STATE OF VERMONT ENVIRONMENTAL COURT

} In re: Leiter Subdivision Permit } Docket No. 85- 4-07 Vtec (Appeal of Stimson) } }
Decision and Order on Pending Motions
This appeal arises out of a decision of the Develo pment Review Board (“DRB”) of the Town of Woodstock granting Appellee-Applicants Jame s and Suzanne Leiter’s application to subdivide their 16.96-acre lot into two lots. Appe llant William P. Stimson appealed that decision to this Court. Appellant Stimson appears and repre sents himself. Applicants are represented by Kaveh S. Shahi, Esq. On January 2, 2008, we granted Applicants summary judgment on Questions 1, 2, and 3 of Appellant’s Statement of Questions, dismissed Qu estion 4, and denied summary judgment to all parties on Questions 5 and 6. In re: Leiter Su bdivision Permit , Docket No. 85-4-07 Vtec, slip op. at 12 (Vt. Envtl. Ct. Jan. 2, 2008) (“January 2 Decision”). We now have before us several additional motions for our consideration. Applican ts have renewed their motion for summary judgment on Questions 5 and 6. Appellant opposes t heir motion. Appellant has also moved for summary judgment “vacating” the DRB decision and re manding to the DRB for additional proceedings. In the alternative, Appellant has als o moved for reinstatement of Questions 1, 2, and 3. Appellant has also filed a motion in limine that seeks to prevent Applicants from offering into evidence or referring to an Agency of Natural Resources (“ANR”) permit that was recently
issued to them. We will consider these motions in turn.
Factual Background For the purposes of these motions only, the follow ing facts are considered undisputed
unless otherwise noted. 1. As noted above, we granted summary judgment in A pplicants’ favor on Questions 1, 2, 3, dismissed Question 4, and denied summary judgment t o all parties on January 2, 2008. January 2 Decision at 12. The January 2 Decision contained a thorough recitation of the undisputed
material facts. Id . at 1-2. We recommend review of that Decision and its Factual Background section to place this Decision in context.2

2. Applicants own an approximately 16.96-acre lot l ocated at 27035 Church Hill Road in
Woodstock. The lot is located in the Residential F ive Acre Zoning District (“R-5 District”). 3. Appellant owns property adjacent to Applicants’ land, also in the R-5 District. 4. Appellant and Applicants disputed the location o f their shared boundary. This dispute was recently resolved by a Stipulation for Judgmentin the Windsor Superior Court. Stimson v.
Leiter , Docket No. 233-3-07 Wrcv (Vt. Super. Ct. May 5, 2 008). 5. By that Stipulation, the parties agreed that “a certain survey prepared by Farnsworth Surveys entitled ‘Lands Surveyed for Leiter, Church , & Carlton Hill Rd.’ dated January 24, 2007 does not accurately depict the boundary between the parties[,]” and that “a certain survey prepared by Holt Surveys entitled ‘Lands of William P. Stimson, Church Hill Rd.’ dated July 9, 2007 accurately depicts the boundary between the pa rties.” Id

. 6. A copy of the “Farnsworth Survey” has been submi tted to this Court as Exhibit 5 to the
Second Affidavit of William P. Stimson. 7. A copy of the “Holt Survey” has been submitted t o this Court as Exhibit 4 to Appellant’s Statement of Undisputed Facts, filed with the Courton June 2, 2008. 8. Applicants submitted a subdivision application t o the DRB on February 15, 2007. This application would create two lots. According to th e application, one would contain 10.94 acres,
and the other would contain 6.02 acres. 1 The larger lot would be northerly of the small lo t, and the larger lot would also share the once-disputed b oundary with Appellant’s land, which lies easterly of the once-disputed boundary. Appellant’ s Exhibit 5 to the Second Affidavit of
William P. Stimson. 9. The DRB considered Applicants’ subdivision appli cation at a public hearing held March 27, 2007. January 2 Decision at 2. 2 10. On March 30, 2007, the DRB approved Applicants’ subdivision application. See Appellant’s Notice of Appeal Ex. 1 (containing a co py of the March 30, 2007 DRB decision approving Applicants’ application) (“DRB Decision”) . The DRB Decision contained one condition on its approval, that if the survey Appli cants had submitted proved to be incorrect, they must submit a new subdivision application.

