Environmental Court of Vermont
State of Vermont

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In re Huntington Remodeling Application Docket No. 210-10-07 Vtec
Project: Huntington Remodeling Application-Newb ury Applicant: George Huntington (Appeal from Planning Commission deter mination)

Title: Motion for Reconsideration, No. 4

Filed: November 17, 2008

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

Response filed on 12/02/08 by Appellee Town of Newb ury

___ Granted _X _ Denied ___ Other

Granting a motion for reconsideration is “an extrao rdinary remedy that should be used sparingly.” In re Bouldin Camp – No ble 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. S ept. 14, 2006) (Durkin, J.). The decision to grant relief in such a motion is “committed to the [trial] court’s sound discretion.” Rubin v. St erling Enters. , 164 Vt. 582, 588 (1996).

Appellant seeks by his current motion to have the C ourt remove the “finding” from our November 5, 2008 Decision and Ju dgment Order (“Decision”) that Appellant’s failure to timely appeal a prior n otice of violation (“NOV”) “cannot now be challenged, either directly or indir ectly, in any subsequent proceeding, including this one.” Decision at 7 (ci ting City of S. Burlington v. Dep’t of Corr. , 171 Vt. 587, 588-89 (2000) (mem.)). We first not e that Appellant’s characterization of the cited provision as a “factual determination” is inaccurate; it is a legal conclus ion based upon this Court’s analysis of the very Planning Commission de cision that Appellant appealed. The Court did not make a factual determi nation. Rather, the Court merely recited material facts that the parties repr esented 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 app lied that standard to the parties’ undisputed facts.

It would not have been proper for this Court to ren der factual findings within the context of assessing summary judgment mo tions. See Fritzeen v. Trudell Consulting Eng’rs, Inc. , 170 Vt. 632, 633 (2000) (mem.). Our November 5, 2008 Decision contained no factual find ings, but rather a section entitled “Factual Background” in which we recited t he 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 Or der) 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 autho rity by making a statement that Appellant believes to be outside the scope of this appeal. In short, Appellant appears to claim that the statemen t in question is dicta, and Appellant is concerned that it will be used aga inst him in future proceedings. If and when such future proceedings o ccur, Appellant is of course then free to argue that the statement in que stion 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 outcom e of our Decision and would serve no purpose, other than to remove this C ourt’s reference to one of the foundations for its legal conclusions. When am ending 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: Civ il 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

=================================================== ========================== Date copies sent to: ____________ Cle rk's Initials _______
Copies sent to:
Marc D. Nemeth, Attorney for Appellant George H untington Charles D. Hickey, Attorney for the Town of New bury