STATE OF VERMONT

ENVIRONMENTAL COURT

Appeal of James Ghia }

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Docket No. 31-2-03 

Vtec

Decision and Order on Motion to Alter or Amend

This Court issued its Decision and Judgment Order on the merits of 

this on-the-record appeal on November 19, 2003. Appellant James 

Ghia is represented by Martin Nitka, Esq.; the Town1of Ludlow is 

represented by J. Christopher Callahan, Esq. Appellant has moved to 

alter or amend the judgment order.

Before we reach Appellant= s motion, we must correct a typographical 

error in the Court= s decision: In the last sentence of the first (partial) 

paragraph on page 7 of that decision, the date should have been 

>1987' rather than >1997.= To avoid confusion in future readers of 

that decision, we will correct that error in the electronic version of that 

decision before it is made available to the public. We will also correct 

the paper copies on file at the Court, noting that that change was 

made as a result of today= s order.

Appellant argues that the issue of whether the project was commenced 

within the 120-day-period required by ' 225 and its unappealed 

conditional use permit was not before the Court. A fair reading of 

Question 3 of the Statement of Questions, however, shows that 

Appellant brought the question of commencement of construction 

squarely before the Court in this case.

Appellant argues that the finding that construction was not 

commenced on the initial group of twelve units (three buildings) until 

1987 at the earliest is not supported in the record as a whole. In 

support of this argument Appellant adduces an additional affidavit, not 

presented to the DRB and not part of the record, asserting that the 

foundations of the first three buildings were dug and the footings for 

them were poured in July of 1985, although those buildings were not 

completed until between 1987 and 1989.
Unfortunately for Appellant= s argument, because this is an on-therecord appeal, any additional evidence must be presented initially to 

the DRB before the Court could consider it. Appellant remains free to 

move the DRB to reopen and reconsider its decision, and to allow 

Appellant to present to it this additional evidence. But that evidence 

cannot be considered for the first time by the Court. 

All that the Court had before it in this particular case was the evidence 

that was before the DRB when it made its decision. Based on that 

evidence, which is described in the November 19, 2003 decision and 

order, we decline to alter or amend the decision and order or the 

associated judgment order. We do note, for the guidance of the 

parties, that the Court= s decision was and is without prejudice to any 

decision the DRB may make in the future to reopen its hearing and 

take further evidence. We also note that any decision which it may 

make on the basis of the additional evidence would be subject to a 

future appeal that would be a new appeal, not a reopening of the 

present appeal.

Accordingly, Appellant= s motion to alter or amend is DENIED.

Done at Barre, Vermont, this 31st day of December, 2003.

___________________

Merideth Wright 

Environmental Judge

Footnotes

1.

 Despite discussions in pretrial conferences and footnote 2 to that 

order, Attorney Callahan persists in filing legal memoranda on behalf 

of the “Ludlow Town and Village Development Review Board,” even 

though he entered his appearance properly on behalf of the “Town and 

Village of Ludlow.” As we noted in that footnote, the only proper 

municipal party under 24 V.S.A. § 4464(b)(2) is the municipality itself, 

not the administrative body whose decision is being appealed.