In re Cliffside Leasing Co., Inc.

In re Appeal of Cliffside Leasing Company, Inc.  (96-391); 
167 Vt. 569; 701 A.2d 325

[Opinion Filed 25-Jul-1997]

[Motion for Reargument Denied 26-Aug-1997]




                          ENTRY ORDER

                 SUPREME COURT DOCKET NO. 96-391

                         APRIL TERM, 1997


In re Appeal of Cliffside       }     APPEALED FROM:
Leasing Company, Inc.           }
                                }
                                }     Environmental Court
                                }
                                }
                                }     DOCKET NO. E95-110


       In the above-entitled cause, the Clerk will enter:


       Cliffside Leasing Company, Inc. appeals from a ruling of the
  Environmental Court that Cliffside's application for a building permit was
  subject to major-impact review under the City of Burlington's zoning
  ordinances.  Because the appeal is not from a final judgment, and Cliffside
  failed to seek interlocutory review, the appeal must be dismissed.

       In May of 1995, Cliffside applied to the City's Planning Department
  for a zoning/building permit to construct a truck terminal on Flynn Avenue. 
  The Department informed Cliffside that the site contained "designated
  wetlands or natural areas of state or local significance" within the
  meaning of the City's zoning ordinance, and therefore required major-
  impact review.  Cliffside appealed this determination to the City's zoning
  board of adjustment, which concluded that the site satisfied the criteria
  for major-impact review.  Cliffside then appealed the Board's decision to
  the environmental court, which affirmed and remanded the matter for that
  review to take place.  This appeal followed.

       V.R.C.P. 76(d)(5)(B), which governs appeals from environmental court,
  provides that "[a] final judgment under this rule shall be appealable as of
  right to the Supreme Court." (Emphasis added.)  As we have recently
  explained, "The import of our law is that `a final judgment is a
  prerequisite to appellate jurisdiction unless the narrow circumstances
  authorizing an interlocutory appeal are present.'"  In re J.G., 160 Vt.
  250, 253, 627 A.2d 362, 364 (1993) (quoting Hospitality Inns v. South
  Burlington R.I., 149 Vt. 653, 656, 547 A.2d 1355, 1358 (1988)).  The
  environmental court's ruling in this matter was plainly not a final
  disposition of the subject matter.  Morissette v. Morissette, 143 Vt. 52,
  58, 463 A.2d 1384, 1388 (1983); Woodard v. Porter Hosp., Inc., 125 Vt. 264,
  265, 214 A.2d 67, 69 (1965).  Cliffside's permit application remains
  pending subject to major-impact review on remand from the environmental
  court.  The court's decision was in the nature of an interlocutory ruling,
  of which Cliffside was free to seek review under V.R.A.P. 5.   It failed to
  do so.  Accordingly, this Court is without jurisdiction to adjudicate the
  matter.  In re J.G., 160 Vt. at 253, 627 A.2d  at 364.

 

       Appeal dismissed.





                              BY THE COURT:



                              _______________________________________
                              Jeffrey L. Amestoy, Chief Justice

                              _______________________________________
                              Ernest W. Gibson III, Associate Justice

                              _______________________________________
                              John A. Dooley, Associate Justice

                              _______________________________________
                              James L. Morse, Associate Justice

                              _______________________________________
                              Denise R. Johnson, Associate Justice