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 Pelkey Final Plat Major Subdivision, et. al. Docket No. 172-12-12 Vtec

Title: Motion to Dismiss Appellant Maurice Rathbun (Filing No. 1)

Filed: March 15, 2013

Filed By: Appellees Theodore and Michelle Pelkey

Response in opposition filed on 4/8/13 by Appellant s Thomas White, Maurice Rathbun, and

Michael Blair

X Granted ___ Denied ___ Other

Thomas White, Maurice Rathbun, and Michael Blair (“ Appellants”) appeal a November 14, 2012 decision by the Town of Westford Developme nt Review Board (“DRB”) approving the 2-Lot Major Subdivision, Mixed Use Planned Unit Dev elopment, Conditional Use application of Theodore and Michelle Pelkey (“Applicants”). Curre ntly pending before this Court is Applicants’ motion to dismiss Appellant Maurice Rat hbun from this appeal. Applicants claim that Mr. Rathbun fails to qualify as an interested person as defined in 24 V.S.A. § 4465(b) and that Mr. Rathbun fails to meet the requirements of 24 V.S.A. § 4471.

In their memorandum in opposition to Applicants’ mo tion, Appellants point out that Applicants cite V.R.C.P. 56, which provides summary judgment standards, as the grounds for their motion to dismiss Mr. Rathbun. Applicants al so refer to their motion as a “Motion for Partial Summary Judgment.” (Mot. to Dismiss Appell ant Maurice Rathbun at 12, filed Mar. 15, 2013.) We note, however, that Applicants’ motion a ppears to be a motion to dismiss pursuant to V.R.C.P. 12(b)(1), rather than a motion for summ ary judgment pursuant to V.R.C.P. 56. Applicants do not seek judgment on a question posed by Appellants in their Statement of Questions. Instead, Applicants challenge Mr. Rathb un’s standing to be an appealing party in this pending appeal.

We first note that “standing is a necessary compone nt of the court’s subject-matter jurisdiction.” Bischoff v. Bletz, 2008 VT 16, ¶ 15 , 183 Vt. 235 (citing Brod v. Agency of Natural Res., 2007 VT 87, ¶ 2, 182 Vt. 234). The absence o f subject matter jurisdiction may be raised at any time, id., including by this Court on its own m otion. See, e.g., Brigham v. State, 2005 VT 105, ¶ 9, 179 Vt. 525 (mem.) (“[I]f a plaintiff doe s not have standing, a court must exercise judicial restraint and dismiss the complaint for la ck of subject-matter jurisdiction.”) (citing Hinesburg Sand & Gravel Co. v. State, 166 Vt. 337, 341 (1997)).

Accordingly, we will review Applicants’ motion as a V.R.C.P. 12(b)(1) motion to dismiss for lack of subject matter jurisdiction. In review ing such a motion, we accept all uncontroverted factual allegations as true and construe them in th e light most favorable to the nonmoving party. See Rheaume v. Pallito, 2011 VT 72, ¶ 2, 19 0 Vt. 245.In re Pelkey Final Plat Major Subdivision, No. 172- 12-12 Vtec (EO on Mot. to Dismiss Party) (07-03-13) Pg. 2 of 3.

Mr. Rathbun claims appellant standing as an interes ted person pursuant to 24 V.S.A. § 4465(b)(3). To meet the requirements of this pro vision, Mr. Rathbun must (1) own or occupy property “in the immediate neighborhood” of the pro posed project site; (2) “demonstrate a physical or environmental impact on [his] interests under the criteria reviewed;” and (3) allege
that the DRB’s decision below, “if confirmed, will not be in accord with the policies, purposes, or terms of the plan or bylaw” of Westford. See 24 V.S.A. § 4464(b)(3). This statutory standard incorporates some of the same elements, including i njury in fact, that a party must meet to have standing to bring a claim in the Civil Division of our Superior Court. Thus, to determine if Appellant meets this requirement, we first ask whet her there has been a showing that the proposed project will impact Mr. Rathbun specifical ly and that the purported impact is not hypothetical. In re UVM Certificate of Appropriate ness, No. 90-7-12 Vtec, slip op. at 11 (Vt. Envtl. Div. Feb. 26, 2013) (Walsh, J.) (citing In r e Lowre Variance, Docket No. 19-2-11, slip op at 5 (Vt. Super. Ct. Envtl. Div. Oct. 31, 2011)) (Durk in, J.); see also Agency of Natural Res. v. U.S. Fire Ins. Co., 173 Vt. 302, 306 (2001) (explaining that Vermont courts have adopted the same restriction as federal courts in terms of hearing o nly cases where actual controversies exist between the parties and thus only allow parties who meet the requirements for standing in federal courts to raise claims in Vermont courts); Lujan v. Defenders of Wildlife, 504 U.S. 555, 560–51 (1992) (describing the requirements for stan ding in federal courts).

