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 Saman ROW Approval Docket No. 176-10-10 Vtec 

(Appeal from ZBA decision) 

 

Title: Motion to Dismiss Question 2 (Filing No. 6) 

Filed: June 7, 2011 

Filed By: Robert Halpert, Attorney for Interested Person Town of Plainfield 

Response in Opposition filed on 6/23/11 by Elizabeth McGill, Attorney for Appellant William Basa 

Response in Opposition filed on 6/27/11 by Brice C. Simon, Attorney for Interested Person Brenda 

 Lindemann 

 X Granted ___ Denied ___ Other 

The Town of Plainfield (“Town”) has filed a Rule 12(b) motion to dismiss Question 2 from 

Appellant William Basa’s revised Statement of Questions. See V.R.C.P. 12(b)(1) (“the following defense[] 

may . . . be made by motion: (1) lack of jurisdiction over the subject matter”); V.R.E.C.P. 5(a)(2). The 

motion was filed in Appellant Basa’s appeal of an on-the-record decision of the Town of Plainfield 

Development Review Board (“DRB”), approving Peter Saman’s application for the use of a right-of-way that 

connects his property at 351 Bartlett Road to Lindemann Lane. 

Appellant Basa’s Question 2 poses the following query: “Did the Town of Plainfield Selectboard act 

improperly in amending Town of Plainfield ordinance Section 3.4 in a manner contrary to that approved by 

the voters of the Town of Plainfield?” Section 3.4 is the section of the Town of Plainfield Zoning 

Regulations under which the DRB completed its review of Mr. Saman’s application. The Town argues that

Question 2 should be dismissed because it is outside this Court’s jurisdiction to address. 

We agree with the Town that we do not have jurisdiction to address Appellant Basa’s Question 2. 

Challenges to selectboard decisions and actions do not come before this Court, but, rather, are properly raised 

either with the selectboard itself, under the provisions described in 24 V.S.A. § 4442, or in the Civil Division 

of the Superior Court, following the procedures outlined in V.R.C.P. 75. There is no provision in the

applicable statutes, Chapter 117 of Title 24 (Municipal and Regional Planning and Development), for the 

Environmental Division to review challenges to selectboard determinations. Cf. 24 V.S.A. § 4465 (“An 

interested person may appeal any decision or act taken by the administrative officer . . . .”) (emphasis added); 

24 V.S.A. § 4303(9) (defining “legislative body” to include a town’s selectboard, among other entities, but 

not indicating that such an entity should be regarded as an “administrative officer”). Unless and until the 

Civil Division deems the ordinance here void, or, a challenge is successfully raised in this Court as to the 

constitutionality of the ordinance or the Town’s authority to adopt the ordinance,1

 we are obligated to 

recognize it as valid. 

 

1

 Within the context of actions properly before us, we do have jurisdiction to hear challenges to the validity of an 

ordinance when such challenges call into question a municipality’s authority to adopt the ordinance in the first place; if 

we determine a municipality is acting outside of its authority, no ordinance exists for us to apply. See In re Paynter 2-

Lot Subdivision 2010 VT 28, ¶¶ 3, 7–8, 187 Vt. 637 (mem.) (affirming the then-Environmental Court’s determination 

that a municipality could challenge the validity of its own zoning ordinance based on a lack of authority for the 

municipality to have enacted the ordinance in the first place); In re Appeal of JAM Golf, LLC, 2008 VT 110, ¶¶ 12–14, 

17–19, 185 Vt. 201 (reversing the then-Environmental Court’s application of an ordinance after finding the ordinance 

unconstitutional for its vagueness and grant of standardless discretion to decision-makers). Despite Appellant Basa’s 
In re Saman ROW Approval, No. 176-10-10 Vtec (EO on Motion to Dismiss Question 2) (09-02-11) Pg. 2 of 2. 

Because we conclude that this Court does not have jurisdiction to hear Appellant Basa’s challenge to 

the propriety of the Town of Plainfield Selectboard actions, we must GRANT the Town’s motion and 

DISMISS Question 2 from Appellant Basa’s revised Statement of Questions. 

We direct the parties to now comply with the briefing schedule for this on-the-record appeal that we 

have provided in our accompanying Entry Order on Peter Saman’s motion to dismiss. 

_________________________________________ September 2, 2011_________ 

 Thomas S. Durkin, Judge Date 

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Date copies sent to: ____________ Clerk's Initials _______ 

Copies sent to: 

 Thomas Hayes, Attorney for Appellee/Applicant Peter Saman 

 Elizabeth H. McGill, Attorney for Appellant William Basa 

 Robert Halpert, Attorney for Interested Person Town of Plainfield 

 Brice C. Simon, Attorney for Interested Person Brenda Lindemann 

 

citation to Paynter 2-Lot Subdivision in his memorandum, we do not read his Question 2 as raising the type of challenge 

present in the Paynter appeal. Rather, with Question 2 he inquires into the propriety of the Town of Plainfield 

Selectboard actions.