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 

STATE OF VERMONT

SUPERIOR COURT ENVIRONMENTAL DIVISION

 Docket No. 93-8-18 Vtec
that 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 Division 

 
Notifications:

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