Capitol Plaza Act 250, 59-5-19 Vtec

Citation59-5-19 Vtec
Case DateMay 18, 2020
CourtSuperior Court of Vermont

Capitol Plaza Act 250

No. 59-5-19 Vtec

Superior Court of Vermont, Environmental Division

May 18, 2020


Response filed on 05/21/2020 by Attorney David W. Rugh for party 7 Co-counsel Opposition

Response filed on 05/29/2020 by Attorney Gregory J. Boulbol for Interested Person Natural Resources Board Reply

CORRECTED ENTRY REGARDING MOTION [1]

Thomas G. Walsh, Judge Superior Court, Environmental Division

Count 1, Act 250 District Commission Decision (59-5-19 Vtec)

Count 2, Act 250 District Commission Decision (59-5-19 Vtec)

Count 3, Act 250 District Commission Decision (59-5-19 Vtec)

Count 4, Act 250 District Commission Decision (59-5-19 Vtec)

Title: Motion To Alter Decision Clarified (Motion 13)

Filer: Natural Resources Board

The motion is GRANTED IN PART and DENIED IN PART.

The present action is an appeal of Act 250 Findings of Fact, Conclusions of Law and Order 5W1591 issued on May 2, 2019 by the District #5 Environmental Commission (DC) pursuant to 10 V.S.A. § 6086b, to the City of Montpelier (City) and Capitol Plaza Corporation (collectively Applicants) to construct a hotel and neighboring parking garage (the Projects). Mr. Les Blomberg and Mr. Daniel Costin (Appellants) appealed the DC's decision to this Court. Presently before the Court are Applicants' and Natural Resources Board's motions to alter or amend this Court's Decision and corresponding Judgment Order issued on April 14, 2020 (the 2020 Decision). Capitol Plaza Act 250, No. 59-5-19 Vtec slip op. at 14-15 (Vt. Super. Ct. Envtl. Div. Apr. 14, 2020) (Walsh, J.) (denying Appellants' and NRB's cross-motions for summary judgment and concluding that the proposed parking garage constitutes a development for municipal purposes on less than ten acres of land and is therefore not subject to Act 250 jurisdiction) [hereinafter 2020 Decision].

In this matter, Appellants are represented by James A. Dumont, Esq. Applicants are represented by Joseph S. McLean, Esq. and David W. Rugh, Esq. NRB is represented by Gregory Boulbol, Esq.

Legal Standard

Appellants' and NRB's motions to alter are made pursuant to V.R.C.P. 59(e), which governs motions to alter or amend a judgment. There are four principal reasons for granting a Rule 59(e) motion: "(1) to correct manifest errors of law or fact upon which the judgment is based; (2) to allow a moving party to present newly discovered or previously unavailable evidence; (3) to prevent manifest injustice; and (4) to respond to an intervening change in the controlling law." Old Lantern Non-Conforming Use, No. 154-12-15 Vtec, slip op. at 2 (Vt. Super. Ct. Envtl. Div. Sep. 13, 2017) (Durkin, J.) (quotations omitted); In re Green Mountain Power Corp., 2012 VT 89, 50, 192 Vt. 429 (stating that under Rule 569(e), "[t]he trial court enjoys considerable discretion in deciding whether to grant such a motion to amend or alter") (quoting In re SP Land Co., 2011 VT 104, 16, 190 Vt. 418). V.R.C.P. 59(e) gives the Court broad power to alter or amend a 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 Enter., Inc., 164 Vt. 582, 588 (1996); In re Pion Sand & Gravel Pit, No. 245-12-09 Vtec slip op. at 1-2 (Vt. Super. Ct. Envtl. Div. Aug. 12, 2010) (Durkin, J.) (citations omitted); Reporter's Notes, V.R.C.P. 59(e). Indeed, Rule 569(e) provides a mechanism to "take advantage of the court's power to correct a judgment in order to avoid an appeal and its attendant delay." Osborn v. Osborn, 147 Vt. 432, 433 (1986) (citation omitted).

The Court had broad discretion when considering a motion to alter. In re SP Land Co., 2011 VT 104, 16. Rule 59(e) allows the Court to "reconsider issues previously before it, and generally may examine the correctness of the judgment itself."[2] In re Robinson/Keir P'ship, 154 Vt. 50, 54 (1990); see also Drumheller v. Drumheller, 2009 VT 23, ¶ 28, 185 Vt. 417 (noting the Court's "inherent power to open, correct, modify, or vacate its judgments"). The Court's power extends to issues not raised in the motion in the interest of striking "an appropriate balance between reconsideration and finality." In re SP Land Co., 2011 VT 104, 17; Drumheller, 2009 VT 23, 30-34.

