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 Appellants 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 Development Review Board (“DRB”) approving the 

2-Lot Major Subdivision, Mixed Use Planned Unit Development, Conditional Use application of 

Theodore and Michelle Pelkey (“Applicants”). Currently pending before this Court is 

Applicants’ motion to dismiss Appellant Maurice Rathbun 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’ motion, 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 also refer to their motion as a “Motion for 

Partial Summary Judgment.” (Mot. to Dismiss Appellant Maurice Rathbun at 12, filed Mar. 15, 

2013.) We note, however, that Applicants’ motion appears to be a motion to dismiss pursuant 

to V.R.C.P. 12(b)(1), rather than a motion for summary 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. Rathbun’s standing to be an appealing party in 

this pending appeal. 

We first note that “standing is a necessary component 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 of subject matter jurisdiction may be raised at 

any time, id., including by this Court on its own motion. See, e.g., Brigham v. State, 2005 VT 

105, ¶ 9, 179 Vt. 525 (mem.) (“[I]f a plaintiff does not have standing, a court must exercise 

judicial restraint and dismiss the complaint for lack 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 reviewing such a motion, we accept all uncontroverted 

factual allegations as true and construe them in the light most favorable to the nonmoving 

party. See Rheaume v. Pallito, 2011 VT 72, ¶ 2, 190 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 interested person pursuant to 24 V.S.A. 

§ 4465(b)(3). To meet the requirements of this provision, Mr. Rathbun must (1) own or occupy 

property “in the immediate neighborhood” of the proposed 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 injury 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 whether there has been a showing that the 

proposed project will impact Mr. Rathbun specifically and that the purported impact is not 

hypothetical. In re UVM Certificate of Appropriateness, No. 90-7-12 Vtec, slip op. at 11 (Vt. 

Envtl. Div. Feb. 26, 2013) (Walsh, J.) (citing In re Lowre Variance, Docket No. 19-2-11, slip op at 

5 (Vt. Super. Ct. Envtl. Div. Oct. 31, 2011)) (Durkin, 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 only 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 standing in federal courts). 

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

that Mr. Rathbun does not live in the immediate neighborhood of the proposed project site and 

that he cannot demonstrate a physical or environmental 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 appeal, but also whether they potentially could be 

affected by any aspects of the project which have been preserved for review on appeal.” In re 

A. Johnson Conditional Use Permit, No. 130-7-05 Vtec, 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 the 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 Vtec, 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 occur if the project is permitted. See In re 

UVM Certificate of Appropriateness, No. 90-7-12 Vtec, 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 properties 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 find that Mr. Rathbun and those supporting 

his claim of standing have not described how the development 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. Rathbun by this proposed project. UVM 

Certificate of Appropriateness, No. 90-7-12 Vtec, slip op. at 11 (citing In re Lowre Variance, 

Docket No. 19-2-11, slip op at 5 (Vt. Super. Ct. Envtl. 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 any 
In 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 interests 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 statements that hint at, but do not describe, 

potential injuries that are particular to Mr. Rathburn. See Appellants’ Opp. to Appellee’s Mot. 

to Dismiss Maurice Rathbun at 3–4, filed Apr. 8, 2013. For example, nowhere in their response 

do Appellants specifically describe how the proposed project will fail to conform to the 

character of the area or how additional tanker truck or tractor-trailer traffic on Route 128 will 

impact Mr. Rathbun’s interests. Without more detail, this Court cannot find that Mr. Rathbun 

meets the second criterion for standing as an interested 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 Michelle Pelkey 

Chad V. Bonanni, Attorney for Appellants 

 Amanda Lafferty, Attorney for Interested Person Town of Westford