1 Because of the result of the boundary dispute pro ceedings, Appellant contests that the subdivision l ots will contain 10.94 and 6.02 acres.
2 On the same day, prior to the hearing, Appellant f iled his action in the Windsor Superior Court. Jan uary 2 Decision at 2.3

11. On March 26, 2007, the Department of Environmen tal Conservation issued Applicants Wastewater and Potable Water Supply Permit #WW-3-13 00 (“WW Permit”). See Appellant’s
Exhibit 8 to the Second Affidavit of William P. Sti mson (containing a copy of the WW Permit). There is no indication in the record, nor have the parties argued, that this permit decision has been appealed. We therefore regard it as a final d etermination.
12. The WW Permit was not offered for consideration during the March 27, 2007 DRB hearings on Applicants’ subdivision application. 13. Portions of Applicants’ lot contain steep slope s and shallow soil areas. Compare Appellant’s Statement of Undisputed Facts ¶¶ 11–12 (filed June 2, 2008) (explaining that the steep slope and shallow soils areas are detailed on Exhibits 10 and 11 attached to this Statement of Facts) with Applicants’ admission to those facts in their Opposition Statement of Facts at ¶¶ 11–12 (filed June 19, 2008) (not disputing the stee p slopes and shallow soils assertion).

Appellant’s Motion to Reinstate Questions 1, 2, and 3 Appellant has moved that the Court “reinstate,” or otherwise resurrect for determination on the merits, Questions 1, 2, and 3, for which we granted Applicants summary judgment on January 2, 2008. Though not titled as a Motion for Reconsideration or as a Motion to Alter or Amend Judgment, this motion resembles a motion made under V.R.C.P. 59(e). See V.R.E.C.P. 5(a)(2) (the Vermont Rules of Civil Procedure, so f ar as applicable, govern appeals of this type in our Court). Though Appellant’s motion was style d as a motion to reinstate, it is substantively indistinguishable from a motion under Rule 59(e), a nd we will therefore consider it as such. See
Fournier v. Fournier , 169 Vt. 600 (1999) (mem.) (noting a motion’s capt ion is not determinative of the application of V.R.C.P. 59(e)). 3 Rule 59(e) provides that “[a] motion to alter or a mend [a] judgment shall be filed not later than 10 days after entry of the judgment.” Such a motion “allows [a] trial court to revise its initial [determination] if necessary to relieve a p arty against the unjust operation of the record resulting from the mistake or inadvertence of the c ourt and not the fault or neglect of a party.” Rubin v. Sterling Enters., Inc. , 164 Vt. 582, 588 (1996). Disposition of a Rule 5 9(e) motion is
committed to the sound discretion of this Court. I d . These motions “may not be used to

3 There is one procedural fact that distinguishes A ppellant’s motion from a conventional Rule 59 motio n: we have not yet entered a final judgment on the pending app lication. Nonetheless, since our January 2 Decisio n rendered a conclusive determination on Appellant’s Questions 1 , 2 and 3, we believe that a Rule 59 analysis of Ap pellant’s pending motion is appropriate.4

relitigate old matters, or to raise arguments or pr esent evidence that could have been raised prior to the entry of judgment.” 11 Wright, Miller, & Ka ne, Federal Practice and Procedure: Civil 2d § 2810.1 (construing the analogous federal rule). These motions may be used to “correct manifest errors of law or fact” that the judgment i s based upon, to prevent manifest injustice, to allow the moving party to present newly discovered or previously unavailable evidence, or to respond to an intervening change in the controlling law. Id

