Pyramid Co. of Burlington, In re

• Decision Date: 08 June 1982
• Docket Number: No. 125-81,125-81
• Citation: 449 A.2d 915,141 Vt. 294
• Parties: In re PYRAMID COMPANY OF BURLINGTON.
• Court: Vermont Supreme Court

Page 915

449 A.2d 915

141 Vt. 294

In re PYRAMID COMPANY OF BURLINGTON.

No. 125-81.

Supreme Court of Vermont.

June 8, 1982.

Fred I. Parker and Susan F. Eaton of Langrock, Sperry, Parker & Stahl, Middlebury, and Carl K. Zucker, Philadelphia, Pa., for plaintiff.

Richard A. Spokes and Steven F. Stitzel of Spokes, Foley & Obuchowski, Burlington, for Chittenden County Regional Planning Com'n.

Frederic W. Allen and Robert R. McKearin of Dinse, Allen & Erdmann, Burlington, and John J. Easton, Jr., Atty. Gen., and J. Wallace Malley, Jr., Asst. Atty. Gen., Montpelier, for Vermont State Agencies.

McNeil, Murray & Sorrell, Inc., Burlington, for City of Burlington.

Before BARNEY, C. J., BILLINGS, HILL and UNDERWOOD, JJ., and DALEY, J. (Ret.), Specially Assigned.

HILL, Justice.

This case concerns an application for a land development permit under Act 250, 10 V.S.A., ch. 151. The Pyramid Company (Pyramid) appealed from a decision of the district environmental commission denying its permit application for a shopping mall in the Town of Williston. Pyramid then appealed to the Chittenden Superior Court under 10 V.S.A. § 6089(a). The matter is now before this Court pursuant to the superior court's order certifying an interlocutory appeal under V.R.A.P. 5(b). We hold that the trial court incorrectly granted permission for an interlocutory appeal, and therefore dismiss the appeal.

I.

In October of 1978, Pyramid obtained a building permit for the construction of a large shopping mall in the Town of Williston. Before commencing construction, however, it was necessary for Pyramid to obtain a permit under the provisions of Act 250. It is the struggle over that permit which is the basis of this case.

Intense opposition confronted the application. Four of the objections to this development form the basis of this appeal. First, the opponents argue that the permit should be denied because the mall would harm the economy of the City of Burlington. ¹ Second, the mall would allegedly cause transportation problems extending beyond the Town of Williston. Third, the mall purportedly does not comply with the plan of the Town of Williston. Fourth, the proposed mall would violate 10 V.S.A. § 6086(a)(9)(H) because it is an excessively costly "scattered development."

In an attempt to disarm each of these objections, Pyramid filed a motion for partial summary judgment in the Chittenden Superior Court. In pertinent part, Pyramid contended: (1) economic impact to the City of Burlington is not cognizable under Act 250; (2) transportation conjestion outside of the Town of Williston is beyond the scope of Act 250; (3) the Act 250 permit process does not permit further review of the proposed mall's conformity with the plan of the Town of Williston; and (4) the proposal withstands scrutiny under the "scattered development" provision of Act 250 as a matter of law.

The trial court denied Pyramid's motion for summary judgment. The court held that the economic impact of the mall on Burlington was cognizable under Act 250. The mall's impact on transportation beyond the Town of Williston was also held relevant to the permit process. The court concluded that Act 250 required a de novo determination on whether Pyramid's application conformed with the Town of Williston's plan. Finally, the court held that more evidence would be required on whether the proposal violated the "scattered development" prohibition in Act 250.

Pyramid then moved for permission to take an interlocutory appeal to challenge the denial of summary judgment. Pyramid claimed that regardless of the existence of any material issues of fact, Pyramid was entitled to partial summary judgment as a matter of law on the questions proposed for certification. See V.R.C.P. 56, Reporter's Notes (1971) (discussing the relationship of V.R.C.P. 56 to V.R.C.P. 12(b)(6)). The trial court certified five questions for review under V.R.A.P. 5(b):

(1) Does 10 V.S.A. § 6086(a)(7) authorize consideration of whether projected decline in shoppers goods sales and resultant lowering of property values and reductions in tax revenues and municipal services may constitute an unreasonable burden placed on the ability to provide municipal or governmental services of a municipality which is not contiguous to the municipality in which the proposed development is to be located?

(2) Does 10 V.S.A. § 6086(a)(5) authorize consideration of whether a proposed development will cause future unreasonable congestion or unsafe conditions with respect to the use of highways, waterways, railways, airports and airways, and other means of transportation existing or proposed which are physically located outside the municipality in which the proposed development is to be located?

