PLH, LLC v Town of Bennington et al 

ENTRY REGARDING MOTION

Count 1, Municipal Other Civil Action (21-2-18 Vtec) 

Count 2, Municipal Other Civil Action (21-2-18 Vtec) 

Title: Motion to Dismiss Appeal & Complaint (Motion 1) 

Filer: Town of Bennington 

Attorney: Merrill E. Bent 

Filed Date: March 12, 2018 

Response in Opposition filed on 03/28/2018 by Attorney David M. Pocius for party 2 Co-counsel 

Reply to Opposition filed on 04/06/2018 by Attorney Merrill E. Bent for Defendant Town of 

Bennington 

The motion is GRANTED. 

Title: Motion for Costs and Fees and to Stay (Motion 2) 

Filer: Town of Bennington 

Attorney: Merrill E. Bent 

Filed Date: March 28, 2018 

Response in Opposition filed on 04/16/2018 by Attorney David M. Pocius for PLH LLC 

Reply in Support filed on 05/04/2018 by Attorney Merrill E. Bent for Defendant Town of 

Bennington 

The motion is DENIED. 

In this matter, PLH LLC files a complaint against the Town of Bennington (Town) 

concerning the Town’s adoption of the Bennington Town Plan Energy Element (Energy 

Amendment) which amends the Bennington Town Plan. PLH LLC requests declaratory and 

injunctive relieve, seeks review of governmental action pursuant to V.R.C.P. Rule 75, alleges 

statutory violations for violations of 24 V.S.A. Chapter 117, and seeks damages. 

PLH LLC is represented by David Pocius, Esq. and John Sartore, Esq. of Paul Frank + Collins 

P.C., and the Town is represented by Merrill E. Bent, Esq. of Woolmington, Campbell, Bernal & 

Bent, P.C. 

STATE OF VERMONT

SUPERIOR COURT ENVIRONMENTAL DIVISION

 Docket No. 21-2-18 Vtec
Standard of Review 

The Town moves to dismiss this matter for “failure to state a claim upon which relief can 

be granted” pursuant to V.R.C.P. Rule 12(b)(6) and for lack of subject matter jurisdiction. 

We grant a 12(b)(6) motion “only if ‘it is beyond doubt that there exist no facts or 

circumstances that would entitle the plaintiff to relief.’” Birchwood Land Co. v. Krizan, 2015 VT 

37, ¶ 6, 198 Vt. 420 (quoting Dernier v. Mortg. Network, Inc., 2013 VT 96, ¶ 23, 195 Vt. 113). “We 

assume as true all facts as pleaded in the complaint, accept as true all reasonable inferences 

derived therefrom, and assume as false all contravening assertions in the defendant's pleadings.” 

Id. 

The motion to dismiss also raises the question of subject matter jurisdiction. Where a 

party challenges the Court’s subject matter jurisdiction, we accept “all uncontroverted factual 

allegations of the complaint” as true and construe those allegations in the “light most favorable 

to the nonmoving party.” Rheaume v. Pallito, 2011 VT 72, ¶ 2, 190 Vt. 245 (citing Jordan v. State 

Agency of Transp., 166 Vt. 509, 511 (1997)). 

Background 

On January 22, 2018, the Town Selectboard voted to enact the Bennington Town Plan 

Energy Amendment. On February 21, 2018, PLH LLC filed a complaint concerning the Energy 

Amendment with this Court. PLH LLC requests declaratory and injunctive relief, seeks review of 

governmental action pursuant to V.R.C.P. Rule 75, alleges a statutory violation for an alleged 

violation of 24 V.S.A. Chapter 117, and seeks damages. 

Prior to this matter, on January 25, 2018, PLH LLC initiated a complaint in the Superior 

Court Civil Division, Chittenden County setting forth similar challenges to the Energy Amendment 

and more. The Town removed the matter to the United States District Court on February 26, 

2018, and PLH LLC then dismissed the action on February 28, 2018. 

In this matter, PLH LLC does not take issue with an act or decision of the Town’s 

administrative officer or a Town municipal panel. PLH LLC challenges the adoption of the Energy 

Amendment generally with regard to the Town’s compliance with statutory and constitutional 

requirements. Again, there is no “decision” on appeal; rather, PLH LLC challenges the 

Selectboard’s adoption of the Energy Amendment. 

Discussion 

In this action, PLH LLC challenges the validity of the Town’s adoption of the Energy 

Amendment. There are several ways to raise such a challenge. 
First, a party may challenge zoning regulations on constitutional grounds. A constitutional 

challenge can be a facial challenge, made on its own, without appealing a specific zoning decision. 