. Applicants note that Appellant’s motion came nearl y five months after our January 2 Decision, and urge that the motion be denied for be ing untimely. While denying Appellant’s late-filed motion is within our authority under Rul e 59(e), we choose to exercise the discretion the Rule proves us to address the substance of Appe llant’s numerous concerns regarding our January 2 Decision. Questions 1, 2, and 3 focused on the boundary dispu te, now resolved, that had been pending in the Windsor Superior Court as we conside red the earlier cross-motions for summary judgment. The basic issue contained in Questions 1 and 2 revolved around the propriety of a subdivision application being considered while one of its boundary lines is being disputed. As we noted in the January 2 Decision, an applicantbears the burden of showing evidence of title or some interest in the property to be developed. See January 2 Decision at 4 (collecting cases). Also, “[o]nce some evidence ha s been put forth on an applicant’s interests and right to develop the property, ‘further claims to title, or claims attacking the same must go to the appropriate Superior Court.’” Id . at 4-5 (quoting Appeal of Monty , Docket Nos. 7-1-04 Vtec and 47-3-04 Vtec (Vt. Envtl. Ct. Jan. 24, 2006)); a nd see 4 V.S.A. § 1001(b) (enumerating this Court’s subject matter jurisdiction, which does notinclude property or boundary disputes). Appellant contended then, as he does now, that the cloud created by the boundary dispute negated Applicants’ demonstration of control or tit le, thereby also negating their ability to receive a subdivision permit for this property. Question 3 asked a related question: whether submis sion of an incorrect survey or map would be fatal to Applicants’ subdivision applicati on under § 710 to the Town of Woodstock, Vermont Zoning Regulations (“Regulations”). 4 Section 710(A) lists a range of standards to

4 As we noted in the January 2 Decision, § 710 lists the applicable provisions for approval of this sub division, as major subdivisions such as this one are listed as c onditional uses in the R-5 District. Regulations § 302(D).5

which a proposed subdivision in the R-5 District mu st either conform or not adversely affect, including: (1) The capacity of existing or planned community f acilities[;] (2) The character of the area affected[;] (3) Traffic on roads and hi ghways in the vicinity[;] (4) Bylaws then in effect[;] (5) Utilization of renewable energy resources[;] (6) In addition, the [DRB] shall find that the proposed us e and/or structure adequately meets such specific standards with respect to: (7) minimum lot size[;] (8) Distance from adjacent or nearby uses[;] (9) Minimum off-str eet parking and loading facilities[;] (10) Landscaping and fencing[;] (11) Design and location of structures and service areas[;] (12) Size, location, and desig n of signs[;] (13) Access and circulation Our examination of all three questions centered on the effect that a Superior Court decision in Appellant’s favor could have on the pen ding subdivision application and whether the application could be approved under the Regulations . January 2 Decision at 4-9. Appellant contended then, as now, that any cloud o ver Applicants’ property, including the then-existing boundary dispute, prevents them f rom having sufficient control over the property to submit their application and also acts to prevent approval under Regulations § 710. Regarding the § 710 issue, that section does not sp eak directly to boundary dispute questions or to what level of interest or ownership one must hav e to subdivide. Appellant has not demonstrated how a changed boundary line would, und er these facts, affect the analysis under § 710(A). There was no dispute that even if Appell ant succeeded in the Superior Court proceedings, the revision to the parties’ shared bo undary line would have no material impact upon our analysis under § 710(A). We granted summa ry judgment to Applicants because a changed boundary line would have no effect upon the criteria considered under § 710, which
does not concern itself with the metes and bounds o f an applicant’s lot. In short, Appellant failed to show us how his boundary dispute was material to our review of the pending subdivision application under the Regulations. See Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248 (1986) (“As to materiality, the substantive law wil l identify which facts are material.”); see also In re: Murphy Revocable Trust , Docket No. 47-2-05 Vtec, slip op. at 8-9 (Vt. Env tl. Ct. Apr. 28, 2006) (explaining that where boundary line adjustme nt impacted none of the criteria under which an application was reviewed, the boundary line adju stment was not material). We therefore decline to alter or amend our January 2 Decision on Question 3. Moreover, the boundary dispute was not material to the consideration of whether Applicants had satisfied their burden of showing so me interest in the property to be subdivided.6