(3) Does 10 V.S.A. § 6086(a)(10) require the Court to make a de novo review of the conformity of a proposed development with a duly adopted local plan under Chapter 117 of Title 24 when the local planning commission has already found conformity and granted final subdivision approval?

(4) Is a proposed development (consisting of a mall building with two department stores, eighty satellite stores, twenty food service facilities and parking for twenty-three hundred vehicles) exempt from the 10 V.S.A. § 6086(a)(9)(H) costs of scattered development criterion as a matter of law when the following structures and uses are located within one mile by road from the development site: three gas stations, a well drilling business and two vehicle sales and service businesses, the Green Mountain Power Service Center, a slaughterhouse, riding stable, roller skating rink, two multi-office buildings and four individual offices, a small multi-store building and four individual stores and seven houses and/or farms?

(5) Does 10 V.S.A. § 6086(a)(9)(H) authorize consideration of whether projected decline in shoppers goods sales and resultant lowering of property values and reductions in tax revenues and municipal services may directly or indirectly cause additional costs of public services and facilities in a municipality which is not contiguous to the municipality in which the proposed development is to be located?

The court issued an opinion in support of its order granting permission to appeal. The court reasoned that answers to each of the certified questions could narrow the scope of the issues at trial, thereby shortening the length of the trial. Without elaboration, the court concluded that there were substantial grounds for disagreement on the court's resolution of these issues.

II.

Interlocutory appeals are an exception to the normal restriction of appellate jurisdiction to the review of final judgments. There are weighty considerations that support the finality requirement. Piecemeal appellate review causes unnecessary delay and expense, and wastes scarce judicial resources. See Redish, The Pragmatic Approach to Appealability in the Federal Courts, 75 Colum.L.Rev. 89, 89 (1975). Furthermore, an appellate court labors under great disadvantages in disposing of interlocutory appeals. The litigants may not yet have narrowed the case's issues sufficiently for appellate review. We are deprived of the benefits of a final trial court opinion. Interlocutory review requires us to decide legal questions in a vacuum, without benefit of factual findings. Appellate decisionmaking suffers from such abstractness. By its very nature then, interlocutory appeals impair this Court's basic functions of correctly interpreting the law and providing justice for all litigants.

Despite those hazards, there is a narrow class of cases in which interlocutory review is nonetheless advisable. An appeal will lie in circumstances that assure the ripeness of issues for appellate review, and safeguard against improvident appellate decisionmaking. Three criteria must be satisfied. First, the appeal order must involve a "controlling question of law." ² V.R.A.P. 5(b). Second, there must be "substantial ground for difference of opinion" as to the correctness of that order. Id. Third, an interlocutory appeal should "materially advance the termination of the litigation." Id. We conclude that the instant appeal satisfies none of these criteria.

V.R.A.P. 5(b) is based upon 28 U.S.C. § 1292(b) (1976) and F.R.A.P. 5. See Castle v. Sherburne Corp., 141 Vt. 157, --- n.1, 446 A.2d 350, 353 n.1 (1982); V.R.A.P. 5, Reporter's Notes (1971). Consequently, the policies and rationales underlying the federal statute provide guidance for our construction of V.R.A.P. 5(b). This Court has also had ample opportunity to deal with the scope of interlocutory appeals under 12 V.S.A. § 2386. See Powers v. State Highway Board, 123 Vt. 1, 5, 178 A.2d 390, 393 (1962). Both the federal and Vermont precedents are important for this decision.

While disagreeing over some details, the federal courts have limited interlocutory appeals to "exceptional" cases. See, e.g., Paschall v. Kansas City Star Co., 605 F.2d 403, 406 (8th Cir. 1979); Kraus v. Board of County Road Commissioners, 364 F.2d 919, 922 (6th Cir. 1966). The propriety of an interlocutory appeal, however, cannot be gauged by an instinctive evaluation of a case's "exceptional" nature. A more probing analysis is required. The starting point for such an analysis must be the criteria enumerated in V.R.A.P. 5(b).

The rule's criteria do not draw bright lines: the definitions of "controlling questions of law," "substantial grounds for difference of opinion," and "material advancement of litigation's termination" are not self-evident. This vagueness is deliberate as it furthers the goals of the interlocutory appeal mechanism:

The statutory purpose to inject an element of flexibility into the technical rules of appellate jurisdiction established for final judgment appeals ... and for [other] interlocutory appeals ..., counsels that so long as the [trial] court has made an order, the remaining elements be treated as guiding criteria rather than jurisdictional requisites....