Hartland Group, LLC

• Court: Vermont Superior Court
• Decided: November 28, 2005
• Docket: 120-06-05 Vtec
• Status: Published

Opinion

STATE OF VERMONT

ENVIRONMENTAL COURT

} In re Hartland Group, LLC } Docket No. 120-6-05 Vtec (Bjerke, et al., Appellants) } (re: proposal on North Avenue, Burlington) } }

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=s 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, LLC is

represented by Ronald A. Shems, Esq.; and the City of Burlington is represented 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, prior 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. Appellee-Applicant today has moved to stay this matter (place it on inactive status)

pending Appellee-Applicant=s application for a state land use (Act 250) permit for the

same project, and has also moved to postpone the filing of the motion memoranda due

today to ten days after the Court=s 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 making 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=s request to put this appeal on inactive status, pending filing and

consideration of Appellee-Applicant=s 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 this appeal while the Act 250 application is pending at the District Commission, the parties to this appeal would

have to present substantially the same evidence, including any reports and testimony of

expert witnesses, three separate times: 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 increased costs for the parties,

but such a procedure would double the Court=s 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 motions 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=s ruling may result in Appellee-Applicant=s 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 before the District Commission in the Act 250 application.

Therefore, the Court will proceed to rule on the motions 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 on 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 merits of this appeal is

hereby cancelled, and will be rescheduled as appropriate after the conference to be held

pursuant to the following paragraph.

Appellee-Applicant shall report in writing as to the date 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 completed, and as soon as the District

Commission has issued its decision. We will schedule a conference soon after Appellee-

Applicant notifies the Court of the issuance of the District Commission decision, to discuss

the relationship between and the appropriate scheduling of the related appeals under

V.R.E.C.P. 2(b) and 10 V.S.A. '8504(g). Appellee-Applicant=s motion to strike filings made to date by Attorney Bjerke is

DENIED. Appellee-Applicant=s motion to disqualify Attorney Bjerke is POSTPONED until

after this Court=s rulings on the legal issues now at issue in the motions for summary

judgment; Attorney Bjerke may file a response within ten days after receipt of the Court=s

rulings on the pending motions for summary judgment. If other counsel enters an

appearance prior to that time, either for all the Appellants or for the other unrelated

appellants, we will enter the motion to disqualify as having become moot.

The conference now scheduled for December 22, 2005, remains scheduled. The

parties should 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 scheduled or be modified or

postponed.

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

_________________________________________________ Merideth Wright Environmental Judge