We focused on whether Applicants have shown suffici ent interest in the property to submit the application they wish us to approve. As we discuss ed, Applicants have shown that they have an interest in and control over the property they wish to subdivide. January 2 Decision at 5. Through the result in the boundary dispute proceedi ngs, Appellant suggests that we should hold that Applicants’ subdivision application cannot be approved because Applicants were in error regarding their boundary line when the DRB reviewed their application. However, Appellant has not explained how, under the Regulations, the b oundary dispute is fatal to our review of this application. Question 3 and the § 710 issue stand as an example. Appellant has not referred us to a provision of the Regulations, properly preserv ed for our review, which requires perfect presentation of the lot’s boundaries to the DRB. A ppellant has not demonstrated that the boundary dispute, and Appellant’s victory in the Wi ndsor Superior, is a material fact. Therefore, we decline to alter or amend our January 2 Decision on Questions 1 and 2. Were we to adopt Appellant’s reasoning, every revis ion to a land use application, including revisions that did not materially impact upon the criteria upon which the application was being reviewed, would require an applicant to b egin again. We refuse to adopt this logic, as it has no legal basis in the Regulations or applica ble precedent. Accordingly, Appellant’s motion to alter or amend the January 2 Decision, styled as a Motion for an Order Reinstating Appeal Questions 1, 2, and 3, is DENIED

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Cross-Motions for Summary Judgment; Appellant’s Mot ion in Limine Applicants have renewed their Motion for Summary J udgment on Questions 5 and 6 of Appellant’s Statement of Questions. Those two ques tions ask whether Applicants’ subdivision application should be denied for failure to address provisions of the Regulations related to development on lots with either “steep slope charac teristics” or “shallow soil characteristics.” These provisions are found in Regulations § 403(B) and (C). Similarly, Appellant has moved for “summary judgment vacating the March 30, 2007 decis ion of the [DRB]...and the permit issued thereon to [Applicants], and remanding [this] case to the [DRB] for further proceedings.” 5 Section 403 explains the requirements that must be met for development in the Conservation District, which is an overlay zoning d istrict under the Regulations. The purpose of

5 Appellant’s motion is titled “Appellant’s Motions for Summary Judgment Vacating [DRB] Decision and Remanding for Further Proceedings, or, in the Alter native, for an Order Reinstating Appeal Questions 1 , 2, and 3, and Granting in Limine Relief.” We consider this a motion for summary ju dgment on Questions 5 and 6, a motion in the alternative for in limine relief, and a motion to alter or amendment judgmen t, which is discussed supra

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the Conservation District is “[t]o protect natural areas and their inherent values from adverse development.” Those natural areas include areas wi th “steep slopes, shallow and wet soils, wetlands, and streams.” Regulations § 401(A). Ove rlay districts regulations, including those that govern the Woodstock Conservation District, co ntain requirements “in addition to” the requirements of the underlying zoning district and “take precedence over” the underlying district requirements when there is a conflict. Id . at § 402. We are directed to “evaluate the immed iate and long range impact of [a] proposed use of the re source.” Id

. Section 403(B), entitled “Steep Slope,” provides th at “[l]ots with steep slope characteristics as identified in the overlay zone s hall be reviewed by the appropriate board for suitable sewage disposal, access for emergency vehi cles, drainage, and erosion controls.” Section 403(C), entitled “Shallow Soils,” provides that “[l]ots with shallow soil characteristics as identified in the overlay zone shall be reviewed fo r suitable sewage disposal systems, and erosion control if warranted.” Applicants, who do not dispute that their lot contains steep slopes and shallow soils, have submitted the affidavit of engineer Michael J. Willis and the WW Permit with their motion to support their argument that th eir proposed subdivision meets the requirements of § 403(B) and (C). Mr. Willis asser ts through his affidavit that he has examined Applicants’ lot, concludes that it is suitable for sewage disposal, and states that there will be no adverse environmental effects, such as erosion. Af fidavit of Michael J. Willis at ¶ 2. The WW Permit contains no factual findings. It explains t hat Applicants’ subdivision project has been approved and contains 19 conditions of approval. Summary judgment is only appropriate where “the ple adings, depositions, answers to interrogatories, and admissions on file, together w ith the affidavits, if any...show that there is no genuine issue as to any material fact and that any party is entitled to judgment as a matter of law.” V.R.C.P. 56(c)(3). A motion for summary jud gment must be accompanied by a “separate, short, and concise statement of the material facts as to which the moving party contends there is no genuine issue to be tried.” V.R.C.P. 56(c)(2). These statements “shall contain specific
citations to the record.” Id

