State of Vermont Superior Court—Environmental Division

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In re Rockingham School District Permit Revocation Docket No. 20-2-13 Vtec Title: Motion to Remand (Filing No. 1) Filed: April 15, 2013 (orally at status conference) Filed By: Cross-Appellant Town of Westminster Response in Opposition filed on 4/30/2013 by Appell ant Rockingham School District Response in Opposition filed on 4/30/13 by Interest ed Person Fred W. Yates Response in Support filed on 5/6/2013 by Interested Person Ruth Gale

___ Granted 

### X Denied ___ Other

In the case at hand, the Rockingham School District (“Appellant”) appeals a decision by the Town of Westminster Development Review Board (“ DRB”) revoking Zoning Permit No. 12- 20, which permitted an outdoor sports lighting syst em. At a pre-trial telephone status conference held on April 15, 2013, the Town of West minster (“the Town”), through its attorney, requested that this Court remand the pending case t o the DRB over concerns that Appellant did not provide proper notice of his appeal to his neig hbors. We chose to treat the Town’s request as a formal motion and invited all interested parti es to file written responses to the motion. We received and considered responses from Appellant as well as two interested parties in this appeal. At the April 15 status conference, the Town raised concerns that (1) Appellant failed to provide proper notice to all interested persons in accordance with V.R.E.C.P. 5(b)(3) and 24 V.S.A. § 4471(c) and (2) that due in part to the To wn’s own administrative error, the notice of appeal that Appellant provided to at least some int erested persons included a draft of the DRB’s final decision, rather than the final decision itse lf. Based on these alleged procedural problems, the Town suggested that we remand the pending case to the DRB to render a new decision. No party claims that another procedural defect has occ urred. Although at the April 15 status conference the Town alleged that notice to neighbors of Appellant’s appeal was improper, the Town has offer ed no specific evidence that Appellant did not provide proper notice to all interested persons . Furthermore, Appellant challenges the Town’s assertions in its opposition to the Town’s m otion for remand. Without more than claims made by the Town at a pre-trial status confe rence, we decline to find that Appellant did not properly notice all interested persons or that the defect claimed warrant remand. We do acknowledge, however, that there is some conf usion over which DRB decision is the final decision on appeal to this Court, and whi ch decision Appellant sent to all interested persons as part of its notice of appeal. At the Ap ril 15 status conference, the Town appeared to suggest that the true final decision was signed, da ted, and issued on January 3, 2013. We see no evidence of such a decision in the record before us

.In re Rockingham Sch. Dist. Permit Revocation, No. 20-2-13 Vtec (EO on Mot. for Remand) (5-16-13) Pg. 2 of 2.

Instead, Appellant has provided the Court with two copies of a DRB decision in this matter, both of which are dated January 18, 2013. The first decision includes the signature “Cathy” on its final page, and it appears to includ e a number of formatting irregularities and occasional spelling errors. The second decision in cludes the signature “Cathy Mullins” on its final page, and its formatting appears significantl y more polished. Aside from these differences, the decisions are substantively identi cal. Of the two decisions, the second decision, signed “ Cathy Mullins,” appears to be the decision meant for issuance. Because both decision s are substantively identical, however, we find that no noticed party was prejudiced by the re ceipt of the unpolished draft rather than the polished draft. The reason Appellant was in posses sion of a signed DRB decision meant to be an unpublished draft is somewhat of a mystery, but the Town appears to acknowledge that it was the result of a Town or DRB error. Because App ellant opposes the Town’s motion for remand, and because Appellant’s error in sending in terested persons the less polished of two signed decisions created no prejudice, we see no gr ounds for remanding this case pursuant to V.R.E.C.P. 5(i). Accordingly, we DENY the Town’s motion for remand. So that all parties in this matter will subsequently work from identical DRB decisions , however, we also ORDER Appellant to provide all noticed parties, within 15 days (whethe r or not they have appeared thus far in this appeal), copies of the DRB decision dated January 1 8, 2012 and signed “Cathy Mullins.”

_________________________________________ May 16, 2013 Thomas S. Durkin, Judge Date

=================================================== ========================== Date copies sent: ____________ Clerk's Initials: _______ Copies sent to: Andrew C. Boxer, Attorney for Appellant Rocking ham School District

Interested Person Fred W. Yates Richard K. Bowen, Attorney for Interested Perso n Ruth Gale Lawrence Slason, Attorney for Cross-Appellant Town of Westminster