State of Vermont Superior Court—Environmental Division

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In re Gaujac Final Plan Review PUD Docket No. 145-9-10 Vtec Project: Request for final site plan/PUD appro val Applicant: Roland Gaujac and Lisa Gaujac (Appeal from Town of Charlotte Planning Commission determination)

Title: Motion to Dismiss Wygmans as Interested Part ies, (Filing No. 3)

Filed: November 9, 2010

Filed By: Liam L. Murphy, Attorney for Applicant/Cr oss Appellants Roland Gaujac and Lisa Gaujac

Response (in Opposition) filed on 11/30/10 by Inter ested Persons Maura and Justin Wygmans

___ Granted X Denied ___ Other

Before the Court is a motion to dismiss Maura and J ustin Wygmans, who have entered a notice of appearance as interested persons in this appeal by Michael and Karen Frost of the Town of Charlotte Planning Commission’s approval of a final site plan for a Planned Unit Development (“PUD”) involving the construction of an inn and residence on Applica nts Roland and Lisa Gaujac’s (“Applicants”) property. Applicants filed the motion to dismiss, arguing that the Wygmans’ notice of appearance was late, not mailed to Applicants’ Counsel, and may ha ve been purposefully back-dated. Applicants also assert that allowing the Wygmans to intervene would prejudice Applicants and delay resolution of the matter because of a quickly approaching mediation s ession scheduled for December 15, 2010.

This Court’s procedural rules require most parties, with a few exceptions not pertaining here, who wish to intervene in the appeal of a municipal body’s decision to file a notice of appearance with in 20 days of receiving service of the notice of appea l. V.R.E.C.P. 5(c). The parties wishing to interv ene must also serve each of the other parties involved in the appeal with their notices of appearance. Id .; see also V.R.C.P. 5. If a filing party misses the 20-d ay deadline, the party may file a “timely” motion t o intervene. V.R.E.C.P. 5(a)(2), (c); see also 24 V. S.A. § 4471(c); V.R.C.P. 24. Further, all of these filings must be signed by the filing party, or the party’s counsel, or they will be “stricken unless omission of the signature is corrected promptly aft er being called to the attention of the attorney or party.” V.R.C.P. 11(a). 1

The Wygmans filed an unsigned notice of appearance with the Court on November 5, 2010, a total of 31 days after they were served with notice of Applicants’ cross appeal, thereby rendering the Wygmans’ filing 11 days late. For reasons unexplai ned to the Court (and not relied upon in our determination here), the Wygmans dated their notice October 26, 2010 but the Court did not receive it until November 5, 2010. When the Court brought the signature omission to the Wygmans’ attention, they corrected this by each filing signed pro se no tices of appearance on November 12, 2010. In response to Applicants’ motion to dismiss, the Wygm ans filed a signed letter apologizing for the

1 The signature serves as a party’s certification o f the accuracy and good faith of the party’s repres entations to the Court. See Reporter’s Notes, V.R.C.P. 11.In re Gaujac Final Plan Review/PUD , No. 145-9-10 Vtec (EO on Motion to Dismiss IPs) ( 12-14-10) Page 2 of 2.

lateness of their filing and indicating that they w ere out of the state for the month of September and fell behind on their correspondence.

We cannot discern how missing this appearance deadl ine by 11 days is an egregious delay warranting dismissal. 2 Here, the Wygmans promptly corrected the omission of their signatures, once the Court brought their signature omission to their att ention. While it remains unclear whether the Wygmans have served all of the other parties involv ed in this appeal with copies of their notice of appearance, Applicants were notified of the Wygmans ’ desire to appear through an e-mail on November 4. (See Mot. to Dismiss Wygmans as Interested Part ies n.1, filed Nov. 8, 2010). Additionally, despit e not filing an official motion to intervene, which i s required of the Wygmans under V.R.E.C.P. 5(c), th e Wygmans have filed a signed explanation of their ta rdy notice with the Court in the form of a letter responding to Applicants’ motion. 3

Ultimately, the procedural errors in the date, form at, and service of the Wygmans’ notice of appearance do not warrant the harsh remedy of their dismissal as interested persons. If the Wygmans had filed a motion to intervene, V.R.C.P. 24(b) wou ld require the Court to consider whether adjudication of the rights of the original parties in this appeal will be unduly delayed or prejudiced by the Wygmans’ appearance. Applicants’ arguments on this question have not convinced us that the errors here create such problems. The Wygmans stat e that they are aware of the date of the scheduled mediation and have “no problem with this date.” (S ee letter to Court from Maura and Justin Wygmans, filed Nov. 30, 2010). Additionally, while the Cour t frowns upon dating correspondence with a date other than that on which it is mailed, we do not th ink the discrepancy here on the Wygmans’ original notice of appearance, nine days, warrants their dis missal.

For the above reasons, the Court finds that the Wyg mans may remain interested persons in this appeal. Thus, the Wygmans may and should participa te in the upcoming mediation session which was ordered by the Court through its October 20, 2010 S cheduling Order. If the Wygmans have not done so already they must send copies of their signed notice of appearance, which was filed with the Court on November 12, 2010, to all of the parties in this ap peal.

___________________________________________ ___December 14, 2010

___ Thomas S. Durkin, Judge Date

=================================================== ===================== Date copies sent to: ____________ Clerk's Initials _______

Copies sent to:

Attorney Vincent A. Paradis for Appellants Karen Fr ost and Michael Frost Attorney David W. Rugh for Interested Person To wn of Charlotte Attorney Liam L. Murphy for Cross Appellants Ro land Gaujac and Lisa Gaujac

Interested Person Louise F. Reid Interested Persons Maura Wygmans and Justin Wyg mans

2 While Applicants discuss other opportunities the Wygmans had to file notices of appearance in this a nd a related appeal—the approval of Applicants’ preliminary site plan—the applicable rule here, V.R.E.C.P. 5(c), en titles a party to enter an appearance within 20 days of any notice of appeal. (See Mot. to Dismiss Wygmans as Intereste d Parties 2, filed Nov. 8, 2010).

3 The record does not indicate if and when the Wygm ans received service of Applicants’ November 9th mo tion to dismiss. The Wygmans letter in response to the mot ion was filed on November 30, 2010. The Court remi nds the Wygmans that they must comply with the Vermont Rule s of Civil Procedure including Rule 78 which requir es memorandum in opposition to motions to be filed wit h the Court 15 days after a party receives service of the motion.