. All doubts and inferences will be resolved in favor of the non-moving party. Johnson v.
Harwood , 2008 VT 4, ¶ 5. However, the party opposing summ ary judgment may not “rest on bare allegations to demonstrate that disputed mater ial facts remain” for a hearing on the merits.
Id . Lastly, “failure to respond to a motion for summ ary judgment does not result in automatic8

summary judgment” for the moving party; the Court m ust satisfy itself that the motion and materials supporting it are “both formally and subs tantively sufficient to show the absence of a fact question’ and that the moving party is entitle d to judgment as a matter of law.” In re: Higgins-Jockey Lane Subdivision Final Plat , Docket No. 200-8-06 Vtec, slip op. at 1 (Vt. Envt l. Ct. Sept. 28, 2007) (quoting Miller v. Merchant’s B ank , 138 Vt. 235, 238 (1980)) (internal quotations omitted). At the outset, Appellant makes a jurisdictional cha llenge to our consideration of the WW Permit and Mr. Willis’s affidavit in determining wh ether summary judgment should be granted on Questions 5 and 6. Appellant insists that becau se neither the WW Permit nor Mr. Willis’s affidavit were submitted to the DRB, we “should con sider neither the ANR Permit not [sic] the Willis Statement in determining the merits of this appeal.” Appellant notes the maxim that “the reach of [this Court] in zoning appeals is as broad as the powers” of the DRB, but not broader.
In re Torres , 154 Vt. 233, 235 (1990). We note also that “what ever the [DRB] might have done with an application properly before it, [this Court ] may also do if an appeal is duly perfected.”
Id . at 236. Thus, for example, if the DRB did not ha ve the authority to convert a permitted use application into a hearing on a conditional use per mit, neither may we. Id

. Appellant contends that if we consider evidence not presented to the DRB, we both
violate the rule of Torres and deprive him of his right as an interested pers on to offer his input on this application. In addition, for these reasons, Appellant seeks in limine relief, preventing Applicants from offering the WW Permit at trial, sh ould the motions for summary judgment be denied. We believe that Appellant has misinterpret ed Torres and does not appreciate the distinct
nature of de novo proceedings. Appellant makes a subtle argument regarding our jur isdiction and ability to consider matters not necessarily presented to a municipal pl anning tribunal. In a de novo proceeding such as this, this Court’s role is to apply the standard s that were applicable before the tribunal appealed from and to hear the appealed-from applica tion anew, as though no prior action had been taken. 10 V.S.A. § 8504(h), V.R.E.C.P. 5(g); and see In re: Gizmo Realty/VKR Assocs.,
LLC , Docket No. 199-9-07 Vtec, slip op. at 4 (Vt. Envt l. Ct. Apr. 30, 2008) (Durkin, J.) (explaining that a de novo hearing “contemplates an entire trial similar to t he proceedings from which the appeal arose”). However, this does not g rant us broad authority to reconsider every aspect of a project or application; we are limited to considering those aspects that have been9