Applicants challenge Mr. Rathbun’s standing to appe al the DRB decision by arguing

that Mr. Rathbun does not live in the immediate nei ghborhood of the proposed project site and that he cannot demonstrate a physical or environmen tal impact under the criteria reviewed. “To interpret ‘immediate neighborhood,’ this Court has examined not only the proximity of the challenged party’s property to the project on appea l, but also whether they potentially could be affected by any aspects of the project which have b een preserved for review on appeal.” In re A. Johnson Conditional Use Permit, No. 130-7-05 Vte c, slip op. at 3 (Vt. Envtl. Ct. Mar. 28, 2006) (Durkin, J.), aff’d No. 2007-113 (Vt. 2007) (mem.) (internal citations omitted). We make our determination on a case-by-case basis and examine t he physical environment surrounding the project property and its nexus to the appellant and the appellant’s property. Id. (citing In re
Bostwick Road Two-Lot Subdivision, No. 211-10-15 Vt ec, slip op. at 2–4 (Vt. Envtl. Ct. Feb. 24, 2006) (Durkin, J.), aff’d No. 2006-128 (Vt. 2007) ( mem.)). Thus, whether Mr. Rathbun owns or occupies property in the immediate neighborhood of the project site is closely related to the physical or environmental impacts he alleges will o ccur if the project is permitted. See In re UVM Certificate of Appropriateness, No. 90-7-12 Vte c, slip op. at 10.

The parties do not dispute that Mr. Rathbun owns or occupies property roughly one mile from Applicants’ project site and that both pr operties have frontage on Vermont Route 128. We do not reach the question of whether Mr. Rathbun ’s property is in the immediate neighborhood of the project site, however, as we fi nd that Mr. Rathbun and those supporting his claim of standing have not described how the de velopment under review will impact Mr. Rathbun specifically, by describing a concrete and particularized injury, nor have they referenced evidence showing that such an impact is not hypothetical; they have failed to demonstrate an actual or imminent injury to Mr. Rat hbun by this proposed project. UVM Certificate of Appropriateness, No. 90-7-12 Vtec, s lip op. at 11 (citing In re Lowre Variance, Docket No. 19-2-11, slip op at 5 (Vt. Super. Ct. En vtl. Div. Oct. 31, 2011)) (Durkin, J.).

In their response to Applicants’ motion to dismiss Mr. Rathbun, Appellants offer numerous details about Applicants’ proposed project , such as the fact that it will offer services and parking for tanker trucks and tractor trailers. However, Appellants fail to describe anyIn re Pelkey Final Plat Major Subdivision, No. 172- 12-12 Vtec (EO on Mot. to Dismiss Party) (07-03-13) Pg. 3 of 3.

specific impacts to Mr. Rathbun’s property interest s as a result of the proposed project and fail to reference any evidence or make any showing that such impacts are actual or imminent. Instead, Appellants make broad and general statemen ts that hint at, but do not describe, potential injuries that are particular to Mr. Rathb urn. See Appellants’ Opp. to Appellee’s Mot. to Dismiss Maurice Rathbun at 3–4, filed Apr. 8, 20 13. For example, nowhere in their response do Appellants specifically describe how the propose d project will fail to conform to the

character of the area or how additional tanker truc k or tractor-trailer traffic on Route 128 will impact Mr. Rathbun’s interests. Without more detai l, this Court cannot find that Mr. Rathbun meets the second criterion for standing as an inter ested person under 24 V.S.A. § 4464(b)(3). Accordingly, we DISMISS Mr. Rathbun from the pending appeal for failing to adequately demonstrate standing.

_________________________________________ July 3, 2013 Thomas S. Durkin, Judge Date

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Date copies sent to: ____________ Clerk's Initials _______

Copies sent to:

Brian P. Monaghan, Attorney for Appellees Ted and M ichelle Pelkey

Chad V. Bonanni, Attorney for Appellants

Amanda Lafferty, Attorney for Interested Person Town of Westford