E.g. Hinsdale v. Vill. of Essex Junction, 153 Vt. 618, 627 (1990); Littlefield v. Town of Colchester, 

150 Vt. 249, 250 (1988). The Civil Division has jurisdiction over such cases. 24 V.S.A. § 4472(b). 

Alternatively, a party can present an as-applied constitutional challenge in the context of 

a case that already falls into the Environmental Division’s jurisdiction, such as by appealing the 

denial or approval of a permit application. See, e.g., In re Appeal of JAM Golf, LLC, 2008 VT 110, 

¶ 17, 185 Vt. 201. The Environmental Division has jurisdiction over these cases. 24 V.S.A. § 

4472(b). 

Next, a party may challenge a zoning ordinance by alleging that the ordinances were 

adopted in a manner that violated statutory requirements. When a party brings a standalone 

statutory challenge without also appealing specific zoning decisions they must do so before the 

Civil Division (formerly known as the Civil Court). E.g. Kalakowski v. Town of Clarendon, 139 Vt. 

519, 521 (1981) (challenge brought in Superior (Civil) Court as a “civil action”); Smith v. Town of 

St. Johnsbury, 150 Vt. 351 (1988) (declaratory judgment action including standalone statutory 

and constitutional claims brought in the Superior (Civil) Court); Paynter v. Town of Pittsford 

Planning Comm’n, Selectboard, No. 2009-307 (Jan. 15, 2010) (unpub. mem.) (challenge brought 

in the Civil Division pursuant to V.R.C.P. Rule 75).1 

A caveat applies to this scheme. If a zoning administrator makes a specific zoning 

decision, such as an approval or denial of a permit application, and a party fails to appeal that 

decision, the party is barred from collaterally attacking the finality of that decision by bringing a 

standalone statutory challenge, or an as-applied constitutional challenge, to the validity of the 

underlying zoning regulation. Galanes v. Town of Brattleboro, 136 Vt. 235, 237 (1978) (explaining 

 

1

 We note that Paynter v. Town of Pittsford, in particular, illustrates the manner in which cases similar to 

the one now before us have been treated in the past. In that case, a plaintiff brought a standalone statutory 

challenge to the validity of zoning regulations in the Civil Division pursuant to V.R.C.P. Rule 75. Id. at *1. Shortly 

after filing this civil action, the same plaintiff filed an application for a permit under the same zoning regulations, his 

permit application was denied, and he followed the appeal process set out in 24 V.S.A. § 4472 to bring an as-applied 

statutory challenge in the Environmental Division. In re Paynter 2-Lot Subdivision, 2010 VT 28, ¶ 2, 187 Vt. 637 

(mem.). 

Treating standalone statutory challenges in this way is consistent with other situations where selectboard 

decisions are challenged in the Civil Division pursuant to Rule 75. See, e.g., Coutu v. Town of Cavendish, Vt. Transp. 

Bd. & Vt. Agency of Transp., 2011 VT 27, ¶ 12, 189 Vt. 336 (because there was no statutory right to direct appeal 

selectboard decision to withhold approval of helipad, an appeal under Rule 75 is exclusive remedy); Richards v. Town 

of Norwich, 169 Vt. 44, 47–48 (1999) (selectboard decision authorizing septic permit properly challenged through 

Rule 75); but see Dunnett v. Town of Ludlow Zoning Bd. of Adjustment, No. 2002-042, slip op. at *2 (Aug. 2002) 

(unpub. mem.) (holding that plaintiff could not bring a standalone statutory challenge to zoning regulations under 

Rule 75 because he did not have standing under exclusive remedy procedure pursuant to 24 V.S.A. § 4472(a)). 
that, upon failure to appeal denial of a variance, the underlying zoning regulation cannot be 

challenged except on constitutional grounds); Hinsdale v. Vill. of Essex Junction, 153 Vt. 618, 627 

(1990) (barring an as-applied constitutional challenge after party failed to appeal zoning 

decision). The bar on collateral attacks is set out in 24 V.S.A. § 4472(d), which is triggered when 

a specific zoning decision is left unappealed. See In re Burns Two-Unit Residential Bldg., 2016 VT 

63, ¶ 16 (May 27, 2016) (explaining how § 4472(d) is triggered). This caveat is partially addressed 

in the Civil Division’s observation that after the enactment of 24 V.S.A. § 4472, a declaratory 

judgment action could only be brought by following the procedures set out in that statute, 

including the requirement to first appeal a zoning decision to the appropriate municipal panel. 

