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 Memorial Hall Renovations & Additions Permit Appeal Docket No. 128-9-13 Vtec 

(Appeal from Town of Wilmington DRB approval) 

Title: Motion to Dismiss (Filing No. 1) 

Filed: October 3, 2013 

Filed By: Robert M. Fisher, attorney for Applicant Town of Wilmington 

Opposition to Motion filed on 10/9/13 by John R. Canney, III, attorney for Appellants Cynthia 

 Beaudette and Alice Richter. 

Response to Opposition filed on 10/11/13 by the Town of Wilmington 

Reply to Oppositional Response filed on 10/17/13 by Appellants Beaudette and Richter 

Sur-Reply filed on 10/21/13 by the Town of Wilmington 

 X Granted Denied Other 

The Court conducted a hearing (by telephone) on November 18, 2013 on the pending 

motion. After hearing arguments from Attorneys Fisher and Canney, the Court concluded that 

the applicable law required that the Court GRANT the request by the Town of Wilmington 

(“Town”) to dismiss the appeal of Cynthia Beaudette and Alice Richter (“Appellants”). The 

Court announced its reasons for dismissal on the record of the November 18, 2013 hearing. This 

Entry Order is issued to provide a written summary of the legal analysis the Court relied upon 

in dismissing the pending appeal. 

The Town applied for a permit to complete renovation work on a public facility known 

as Memorial Hall, located at 14 West Main Street. The proposed work includes the construction 

of an elevated deck for HVAC equipment, replacement of a handicap access ramp, insulation, 

and interior renovations. Because the elevated deck would encroach entirely into the ten-foot 

rear setback, the Town requested a variance or waiver for its construction, solely to provide 

space for the new HVAC equipment. 

The Town of Wilmington, through its Zoning Administrator, posted and mailed notices 

of the pending application and the August 19, 2013 hearing before the Town of Wilmington 

Development Review Board (“DRB”). The postings and mailings were completed on August 2, 

2013. The DRB completed its hearing and determined that the proposed elevated deck did not 

need a variance or waiver from the rear yard setback requirement, since it was a “mechanical 

accoutrement” and not meant for human occupancy. The DRB issued its decision on August 26, 

2013. See In re Town of Wilmington (Memorial Hall), Case #2013-065, slip op. at 3, 5 (Tn. of 

Wilmington DRB Aug. 26, 2013). 
In re Memorial Hall Ren. & Additions, No. 128-9-13 Vtec (E.O. on Mot. To Dismiss) (11-25-13) Pg. 2 of 3. 

Appellants filed their Notice of Appeal with this Court on September 26, 2013, 31 days 

after the DRB decision.* In response to Appellants’ appeal, the Town filed its motion to dismiss, 

asserting that since neither of the Appellants participated in the DRB proceedings, they did not 

have standing to appeal the DRB decision. In support of its motion to dismiss, the Town 

provided the Affidavit of its Zoning Administrator, who represents that she mailed each of the 

Appellants a copy of the DRB hearing Notice on August 2, 2013, but that neither of Appellants 

appeared or presented information or concerns to the DRB. See (Herrick Aff., filed Oct. 3, 2013). 

In response, Appellants assert that neither of them received the August 2, 2013 Notice 

for the DRB hearing. They provide no evidence, however, to refute the Town’s representation 

that a timely Notice was mailed to each Appellant at the address they last provided to the 

Town, which is the same address used to notify Appellants of their tax assessments and tax bills 

for their adjoining properties. Rather, Appellants argue that the Court should allow their 

appeal to proceed based upon their representation that they did not receive the Notice, even 

though they do not deny the Town’s assertion. 

Appellants make a sincere and sympathetic argument, but we regret that the applicable 

law does not allow their appeal to go forward. Our Legislature has chosen to limit standing to 

appeal a land use determination to those individuals who have “participated” in the municipal 

proceedings that resulted in the decision they seek to appeal. See 10 V.S.A. § 8504(a) and 24 

V.S.A. § 4471(a). There are limited exceptions to this participation requirement,† and Appellants 

seek to invoke one of those exceptions by asserting that the Town’s Notice of hearing was 

deficient, since it was not delivered to them either in hand or by certified mail. 

The manner in which the Town delivered the Notice to Appellants did not provide the 

ideal assurance that Appellants would receive that notice, but it complies with the statutory 

notice obligations established by our Legislature. Pursuant to 24 V.S.A § 4464(a)(1), the Town 

provided notice fifteen days in advance of the DRB hearing by publishing the Notice in a 

newspaper, posting it in three public places, and mailing a copy to all adjoining property 

owners, including Appellants. The Town chose to mail these notices to the adjoining property 

owners by regular first class mail, postage pre-paid. These mailing and notice procedures are 

not prohibited by the applicable laws. Id. 

Appellants assert that the Town was required to deliver its notice by hand or certified 

mail pursuant to 24 V.S.A § 4464(a)(3), but that provision contains no such requirement. Rather, 

by providing that an “applicant may be required” to demonstrate notice by hand delivery or 

certified mail, § 4464(a)(3) merely allows a municipality to direct such delivery, but the statute 

does not require it. Id (emphasis added). 

Appellants also take issue with the fact that the Zoning Administrator’s certification was 

not delivered to the DRB, but only delivered to this Court, in support of the Town’s motion to 

dismiss. This argument suffers from the same deficiency, since § 4464(a)(3) merely states that 

 

*

 The Town did not assert, either in its motion or during the hearing on its motion, that Appellants’ 

appeal was filed out of time, even though appeals of municipal land use determinations must be filed 

within thirty days of the appealed decision, pursuant to 10 V.S.A. § 8504(b)(1) and V.R.E.C.P. 5(b)(1). 

†

 See 10 V.S.A. § 8504(b)(2)(A), which provides that a party not otherwise entitled to appeal may do so 

upon a showing that “there was a procedural defect which prevented the person from . . . participating in 

the proceeding . . . .” Appellants contend that they did not participate in the DRB hearing because they 

did not receive the Town’s mailing. 
In re Memorial Hall Ren. & Additions, No. 128-9-13 Vtec (E.O. on Mot. To Dismiss) (11-25-13) Pg. 3 of 3. 

an “applicant may be required to demonstrate proof of delivery to adjoining land owners . . . 

mailed to the last known address supported by a sworn certificate of service.” Id (emphasis 

added). Because the language of the statute is permissive and provides no specific requirement 

that the certification be delivered to the DRB, we decline to use this statutory provision to deny 

dismissal. 

For the reasons stated above, we DISMISS Appellants’ appeal. As a consequence of this 

determination, the August 26, 2013 DRB approval of the Town’s application remains in full 

force and effect. 

This completes the current proceedings before this Court in this matter. 

_________________________________________ November 25, 2013 

 Thomas S. Durkin, Judge Date 

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Date copies sent: ____________ Clerk's Initials: _______ 

Copies sent to: 

 Attorney John R. Canney, III, attorney for Appellants Cynthia Beaudette and Alice Richter 

 Attorney Robert M. Fisher, attorney for Applicant Town of Wilmington