MONTPELIER — The city says a state statute used by opponents to challenge permits for a proposed public parking garage in the Capital City is unconstitutional.

The motion was one of many recently filed by attorneys for the city in response to appeals of the proposed Hampton Inn hotel and garage project on land in the Capitol Plaza Hotel parking lot. The appellants, Friends of Montpelier, have challenged zoning and Act 250 permits for the garage project in Environmental Court.

City attorneys said the motion concerns a stipulation in Article III of the United States Constitution that is missing in the state statute on which the appellants depend.

According to the city’s motion, Article III states that appellants must have “in fact” been injured by the defendant in the action they are pursuing. State statute 24 VSA § 4465 does not contain “all of the elements of standing mandated by the Unites States Supreme Court” and is therefore unconstitutional, city attorneys argue.

James Dumont, the attorney for Friends of Montpelier — a group of 13 city residents — said he disagreed with the city’s attorneys.

“… the city’s attorneys are trying to throw out the zoning appeal by saying that the statute is unconstitutional,” Dumont said. “We’re in a remarkable position where the lawyers representing elected city government of the capital of the state of Vermont are trying to have a judge declare unconstitutional the principle statue which citizens use to participate in the zoning process.”

Dumont said there was extensive case law and precedent nationally that gives people standing to participate in zoning cases.

“The question of citizen standing has occupied thousands of pages of U.S. Supreme Court decisions, thousands and thousands of pages of lower court decisions,” Dumont said. “There are scholarly articles that you could fill a warehouse with and I’m going to be writing that up.

“I don’t think it’s unconstitutional,” Dumont continued. “It’s a very complicated and interesting legal issue and I suspect that a judge will never decide it because the judge doesn’t need to decide it. There are other reasons to throw out, reject their argument without deciding that issue.

“One of the arguments you’re going to hear when you finally see what we’re going to write is that judges have a duty to avoid constitutional issues and decide questions on other bases, if they can, and that is true here,” he added.

Asked whether the city would have to appeal to the Supreme Court if the Environmental Court ruled against the city attorneys’ motion, Dumont said, “It depends on what the trial judge says. If the trial judge rules in our favor, then (the city) will have to go to the Supreme Court.

“But if the trial judge rules in our favor, it may be in such a way that this issue goes away so that there’s nothing to appeal to the Supreme Court,” he added.

City Manager Bill Fraser could not be reached for comment on Monday.

stephen.mills @timesargus.com

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