Mongeon Bay Prop, LLC ZA Appeal 

ENTRY REGARDING MOTION

Count 1, Municipal DRB Appeal from ZA (92-8-19 Vtec) 

Title: Motion to Dismiss (Motion 1) 

Filer: Mongeon Bay Properties, LLC 

Attorney: Alexander J. LaRosa 

Filed Date: August 14, 2019 

Response filed on 08/15/2019 by Attorney Robert S. DiPalma for the City of Winooski 

Response filed on 08/22/2019 by David E. Carter, Appellant 

The motion is GRANTED. 

Mongeon Properties LLC (“Applicant”) owns three adjoining properties on or adjoining 

Main Street in the City of Winooski (“City”) that it wishes to consolidate into one lot for future 

development. The three lots are located at 101 Main Street, 109 Main Street, and 18 Mansion 

Street. 

When the City of Winooski Zoning Administrator (“Zoning Administrator”) approved 

Applicant’s application of consolidation of the three lots and an application for a zoning permit 

to construct and use a four-story building on the consolidated lot for both commercial and 

residential use,1 a Mansion Street neighbor, David E. Carter (“Appellant”), appealed those 

approvals to the City of Winooski Development Review Board (“DRB”).2 The DRB affirmed the 

lot consolidation permit (“Permit No. 19-082”), but concluded that the application for a zoning 

permit to develop the consolidated new lot (“Permit No. 19-060”) should be remanded, in part, 

with a direction that the Zoning Administrator make a separate determination on whether the 

portion of the consolidated lot that lies in the Residential C Zoning District (“R-C District”) 

conforms to the applicable provisions governing that District within the City of Winooski Unified 

Land Use Regulations (“Regulations”).3 Appellant then appealed both of the DRB determinations 

to this Court. 

1

 Applicant intends to construct a four-story building with three commercial spaces on the first level, 75 

residential dwelling units in the remainder of the building, and associated parking. 

2

 The zoning approval was appealed to the DRB by Mr. Carter and H. Joseph Gamache, a fellow Mansion 

Street neighbor. After the DRB decision, Mr. Carter file the only appeal with this Court. 

3

 The two adjoining lots located at 101 and 109 Main Street are located in the Gateway Zoning District 

(“G District”), while the property located at 18 Mansion Street also adjoins the two other lots, it is in a different 

STATE OF VERMONT

SUPERIOR COURT ENVIRONMENTAL DIVISION

 Docket No. 92-8-19 Vtec
In re Mongeon Bay Prop., LLC, No. 92-8-19 Vtec (EO on Motion to Dismiss) (10-02-2019) Page 2 of 4

While this appeal was pending before this Court, the Zoning Administrator took up the 

portion of Permit No. 19-060 that the DRB had remanded. The Administrator issued a 

supplemental approval, after having determined that the portion of the proposed development 

that will be located in the R-C District conformed to the applicable provisions of the Regulation. 

A neighbor of Appellant’s, H. Gamache filed an appeal of the Zoning Administrator’s 

supplemental approval of Permit No. 19-060, which was set to be heard before the DRB on 

September 19, 2019. Since the DRB has not yet rendered its determination on Mr. Gamache’s 

appeal, that determination has not yet been appealed to this Court by any party. 

Presently before the Court is a motion filed by Applicant to dismiss the present appeal 

before this Court of Permit No. 19-060 and Permit No. 19-082. The principal issues before the 

Court are whether the Court has subject matter jurisdiction to hear an appeal of Permit No. 19-

060 and whether the request to stay this Court’s proceedings concerning Permit No. 19-082 is 

within the court’s discretion, particularly since all the involved parties agree a stay would serve 

the interest of judicial efficiency. 