While V.R.C.P. 59(e) provides an avenue for the Court to provide relief for a mistake or inadvertence, this Court recognizes that an action to alter or amend "a judgment after its entry is an extraordinary remedy which should be used sparingly."[3] In re Zaremba Grp. Act 250 Permit, No. 36-3-13 Vtec, slip op. at 2 (Vt. Super. Ct. Envtl. Div. Apr. 10, 2014) (Walsh, J) (quotation omitted). Indeed, Rule 596(e) does not permit the Court to reconsider arguments that have already been raised and rejected by the Court. Town Clarendon v. Houlagans MC Corp. of VT., No. 131-10-17 Vtec, slip op. at 1 (Vt. Super. Ct. Envtl. Div. Apr. 10, 2014) (Walsh, J.); see also In re Boutin PRD Amendment, No. 93-4-06 Vtec slip op. at 1-2 (Vt. Envtl. Ct. May 18, 2007) (Wright, J.) (stating that mere disagreement with the Court's decision does not provide adequate grounds for reconsideration).

Discussion

Presently before the Court are two pending motions: NRB's limited motion to alter and Appellants' motion to alter this Court's 2020 Decision on cross-motions for summary judgment and subsequent Judgment Order.

The NRB's motion to alter concerns this Court's conclusion that Applicants are not barred from challenging Act 250 jurisdiction. 2020 Decision at 7. NRB argues that this Court lacks subject matter jurisdiction pursuant to 4 V.S.A. § 34(1) to decide whether Act 250 jurisdiction arises in this case and contend that Applicants failed to exhaust administrative remedies prior to bringing the present appeal. See Natural Resources Board Clarified Limited Motion to Alter Decision at 2-5, filed May 18, 2020 [hereinafter NRB Limited Motion to Alter]. Applicants oppose, stating that NRB presents a repetitive argument insufficient to satisfy Rule 59(e) and the Court has the authority to decide issues of Act 250 jurisdiction. Cross-Appellant-Applicants' Memorandum of Law in Opposition to the Natural Resources Board's Clarified Limited Motion to Alter at 5-11, filed May 21, 2020.

Appellants' raise multiple concerns in their motion to alter. First, Appellants assert that the Court dismissed Appellants' questions that pertain to elements of the hotel project, which is subject to Act 250 jurisdiction and was not sought as relief in Appellants' motion for summary judgment. Appellants' Motion to Alter or Amend for New Trial and Memorandum of Law at 1, filed May 6, 2020 [hereinafter Appellants' Motion to Alter]. Second, Appellants contend this Court erred in drawing inferences interpreting the terms "association," "control," and "purpose" in favor of the Applicants, contrary to V.R.C.P. 56. Id. Third, Appellants present new discovery that the public parking spaces for the Projects will be reduced, arguing that this demonstrates a lack of municipal purpose for the parking garage. Id. Applicants disagree, arguing the dismissal was proper due to lack of standing, Appellants' arguments merely repeat those made in the cross-motion for summary judgment, and the new evidence is irrelevant to the municipal purpose of the proposed parking garage. Cross-Appellant-Applicants' Memorandum of Law in Opposition to Appellants Motion to Alter at 1-4, filed May 20, 2020 [hereinafter Applicants' Memorandum in Opposition]. We address the NRB's and Appellants' motions in order below.

I. Whether the NRB may raise a challenge to Act 250 jurisdiction in a Motion to Alter.

A motion to alter under Rule 596(e) does not provide an avenue through which to raise arguments that have already been rejected and addressed by the Court. Town Clarendon, No. 131-10-17 Vtec, slip op. at 1 (Apr. 10, 2014). Mere disagreement with the Court's decision is insufficient grounds for reconsideration. In re Boutin, No. 93-4-06 Vtec slip op. at 1-2 (May 18, 2007); see also 11 Wright, Miller & Kane, Federal Practice & Procedure: Civil 3d § 2810.1. Applicants contend the NRB's motion presents a repetitive argument mirroring Appellants' cross-motion for summary judgment, which this Court addressed in our prior Decision. 2020 Decision at 6-7. The NRB did not address this issue.

Appellants' cross-motion for summary judgment argued this Court lacked subject matter jurisdiction as no jurisdictional opinion had been sought or obtained from the district coordinator. Appellants Cross Motion for Summary Judgment at 1-6, filed Jan. 31, 2020. The NRB also filed a cross-motion for summary judgment which neglected to challenge this Court's subject matter jurisdiction. NRB's Opposition to Appellant-Applicant's Motion for Partial Summary Judgment and Cross Motion for Partial Summary Judgment at 1-12, filed Feb. 6, 2020. Moreover, the NRB filed a response specifically addressing Act 250 jurisdictional triggers and noted specifically that no jurisdictional opinion had been obtained from the district coordinator. NRB's Reply to Cross-Applicant's Omnibus Filing at 4-5, filed Mar. 27, 2020. Here, the NRB addresses these very issues in their limited motion to alter, which this Court clearly addressed in our Decision on cross-motions for summary judgment. 2020 Decision at 7.

The NRB is raising an argument that has been already received and addressed by the Court. As such, the assertion is an attempt to reargue the previous motion and express dissatisfaction with the Court's Decision. Therefore, we DENY the NRB's limited motion to alter.

II. Whether this Court has Act 250 Subject Matter Jurisdiction.

While we concluded above that the NRB's limited motion to alter is DENIED, we clarify below this Court's Act 250 subject matter jurisdiction.

This is a Court of limited jurisdiction. 4 V.S.A. § 34. This Court's authority to hear...

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