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VERMONT SUPERIOR COURT

Environmental Division Docket No. 23-ENV-00040

32 Cherry St, 2nd Floor, Suite 303, Docket No. 23-ENV-00039

Burlington, VT 05401

802-951-1740

www.vermontjudiciary.org

Clark CU & AU Appeal

ENTRY ORDER

Title: Motion to Reconsider or Alter (Motion: 10) 

Filer: Claudine C. Safar, Esq.

Filed Date: July 5, 2024 

Appellant/Applicant Opposition to Motion, filed on July 19, 2024, by Attorneys Malachi T. 

Brennan and Geoffrey Hand. 

Interested Parties’ Reply in Support of Motion, filed on August 2, 2024, by Stephanie and 

Mark Atkins, Daniel Guy, Sarah Laird, Christine Fraioli, Jacquelyn Tuxill, Kristi 

LaFayette, Mike O’Connor and Sarah Farr. 

Interested Person Marilyn Ganahl’s Reply to Opposition to Motion, filed on August 5, 2024, 

by Attorney Safar.

The motion is DENIED.

In this coordinated appeal, Kyle and Katie Clark (the Clarks) appeal two decisions of 

the Town of Lincoln Zoning Board of Adjustment (ZBA) related to their request to site a 

personal aircraft landing area (PLA) at their property located at 432 Orchard Road North, 

Lincoln, Vermont. In the first, the Clarks appeal a decision of the ZBA denying their 

application for an accessory use permit for the PLA (the Accessory Use Appeal). In the 

second, the Clarks appeal a decision by the ZBA denying their application for a conditional 

use permit for a graded PLA (the Conditional Use Appeal). On June 6, 2024, this Court issued 

a decision on the Clarks’ motions for partial summary judgment in both the Accessory Use 

Appeal and Conditional Use Appeal and Interested Person Marily Ganahl’s (Ms. Ganahl) 

partial cross-motion in the Conditional Use Appeal. In re Clark CU & AU Appeal, Nos. 23-

ENV-00039, 23-ENV-00040 (Vt. Super. Ct. Envtl. Div. June 6, 2024) (Walsh, J.) (the Decision). 
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Relevant to the pending motion, the Court granted the Clarks’ motion in the Conditional Use 

Appeal, concluding that the proposed graded PLA use may be reviewed as a “developed 

recreational use” as set forth in the applicable Lincoln Zoning Regulations (LZR), in part 

based on the conclusion that the proposed PLA use was recreational. Id. at 13—14.

Ms. Ganahl now moves pursuant to V.R.C.P. 52(b) to reconsider or alter the Decision

as it relates to the Court’s conclusion that the proposed PLA constitutes, and may be 

reviewable as, a recreational use. Interested Persons Stephanie and Mark Atkins, Daniel 

Guy, Sarah Laird, Christine Fraioli, Jacquelyn Tuxill, Kristi LaFayette, Mike O’Connor and 

Sarah Farr (together, Interested Persons) support the motion. The Clarks oppose the 

motion.

The pending motion is filed pursuant to V.R.C.P. 52(b). V.R.C.P. 52(b) states that upon 

timely motion after judgment “the court may amend its findings or make additional findings 

and may amend the judgment accordingly.” It is unclear whether V.R.C.P. 52(b) is applicable 

in the present context of a motion to reconsider or alter decision on summary judgment. See 

Wright & Miller, 9C Fed. Prac. & Proc. Civ. § 2582, n. 11 (3d ed) (listing cases concluding that 

federal Rule 52(b) motions to amend are not applicable in the context of a summary 

judgment decision). This makes sense because, on summary judgment, the Court does not 

make factual findings as such findings may only occur after trial. Id. at 2—3 (citing Fritzeen 

v. Trudell Consulting Eng’rs, Inc., 170 Vt. 632, 633 (2000) (mem.)).1 

The Court believes that the relevant rule to review the pending motion under would 

be V.R.C.P. 59(e), which courts have interpreted as relevant to motions for reconsideration. 

The Court has identified four basic grounds for granting Rule 59(e) motion: (1) to “correct 

manifest errors of law or fact upon which the judgment is based”; (2) to allow a moving party 

to “present newly discovered or previously unavailable evidence”; (3) to “prevent manifest 

injustice”; and (4) to respond to an “intervening change in controlling law.” In re Lathrop Ltd. 

P’ship I, 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 

1 The Court further notes that Rule 52 is in the section of V.R.C.P. entitled “Trials” and containing rules 

related thereto. Rule 59, however, discussed below, is in the section entitled “Judgment,” which contains various 

rules related to judgments from the Court, which include summary judgments.
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Procedure: Civil 2d § 2810.1). The Court understands that Ms. Ganahl’s motion is made 

pursuant to prongs one and two of this standard because she does not address the later 

prongs. Because the Court understands the dispute between the parties on this pending 

motion to be largely related to the Rule 59(e) standard and the first two prongs therein, the 

Court will apply it to the pending motions.2

Motions to reconsider should not be used to “relitigate old matters” or to “raise 

arguments or present evidence that could have been raised prior to entry of the judgment.” 

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 the parties or with the Court’s decision is not grounds for 

granting such a motion. In re Boutin PRD Amendment, No. 93-4-06 Vtec, slip op. at 2 (Vt. 

Envtl. Ct. May 18, 2007) (Wright, J.).