Gould v. Town of Monkton, No. 67-3-13 Ancv, slip op. 3–4 (Super. Ct. Civ. Div. Nov. 6, 2014) 

(Mello, J.) (citing Fisher v. Town of Marlboro, 131 Vt. 534, 534 (1973) (Fisher I)). 

As with constitutional claims, a statutory claim can alternatively be raised in proceedings 

over which the Environmental Division already has jurisdiction, such as an appeal from a 

municipal panel’s approval or denial of a permit application. Paynter 2-Lot Subdivision, 2010 VT 

28, ¶ 2. The Environmental Division has jurisdiction over these statutory claims which are joined 

with proper Environmental Division appeals. 24 V.S.A. § 4472(a). 

We note that standalone challenges to the validity of zoning regulations have been 

permitted subsequent to Fisher I. See Kalakowski, 139 Vt. 519; Smith, 150 Vt. 351; Paynter, No. 

2009-307. At least one of these cases, Smith, was a declaratory judgment action. 150 Vt. at 352. 

Fisher I may be distinguished from these standalone challenges because Fisher I began 

with the plaintiff filing a subdivision application which was not immediately approved. Fisher v. 

Town of Marlboro, 132 Vt. 533, 533 (1974) (Fisher II). Rather than attempting to secure approval 

for the application through the proper administrative process, plaintiff filed a separate 

declaratory judgment action in the Superior Court. Id. Fisher I was therefore not a standalone 

statutory challenge—rather, it was an impermissible collateral attack on the administrative 

zoning process below. The outcome in Fisher I and Fisher II, and subsequent cases, is consistent 

with the principle that standalone statutory challenges may be brought directly to the Civil 

Division, unless a specific zoning decision is at issue, in which case the challenge can be joined 

with proper Environmental Division appeals. Once a specific zoning decision has been made and 

left unappealed, such challenges are no longer standalone, but instead are treated as 

impermissible collateral attacks on the appeal process set out in 24 V.S.A. § 4472. 
Jurisdiction over PLH LLC’s Claim 

Here, PHL LLC alleges that the Selectboard failed to follow statutory and constitutional 

requirements when it enacted the Energy Amendment. The complaint presents a standalone 

challenge, in that it is not based in any specific permit denial or zoning decision. 

PLH LLC offers Gould as authority for the Environmental Division having jurisdiction over 

standalone challenges. See Gould v. Town of Monkton, 2016 VT 84, 202 Vt. 535. 

While Mr. Gould originally filed his claim in the Civil Division, the Supreme Court held that 

his “statutory challenge is governed by 24 V.S.A. § 4472(a), and our case law concerning the effect 

of that statute is clear: suits that challenge the procedural enactment of municipal planning laws 

must be brought before the Environmental Division.” Id., 2016 VT 84, ¶ 16 (citing Harvey v. Town 

of Waitsfield, 137 Vt. 80, 83 (1979), overruled on other grounds by Mohr v. Vill. of Manchester, 

161 Vt. 562 (1993) and 24 V.S.A. § 4472(a)). 

Section 4472(a) states that, apart from constitutional challenges to zoning regulations: 

[T]he exclusive remedy of an interested person with respect to any decision or act 

taken, or any failure to act, under [Chapter 117] . . . shall be the appeal to the 

appropriate panel under section 4465 of this title, and the appeal to the 

Environmental Division from an adverse decision upon such appeal under section 

4471 of this title. 

24 V.S.A. § 4472(a). 

Section 4465, in turn, specifies that an “interested person may appeal any decision or act 

taken by the administrative officer in any municipality [to] the secretary of the board of 

adjustment or development review board . . . or with the clerk . . . if no such secretary has been 

elected,” and goes on to define “interested person.” 24 V.S.A. § 4465(a). Section 4471(a) states 

that “[a]n interested person who has participated in a municipal regulatory proceeding 

authorized under this title may appeal a decision rendered in that proceeding by an appropriate 

municipal panel to the Environmental Division.” 24 V.S.A. § 4471(a). 

In short, the plain language of this statutory scheme allows a party to appeal first to the 

appropriate municipal panel, and then allows a party to appeal the decision of that panel to the 

Environmental Division. Here, there has been no appeal to a municipal panel. Because we are 

only authorized to exercise jurisdiction over an appeal from a municipal panel decision under §§ 

4465, 4471, and 4472, and there is no such decision here, we are unable to exercise jurisdiction 

over PLH LLC’s appeal. 

