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 R E Q U E S T 

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In re Main St. Place LLC Demolition Permit Docket No. 163-8-09 Vtec 

 (Appeal from Derby ZBA determination on appeal from Zoning Admin. Decision) 

Title: Motion for Summary Judgment1 (Filing No. 5) 

Filed: October 12, 2009 

Filed By: David W. Rugh, Co-Counsel for Appellee/Applicant Wesco, Inc. 

Response filed on 10/22/09 by Appellant Community National Bank 

Reply to Response filed on 11/09/09 by David W. Rugh 

___ Granted _X_ Denied ___ Other 

Appellee-Applicant Main Street Place, LLC (“Main St. Place”), has moved 

for a summary dismissal of the pending appeal, alleging that Appellant Community 

National Bank (“CNB”) filed an untimely appeal. CNB opposes the motion for 

summary judgment and requests that the Court remand the pending application back 

to the Derby Zoning Board of Adjustment (“ZBA”). We begin our analysis with a 

review of the standards under V.R.C.P. 56. 

Summary Judgment may only be granted when “the pleadings, depositions, 

answers to interrogatories, and admissions on file, together with the 

affidavits, if any, . . . show that there is no genuine issue as to any material 

fact and that any party is entitled to judgment as a matter of law.” V.R.C.P. 

56(c)(3). The Court “place[s] the burden of proof on the moving party, and 

give[s] the opposing party the benefit of all reasonable doubts and inferences.” 

Chapman v. Sparta, 167 Vt. 157, 159 (1997). We address the challenge to the 

timeliness and propriety of Appellant’s appeal in this light. 

On August 18, 2009, CNB filed an appeal from the May 18, 2009 decision of 

the Derby Zoning Board of Adjustment, affirming the April 13, 2009 decision of 

the Derby Zoning Administrator to issue a demolition permit to Main St. Place. 

There is no dispute that CNB’s appeal was filed well beyond the thirty day 

deadline for appeals to be filed with this Court. V.R.E.C.P. 5(b)(1). 

Main St. Place further claims that CNB failed to take the procedural steps 

necessary to be allowed to file an untimely appeal and directs our attention to 

V.R.A.P 4 in support of its argument that CNB’s appeal is untimely and invalid. 

In response, CNB refers to 10 V.S.A. § 8504 to support its argument that the 

appeal deadline does not apply, due to lack of notice of the lower proceedings. 

In this instance it is more appropriate to look to 10 V.S.A. § 8504 for guidance 

on appellate proceedings in the Environmental Court. Under principals of 

statutory construction, if there are two provisions that relate to the same 

subject matter, “the more specific provision controls over the more general 

one.” Stevenson v. Capital Fire Mut. Aid Sys., 163 Vt. 623, 625 (1995). Section 

8504 provides more specific direction for these zoning appeal proceedings. 

Accordingly, 10 V.S.A. § 8504 is controlling. This section, titled 

“Appeals to the environmental court” states that an appeal must be made 

 

1

 Appellee Main St. Place originally filed a motion to dismiss. However, the Court recognized that the pending motion 

required reference beyond the pleadings and converted the motion to one for summary judgment. See V.R.C.P. 12(b). 
In re Main St. Place, LLC Demo. Permit, No. 163-8-09 Vtec (Entry order on sum. Jud. Motion)(02-11-09) Page 2. 

“[w]ithin thirty days of the date of the act or decision.” Id. 10 V.S.A. 

§ 8504(b)(2), however, proscribes circumstances in which the thirty day filing 

deadline may be overcome. 10 V.S.A. § 8504(b)(2) states: 

Notwithstanding subdivision (1) of this subsection, an 

interested person may appeal an act or decision under 24 V.S.A. 

chapter 117 if the environmental judge determines that: 

(A) there was a procedural defect which prevented the person 

from obtaining interested person status or participating in the 

proceeding; 

(B) the decision being appealed is the grant or denial of 

interested person status.; or 

(C) some other condition exists which would result in manifest 

injustice if the person’s right to appeal was disallowed. 

Id. 

CNB owns property which is across the street from the buildings which 

Applicant seeks authority to demolish. No party disputes that CNB is regarded 

as an adjoiner, thereby entitled to written notice of the ZBA’s hearing on the 

pending application. See 24 V.S.A. § 4464(a)(1)(C) (directing that written 

notification of the public hearing on a specific application must be given to 

“owners of all properties adjoining the property subject to development, 

including the owners of properties which would be contiguous . . . but for the 

interposition of a highway or other public right-of-way . . ..”). No such 

notice was given to CNB, however, which CNB asserts is the only reason why it 

did not participate or file a timely appeal in this matter.2 In fact, the 

record before us suggests that the ZBA did not give notice of its hearing to any

adjoining property owner. 

When notice is not provided, parties entitled to participate are deprived 

of their rights to participate and be heard. We envision that the absence of 

notice to adjoining property owners in this case is the very type of “procedural 

defect” that justifies an exception to our appeals process, since the absence of 

notice “prevented [CNB] from obtaining party status or participating in the 

{ZBA} proceeding.” 10 V.S.A. § 8504(d)(2)(A). Contemplating that such 

“procedural defects” will sometimes occur in zoning proceedings, our law directs 

that an untimely appeal may be allowed to go forward. We conclude that the lack 

of notice, and CNB’s effort to appeal upon learning of the ZBA’s unnoticed 

decision, speaks in favor of allowing its appeal to go forward. 

For all these reasons, we conclude that Main St. Place’s summary judgment 

motion must be DENIED. 

___________________________________________ ___February 12, 2010___ 

 Thomas S. Durkin, Judge Date 

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Date copies sent to: ____________ Clerk's Initials _______ 

Copies sent to: 

 Paul S. Gillies, Attorney for Appellant Community National Bank 

 Jon T. Anderson and David W. Rugh, Attorneys for Appellee/Applicant 

 William E. Simendinger, Co-Counsel for Appellee/Applicant 

 Sara Davies Coe, Attorney for Town of Derby 

 Village of Derby Line (FYI purposes only) 

 

2

 The parties also do not dispute that CNB did not receive immediate notice of the ZBA decision.