### 110 East Spring Street CU

ENTRY REGARDING MOTION

Count 1, Municipal DRB Conditional Use (11-2-16 Vte c)

Title: Motion to Withdraw Application w/o Prej Cor rect (Motion 4)

Filer: John Wilson Attorney: John L. Franco Filed Date: November 11, 2016

Response filed on 11/21/2016 by Attorney Franklin L . Kochman for Appellant Chittenden Housing Corporation Response

The motion is GRANTED.

Applicants John and Mary Wilson and Steven Polli h ave moved to withdraw the zoning application at the center of this dispute. Appella nt Chittenden Housing Corporation does not object to the Applicants’ motion, though the Appell ant does request the Court to award costs for its appeal. The application in this case is for a conditional use permit to convert a commercial building at 110 East Spring Street in Winooski, Ver mont into a five-unit residential apartment building (the Project). The City of Winooski Devel opment Review Board (DRB) approved the permit on January 14, 2016. The Chittenden Housing Corporation appealed the DRB’s approval to this Court on February 1, 2016. The Project entails interior and exterior renovati ons to the existing structure; adding eight parking spaces to Applicants’ property; and constru ction of an elevated access road running from Applicants’ property to East Spring Street. The pr oposed access road would run across the northwest corner of Appellant’s property, over a ri ght-of-way that Appellant’s predecessor in title granted Applicant’s predecessor in title in t he late 1960s. At its closest point, the proposed road would run within 15 feet of Appellant’s buildi ng. Following the DRB decision, the City of Winooski a mended its land use regulations that are applicable to the Applicants’ property and prop osed Project. Additionally, the Applicants’ expect other, relevant amendments may be forthcomin g. Because they do not wish to proceed with the Project as approved under the pre-existing zoning regulations, they seek to voluntarily withdraw their application. With no objection from the Appellant, the motion to withdraw the application is GRANTED without prejudice. By withdrawing the application in this Court, the Applicants are effectively withdrawing it from the municipal level as well. We therefore VOID the DRB’s approval. Going forward, to seek any nec essary zoning approvals for its Project, the Applicant must start the process anew with the appr opriate municipal authority. 

## S TATE OF 

## V ERMONT

SUPERIOR COURT ENVIRONMENTAL DIVISION

Docket No. 11-2-16 VtecThe remaining issue is the Appellant’s request for the Court to award its costs as the

“prevailing party.” The Court considers the Appell ant’s request pursuant to V.R.C.P. 54(d)(1) and (2), which allows parties to seek both costs and at torneys’ fees from the opposing party following a judgment. Like the majority of jurisdictions, Vermont follows the “American Rule” with regard to attorney’s fees. Gramatan Home Investors Corp. v. Starling, 143 Vt. 527, 535 (1983). Each party bears his or her own costs of litigation. Id. “At torney's fees under our practice are not awarded absent special legal [i.e., statutory] authority or as a matter of contract.” Myers v. Ambassador Ins. Co., Inc., 146 Vt. 552, 558 (1986) (citations omitted). Additionally, courts have limited authority to award attorney’s fees in truly excepti onal circumstances. See Appeal of Gadhue, 149 Vt. 322, 327–30 (1987) (awarding attorney’s fee s to cover a lawsuit that plaintiff had to file in order to obtain the relief to which a prior laws uit entitled her); Vt. Women’s Health Ctr. v. Operation Rescue, 159 Vt. 141, 150–51 (1992) (uphol ding a trial court’s grant of attorney’s fees in a contempt action against parties who evaded ser vice of a temporary restraining order that restricted their conduct while protesting outside a women’s health clinic and who knowingly violated the order). Absent exceptional circumstan ces, the American Rule regarding attorney’s fees applies, and in such cases, each party is requ ired to pay its own attorney’s fees. See Galkin v. Town of Chester, 168 Vt. 82, 91 (1998). The Appellant styles itself as the prevailing party because the Court found the Appellant demonstrated a strong likelihood of success on the merits and granted a stay of construction of the Project on the elements that pose the greatest threat of irreparable harm to Appellant’s elderly tenants: the curb cut, removal of the fence , and elevated access road. 110 East Spring Street CU, No. 11-2-16 Vtec, slip op. at 7–8 (Vt. S uper. Ct. Envtl. Div. April 22, 2016) (Walsh, J.). The order did not prevent the Applicant from procee ding with construction of the parking area and any alternations to the building itself while t he appeal was pending. Id. at 8. The order further invited the Applicants to request relief fr om the stay if necessary to complete construction of the parking area. Id. The Appellant argues the stay order, along with the Applicants’ decision to withdraw its application, altered the “legal relationship of the parties” sufficient to permit the award of attorney’s fees. Montgomery v. 232511 Investments, Ltd., 2012 VT 31, ¶ 11, 191 Vt. 624 (quoting Buckhannon Bd. & Care Home, Inc. v. W. Va. Dep’t of Health & Human Res., 532 U.S. 598, 604 (2001)). We disagree. Here, the parties’ actions before the Court have been appropriate and do not rise to the level of exceptional circumstances warranting the award of attorney’s fees. Furthermore, while the Appellant may have won round one, the litigation is in its early stages. It is far too early to claim a prevailing side. We fi nd no precedence to support awarding attorney’s fees at this point, where there is no final judgmen t or settlement agreement, and in which we can find no statutory provision or agreement of the parties authorizing the award of attorney’s

fees. Additionally, we find no reason to award costs othe r than attorney’s fees to the Appellant. Under V.R.C.P. 54(d)(1), a trial court has discreti on to award costs to the prevailing party in a civi l action. See, e.g., Jordan v. Nissan N. Am., Inc., 2004 VT 27, ¶16, 176 Vt. 465 (citing Peterson v. Chichester, 157 Vt. 548, 553 (1991)). First, as st ated earlier, we do not deem the Appellant to be the prevailing party in this case. Second, the Cou rt cannot award even limited costs to a prevailing party unless the prevailing party demons trates that they were necessary. See In re Jackson Subdivision ROW Access, No. 195-9-07 Vtec, slip op. at 4 (Vt. Envtl. Ct. Jan. 20, 2009) (Durkin, J.). The Appellant in this case has neith er provided its costs nor their justification.

The Appellant’s request for an award of costs—inclu ding attorney’s fees—is DENIED.Because the application at the center of this dispu te has been withdrawn, this case is now

moot, and is hereby dismissed without prejudice. T his concludes this matter.

So ordered.

Electronically signed on November 28, 2016 at 11:15 AM pursuant to V.R.E.F. 7(d).

_________________________________________ Thomas G. Walsh, Judge Superior Court, Environmental Division

Notifications: Franklin L. Kochman (ERN 1682), Attorney for Appell ant Chittenden Housing Corporation John L. Franco (ERN 5781), Attorney for Appellee Jo hn Wilson John L. Franco (ERN 5781), Attorney for Appellee Ma ry Wilson Robert S. DiPalma (ERN 3619), Attorney for Interest ed Person City of Winooski John L. Franco (ERN 5781), Attorney for Appellee St even Polli

sshelton