In the City and Appellant’s response to the motion to dismiss, both parties have stipulated 

that the DRB’s first decision concerning Permit No. 19-060 is not final and therefore not presently 

within the Environmental Division’s subject matter jurisdiction. In addition, all parties agree that 

it is in the interest of judicial efficiency to stay the appeal of the DRB’s decision concerning Permit 

No. 19-082 on consolidation, to allow an “orderly approach . . . so that all decisions relating to 

the proposed project are final at the DRB level.”4 Appellant’s Response to Mongeon Motion to 

Dismiss Appeal at 1, filed Aug. 22, 2019 (quoting the City response to Mongeon Motion to Dismiss 

Appeal at 2, filed Aug. 15, 2019). 

The Environmental Division of the Superior Court has exclusive jurisdiction over appeals 

pursuant to 24 V.S.A. §§ 4471(a), which authorizes appeals from “decisions” rendered by an 

“appropriate municipal panel.” This Court has held that mere commentary, analysis, or guidance 

is not a final decision as it does not resolve an issue. In re Saxon Ptnrs LLC BJ’s Warehouse Sketch 

Plan, No. 5-1-16 Vtec, slip op. at 2 (Vt. Super. Ct. Envtl. Div. Aug. 22, 2017)(Walsh, J.) (interpreting 

24 V.S.A. § 4471(a) “to authorize appeals of final, binding municipal decisions; mere commentary 

or guidance issued in a municipal proceeding is not appealable under 24 V.S.A. § 4471(a)”). The 

Environmental Division may only adjudicate actual cases or controversies, and may not render 

advisory opinions. In re 232511 Invs. Ltd., 2006 VT 27, ¶ 19, 179 Vt. 409 (citing Parker v. Town of 

Milton, 169 Vt. 74, 77); In re Stowe Club Highlands Merger/Subdivision Application, No. 35-3-11 

Vtec, slip op. at 6 (Vt. Super. Ct. Envtl. Div. Feb. 15, 2012) (Walsh, J.) (holding that a municipal 

panel decision that provides guidance or hypothetical discussion is merely advisory). Moreover, 

this Court has found that when a municipal body issues a decision that fails to address an ultimate 

issue, the decision cannot be considered final. Scott Farm Act 250, No. 48-4-17 Vtec, (Vt. Super. 

Ct. Envtl. Div. Aug. 22, 2017) (Walsh, J.); see also Jordan v. State Agency of Transp., 166 Vt. 509, 

zoning district, the R-C District. While the Zoning Administrator determined that the consolidated lot conformed to 

the zoning regulations applicable to the G District, the Zoning Administrator made no determination as to whether 

the consolidated lot conformed to the Regulations applicable to the R-C District. 

4

 In his motion to dismiss, the Applicant stated that the appeal of Permit No. 19-082, which concerns the 

lot consolidation, should be stayed until the appeal of Permit No. 19-060, which concerns the construction approval, 

is properly before the court. See Applicant’s Motion to Dismiss Appeal of Permit No. 19-060 for Lack of Jurisdiction 

at 5, filed Aug. 14, 2019. 
In re Mongeon Bay Prop., LLC, No. 92-8-19 Vtec (EO on Motion to Dismiss) (10-02-2019) Page 3 of 4

513 (1997) (“For an order to be final, it must have disposed of all matters that should or could 

properly be settled at the time and in the proceeding then before the decision-making body.”) 

(internal quotations and alterations omitted). 

The DRB’s decision was not final because it remanded Permit No. 19-060 to the Zoning 

Administrator for a determination of whether the proposed development conformed the R-C 

District Regulations. While the DRB does address and deny the appeal challenging the Certificate 

of Conformity over the G District portion of the project, this decision does not resolve the appeal 

with respect to the R-C district portion of the project. The DRB decision left the question open 

and remanded the application for the “limited purpose” of directing the Zoning Administrator to 

address compliance with the R-C district Regulations. 

