermont trial courts, we believe it unnecessary, and perhaps absurd, to dism iss this action in this environmental docket, given that Petitioners would be entitled to re-file their action in the appropriate unit of the civil division. While this Docket is only months and notyears old, it seems inefficient to require that Petitioners re-file in a different division, pay an additional filing fee, and re-serve the necessary parties.
Based upon the above, we hereby TRANSFER this declaratory judgment action to the Civil Division, Chittenden Unit, of the Vermont Sup erior Court. Our Court Manager shall see to the transfer of the entire file, so that the Cou rt Operations Manager for the Chittenden Unit, Civil Division may include all filing thus far made here in a new docket established by that Court. The Environmental Division Court Manager sh all only retain for her records a “dummy file,” with copies of our docket entries and entry orders.

This Entry Order concludes the matter before this C ourt in this Docket.

_________________________________________ April 9, 2013 Thomas S. Durkin, Judge Date

=================================================== ========================== Date copies sent to: ____________ Clerk's Initials _______
Copies sent to: Daniel P. O’Rourke, Attorney for Plaintiffs Universi ty Mall, LLC and 205 DS, LLC John H. Klesch, Attorney for Defendant City of Sout h Burlington Phillip C. Woodward, co-counsel for Defendant City of South Burlington.