### Duval CU Denial

ENTRY REGARDING MOTION

Count 1, Municipal DRB Conditional Use (93-8-18 Vtec)
Count 2, Municipal DRB Conditional Use (93-8-18 Vtec)
Title: Motion for Reconsideration (Motion 8)

Filer: Peter K. Duval
Attorney: Pro Se
Filed Date: June 18, 2019 Response in Opposition filed on 06/26/2019 by Attorney Eric G. Derry for party 3 Co-counsel

The motion is DENIED.
Peter K. Duval appeals a conditional use permit denial by the Town of Underhill Development Review Board (DRB) related to his application to convert a single-family home with an attached accessory dwelling into a 4-unit multi-family dwelling at his property in Underhill, Vermont. The Town of Underhill (Town) subsequently cross-appealed. On May 21, 2019, this Court issued an Entry Order motion to remand the appeal back to the Town for further consideration of the application. Presently before the Court is reconsider our May 21, 2019 Entry Order.

alter or amend a judgment. The Court has identified four basic grounds for granting such a motion: (1)

In re , Nos. 122-7-04 Vtec, 210-9-08 Vtec, 136-8-10 Vtec, slip op. at 10 11 (Vt. Super. Ct. Envtl. Div. Apr. 12, 2011) (Durkin, J.) (quoting 11 Wright, Miller, & Kane, Federal Practice and Procedure: Civil 2d § 2810.1).

arguments or present evidence that could have been raised pri Appeal of Van Nostrand, Nos. 209-11-04 Vtec, 101-5-05 Vtec, slip op. at 4 (Vt. Envtl. Ct. Dec. 11, 2006) (Durkin, J.) (quoting Wright, Miller, & Kane, § 2810.1) (internal footnotes omitted). Therefore, disagreement between t granting such a motion. In re Boutin PRD Amendment, No. 93-4-05=6 Vtec, slip op. at 2 (Vt. Envtl. Ct. May 18, 2007) (Wright, J.).
Mr. Duval raises two arguments in support of his motion. First, he argues it is outside the
DRB to review and set conditions related to wastewater systems. Second, he argues



## S TATE OF 

## V ERMONT

SUPERIOR COURT ENVIRONMENTAL DIVISION Docket No. 93-8- 18 Vtecthat this Court improperly relied upon the DRB decision below when ruling on the motion to

remand.
Mr. Duval raised his arguments re systems when first The Court considered this argument at that time and his attempt to raise it again in the present motion seeks to impermissibly relitigate this issue.
We again note that it is uncontested that the Town lacks authority to permit any wastewater system design. The Town is not seeking to do so in this matter, however. As the Court stated in our May 21, 2019 Entry Order, the Town is seeking to evaluate compliance with relevant conditional use standards. Reviewing wastewater system designs during conditional use

We next turn in issuing our May 21, 2019 Entry Order. Appeals to the Environmental Division are heard de novo. See 24 V.S.A. § 4472(a); V.R.E.C.P. 5(g). In a de novo hearing, the Court is directed to

Chioffi v. Winooski Zoning Bd., 151 Vt. 9, 11 (1989) (quoting In re Poole, 136 Vt. 242, 245 (1978)).

based in the fact that the Town was unable to review certain aspects of the proposed application in the first instance due to insufficient evidence. Therefore, it could not conduct a full review of the proposal. The Court had received representations from Mr. Duval that evidence on these issues would be forthcoming before this Court. Therefore, on appeal, evidence beyond that which the Town received when conducting its initial review of the project would be presented and the Court would be hearing certain issues in the first instance. This is beyond our role as an appellate tribunal. See In re Maple Tree Place, 156 Vt. 494, 500 (1991).
In reviewing the DRB decision below, the Court did not rely upon the conclusions therein. Instead, the Court reviewed the decision to determine whether the DRB had the opportunity to conduct a full review of the proposal in the first instance. This review was required to rule on the merits of a remand. We conclude this review was proper and, therefore, is not grounds to grant

For these reasons, we DENY Entry Order as he has not presented adequate grounds to reconsider the decision.

So ordered.

Electronically signed on June 27, 2019 at 03:34 PM pursuant to V.R.E.F. 7(d).

_________________________________________ Thomas G. Walsh, Judge Superior Court, Environmental DivisionNotifications:

Appellant Peter K. Duval Joseph S. McLean (ERN 2100), Attorney for Cross Appellant Town of Underhill Interested Person John McNamara Interested Person Catherine McNamara Interested Person Steve Codding Interested Person Dianne Terry Interested Person John Koier Interested Person Barbie Koier Interested Person Nancy Hall Interested Person John Hall Interested Person Susan May Interested Person Thomas May Interested Person John Hardacre Interested Person Marilyn Hardacre Interested Person David Demuynck Interested Person Cathy Leathersich Eric G. Derry (ERN 5528), Attorney for party 3 Co-counsel

efilosa