In re Denial

• Citation: 2023 Vt Super 111401
• Docket Number: 23-ENV-00020
• Decision Date: 14 November 2023
• Parties: Radicioni Denial
• Court: Superior Court of Vermont

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2023 Vt Super 111401

Radicioni Denial

No. 23-ENV-00020

Superior Court of Vermont, Environmental Division

November 14, 2023

Title: Motion to Dismiss (Motion: 2)

Filer: K. Heather Devine, Esq.

Filed Date: October 3, 2023

Appellant/Applicant Memorandum in Opposition to Motion to Dismiss, filed on October 26, 2023, by Walter Radicioni.

Town of Sharon Reply to Opposition to Motion to Dismiss Amended Question #3, filed on October 30, 2023, by Attorney K. Heather Devine.

ENTRY REGARDING MOTION

Thomas G. Walsh, Judge

The motion is GRANTED.

This is an appeal of a decision of the Town of Sharon Development Review Board (DRB) dated February 19, 2023 denying an application to extend a conditional use permit to rebuild a pole barn at 2911 VT Route 14, Sharon, Vermont (the Property) owned by Down River Investments, LLC, submitted by member Walter Radicioni (Mr. Radicioni).

On September 12, 2023, this Court issued an Entry Order granting in part and denying in part the Town of Sharon's (Town), motion to dismiss Mr. Radicioni's Statement of Questions. See In re Radicioni Denial, No. 23-ENV-00020 (Vt. Super. Ct. Envtl. Div. Sept. 12, 2023) (Walsh, J.) (the September Entry Order). In so doing, the Court dismissed Questions then identified as 1, 2, 4, 7, and 8(1), 8(4)-(7). Id. at 8. The Court declined to dismiss Questions then identified as 3, 5, 6, 8(2) and 8(3). Id. The Court also revised Questions 5, 6, 8(2) and 8(3) to read as two new Questions, Question 1A and 2A. Id. The Court directed Mr. Radicioni to file an amended Question 3 by September 29, 2023 identifying the specific purpose statements of the Town of Sharon Flood Hazard Area Bylaws (the Flood Bylaws) that he believed were at issue in this matter.

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Id. at 5-6, 8. Mr. Radicioni filed Amended Question 3A, referencing numerous subparts on September 26, 2023. Presently before the Court is the Town's motion to dismiss amended Question 3 for lack of subject matter jurisdiction and for failure to state a claim upon which relief can be granted.

Amended Question 3A

Amended Question 3A asks:

Should Down River be permitted to extend a conditional use permit to construct a pole barn on Down River's property located at 2911 VT Route 14 in Sharon where the Planning Commission's denied Down River's permit application even though the conditional use applied for by Down River is entirely consistent, and does not conflict in any way, with the legislative intent of the Flood Hazard Area Bylaw stated clearly, unconditionally and unambiguously in its express stated purpose as follows

a. Implement the goals, policies and recommendations of the current municipal plan

b. Avoid and minimize the loss of property, the disruption of commerce, the impairment of the tax base, and the extraordinary public expenditures and demands on public services that result from flooding;

c. Ensure that the selection, design, creation and use of development is reasonably safe and accomplished in a manner that is consistent with public wellbeing, does not impair flood plain services or the stream corridor;

d. Manage the flood hazard area designated pursuant to 10 V.S.A. Chapter 32 Section 753, the municipal hazard mitigation plan; and make the Town of Sharon, its citizens and businesses eligible for federal flood insurance, federal disaster recover funds and hazard mitigation funds as they may become available;

and where the Town has repeatedly and continuous approved other subsequent applications for similar, if not less-compliant, conditional uses upon lands that lie within the same flood area that Down River's land allegedly lies within,

and where the Down River[] lands do not appear to lie within the designated flood area in the first place;

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and where the Town entirely failed to warn the public of its intention to adopt the subject Flood Hazard Area Bylaw as required by law.

Revised Statement of Questions Question 3A (filed on Sept. 26, 2023).

Legal Standard

With respect to motions to dismiss for lack of subject matter jurisdiction, we follow the standards established in V.R.C.P. 12(b)(1), becuase the Vermont Rules of Civil Procedure govern proceedings in this Division. See V.R.E.C.P. 5(a)(2). When considering V.R.C.P. 12(b)(1) motions to dismiss, this Court accepts all uncontroverted factual allegations as true and construes them in the light most favorable to the nonmoving party. Rheaume v. Pallito, 2011 VT 72, ¶ 2, 190 Vt. 245. We, therefore, provide deference to Mr. Radicioni in reviewing the pending motion.

With respect to motions to dismiss for failure to state a claim upon which relief can be granted, the Court may not grant such a motion unless it is beyond doubt that there are no facts or circumstances that would entitle the nonmoving party to relief. Colby v. Umbrella, Inc., 2008 VT 20, ¶ 5, 184 Vt. 1 (citation omitted). When ruling upon such a motion, we take all well-pleaded factual allegations made by the nonmoving party, here Mr. Radicioni, as true and "assume that the movant's contravening assertions are false." Alger v. Dep't of Labor &Industry, 2006 VT 115, ¶ 12, 181 Vt. 309 (citation omitted). There is a "exceedingly low" threshold to survive a 12(b)(6) motion and, "[m]otions to dismiss for failure to state a claim are disfavored and should rarely be...