properly preserved for our review by an appellant’s statement of questions. See, e.g. , In re:
Jackson Subdivision ROW Access , Docket No. 195-9-07 Vtec, slip op. at 6 (Vt. Envt l. Ct. July 8, 2008) (citing Torres , 154 Vt. at 235-36) (Durkin, J.); and see Simendin ger v. City of Barre
, 171 Vt. 648, 651 (2001) (“Thus, the court [is] empo wered to address only those matters properly considered by the City’s planning commission and bo ard of adjustment.”). Thus, we have two competing rules to consider when examining our subj ect matter jurisdictional limitations. Our review is plenary, but only on those questions prop erly presented for our review. Appellant’s jurisdictional challenge appears to be premised upon assertions that
consideration of the WW Permit and Mr. Willis’s Aff idavit allows Applicants to amend their application, and that the Court thus exceeds its ju risdictional mandate by considering an application never before the DRB. We disagree. Th e focus of the Torres line of cases has been a change in the very nature of the application, not a change in the evidence offered on appeal in support of the same application that was reviewed b elow. See, e.g. , Torres , 154 Vt. at 234-36 (in a municipal appeal, it was error for the trial cour t to allow an application to be changed from a home occupation to conditional use application); Ap peal of Baker and Johns , Docket No. 200- 10-04 Vtec, slip op. at 4 (Vt. Envtl. Ct. Sept. 27, 2005) (Durkin, J.) (disallowing consideration of a PUD application where only a subdivision applicat ion had been warned at the municipal level), aff’d sub nom. In re Appeal of Baker and Johns , No. 2006-364 (Vt. Sup. Ct. May 16, 2007) (unpublished mem.); Perini Road Quarry , Docket No. 264-12-05 Vtec, slip op. at 7 (Vt. Env tl. Ct. Aug. 28, 2006) (Durkin, J.) (refusing to consid er issues as significant as site plan review not first addressed by an appropriate municipal panel); Murphy Revocable Trust , Docket No. 47-2- 05 Vtec, slip op. at 7 (Vt. Envtl. Ct. Apr. 28, 200 6) (Durkin, J.) (“Examples of such material changes include changes to the nature of the approv al being sought”); and In re: Appeal of
Chamberlin , Docket No. 123-7-04 Vtec, slip op. at 5 (Vt. Envt l. Ct. May 31, 2005) (Wright, J.) (refusing to consider an appeal of an advisory inte rpretation request as a request for a home occupation zoning permit). Recognizing that the land use permitting process mu st allow for some flexibility, and that it is a rare application that will not include some amendments made in response to neighbors’ concerns, we have declined “to interpret Torres as an absolute barrier to that necessary evolutionary process in permit proceedings.” Murph y Revocable Trust , Docket No. 47-2-05 Vtec, slip op. at 7 (Vt. Envtl. Ct. Apr. 28, 2006) (Durkin, J.). Our jurisdictional mandates do not10

preclude us from considering relevant and admissibl e evidence when deciding whether an application meets the substantive standards for app roval. Our authority extends to evidence that was not presented to the appropriate municipal pane l below, but is presented to this Court during
its de novo merits hearing on the same application that was on ce before the municipal panel. In fact, we have searched and found no authority that would allow us to prohibit such evidence
from our de novo merits hearing.
The Torres precedent precludes us from considering an applica tion that is different from the one presented to the appealed-from tribunal. T he application before us in this appeal has not changed. Rather, Applicants have given notice that they intend to present additional evidence in support of their subdivision application. We know of no authority to prohibit the introduction of
the Leiter WW Permit or the Willis Affidavit at tri al and decline to grant Appellant’s request to
do so now. Appellant makes several additional objections to Ap plicants’ summary judgment motion. He first argues that Applicants’ application cannotbe approved, and possibly ought not be considered, because Applicants’ “application papers are inadequate” for failing to address the requirements in Regulations § 403(B) and (C). Appe llant’s Memorandum of Law Submitted in Opposition to [Applicants’] Renewed Motion for Summ ary Judgment at 12 (filed July 3, 2008) (Appellant’s Opp. Mem.). Appellant argues that App licants failed to supply the appropriate materials to the DRB with their application and sho uld not now be allowed to rely upon such evidence in their quest for summary judgment. See also Regulations § 708 (explaining the proper form of an application and the materials tha t must accompany it). Appellant also argues
that the submission of Mr. Willis’s affidavit and t he WW Permit do not alone satisfy all of the requirements for approval under § 403(B) and (C). Appellant’s Opp. Mem. at 21. As noted, Mr. Willis’s affidavit discusses only his opinion regarding suitability for sewage disposal and possible erosion problems. Reg ulations § 403(B) requires the Court to analyze not only those issues, but also emergency v ehicle access and drainage issues for steep slope areas. To the extent that Appellant asserts that these form an appropriate basis for summarily denying the pending application, we disag ree. Viewing these facts in a light most favorable to the Applicants, Johnson v. Harwood , 2008 VT 4, ¶ 5, they only demonstrate that Applicants have not fully met their burden of produ ction at this pre-trial stage on the shallow11