First, Ms. Ganahl argues that the Court erred in its interpretation of LZR § 402 in 

concluding that the PLA is a recreational use. LZR § 402 generally addresses permitted uses 

within identified flood hazard areas. This includes recreational uses. LZR § 402(2). Section 

402(2) includes a non-exhaustive list of what uses may be considered recreational. Section 

402 further requires that identified permitted uses within identified flood hazard areas are

permitted only when the use “do[es] not require the erection of structures or storage of 

materials or equipment . . ..” LZR § 402. Because the Clarks will store airplanes on the 

Property in connection with the PLA, Ms. Ganahl asserts that the use is not “recreational” as 

defined by the LZR in § 402 and, functionally, that the Court’s conclusion to the contrary was 

an error of law. 

This assertion misstates the Court’s citation of LZR § 402. The Court cited § 402 to

guide its analysis as to what may be a recreational use, generally, under the LZR. As 

2 The Court further reaches this conclusion because the Clarks, in opposing and noting the procedural 

confusion set forth by the pending motion, apply the Rule 59(e) standard. Ms. Ganahl and Interested Persons do 

not set forth any other standard for reviewing the motion.

In any event, the Court would reach the same conclusion if it were to apply the V.R.C.P. 52(b) standard. See 

Burton Corp. Conditional Use, et a., Nos. 20-ENV-00010, 22-ENV-00030, slip op. at 2 (Vt. Super. Ct. Envtl. Div. Sept. 

6, 2023) (Teachout, J.) (citing Gutierrez v. Ashcroft, 289 F.Supp.2d 555, 561 (D.N.J. 2003) (setting for the applicable 

V.R.C.P. 52(b) standard).
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discussed in the Decision, there is no definition of “recreational uses” in the LZR and, 

therefore, the Court looked to § 402(2) for guidance as to what may be a “recreational use” 

under the LZR. The Court’s analysis of this provision was limited to this guidance in the 

context of its determination that the PLA may be a recreational use, generally. The focus of 

LZR § 402 is regulation of flood hazard areas. The PLA is not located in a flood hazard area. 

Additional aspects of LZR § 402 are, therefore, irrelevant to the Court’s conclusion that the 

type of use proposed is consistent with what the LZR has generally identified as recreational 

uses.3 Thus, § 402 does not present grounds for the Court to reconsider the Decision.

Next, Ms. Ganahl’s motion seeks to dispute the facts giving rise to the Court’s 

conclusion that the PLA was a recreational use. Specifically, the pending motion seeks to 

relitigate Ms. Ganahl’s contention that Mr. Clark’s use of the PLA for occasional commuting 

to work purposes means that the PLA cannot be recreational in nature, despite this 

occasional commuting. The Court analyzed this argument and disagrees with it. Thus, the 

pending motion seeks to relitigate a decided issue. Van Nostrand, Nos. 209-11-04 Vtec, 101-

5-05 Vtec, slip op. at 4 (Dec. 11, 2006) (Durkin, J.). Further, there is evidence in the record to 

support the Court’s conclusion that the proposed PLA is a recreational use as set forth in the 

Decision.4 To the extent that Ms. Ganahl seeks to provide the Court will additional exhibits 

in support of her argument, largely based on what was presented to the Town below, she had 

the opportunity to do so in the context of the summary judgment motions and did not. 5 Id. 

3 This is further supported by a reasonable reading of § 402’s prohibition on the erection of structures or 

storage of materials and equipment within the flood hazard area. Many of these recreational uses logically would 

include the construction of structures or the storage of materials (i.e., tennis courts typically include nets and fences, 

picnic and campgrounds include tables and grills). In a flood hazard area, however, it is logical that a town may seek 

to place an additional requirement that such uses may not include structures or the placement of materials that may 

cause hazards to the public or property during flooding events. Thus, it appears that this prohibition does not modify 

whether a use is recreational or not, but rather what use-related construction or storage may occur as a permitted 

use in flood-prone areas.

4 The Court notes that no opposing party disputed the Clark’s additional statement of undisputed material 

facts filed in support of their motion and the exhibits supporting those facts. This includes an affidavit of Mr. Clark 

regarding the use and the scope of the proposed hobby/recreation. The Court is permitted to consider these facts 

undisputed for the purposes of the motion. V.R.C.P. 56(e)(2). Parties may not now argue that the record is devoid 

of this supporting evidence.

5 Additionally, Ms. Ganahl files an unsigned proposed lease between Mr. Clark and a third party for use of 

the third party’s airstrip allegedly for commuting purposes. See Ex. D. Nothing within the document appears to 

establish that the would-be use was limited to commuting. Further, the Court does not see the relevance in this 
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Thus, Ms. Ganahl presents no basis for the Court to reconsider or alter the Decision6

and the motion is DENIED. 

Electronically signed this 15th day of August 2024 pursuant to V.R.E.F. 9(d).

Thomas G. Walsh, Judge

Vermont Superior Court, Environmental Division

zoning appeal of this unsigned proposed lease agreement for use of a property not at issue in this appeal. Nor does 

the document alter the Court’s conclusion that the proposed PLA use is recreational despite occasional commuting.

6 Interested Persons’ reply in support of the motion similarly presents no grounds to reconsider the 

Decision. First, the Court notes that Interested Persons, either individually or as a group, did not submit any filings 

related to the motions for summary judgment giving rise to the Decision. They had an opportunity to present their 

arguments related to this issue but chose not to do so. Van Nostrand, Nos. 209-11-04 Vtec, 101-5-05 Vtec, slip op. 

at 4 (Dec. 11, 2006) (Durkin, J.). Because Interested Persons appear self-represented in this matter, the Court has 

reviewed their filing despite this and conclude they fail to raise grounds to reconsider or alter the Decision.