Environmental Court of Vermont 

State of Vermont 

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E N T R Y R E G A R D I N G M O T I O N 

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In re Huntington Remodeling Application Docket No. 210-10-07 Vtec 

Project: Huntington Remodeling Application-Newbury 

Applicant: George Huntington 

 (Appeal from Planning Commission determination) 

 

Title: Motion for Reconsideration, No. 4 

Filed: November 17, 2008 

Filed By: Marc D. Nemeth, Attorney for Appellant George Huntington 

Response filed on 12/02/08 by Appellee Town of Newbury 

___ Granted _X_ Denied ___ Other 

Granting a motion for reconsideration is “an extraordinary remedy that 

should be used sparingly.” In re Bouldin Camp – Noble Road, No. 278-11-06 

Vtec, slip op. at 1 (Vt. Envtl. Ct. Sept. 13, 2007) (Wright, J.); S. Vill.

Cmtys., LLC, No. 74-4-05 Vtec, slip op. at 1 (Vt. Envtl. Ct. Sept. 14, 2006) 

(Durkin, J.). The decision to grant relief in such a motion is “committed to 

the [trial] court’s sound discretion.” Rubin v. Sterling Enters., 164 Vt. 

582, 588 (1996). 

Appellant seeks by his current motion to have the Court remove the 

“finding” from our November 5, 2008 Decision and Judgment Order (“Decision”) 

that Appellant’s failure to timely appeal a prior notice of violation (“NOV”) 

“cannot now be challenged, either directly or indirectly, in any subsequent 

proceeding, including this one.” Decision at 7 (citing City of S. Burlington 

v. Dep’t of Corr., 171 Vt. 587, 588-89 (2000) (mem.)). We first note that 

Appellant’s characterization of the cited provision as a “factual 

determination” is inaccurate; it is a legal conclusion based upon this 

Court’s analysis of the very Planning Commission decision that Appellant 

appealed. The Court did not make a factual determination. Rather, the Court 

merely recited material facts that the parties represented as undisputed 

(namely, that Appellant (1) had been served with an NOV, referencing his reestablishment of a third apartment in his building without the needed site 

plan approval and (2) had failed to file an appeal of that NOV). The Court 

then recited the controlling legal standard and applied that standard to the 

parties’ undisputed facts. 

It would not have been proper for this Court to render factual findings 

within the context of assessing summary judgment motions. See Fritzeen v. 

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

November 5, 2008 Decision contained no factual findings, but rather a section 

entitled “Factual Background” in which we recited the undisputed material 

facts, as represented by the parties. In any event, the provision about 

which Appellant now complains was contained in the “Discussion” section of 

our Decision and constituted a legal conclusion. 
In re Huntington Remodeling Application, Docket No. 210-10-07 Vtec (Jan. 21, 2009 Entry Order) Page 2 of 2. 

We next turn to addressing Appellant’s request that this legal 

conclusion be removed from our prior Decision. As noted below, we conclude 

that it should not be removed. 

Appellant argues that this Court exceeded its authority by making a 

statement that Appellant believes to be outside the scope of this appeal. In 

short, Appellant appears to claim that the statement in question is dicta, 

and Appellant is concerned that it will be used against him in future 

proceedings. If and when such future proceedings occur, Appellant is of 

course then free to argue that the statement in question is dicta and 

therefore not binding upon him (a question on which we express no opinion 

today). 

Amending this Court’s November 5, 2008 Decision to remove the 

complained-of statement would not change the outcome of our Decision and 

would serve no purpose, other than to remove this Court’s reference to one of 

the foundations for its legal conclusions. When amending a judgment serves 

no useful purpose, the motion asking a trial court to do so should be denied. 

S. Vill. Cmtys., LLC, No. 74-4-05 Vtec, slip op. at 2 (citing 11 Wright, 

Miller, & Kane, Federal Practice and Procedure: Civil 2d § 2810.1). For all 

these reasons, we conclude that Appellant’s motion for reconsideration and 

relief from judgment must be DENIED. 

___________________________________________ __January 21, 2009____ 

 Thomas S. Durkin, Judge Date 

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Date copies sent to: ____________ Clerk's Initials _______ 

Copies sent to: 

 Marc D. Nemeth, Attorney for Appellant George Huntington 

 Charles D. Hickey, Attorney for the Town of Newbury