Comtuck LLC East Tract Act 250 JO Appeal

ENTRY REGARDING MOTION

 

Title: Motion for Reconsideration (Motion 12)

Filer: Comtuck, LLC

Attorney: Jon T. Anderson

Filed Date: November 16, 2018

Response in Opposition filed on 11/30/2018 by Attorneys Elizabeth Lord, Catherine Gjessing, 

 and Gregory J. Boulbol for the Vermont Interested Persons Natural Resources Board and 

 the Vermont Agency of Natural Resources

Reply filed on 12/11/2018 by Attorney Jon T. Anderson for Appellant Comtuck, LLC

The motion is GRANTED IN PART and DENIED IN PART.

Comtuck, LLC (“Comtuck”) appeals Jurisdictional Opinion #2-305 (“JO”) issued by the 

District #2 Environmental Commission Coordinator (“District Coordinator”) in response to a 

request submitted by Comtuck. In our ruling on the parties’ cross-motions for summary 

judgment, the Court disposed of the matter in a November 2, 2018 decision. The decision 

concluded, generally, that Comtuck proposed a material change to a previously permitted project 

which potentially impacted criteria enumerated in the parcel’s umbrella permit (“the 1985 

Permit”).

1

 Therefore, it was required to seek additional approvals for the project as currently 

proposed and present evidence on all Act 250 criteria. Comtuck presently seeks reconsideration 

of that decision.

Pursuant to V.R.C.P. Rule 59(e), the Court has broad power to alter or amend a previous 

judgment. In re SP Land Co., LLC, 2001 VT 104, ¶ 16, 190 Vt. 418 (citation omitted). The Court 

can respond to a Rule 59(e) motion by “revis[ing] its initial judgment if necessary to relieve a 

party against the unjust operation of the record resulting from the mistake or inadvertence of 

the court and not the fault or neglect of a party.” Rubin v. Sterling Enters., Inc., 164 Vt. 582, 588 

(1996) (citing In re Kostenblatt, 161 Vt. 292, 302 (1994)). However, granting a motion to 

reconsider is an “extraordinary remedy” that should be used sparingly. In re Bennington WalMart Demolition/Constr. Permit, No. 158-10-11 Vtec, slip op. at 4 (Vt. Super. Ct. Envtl. Div. Aug. 

 

1 This project has a very lengthy permitting history. For a detailed record of this, please refer to our 

accompanying Revised Decision on Motions.

STATE OF VERMONT

SUPERIOR COURT ENVIRONMENTAL DIVISION

Docket No. 54-5-17 Vtec
In re Comtuck, LLC E. Tract Act 250 JO Appeal, No. 54-5-17 Vtec (EO on Mot. to Reconsider) 3-29-2019 Page 2 of 4

17, 2012) (Walsh, J.); In re Bouldin Camp – Nobel Rd., No. 278-11-06 Vtec, slip op. at 1 (Vt. Envtl. 

Ct. Sept. 13, 2007) (Wright, J.). 

We have identified four reasons for this Court to grant a Rule 59(e) motion: “to correct 

manifest errors of law or fact on which the decision was based, to allow the moving party to 

present newly discovered or previously unavailable evidence, to prevent manifest injustice, or to 

respond to an intervening change in the controlling law.” In re Vanishing Brook Subdivision, No. 

223-10-07 Vtec, slip op. at 4 (Vt. Envtl. Ct. July 10, 2008) (Wright, J.) (quoting 11 C. Wright, A. 

Miller, & M. Kane, Federal Practice and Procedure: Civil § 2810.1 (2d Ed. 1995). Importantly, Rule 

59(e) does not provide parties with the opportunity to relitigate matters already decided by this 

Court. S. Vill. Communities, LLC, No. 74-4-05 Vtec, slip op. at 2 (Vt. Envtl. Ct. Sept. 14, 2006) 

(Durkin, J.) (quoting Wright et al., supra, § 2810.1).

Comtuck presents essentially two arguments supporting its motion. First, it asserts that 

the 1985 Permit can only be reopened if Comtuck proposes a material change to the originally 

permitted project affecting the criteria resolved in that decision. Therefore, it argues that 

because it is not proposing to develop new land or to make a material change to the previously 

permitted project that would affect any criteria resolved by the 1985 Permit, it should not be 

required to present any evidence on criteria resolved by that permit.