A selectboard is not listed in § 4465 as a municipal panel to which one may appeal an act 

or decision. Elsewhere, a selectboard is defined as an “appropriate municipal panel” only when 
it acts as a “legislative body performing development review.” 24 V.S.A. § 4303(3). In the present 

action, the Selectboard was acting in its legislative capacity and adopting an amendment to the 

Town Plan. Therefore, the Selectboard was not a “appropriate municipal panel” called for in §§ 

4465, 4471, and 4472. 

PLH LLC did not apply for a permit or approval so § 4472(a) was not triggered. PLH LLC 

was therefore not foreclosed from bringing, and in fact did bring, a standalone statutory or 

constitutional challenge in the Civil Division. 

As there is no specific permit denial or zoning decision under § 4465, and therefore no 

challenge to any adverse decision from that appropriate municipal panel to the Environmental 

Division under § 4471, we are unable to exercise jurisdiction under §§ 4471 and 4472(a). Because 

the present matter is outside the scope of this Court’s jurisdiction, we cannot provide declaratory 

relief requested by PLH LLC. See 12 V.S.A. § 4711 (providing for Superior Courts with the power 

to provide declaratory judgement “within their jurisdictions.”). Nor is it within our authority to 

provide the preliminary injunction requested. Therefore, the Town’s motion to dismiss is 

GRANTED. PLH LLC’s complaint must therefore be DISMISSED for lack of subject matter 

jurisdiction pursuant to V.R.C.P. 12(h)(3). 

Motions for Transfer and Costs and Fees 

Even though we do not have jurisdiction, we must address PLH LLC’s motion to transfer 

and the Town’s motion seeking costs and attorneys’ fees. Any other motions are DENIED AS 

MOOT. 

First, as to transfer. With the restructuring and unification of the Vermont Judiciary in 

2010, all of Vermont’s trial courts were reconstituted as one Superior 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 transfer 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 Legislative Committee on Judicial Rules under 12 

V.S.A. Chapter 1, which establish criteria for the transfer of cases between divisions.”) 

While the Supreme Court has not yet promulgated specific rules governing the transfer 

of cases from the Environmental Division, the Supreme Court itself directed that a case originally 

filed in the Family Division be transferred to the Civil Division. See Gould v. Robinson, No. 2012-

312 (Vt. Feb Term, 2013) (unpub. mem.) available at 

http://vermontjudiciary.org/sites/default/files/documents/eo12-312.pdf. The Gould case 
involved a request for relief from abuse filed by someone who was not a domestic partner or 

cohabitator with the alleged abuser. Thus, jurisdiction over such emergency abuse claims had 

once been (and remains) within the sole jurisdictional authority of the “superior court.” Id. at 2; 

see also 12 V.S.A. § 5132(a). The Gould Court concluded that the Civil Division was the proper 

venue for this abuse claim and not the Family Division. The Court reasoned, however, that since 

authority to hear such claims now rests with the unified Superior Court, the Supreme Court 

directed that the claim be transferred to the Civil Division of the Superior Court and remanded 

the claim to that Division, so that it could properly address the claim. The question before us 

now is whether this Court may likewise transfer venue to a different division of the Superior Court 

when such transfer would be appropriate. 

Decisions by a three-justice panel are not precedential, and while we believe that the 

Gould entry order provides helpful guidance considering a request for transfer, we believe that 

the facts in the matter at hand do not support granting a transfer. We note that the Vermont 

Rules of Environmental Court 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 coordinating cases within our own docket, we believe that under the facts and 

circumstances of this case, it would be inappropriate to read Rule 2(b) as enabling us to transfer 

a case to another division as the interests of justice, jurisdictional constraints, and judicial 

economy are not realized. 

In support of their motion to transfer, PLH LLC cites to University Mall, LLC, v. City of S. 

Burlington, in which the Environmental Division transferred an action to the Civil Division of the 

Superior Court after dismissing the matter for lack of subject matter jurisdiction. No. 102-8-12 

Vtec, slip op. at 2-3 (Vt. Super. Ct. Envtl. Div. Jan. 29, 2013) (Durkin, J.). While University Mall 

accurately sets forth the standard for transferring cases within the Superior Court, it is factually 

distinct from the present matter. Most importantly, the petitioner in University Mall had not 

previously filed, and then voluntarily dismissed, a substantially similar case in the division it 

sought transfer to. 

We see no justification to transfer this matter to the Civil Division. PLH LLC first brought 

an action in the Civil Division. That action contained claims arising out the same Energy 

Amendment and raised similar statutory and constitutional challenges to the amendment as 

presently raised in the present matter. Once the matter was removed to the Federal level, PLH 
LLC then voluntarily dismissed the action. Because we can find no persuasive justification for 

transferring this matter back to a court that PLH LLC voluntarily abandoned, we decline to 

transfer the matter back. 

