Musty Zoning Permit

• Court: Vermont Superior Court
• Decided: March 9, 2011
• Docket: 174-10-10 Vtec
• Status: Published

Opinion

Vermont Superior Court Environmental Division

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In re Musty Zonin¢>‘ Permit Docket No. 174-10-10 Vtec

Project: Construction of single family dwelling on previously~subdivided lot. Applicant: Sherrill Musty - (Appeal from DRB denial of appeal from Zoning Administrator’s permit determination)

Title: Revised Staternent of Questions and Reconsideration Requests (Filing No. 6) Filed: March 9, 201 1 Filed By: Appellant Frederick P. Tiballi

Response: None __“ Granted ___ Denied _X_ Other

By its Entry Orders issued on February 24, 201 l, this Court either dismissed or entered summary judgment against Applicant Frederick P. Tiballi (“Appellant”) on Questions 1, 3, S(g), 6- 15, 18~20, 2'7-325 34~42, and 47 from Appellant’s Statement of Questions. During the subsequent pre-trial conference, held on February 28, 2011, the Court requested that Appellant file a revised Statement of Questions; the explained purpose was to summarize the Questions remaining for review at trial, now scheduled for l\/larch 15 and 16, 201 1 at the Costello Courthouse in Burlington.

ln response, Appellant, on l\/iarch 4, 201 1, filed a document entitled as follows;

APPELLANTS’ lsic] REMAINING STATEMENT OF OUSTIONS RESTATED AND CLARIFIED AND Motion For Reconsideration as to Dismissal of Staternent of Question 5(g) Renewed l\/lotion in re Summary Judgment _ Statement of Questions Remaining. Associated"l\/lemorandum, Legal Analysis in Support ( Demonstrative EXhibit B)

(Capitalization, highlight, punctuation, and for'rnatting in the original).

ln the first paragraph of this filing, Appellant gives notice of his new desire to withdraw his Questions 16(a) and 16(b). We therefore DISMISS those Questions from our planned consideration at trial.

Appellant uses the rest of the next ten pages of his twenty-one-page filing to provide explanation for his former Question 5(g), subparts (i) through (Xviii), and why the Court should reconsider and reverse its prior dismissal of that Question and its subparts. The Court strained to follow the arguments expressed in this first part of Appellant’s filing, and in the remainder of the filing. Appellant only begins to address the first Question remaining for consideration at trial_Appellant’s Question 2_at the bottom of page 10 of his recent filing

’l`he reminder of Appellant’s filing, addressing Questions 2, 4, 5, 16(a) (now dismissed), 17, 21, 22(A)-(P), 23-26,1 and 43-46, is confusing and difficult to follow for two reasons First, it is

l Applicant’s recent filing does not address the duplicate Questions 23_26 contained in his original Statement of

Questions. See In re .Mus‘g; Zoning Permit, No. 174-10-10 Vtec, slip op. at 2 n.2 (Vt. Super. Ct. Feb. 2, 2011) (Durkin, J.).

In re Musty Zoning Permz't, No. il /4-10-10 Vtec (EO on Appellant’s Revised SoQ} (03-09-201 1) Page 2 of 2.

presented in a tracked changes format, although the replaced and added text seem identical Second, his Questions are accompanied by legal argument. vSuch legal argument can be helpful, but is more often provided in a separate legal memoranda or trial brief. A statement of questions merely serves as notice of the legal issues that an appellant preserves for review on appeal; it does not need to contain legal argument and an opposing party is neither obligated nor allowed to file a responsive pleading V.R.E.C.P. 5(h),

We find Appellant’s filing wholly unresponsive to the Court’s request that he file a revised Statement of Questions. We therefore STRIKE Appellant’s filing from the Court docket and direct that Appellant file a corrected Revised Statement of Questions, no later than Noon on Monday, March 14, 2011. `Due to the shortness of time between now and the scheduled trial, Appellant may make his filing by facsimile or other electronic transmission; service upon all parties of record shall be accomplished in the same manner.

Appellant’s corrected Revised Statement of Questions shall not include any legal arguments, eitherin support of the remaining Questions or in support of the Questions that the Court previously di`smissed, and shall not be in a tracked changes format.

The Court has also reviewed the arguments Appellant offers for reconsideration of its prior dismissal and summary judgment Orders. Appellant offers no new arguments in support of his reconsideration request, but has merely restated his prior arguments and expressed his respectful disagreement with the Court’s prior conclusions Reconsideration is not afforded in such instances See V.R.C.P. 59(e); Appeal of Berezniak, No. 171-9-03 Vtec, slip op. at 3 (Vt. Envtl. Ct. Apr. 6, 2007) (Wright, J.).

<:\\/:2§»464§ l March§) 2011

Thom\as S. Durkin, Judge , Date

Date copies sent to: 3 " § " // Clerk’s Initials \ 1 Copies sent to: '

Appellant Frederick P. Tiballi Kimberlee J. Sturtevant, Attorney for the City of Burlington Liam L. Murphy, Attorney for Appellee/Applicant Sherrill N. Musty

Interested Person Lynne Tiballi Interested Person Sue Ellen Strang Interested Person Phyllis P. Rose Interested Person Alexander H. Rose Interested Person Colin Trevorrow Interested Person Isabelle Trevorrow Interested Person Lewis R. First Interested Person Sandra L. First

Interested Person Rachel First Interested Person Daniel L. Lustgarden Interested Person Charles Bookwalter interested Person Carol S. Bookwalter Interested Person Jurij l-Iomziak Interested Person Callie Fortin

Interested Person Mary Trexler Interested Person Ann Vivian

Interested Person Robert G. Openheimer Interested Person Wendy D. Oppenheimer Interested Person Eugene P. Cenci Interested Person Ann K. Cenci Family Trust

Interested Person Rita Carlile Interested Person Paul Carlile