### Connor Grp LLP Major Site Plan & CU Approval

ENTRY REGARDING MOTION

Count 1, Municipal DRB Multiple Types (74-6-13 Vtec )

Title: Motion for Partial Summary Judgment (Motion 3) Filer: Connor Group, LLP Attorney: William A. Fead Filed Date: January 24, 2014

Response in Opposition filed on 02/28/2014 by Attor ney Paul S. Gillies for Appellants Mark Prent, et al. Reply filed on 03/11/2014 by Attorney William A. Fe ad for Appellee Connor Group, LLP

The motion is DENIED.

The pending appeal is set for a multi-day trial beg inning on May 7, 2014. Applicant Connor Group, LLP (“Applicant”) seeks summary judgm ent on one of several legal issues raised in the Statement of Questions filed by Appellants P eter D. Ford, Susan Prent, and Mark Prent (“Appellants”). Specifically, Applicant asks this Court to conclude that its plan to demolish the Smith House portion of its property conforms to the pre-conditions for demolition of historic structures established in §§ 706 and 708 of the Lan d Development Regulations for the City of Saint Albans (“Regulations”).

We will grant summary judgment to a moving party (h ere, Applicant) only if that party shows that “there is no genuine dispute as to any m aterial 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). In ruling on a summary judgment motion, the Court is directed to “accept a s 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 to give the non-moving party (here, Appellants) the benefit of all reasonable doubts and inferences. Robertson v. Myl an Labs., Inc., 2004 VT 15, ¶ 15, 176 Vt. 356; see V.R.C.P. 56(c). 

## S TATE OF 

## V ERMONT

SUPERIOR COURT ENVIRONMENTAL DIVISION
Vermont Unit Docket No. 74-6-13 VtecConnor Group, LLC Major Site Plan & CU Approval, No . 74-6-13 Vtec (EO on Partial Summ. J.) P. 2 o f 3.

Applicant notes that its pending motion does not re quest summary judgment on the questions of whether the proposed new development c onforms to the applicable conditional use and site plan review standards in the Regulatio ns. 1

In fact, Applicant’s motion for partial summary jud gment appears to focus on Regulations § 708(a)(8)(e)(i), which requires that an applicant present an assessment and inventory of the historic structure and its gardens , landscaping, and outbuildings, as well as
further evidence that all efforts had been exhauste d to salvage the historic structure.

The Court conducted multi-day hearings on Appellant s’ motion to stay demolition of the Smith House. The first two days resulted in the pa rties stipulating to a temporary stay; when that stay expired, Appellants filed a subsequent mo tion for a continued stay. After several more days of evidentiary hearings, this Court denie d Appellants’ request. See Entry Order of Nov. 20, 2013.

This procedural background provides important conte xt for our ruling on the pending motion. In particular, although the Court denied A ppellants’ motion for a continued stay at the conclusion of the November 18, 2013 hearing, the Co urt did not specifically authorize Applicant to demolish the Smith House. In fact, the Court ca utioned Applicant at the conclusion of the hearing that if it proceeded with demolition while this appeal was pending, it did so at its peril, since no final authorization has been issued on App licant’s request to demolish the Smith House portion of the building.

In support of its pending request for a judgment au thorizing the planned demolition, Applicant has submitted an affidavit from its histo ric preservation consultant, Suzanne C. Jamele, as well as Ms. Jamele’s initial and supplem ental Historic Documentation Reports.

Appellants have submitted a critique of Ms. Jamele’ s report, prepared by their expert, Thomas Keefe. Mr. Keefe’s report does not serve as an independent historic documentation report, but it identifies perceived deficiencies of Ms. Jamele’s report. Mr. Keefe also references and cites to a rehabilitation evaluation he prepare d at Applicant’s request.

We recognize that Appellants’ most recent presentat ion does not present contradicting facts, but rather suggests that Applicant’s present ation is insufficient. However, in his most recent assessment, Appellants’ expert references a prior evaluation he completed for a possible Smith House rehabilitation; his current assessment includes citations to the rehabilitative possibilities for the Smith House. While this evid ence is sparse, we conclude that, when viewed in a most favorable light, Appellants’ proffered ev idence is sufficient to overcome Applicant’s allegation that it has satisfied § 708(a)(8)(e)(i). Because we conclude that there is a genuine dispute of material fact and that Applicant is not entitled to judgment as a matter of law regarding conformance with § 708(a)(8)(e)(i), we DENY the pending motion for partial summary judgment and look forward to the parties’ presentat ion of admissible evidence at trial.

1 Applicant recently filed a separate motion, seekin g judgment on Appellants’ remaining legal issues. We will afford Appellants an abbreviated opportunity to res pond to this new motion, given the pending trial da te. We request that Appellants file their response to this recently filed motion no later than 4:00 p.m. on M onday, April 28, 2014.Connor Group, LLC Major Site Plan & CU Approval, No . 74-6-13 Vtec (EO on Partial Summ. J.) P. 3 o f 3.

So ordered

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Electronically signed on April 21, 2014 at 01:47 PM pursuant to V.R.E.F. 7(d).

________________________________ Thomas S. Durkin, Judge
Environmental Division

Notifications: Paul S. Gillies (ERN 3786), Attorney for Appellant Peter D. Ford Paul S. Gillies (ERN 3786), Attorney for Appellant Susan Prent Paul S. Gillies (ERN 3786), Attorney for Appellant Mark Prent William A. Fead (ERN 4606), Attorney for Appellee C onnor Group, LLP Co-Counsel for party 5 David Bond

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