Ashline Site Plan Application ( 2010 )

Environmental Court of Vermont
State of Vermont
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E N T R Y R E G A R D I N G M O T I O N
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In re: Ashline Site Plan Application, Docket No. 242-12-09 Vtec
Project: Ashline Site Plan
Applicant:
(Appeal from Swanton Planning Commission site plan determination.)
Title: Motion to Determine Party Status, No. 1
Filed: January 15, 2010
Filed By: Michael S. Gawne, Attorney for Appellant Paul Ashline
Response: None.
Reply memorandum, in support of motion, filed by Attorney Gawne on Feb. 24,
2010
_X_ Granted ___ Denied ___ Other
By the pending motion, Appellant/Applicant Paul Ashline seeks a court
determination of who is entitled to party status in this de novo appeal from a
decision by the Town of Swanton Planning Commission concerning a site plan
application regarding Mr. Ashline’s business, known as Hometown Sunoco and
located at 166 First Street in Swanton.
We first note that not all individuals Appellant has identified have
filed as parties in this appeal. We limit our analysis to only those parties
who have asserted that they are entitled to status in this appeal, since to go
beyond this limited scope and opine as to the status of parties not before us
would be an improper advisory opinion. In re 232511 Investments, Ltd., 2006 VT
27, ¶ 19, 179 Vt. 409, 417.
Appellant contends that John Flood and Philip Ste. Marie do not live in
or own property within the immediate neighborhood of his business. While both
gentlemen have entered their appearance in this proceeding and have been served
with Appellant’s pending motion, neither has filed a response. We are
therefore left with only Appellant’s factual assertions. If true, neither
Messrs. Flood nor Ste. Marie meets the minimum statutory standard for
interested person status. See 24 V.S.A. § 4465(b). Since we have no other
factual representations before us, we cannot impute interested person status
where none has been represented. We therefore conclude that John Flood and
Philip Ste. Marie do not qualify as interested persons and are therefore not
entitled to party status in these proceedings. See V.R.E.C.P. 5(d)(2).
There seems to be some confusion as to whether Shawn Bartlett has
requested party status in these proceedings for himself individually, or for
his employer, Jolley Associates. Mr. Bartlett signed and filed a pro se
appearance form in his individual name, yet his cover letter to the Court
(dated Jan 18, 2010 and filed Jan. 25, 2010) references that “we have a
continuing interest in the Site Plan Approval Request of Hometown Sunoco (Paul
Ashline) docket #242-122-09 Vtec.” When this letter was received, the Court
In re: Ashline Site Plan Application, Docket No. 242-12-09 Vtec (Entry Order re: party status) (03-04-10) page 2.
concluded that Mr. Bartlett sought to enter an appearance on behalf of his
employer, Jolley Associates.
As an abutting business, Appellant Ashline does not dispute that Jolley
Associates is entitled to interested person status in these proceedings.
Appellant disputes, however, that Mr. Bartlett, a non-attorney, is qualified to
enter an appearance on behalf of Jolley.
With limited exceptions not applicable to these proceedings (since Mr.
Bartlett and Jolley have thus far failed to make adequate factual
representations), one who wishes to have another appear and represent its
interests in a court action must retain an attorney, licensed to practice law
before our courts. See Vermont Agency of Natural Resources v. Upper Valley
Regional Landfill Organization, 159 Vt. 454, 458 (1992)(an appeal from the
predecessor to this Court, wherein the Supreme Court noted that, absent a
showing of exceptional circumstances, a corporation or unincorporated
organization that wishes to participate in litigation must do so through
licensed legal counsel.).
Thus, if Jolley Associates wishes to continue to participate in these
proceedings, we direct that within the next thirty days, it either cause a
Vermont licensed attorney to enter an appearance on its behalf, or have Mr.
Bartlett submit a detailed affidavit, with copies to all parties of record,
evidencing how he and Jolley have satisfied the four requirements that would
allow Mr. Bartlett to engage in the exceptional act of representing Jolley,
even though he is not a Vermont licensed attorney. ANR v. Upper Valley, 159
Vt. at 458. Failure to make an adequate filing within the next thirty days may
result in the Court dismissing Jolley Associates as a party to these
proceedings.
We do not interpret Mr. Bartlett’s filings to represent an intention to
appear in his individual capacity in this appeal. We note, however, that he
completed and filed a pro se appearance form that, by its plain language,
represents that Mr. Bartlett does wish to individually appear here. Given
Appellant’s representation as to Mr. Bartlett personally (doesn’t live in or
own property in the immediate neighborhood), and the lack of response from Mr.
Bartlett, we conclude that, to the extent Mr. Bartlett was asserting his
individual appearance, he has failed to fulfill the minimum requirements for
interested person status under 24 V.S.A. § 4465(b). We therefore dismiss him as
an individual party in these proceedings.
___________________________________________ __March 4, 2010.__
Thomas S. Durkin, Judge Date
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Date copies sent to: ____________ Clerk's Initials _______
Copies sent to:
Michael S. Gawne, Attorney for Appellant Paul Ashline
Interested Person John Flood
Interested Person Philip Ste. Marie
Interested Person Jolley Associates, c/o Shawn Bartlett
Brian Monaghan, Attorney for Appellee Town of Swanton