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### STATE OF VERMONT SUPERIOR COURT ENVIRONMENTAL DIVISION Vermont Unit Docket No. 60

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WhistlePig CU Permit 

### DECISION ON MOTION

**Decision on Motion to Voluntarily Dismiss Appeal** Whistle Pig, LLC (“Applicant”) seeks to convert an existing dairy barn located on Quiet Valley Road in the Town of Shoreham, Vermont (“the Town”) into a rye whiskey distillery and related office space (“the project”). On March 1, 2013 Applicant received a conditional use permit (“permit 13-03”) from the Town of Shoreham Z oning Board of Adjustment (“ZBA”). On September 10, 2013, Applicant filed an application to amend permit 13-03 (“the amended CU permit application”). In light of a pending appeal regarding permit 13-03, this Court remanded permit 13-03 to the ZBA for a conditional use deter mination on the amended permit application. The ZBA conducted a hearing and issue d its Findings of Fact and Notice of Decision approving the amended CU permit application on Apri l 7, 2014 (“permit 13-49”). Solar Haven Farm LLC, George Gross, and Barbara Wilson (“Appell ants”) timely appealed the ZBA’s decision granting permit 13-49 to this Court and filed a Sta tement of Questions. Now before the Court is Appellants’ December 4, 201 4 motion to voluntarily dismiss their appeal of the ZBA’s decision granting permit 13-49 pursuant to Rule 41(a)(1) of the Vermont Rules of Civil Procedure (“V.R.C.P.”). Pur suant to V.R.C.P. 41(a)(1), “an action may be dismissed by the plaintiff without order of court ( i) by filing a notice of dismissal at any time before service by the adverse party of an answer or of a motion for summary judgment,

whichever first occurs . . .” Dismissals under V.R .C.P. 41(a)(1) are without prejudice. Applicant does not object to Appellants’ right to withdraw th e appeal, or to the withdrawal of the appeal generally, but believes that such a withdrawal shou ld be made pursuant to Rule 42(b)(2) of the Vermont Rules of Appellate Procedure (“V.R.A.P.”) r ather than V.R.C.P. 41(a)(1). Pursuant to V.R.A.P. 42(b)(2), “An appeal may be dismissed on t he appellant’s motion on terms agreed to2

by the parties or fixed by the Court.” Applicants also argue that a withdrawal pursuant to V.R.A.P. 42(b)(2) must be with prejudice. Rule 5(a)(2) the Vermont Rules for Environmental Co urt Proceedings (“V.R.E.C.P.”) clarifies that both the V.R.C.P. and V.R.A.P. gover n proceedings before this Court, “so far as applicable.” It is our practice to apply the civil rules to de novo appeals, which follow the procedures outlined under the V.R.C.P., and to appl y the appellate rules to appeals on the record, which follow procedures outlined under the V.R.A.P. See V.R.E.C.P. 5(g) & (h) (discussing de novo and on the record appeals). Be cause the pending appeal is a de novo appeal, we conclude that V.R.C.P. 41(a)(1) applies to the pending motion. With regards to whether Appellant’s withdrawal of t he appeal is with or without prejudice, V.R.C.P. 41(a)(1) stipulates that a dism issal under the rule is without prejudice. Applicant expresses concern that a dismissal withou t prejudice renders the decision below open to further appeals and therefore precludes the m from moving forward with their project. We are sympathetic to this concern, and agree that there must be finality allowing the parties to move forward. Applicant’s concerns, however, ar e somewhat misguided, as granting Appellants’ motion to withdraw the appeal does not leave Appellants with the opportunity to appeal the ZBA’s decision regarding permit 13-49 at any future date. Pursuant to V.R.E.C.P. 5(b)(1), an appeal must be f iled within 30 days of the date of the decision being appealed—here, that date was May 7, 2014. The time to appeal the ZBA’s decision with regards to permit 13-49 has, therefor e, long passed. The withdrawal of Appellants’ current appeal therefore renders the ZB A’s decision final. The withdrawal of this appeal does not, however, extend to appeals challen ging future applications or revisions to permit 13-49, which Appellants may file regardless of these proceedings. We therefore conclude that to the extent Appellants do not wish to foreclose the opportunity to challenge permit 13-49 we grant them 5 business days to withdraw their motion to dismiss. Absent any such filing, we **GRANT** the motion and **DISMISS** the appeal of permit 13- 49 now pending, thereby rendering as final the ZBA’ s April 7, 2014 decision granting permit 13-

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Electronically signed on January 09, 2015 at Montpe lier, Vermont pursuant to V.R.E.F. 7(d).

________________________________ Thomas S. Durkin, Judge Environmental Division