We therefore DENY the motion for transfer. 

In considering a request for reimbursement of fees and costs, Vermont prescribes to the 

American Rule. That is, each party is responsible for its own attorney’s fees unless there is a 

statute or agreement between the parties authorizing an award of reimbursement of attorney’s 

fees. See, e.g., Grice v. Vt. Elec. Power Co., 2008 VT 64, ¶ 29, 184 Vt. 132. Courts can deviate 

from the American rule “but ‘only in exceptional cases and for dominating reasons of justice.’” 

See Monahan v. GMAC Mortg. Corp., 2005 VT 110, ¶ 76, 179 Vt. 167 (quoting Sprague v. Ticonic 

Nat’l Bank, 307 U.S. 161, 167 (1939)). 

The Town additionally offers V.R.C.P. Rule 41(d) in support of their motion for costs and 

fees. Rule 41(d) states that: 

[i]f a plaintiff who has once dismissed an action in any court commences an action based 

upon or including the same claim against the same defendant, the court may make such 

an order for the payment of costs of the action dismissed as it may deem proper and may 

stay the proceedings in the action until the plaintiff has complied with the order. 

V.R.C.P Rule 41(d).2 

 An award of costs and fees under Rule 41(d) is discretionary and the Court may refuse to 

impose an award if “it appears there was a good reason for the dismissal of the prior action.” Id. 

(citations omitted). Further, “the Court should not impose any costs associated with work that 

will still be useful to defendants in the instant litigation.” Esquival v. Arau, 913 F. Supp. 1382, 

1388 (C.D. Cal. 1996). 

 We begin by noting PLH LLC’s assertion that it dismissed the original action because it 

concluded the Civil Division did not have subject matter jurisdiction over the cause of action and 

the Environmental Division was the proper court. However, for the reasons set forth above, this 

conclusion was in error and, in fact, this Court lacks subject matter jurisdiction over the case. 

 

2

 Federal law interpreting the federal rule, which the Vermont rule is substantially similar to, is split on the 

issue of whether attorney’s fees may be recovered as a part of the costs set forth in Rule 41(d). Compare Horowitz 

v. 148 S. Emerson Assocs. LLC, 888 F.3d 13, 24 (2nd Cir. 2018) (concluding attorney’s fees may be recovered under 

Rule 41(d)); Evans v. Safeway Stores, Inc., 623 F.2d 121, 122 (8th Cir. 1980) (reaching the same conclusion without 

much analysis); Meredith v. Stovall, 216 F.3d 1087 (10th Cir. 2000) (unpublished) (same); with Rogers v. Wal-Mart 

Stores, 230 F.3d 868, 874 (6th Cir. 2000) (concluding attorney’s fees are never available under Rule 41(d)); and 

Portillo v. Cunningham, 872 F.3d 728, 738-39 (5th Cir. 2017) (concluding that attorneys’ fees are generally not 

recoverable, with the exception of when the statute serving as the basis of the original suit allows for such an award); 

Andrews v. America’s Living Ctrs., LLC, 827 F.3d 306, 309-12 (4th Cir. 2016) (same); Esposito v. Piatrowski, 223 F.3d 

497, 501 (7th Cir. 2000) (same). However, for the reasons set forth above, we do not need to reach the issue of 

whether such fees can be recoverable under Rule 41(d). 
 Further, the present matter has only been pending in this Court for five months. While 

there was a prior compliant filed approximately one month before this action, this matter 

remains relatively new. Additionally, this case is still at the early stage of litigation and we are 

not aware of substantial discovery being conducted. 

 Because of PLH LLC’s jurisdictional reasons for filing the present appeal, the procedural 

posture of the matter, and the overarching American Rule regarding the awards of costs and fees, 

we decline to impose such costs. Therefore, the Town’s motion for costs and fees is DENIED. 

Conclusion

 For the foregoing reasons, we GRANT the Town’s motion to dismiss the matter and DENY

the motions to transfer and for costs and fees. All other pending motions are DENIED AS MOOT. 

This completes the matter before the Court. 

So ordered. 

Electronically signed on July 11, 2018 at 10:02 AM pursuant to V.R.E.F. 7(d). 

_________________________________________ 

Thomas G. Walsh, Judge 

Superior Court, Environmental Division 

Notifications: 

John Thornton Sartore (ERN 2176), Attorney for Plaintiff PLH, LLC 

Merrill E. Bent (ERN 5013), Attorney for Defendant Town of Bennington 

Defendant Bennington Cty Regional Comm. 

David M. Pocius (ERN 1492), Attorney for party 2 Co-counsel 

dchamber