### Saxon Hill Corp. Sand Extraction Application

ENTRY REGARDING MOTION

Title: Motion for Interlocutory Appeal (Motion 7) Filer: Saxon Hill Corporation Attorney: Carl H. Lisman Filed Date: October 24, 2014

Response in Opposition filed on 11/10/2014 by Attor ney William F. Ellis for Town of Essex

The motion is DENIED.

Saxon Hill Corporation (“Applicant”) seeks to estab lish a sand extraction operation on approximately 54 acres of land in the Town of Essex , Vermont (“the Town”) and applied for a permit with the Town of Essex Planning Commission ( “the Commission”) as required by the applicable provisions of the Town of Essex Zoning R egulations (“Regulations”). The Commission denied the application in a written decision dated February 24, 2011. Applicant timely appealed the denial of its application. On October 27, 2011 Applicant moved for summary judgment and the parties agreed to extend the deadl ine for the Town’s response to that motion while Applicant and the Town engaged in mediation a nd other efforts to resolve the matter outside of this court proceeding. The parties subs equently filed a stipulated motion to place this appeal on inactive status while they attempted to resolve the matter, which this Court granted on October 2, 2012. Having been unsuccessf ul in their efforts at resolution, the Court returned this appeal to active status and, followin g the Town’s response to the motion for summary judgment and Applicant’s reply to that resp onse, the Court denied Applicant’s motion for summary judgment on September 17, 2014.

Applicant now requests permission to file an interl ocutory appeal of that decision with the Vermont Supreme Court, specifically with regard s to whether Table 2.14 and Article 5.6(A) of the Regulations and § 7.4 of the Town Plan provi de adequate standards to guide the exercise
of discretion of the Commission and this Court and are therefore constitutional. The Town opposes the motion on the grounds that it is untime ly and fails to comply with Rule 5 of the Vermont Rules of Appellate Procedure (V.R.A.P.).

Rule 5 governs appeals before final judgment, provi ding that on a motion by a party the trial court “must permit an appeal from an interloc utory order or ruling if the court finds that: (A) the order or ruling involves a controlling ques tion of law about which there exists 

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SUPERIOR COURT ENVIRONMENTAL DIVISION
Vermont Unit Docket No. 42-3-11 VtecSaxon Hill Corp. Sand Extraction App., No. 42-3-11 Vtec (EO on Interlocutory Appeal Motion) (02-09-2015 ) P. 2

2 substantial ground for difference of opinion; and ( B) an immediate appeal may materially advance the termination of the litigation.” V.R.A. P. 5(b)(1).

As a primary matter, we note that a motion for an i nterlocutory appeal must be filed within 10 days after entry of the order or ruling a ppealed from. V.R.A.P. 5(b)(5)(A). Applicant seeks permission to file an interlocutory appeal fr om this Court’s September 17, 2014 decision, leaving the pending motion, filed on October 24, 20 14, well outside the 10-day window allocated by the rules. While the Applicant’s moti on was untimely filed, we have nonetheless considered the legal arguments contained therein in light of our decision to deny the appeal.

It is rarely appropriate to grant a request for an interlocutory appeal, however, as such appeals force our Supreme Court to decide “legal qu estions in a vacuum, without benefit of factual findings” and “impair [the Supreme] Court’s basic functions of correctly interpreting the law and providing justice for all litigants.” In r e Pyramid Co. of Burlington, 141 Vt. 294, 301 (1982). Nonetheless, under V.R.A.P. 5(b), a party is entitled to receive permission to appeal an interlocutory order if this Court concludes that: ( 1) the order “involves a controlling question of law;” (2) the question of law is one in which “ther e is substantial ground for difference of opinion;” and (3) “an immediate appeal may material ly advance the termination of the litigation.” The failure to satisfy any one of the se three criteria renders an interlocutory appeal inappropriate. See id. at 302.

We conclude that an interlocutory appeal here will not materially advance this litigation towards its ultimate completion. An interlocutory appeal is inappropriate when it results in “piecemeal appeals and the attendant delay of [the pending] litigation.” Id. We have reviewed again the facts that Applicant put forward in suppo rt of their motion for summary judgment,
and we continue to believe that those facts are ins ufficient to support their argument that the relevant provisions of the Regulations and Town of Essex Town Plan (“Town Plan”) are without
sufficient standards.

Applicant seeks a permit for certain development. The decision of whether Applicant is entitled to such a permit is likely to be appealed as well. Once this Court renders its decision regarding Applicant’s permit application, either pa rty will be entitled to file an appeal of that decision. For the sake of judicial efficiency, all issues, including those legal determinations made in the decision on Applicant’s motion for summ ary judgment as well as the decision on the merits could be presented to the Supreme Court at one time. Even if Applicant were to persuade the Supreme Court that some or all of the Regulations are unconstitutionally vague, without a factual record describing the proposed de velopment and its impacts, the Supreme Court could not determine whether Applicant is enti tled to a permit. Therefore, an interlocutory appeal on this limited legal question would not advance the termination of the litigation but would instead cause significant dela y and result in a piecemeal appeal.

Because we conclude that an interlocutory appeal of whether provisions of the Regulations and Town Plan provide adequate standard s to guide the exercise of discretion of
the Commission and this Court and are therefore con stitutional will not materially advance the termination of the litigation, the motion to take a n interlocutory appeal on that issue is

DENIED

.Saxon Hill Corp. Sand Extraction App., No. 42-3-11 Vtec (EO on Interlocutory Appeal Motion) (02-09-2015 ) P. 3

3 Electronically signed on February 09, 2015 at Newfa ne, Vermont, pursuant to V.R.E.F. 7(d).

________________________________ Thomas S. Durkin, Judge
Environmental Division

Notifications: Carl H. Lisman (ERN 3882), Attorney for Appellant S axon Hill Corporation William F. Ellis (ERN 3412), Attorney for Appellee Town of Essex

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