soils and steep slopes analysis under Regulations § 403. We therefore cannot enter summary judgment to Appellant on Questions 5 and 6. However, this does not mean that Applicants are ent itled to summary judgment on these same Questions. As discussed, Applicants’ undisput ed facts and supporting citations to the record fail to discuss at least two parts of the an alysis required under Regulations § 403: emergency vehicle access and drainage issues. Sect ion 403(B) requires us to examine emergency vehicle access, and we therefore cannot a ccept Applicants’ assertion that we may ignore this issue. Regulations §§ 402, 403(B). Be cause Applicants have not convinced us that all material facts relative to Appellant’s Question s 5 and 6 are undisputed, their renewed motion for summary judgment must be DENIED

. Though the foregoing disposes of the cross-motions for summary judgment, we now note several issues raised by Appellant in his summary j udgment motion that relate to the scope of this appeal. Appellant notes that it is his belief that, first, Applicants have violated the terms of the WW Permit, and, second, that this permit was im properly issued. He argues that these issues prevent granting summary judgment and possibly shou ld forestall our review on the merits. We note that issues related to any violation of the WW Permit or its issuance are not the subject of this appeal. We have not been made aware of any vi olation or appeal proceedings. We therefore decline to discuss the bearing that these hypotheti cal permitting issues may have on any aspect of this appeal, as any such discussion would be adviso ry. In re 232511 Invs., Ltd. , 2006 VT 27, ¶ 19, 179 Vt. 409, 417. Appellant’s motion also weaves several of his argum ents in favor of altering or amending the January 2 Decision to resurrect Questions 1, 2, and 3 into his summary judgment motion on Questions 5 and 6. We refer him to our prior discu ssion in this Decision for our analysis of the impact of the boundary dispute on the present appea l. Section 403(B) and (C) contain no reference to boundaries. Therefore, to the extent Appellant offers the result of the boundary dispute in argument for summary judgment, such an a rgument must fail here. Lastly, Appellant also seeks in limine relief preventing Applicants from referring to or offering the WW Permit at trial. Such a motion is intended to prevent potentially prejudicial evidence from being offered or referred to at trial before a court has the opportunity to review the evidence’s admissibility. 75 Am. Jur. Trial 2d § 3 9. Appellant contends that because the WW
Permit was not submitted to the DRB with the subdiv ision application, it must be excluded.12

However, Appellant has made no argument that the pe rmit is irrelevant, inadmissible, or that its probative value is outweighed by its prejudicial ef fect. See id . (noting that a court should examine these factors); and see V.R.E. 402 (noting that all relevant evidence is admissible, unless constitutional considerations, a statute, or the Rules of Evidence otherwise prohibit admission); see also V.R.E. 403 (which does not bar all “prejudicial” evidence, but only evidence that is deemed unfairly prejudicial). App ellant’s Motion in Limine is therefore
DENIED at this time. If the WW Permit is offered at tria l, the Court will then examine its admissibility, based upon the manner in which it is offered. Accordingly, for the forgoing reasons, it is ORDERED and ADJUDGED that Appellant’s Motion to Reinstate Appeal Questions 1, 2, and 3 is DENIED . Both Applicants’ and Appellant’s Motions for Summary Judgment on Que stions 5 and 6 are also DENIED , and consideration of those Questions will proceed to a merits hearing, scheduled now for August 4, 5, and (if necessary) 6, in the Windsor Superior Co urthouse in Woodstock. A site visit will precede the first day of trial. Last, Appellant’s Motion in Limine to prohibit reference to or offering of the WW Permit and the Willis Affidavit is also DENIED

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Done at Newfane, Vermont this 25 th day of July, 2008.

___________________________________ Thomas S. Durkin, Environmental Judge