Applicants motion in Vermont

2014Now pending before the Court is Applicants’ motion to dismiss the appeal for Appellant’s lack of standing.1 Standing is a “necessary component of the court’s subject-matter jurisdiction.” Bischoff v. Bletz, 2008 VT 16, ¶ 15 , 183 Vt. 235 .

2014Now pending before the Court is Applicants’ motion to dismiss the appeal for Appellant’s lack of standing.1 Standing is a “necessary component of the court’s subject-matter jurisdiction.” Bischoff v. Bletz, 2008 VT 16, ¶ 15 , 183 Vt. 235 .

2013Ms. Perot’s Question 26 asks whether the Project complies with Act 250 Criterion 10, and Applicants argue that claim or issue preclusion bars this question as well, particularly in light of In re Hartland Group, 2008 VT 92 , 184 Vt. 606 .

2013Ms. Perot’s Question 26 asks whether the Project complies with Act 250 Criterion 10, and Applicants argue that claim or issue preclusion bars this question as well, particularly in light of In re Hartland Group, 2008 VT 92 , 184 Vt. 606 .

2013This case presents one of the rare instances in which we need not go beyond the face of the pleadings to conclude that the equitable defenses of claim and issue preclusion are not 2For a thorough discussion of the successive application doctrine, see In re Woodstock Cmty. Trust, 2012 VT 87 , ¶¶ 4–7, __ Vt. __. 3 Questions 11–14, 18, 19, 23, and 26 ask whether Applicants’ project complies with Act 250 Criteria 1, 1(A), 1(B), 1(E), 8, 8(A), 4, and 10, respectively.

2013This case presents one of the rare instances in which we need not go beyond the face of the pleadings to conclude that the equitable defenses of claim and issue preclusion are not 2For a thorough discussion of the successive application doctrine, see In re Woodstock Cmty. Trust, 2012 VT 87 , ¶¶ 4–7, __ Vt. __. 3 Questions 11–14, 18, 19, 23, and 26 ask whether Applicants’ project complies with Act 250 Criteria 1, 1(A), 1(B), 1(E), 8, 8(A), 4, and 10, respectively.

2010Applicants first argue that § 15.18(A)(10) is unenforceable because “the Vermont Supreme Court has already held that the applicable [Comprehensive] Plan is unenforceable.” Motion for Reconsideration, at 8 (citing In re Appeal of JAM Golf, LLC, 2008 VT 110, ¶ 18 , 185 Vt. 201 ).

2010In this summary judgment motion, Applicants challenge §§ 15.18(A)(4), (5), (6) and (10), and §§ 15.18(B)(1) through (4), of the 2003 Regulations, asserting that each provision is unconstitutionally vague and unenforceable, based on the reasoning articulated by the Vermont Supreme Court in Appeal of JAM Golf, 2008 VT 110 .18 Applicants ask the Court to strike down each of the challenged provisions, and therefore to approve the master plan application in full under any remaining applicable provisions.

2013In re Killington, Ltd., 159 Vt. 206, 216 (1992) (citing In re Southview Assocs., 153 Vt. 171, 177 , (1989)). 13 In a subsequent opinion, we will address Applicants’ motion to dismiss the remaining portions of Ms. Perot’s Statement of Questions: Questions 11–14, 18, 19, 23, 26, and 27.

2013We first note that “standing is a necessary component of the court’s subject-matter jurisdiction.” Bischoff v. Bletz, 2008 VT 16, ¶ 15 , 183 Vt. 235 (citing Brod v. Agency of Natural Res., 2007 VT 87 , ¶ 2, 182 Vt. 234 ).

2013We first note that “standing is a necessary component of the court’s subject-matter jurisdiction.” Bischoff v. Bletz, 2008 VT 16, ¶ 15 , 183 Vt. 235 (citing Brod v. Agency of Natural Res., 2007 VT 87 , ¶ 2, 182 Vt. 234 ).

2012In ruling on a Rule 12(b)(6) motion, we must assume the factual allegations in the plaintiff’s pleading are true and can only grant dismissal if “it appears beyond doubt that there exist no facts or circumstances that would entitle the plaintiff to relief.” Colby v. Umbrella, Inc., 2008 VT 20, ¶ 5 , 184 Vt. 1 (citing Alger v. Dep’t of Labor & Indus., 2006 VT 115 , ¶ 12, 181 Vt. 309 ).