Moreover, although we have been advised that the Zoning Administrator has issued a 

supplemental approval of Permit No. 19-060, that decision is not appealable to the 

Environmental Division until the DRB has issued a final decision. 24 V.S.A. §4465(a) (allowing 

appeals of administrative officer decisions in any municipality by filing a notice of appeal with the 

DRB of that municipality); In re Pelham N., Inc., 154 Vt. 651, 652 (1990) (mem.) (stating that “the 

agency should be given the first chance to exercise discretion or apply expertise,” because 

judging a case “piecemeal” would inappropriately divest jurisdiction); see also Kotz v. Kotz, 134 

Vt. 36, 38 (1975). 

When considering a request to stay, the Vermont Rules of Environmental Court 

Proceedings provide that the Court “may, on its own motion, or on motion of a party, stay the 

act or decision and make such other orders as are necessary to preserve the rights of the parties 

upon such terms and conditions as are just.” V.R.E.C.P. 5(e); cf. V.R.C.P. 62(d)(2). The Court 

considers four factors when determining if necessity exists, which include: “(1) the likelihood of 

success of the appealing party on the merits, (2) whether the party seeking the stay will suffer 

irreparable injury if the stay is not granted, (3) whether the issuance of a stay will substantially 

harm other parties, and (4) the location of the best interests of the public.” In re Granville 

Manufacturing Co., Inc., No. 2-1-11 Vtec, slip op. at 1 (Vt. Super. Ct. Envtl. Div. July 01, 2011) 

(Durkin, J.); see also N. Cmty. Inv. Corp. Conditional Use Application, Nos. 123-6-07 Vtec, 128-6-

07 Vtec, and 152-7-07 Vtec, slip op. at 2 (Vt. Envtl. Ct. Aug. 30, 2007) (Durkin, J.) (quoting In re 

Tariff Filing of New England Tel. & Tel. Co., 145 Vt. 309, 311 (1984)). When considering a motion 

to stay, the Court seeks to ensure that a stay would “preserve the rights of the parties on terms 

and conditions that are fair to all” during the pendency of the appeal. See Reporter's Notes, 

V.R.E.C.P. 5. 

The stay of Permit No. 19-082 serves judicial efficiency because it is inextricably linked 

with the project governed by Permit No. 19-060. In addition, the stay will not cause irreparable 

injury and is unlikely to cause irreparable harm to other parties, as is evidenced by the parties’ 

unanimous request that the stay be issued. In the case currently before the court, all parties 

have indicated their preference for staying the Permit No. 19-082 appeal.5 Indeed, Appellant has 

no objection to placing the Permit No. 19-082 appeal “on hold” until the DRB renders a final 

decision concerning Permit No. 19-060. Appellant’s Response to Mongeon Motion to Dismiss 

Appeal at 2, filed Aug. 22, 2019. In addition, both Permits concern the same property, the same 

5

 Both Appellant and City of Winooski have assented to dismissal of the Permit No. 19-060 appeal and stay 

of the Permit No. 19-082 appeal. 
In re Mongeon Bay Prop., LLC, No. 92-8-19 Vtec (EO on Motion to Dismiss) (10-02-2019) Page 4 of 4

proposed development, and the same parties. See City of Winooski Response to Mongeon 

Motion to Dismiss Appeal at 2, filed Aug. 15, 2019. As such, allowing the coordination of appeals 

for both permits in this case would enable a more comprehensive and efficient review mutually 

beneficial to all parties. 

Therefore, the motion to dismiss the Permit No. 19-060 appeal is GRANTED without 

prejudice to any future appeal taken by these parties from any DRB action taken on this same 

application. In addition, the motion to stay the appeal of Permit No. 19-082 for coordination 

with any future appeal of Permit No. 19-060 before this Court is GRANTED. 

So Ordered. 

Electronically signed on October 2, 2019 at Newfane, Vermont, pursuant to V.R.E.F. 7(d). 

________________________________ 

Thomas S. Durkin, Superior Judge 

Environmental Division 

Notifications: 

Appellant David E. Carter 

Robert S. DiPalma (ERN 3619), Attorney for the City of Winooski 

Alexander J. LaRosa (ERN 5814), Attorney for Appellee/Applicant Mongeon Bay Properties, LLC 

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