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=     = ;            &= nbsp;           &nb= sp;            = ;            &= nbsp;    STATE OF VERMONT

 

=     = ;            &= nbsp;           &nb= sp;            = ;             = ENVIRONMENTAL COURT

 

}

In re Hartland Group, LLC<= span style=3D'mso-tab-count:4'>        =             &n= bsp;           &nbs= p;       }        =    Docket No. 120-6-05 Vtec

  (Bjerke, et al., Appellant= s)        =             &n= bsp;           &nbs= p;     }        =   

  (re: proposal on North Avenue, Burlington)     &= nbsp;           &nb= sp;    }

}

 

    = ; Entry Order on Motion for Stay and Enlargement of Time; Amended Scheduling Order=

Appellants appealed from a decision of the Development Review Board (DRB) of the City of Burlington granting Appellee-Applicant Hartland Group, LLC=3Ds application for approval of a project including residences, associated parking spaces in a garage, and a café= ;, involving an existing building at 237 North Avenue in Burlington.  Appellants are represented by Alan A. Bjerke, Esq.; Appellee-Applicant Hartland Group, LL= C is represented by Ronald A. Shems, Esq.; and the City of Burlington is repres= ented by Kimberlee J. Sturtevant, Esq.

A series of scheduling orders, most recently amended on November 16, 2005, govern the presentation of certain issues by motion, pr= ior to the trial, which was scheduled to be held on January 12, 2006, January = 19, 2006, January 20, 2006, and to continue, if necessary, on January 27, 2006= , at the Costello Courthouse on Cherry Street in Burlington.<= /p>

Appellee-Applicant today has moved to stay this matter (place it on inactive status) pending Appellee-Applicant=3Ds application for a state land use (Act 250) permit for= the same project, and has also moved to postpone the filing of the motion memo= randa due today to ten days after the Court=3Ds ruling on the motion for stay, if it were to be denied.   The City does = not oppose the motion.  Appellants oppose the motion on the basis that putting the municipal appeal on hold pending the Act 250 proceedings will Aunnecessarily cause them to incur substantial additional expense.@  In makin= g this argument, Appellants appear to assume that granting the motion would automatically result in postponement of the pending motions, as well as the hearing on the merits of the appeal now scheduled for January of 2006.

 

Appellee-Applicant=3Ds request to put this appeal on inactive status, pending filing and consideration of Appellee-Applicant=3Ds application for an Act 250 permit from the District Environmental Commission, is GRANTED, except as limited below. =

As we explained in Appeal of Rivers Development, LLC= , Docket No. 7-1-05 Vtec (Vt. Envtl. Ct., April 8, 2005), the Environmental = Court is directed to consolidate and coordinate proceedings to Apromote expeditious and fair proceedings and avoid unnecessary costs or delay.@  V.R.E.C.= P. 2(b) and 10 V.S.A. '8504(g).  = If we were to proceed with the scheduled four days of hearing on the merits of t= his appeal while the Act 250 application is pending at the District Commission= , the parties to this appeal would have to present substantially the same eviden= ce, including any reports and testimony of expert witnesses, three separate ti= mes: once in the DRB appeal to this Court, once at the District Commission, and= then a third time at this Court, as we may assume that the District Commission decision is also likely to be appealed.

Not only would these three separate hearings cause incr= eased costs for the parties, but such a procedure would double the Court<= span style=3D'font-family:"WP TypographicSymbols";mso-bidi-font-family:Shruti; mso-char-type:symbol;mso-symbol-font-family:"WP TypographicSymbols"'>=3Ds costs, by requiring this Court to hold two successive repetitive hearings, rather than to hold a single consolidated hearing.  Further, it would not accelerate = the ultimate resolution of these appeals.  They would not reach this Court or the Vermont Supreme Court, or be concluded in either court, any earlier than if they were left to proceed separately.  We should avoid these additional = costs and potential for delay if at all possible.

On the other hand, the issues raised by the pending mot= ions for summary judgment  relate = only to the municipal appeal, and must be resolved in advance of any hearing on the merits of the proposal, regardless of what happens in the Act 250 proceedings.  If the summary judgment issues are resolved any differently from the position of Appellee-Applicant, the Court=3Ds ruling may result in Appellee-Applicant=3Ds redesign of some aspect of the application (or an interlocutory appeal to the Supreme Court), which may affect not only the project before the Court in the municipal appeal, but also the project bef= ore the District Commission in the Act 250 application.

Therefore, the Court will proceed to rule on the motion= s for summary judgment, and will otherwise place the above-captioned appeal on inactive status pending the completion of the merits of the Act 250 application.  Any memoranda o= n the motions for summary judgment that were due today may be filed so that they= are received at the Court on or before December 8, 2005.  The January 2006 hearing on the m= erits of this appeal is hereby cancelled, and will be rescheduled as appropriate after the conference to be held pursuant to the following paragraph.<= /o:p>

Appellee-Applicant shall report in writing as to the da= te the Act 250 application is or was filed, and shall report in writing when = it is set for hearing by the District Commission, when the hearings have been co= mpleted, and as soon as the District Commission has issued its decision.  We will schedule a conference soo= n after Appellee-Applicant notifies the Court of the issuance of the District Commission decision, to discuss the relationship between and the appropria= te scheduling of the related appeals under V.R.E.C.P. 2(b) and 10 V.S.A. '8504(g).

 

Appellee-Applicant=3Ds motion to strike filings made to date by Attorney Bje= rke is DENIED.  Appellee-Applican= t=3Ds motion to disqualify Attorney Bjerke is POSTPONED unt= il after this Court=3Ds rulings on the legal issues now at issue in the motio= ns for summary judgment; Attorney Bjerke may file a response within ten days = after receipt of the Court=3Ds rulings on the pending motions for summary judgment.<= span style=3D'mso-spacerun:yes'>  If other counsel enters an appear= ance prior to that time, either for all the Appellants or for the other unrelat= ed appellants, we will enter the motion to disqualify as having become moot.<= o:p>

The conference now scheduled for December 22, 2005, rem= ains scheduled.  The parties shoul= d be prepared to address any issues relating to the appropriate sequencing of pretrial or prehearing issues in the two proceedings, including whether any discovery already scheduled in the municipal appeal should proceed as sche= duled or be modified or postponed.

 

 

Done at Berlin, Vermont, this 28th day of November, 2005.

 

 

 

 

 

_________________________________________________<= /o:p>

Merideth Wright

Environmental Judge

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