State of Vermont Superior Court—Environmental Division

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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 P erson Town of Plainfield Response in Opposition filed on 6/23/11 by Elizabet h 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 Quest ions. See V.R.C.P. 12(b)(1) (“the following defens e[] may . . . be made by motion: (1) lack of jurisdicti on over the subject matter”); V.R.E.C.P. 5(a)(2). The motion was filed in Appellant Basa’s appeal of an o n-the-record decision of the Town of Plainfield Development Review Board (“DRB”), approving Peter S aman’s application for the use of a right-of-way th at connects his property at 351 Bartlett Road to Linde mann Lane. Appellant Basa’s Question 2 poses the following que ry: “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 revie w of Mr. Saman’s application. The Town argues that Question 2 should be dismissed because it is outsid e this Court’s jurisdiction to address. We agree with the Town that we do not have jurisdic tion to address Appellant Basa’s Question 2. Challenges to selectboard decisions and actions do not come before this Court, but, rather, are proper ly raised either with the selectboard itself, under the provi sions described in 24 V.S.A. § 4442, or in the Civi l Division of the Superior Court, following the procedures out lined in V.R.C.P. 75. There is no provision in the applicable statutes, Chapter 117 of Title 24 (Munic ipal and Regional Planning and Development), for th e Environmental Division to review challenges to sele ctboard determinations. Cf. 24 V.S.A. § 4465 (“An interested person may appeal any decision or act ta ken 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 regard ed as an “administrative officer”). Unless and unt il 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 au thority 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 v alidity 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 it s 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 de termination that a municipality could challenge the validity of its own zoning ordinance based on a lack of author ity for the municipality to have enacted the ordinance in the f irst place); In re Appeal of JAM Golf, LLC, 2008 VT 110, ¶¶ 12–14, 17–19, 185 Vt. 201 (reversing the then-Environmenta l Court’s application of an ordinance after finding the ordinance unconstitutional for its vagueness and grant of sta ndardless discretion to decision-makers). Despite Appellant Basa’sIn 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 j urisdiction 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 briefi ng schedule for this on-the-record appeal that we have provided in our accompanying Entry Order on Pe ter Saman’s motion to dismiss.

_________________________________________ September 2, 2011_________ Thomas S. Durkin, Judge Date

=================================================== ========================== Date copies sent to: ____________ Clerk's Initials _______ Copies sent to: Thomas Hayes, Attorney for Appellee/Applicant P eter Saman Elizabeth H. McGill, Attorney for Appellant Wil liam 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 memora ndum, we do not read his Question 2 as raising the type of challenge present in the Paynter appeal. Rather, with Questi on 2 he inquires into the propriety of the Town of Plainfield Selectboard actions.