STATE OF
ENVIRONMENTAL COURT
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App=
eal of
Rueger, et al. &nbs=
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bsp; } Docket No. 122-7-04 Vtec
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Supplemental Decision and Orde=
r
This
Court issued its Decision and Order on the parties’ Cross-Motions for
Summary Judgment on
The Court’s =
May 5th
Decision was premised upon its conclusion from the parties’ filings =
that
the ZBA had not yet held a hearing on the merits of conditional use
approval. However, we now se=
e from
the parties’ respective Motions to Amend Judgment and supplemental
filings[1]
that the ZBA did reach the merits of the application. It is therefore necessary for the=
Court
to amend its prior Decision and Order.
It is unfortunate =
that
the parties, surely through mere omission rather than intentional act, did=
not notify
the Court that the ZBA had issued written Findings. The circumstances here are somewh=
at
unique, although not an entirely unusual.=
The Notice of Appeal in this case was filed after the final ZBA
deliberative hearing, but before the issuance of the written Findings of F=
act
and Conditional Use permit.
However, Appellant=
s’
Notice of Appeal and Statement of Questions makes no reference to the ZBA =
Findings. Appellants’ Motion for Summ=
ary
Judgment, filed some four months after the ZBA Findings, is also silent on=
the
issuance of Findings, or the conditional use conditions listed therein.
When a Court does =
not
receive notice of all material and relevant facts, the parties can suffer =
as a
consequence of the Court rendering a faulty decision. Fortunately, the consequence here=
is
only a delay.
For future reference, we state=
the
now obvious point: in the event that an appeal is taken before a final dec=
ision
of an appropriate municipal panel (as in this matter), it would serve the
interests of judicial economy if the parties would notify the Court once t=
hat
final decision is rendered. =
If that
practice was followed here, there would be no need for this Supplemental D=
ecision
and Order.
We now turn to the substantive=
points
of each party’s Rule 59 Motions.
First, in light of the fact th=
at the
Bristol ZBA did complete its review of Applicant’s conditiona=
l use
application and issued Findings of Fact and a Conditional Use Permit, this
Court’s remand to the ZBA is no longer appropriate. Pursuant to V.R.C.P. 76(e) and
This Court’s determinati=
on (See
Decision and Order of
As a consequence of this Suppl=
emental
Decision, the Court’s V.R.C.P. 58 Judgment Order of
A telephone conference will be=
held
on
=
Done
at
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; Thomas
S. Durkin, Environmental Judge
[1] This Court first became aware of = the ZBA’s minutes from its deliberative session on June 22, 2004 and its Findings of Fact and Conditional Use Permit to Lathrop Limited Partnership= , LLP (issued July 6, 2004) when copies were attached as exhibits to Appellee-Applicant’s Motion to Amend Judgment of May 13, 2005.
[2] Rule 76 governed the interp= retation of the Notice of Appeal in this case, since at the time this appeal was commenced (i.e. July 8, 2004), the Vermont Rules for Environmental Court Proceedings (V.R.E.C.P.) had not yet been adopted.