2012In ruling on a Rule 12(b)(6) motion, we must assume the factual allegations in the plaintiff’s pleading are true and can only grant dismissal if “it appears beyond doubt that there exist no facts or circumstances that would entitle the plaintiff to relief.” Colby v. Umbrella, Inc., 2008 VT 20, ¶ 5 , 184 Vt. 1 (citing Alger v. Dep’t of Labor & Indus., 2006 VT 115 , ¶ 12, 181 Vt. 309 ).

2012In ruling on a Rule 12(b)(6) motion, we must assume the factual allegations in the plaintiff’s pleading are true and can only grant dismissal if “it appears beyond doubt that there exist no facts or circumstances that would entitle the plaintiff to relief.” Colby v. Umbrella, Inc., 2008 VT 20, ¶ 5 , 184 Vt. 1 (citing Alger v. Dep’t of Labor & Indus., 2006 VT 115 , ¶ 12, 181 Vt. 309 ).

2012In ruling on a Rule 12(b)(6) motion, we must assume the factual allegations in the plaintiff’s pleading are true and can only grant dismissal if “it appears beyond doubt that there exist no facts or circumstances that would entitle the plaintiff to relief.” Colby v. Umbrella, Inc., 2008 VT 20, ¶ 5 , 184 Vt. 1 (citing Alger v. Dep’t of Labor & Indus., 2006 VT 115 , ¶ 12, 181 Vt. 309 ).

2012Appellants appear before us pro se, and in ruling on Applicants’ motion to dismiss specific Questions, we will take the precaution taken by the trial court in Earth Construction, Inc. v. Vermont Agency of Transportation when faced with a pro se litigant. 2005 VT 82, ¶ 14 , 178 Vt. 620 (mem.) (noting that the trial court “took special care with the review of plaintiff’s complaint, to the point of picking out the mere citation of legal terms . . . and considering each possible cause of action even suggested by the term”).

2012Appellants appear before us pro se, and in ruling on Applicants’ motion to dismiss specific Questions, we will take the precaution taken by the trial court in Earth Construction, Inc. v. Vermont Agency of Transportation when faced with a pro se litigant. 2005 VT 82, ¶ 14 , 178 Vt. 620 (mem.) (noting that the trial court “took special care with the review of plaintiff’s complaint, to the point of picking out the mere citation of legal terms . . . and considering each possible cause of action even suggested by the term”).

2010Question 3 of the Statement of Questions: Religious Freedom Restoration Act In City of Boerne v. Flores, 521 U.S. 507 , 532–36 (1997), the U.S. Supreme Court declared that the Religious Freedom Restoration Act exceeded the power of Congress to enforce the Fourteenth Amendment.

2010As we have often stated, and feel required to repeat here, summary judgment is only appropriate when, “giving the benefit of all reasonable doubts and inferences to the nonmoving party, [the trial court concludes that] there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law.” Gade v. Chittenden Solid Waste Dist., 2009 VT 107, ¶ 7 (citing Mooney v. Town of Stowe, 2008 VT 19, ¶ 5 , 183 Vt. 600 (mem.)); V.R.C.P. 56(c).

2010As we have often stated, and feel required to repeat here, summary judgment is only appropriate when, “giving the benefit of all reasonable doubts and inferences to the nonmoving party, [the trial court concludes that] there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law.” Gade v. Chittenden Solid Waste Dist., 2009 VT 107, ¶ 7 (citing Mooney v. Town of Stowe, 2008 VT 19, ¶ 5 , 183 Vt. 600 (mem.)); V.R.C.P. 56(c).

2010We are not presented here with the legal question of whether an alternate location exists on Applicants’ property that is as convenient or inexpensive to develop as the location chosen by Applicants for their shed » extension Our Supreme Court has repeatedly explained that variances cannot be “justified in terms of personal convenience or maximizing the profitable use of property.” ln re Mutschler Canning and Wilkins, 2006 VT 43 , 11 11, 180 Vt. 501 (mem.).

2010We are not presented here with the legal question of whether an alternate location exists on Applicants’ property that is as convenient or inexpensive to develop as the location chosen by Applicants for their shed » extension Our Supreme Court has repeatedly explained that variances cannot be “justified in terms of personal convenience or maximizing the profitable use of property.” ln re Mutschler Canning and Wilkins, 2006 VT 43 , 11 11, 180 Vt. 501 (mem.).

2006Poplaski v. Lamphere, 152 Vt. 251 , 254‐55 (1989).