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 Attorney William F. Ellis for Town of Essex 

The motion is DENIED. 

Saxon Hill Corporation (“Applicant”) seeks to establish 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 Regulations (“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 deadline for the Town’s response to that motion 

while Applicant and the Town engaged in mediation and other efforts to resolve the matter 

outside of this court proceeding. The parties subsequently 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 unsuccessful in their efforts at resolution, the Court 

returned this appeal to active status and, following the Town’s response to the motion for 

summary judgment and Applicant’s reply to that response, the Court denied Applicant’s motion 

for summary judgment on September 17, 2014. 

Applicant now requests permission to file an interlocutory appeal of that decision with 

the Vermont Supreme Court, specifically with regards to whether Table 2.14 and Article 5.6(A) 

of the Regulations and § 7.4 of the Town Plan provide 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 untimely 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, providing that on a motion by a party the 

trial court “must permit an appeal from an interlocutory order or ruling if the court finds that: 

(A) the order or ruling involves a controlling question of law about which there exists 

STATE OF VERMONT

SUPERIOR COURT ENVIRONMENTAL DIVISION

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

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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 interlocutory appeal must be filed 

within 10 days after entry of the order or ruling appealed from. V.R.A.P. 5(b)(5)(A). Applicant 

seeks permission to file an interlocutory appeal from this Court’s September 17, 2014 decision, 

leaving the pending motion, filed on October 24, 2014, well outside the 10-day window 

allocated by the rules. While the Applicant’s motion 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 questions 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 re 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 “there is substantial ground for difference of 

opinion;” and (3) “an immediate appeal may materially advance the termination of the 

litigation.” The failure to satisfy any one of these 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 support of their motion for summary judgment, 

and we continue to believe that those facts are insufficient 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 party 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 summary 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 development and its impacts, the Supreme 

Court could not determine whether Applicant is entitled 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 delay and result in a piecemeal appeal. 

Because we conclude that an interlocutory appeal of whether provisions of the 

Regulations and Town Plan provide adequate standards to guide the exercise of discretion of 

the Commission and this Court and are therefore constitutional will not materially advance the 

termination of the litigation, the motion to take an 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 

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

________________________________ 

Thomas S. Durkin, Judge 

Environmental Division 

Notifications: 

Carl H. Lisman (ERN 3882), Attorney for Appellant Saxon Hill Corporation 

William F. Ellis (ERN 3412), Attorney for Appellee Town of Essex 

cstanton