Based upon the factual representations and legal arguments previously presented, we 

reached the exact opposite conclusions that Comtuck now suggests. In our November 2, 2018 

decision, we concluded that Comtuck proposes a material change to the previously permitted 

project. In re Comtuck, LLC E. Tract Act 250 JO Appeal, No. 54-5-17 Vtec, slip op. at 13 (Vt. Super. 

Ct. Envtl. Div. Nov. 2, 2018) (Durkin, J.). We further concluded that the project was “wholly 

different than that originally proposed and permitted” project and “has the potential to impact 

many of the Act 250 criteria, including those enumerated in the 1985 Permit.” Id. at 14. 

Therefore, we concluded that, should Comtuck seek to develop the project as now proposed, it 

must submit a permit amendment application and the criteria enumerated in the 1985 Permit 

may be addressed. Id.

Comtuck’s motion in this respect seeks to merely relitigate these two conclusions by 

contesting that the present proposal does not represent a material change generally and does 

not reflect a material change that has the potential to affect the criteria enumerated in the 1985 

Permit such that evidence must be presented on these issues. These attempts to relitigate issues 

already addressed by the Court are precisely the types of arguments that are not grounds for the 

Court to grant a motion to reconsider. As such, we decline to reconsider these conclusions and 

DENY Comtuck’s motion in this respect.

Comtuck further asserts that it does not propose to change the access road to the project 

and the Court’s inclusion of this fact in its decision is in error. In their reply in opposition ANR 

and NRB stated that they had no reason to contest the accuracy of this statement. Because of 

this, we GRANT Comtuck’s motion to alter the decision for the limited purpose of striking 

references to the change in access from our decision to protect the parties from the unjust 

operation of the record. 
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We note, however, that even with this language stricken, our legal overall conclusions 

remain unchanged. This is because of other project changes that we have concluded are 

material, such as the new lot configurations and the siting of on-site water supply and 

wastewater facilities. Therefore, we DENY Comtuck’s motion to revisit these conclusions even in 

granting its motion in this limited respect.

The Court hereby strikes the following language:

1. On page 3, we strike from Fact #6 the language beginning with “Comtuck also proposes 

to change” and ending with “opposite side of the proposed development.”

2. On page 10, we strike from the last sentence in the first paragraph: “a new access road 

and.”

3. On page 12, we strike the language beginning with “The new proposal also seeks” and 

ending with “Comtuck has thus far disclosed.” 

4. On page 12 we strike the language “neither . . . nor the new access was.” The sentence is 

rewritten as “The new lot reconfigurations were not disclosed or contemplated during 

the original permit proceedings.”

5. On page 12, we strike the language “a newly proposed access road.”

6. On page 12, we strike the language “nor a different access.”

7. On page 14, we strike the language “change the East Tract’s access road.”

All other aspects of our decision remain unchanged. A Revised Decision on Motions and 

Revised Judgment Order accompanies this Entry Order.

So Ordered.

Electronically signed on March 29, 2019 at 02:22 PM pursuant to V.R.E.F. 7(d).

________________________________

Thomas S. Durkin, Superior Judge

Environmental Division

Notifications:

Jon T. Anderson (ERN 1856), Attorney for Appellant Comtuck, LLC

Elizabeth Lord (ERN 4256) and Catherine Gjessing (ERN 4310), Attorneys for 

 the Interested Person Vermont Agency of Natural Resources

Edward G. Adrian (ERN 4428), Attorney for Interested Person Town of Wilmington

Gregory J. Boulbol (ERN 1712), Attorney for the Vermont Interested Person Natural Resources 

Board

Interested Persons Michael P. and Kirby

Interested Person Mary Ann Kirby

Interested Person Renato Grella

Interested Person Richard M. Arsenault

Interested Person Stephanie R. Arsenault
In re Comtuck, LLC E. Tract Act 250 JO Appeal, No. 54-5-17 Vtec (EO on Mot. to Reconsider) 3-29-2019 Page 4 of 4

Interested Person Dennis R. Johnson

Interested Person Laurette Wanko

Interested Person Steven L. Bate

Interested Person Daniel J. Fitzgerald

Interested Person Alexandra Fitzgerald

Interested Person Donna Fitzgerald

Interested Person Kathryn Palmesi

Interested Person Edward Greco

Interested Person Mindy Lissner

Interested Person Edwin F. Collins

Interested Person Mary E. Krieg

Interested Person Brett W. and Flodine

Interested Person Linda C. Flodine

Interested Person Meredith Musick

Interested Person Monet E. Bossert

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