¶ 19. dissenting. I believe the Environmental Court erred in resolving the issue on summary judgment. I would reverse and remand this case for additional proceedings given the case’s posture before the Environmental Court and the statutory structure at issue. Respectfully, I dissent.3
¶ 20. To prevail on a motion for summary judgment, the moving party must satisfy a stringent two-part test: first, there must be no genuine issues of material fact, and second, the moving party must be entitled to judgment as a matter of law. Wesco, Inc. v. Hay-Now, Inc., 159 Vt. 23, 26, 613 A.2d 207, 209 (1992). Summary judgment is appropriate only when the materials before the court show that there is no genuine issue as to any material fact. See Carr v. Peerless Ins. Co., 168 Vt. 465, 466, 724 A.2d 454, 455 (1998). The Environmental Court, having found the evidence offered by appellants insufficient for a determination on the material fact in issue, should have simply denied summary judgment, thereby putting appellants to their proof in the de novo hearing to which they were entitled. 10 V.S.A. § 8503(b)(2); id. § 8504(h); V.R.E.C.P. 5(g) (stating that appeals to Environmental Court, including appeals of jurisdictional opinions, shall be by “trial de novo”); see Bennett Estate v. Travelers Ins. Co., 138 Vt. *158189, 191, 413 A.2d 1208, 1209 (1980) (remanding case where trial court converted motion to dismiss into motion for summary judgment without notifying parties and giving opportunity to supply additional materials).
¶21. Courts are not empowered to try issues of fact on a motion for summary judgment; they examine affidavits or other evidence to determine whether a triable issue exists rather than for the purpose of resolving the issue. Braun v. Humiston, 140 Vt. 302, 306, 437 A.2d 1388, 1389 (1981), overruled on other grounds by Soucy v. Soucy Motors, Inc., 143 Vt. 615, 471 A.2d 224 (1983). To complicate the matter before the Environmental Court, there was no adversarial party to oppose summary judgment, or to argue that the case was not properly resolved on summary judgment, or to argue that there were contested material facts at issue. And, a material fact is at issue: do David Shlansky and Ting Chang, as parents, have a beneficial interest in the Trust’s development activities. Instead of requesting further evidence, the court summarily decided the case against the movant, essentially holding that the proffered facts were so lacking as to prove their own negative.
¶22. In making its ruling, the Environmental Court held that Shlansky and Chang “have not fulfilled their evidentiary burden of exempting themselves from being included within the statutory definition of ‘persons’ contained in § 6001(14)(A)(iv)” because they failed to prove they would derive no “beneficial interest” from the Trust’s development activities. On appeal, as below, appellants relied on affidavits. The affidavits stated that the affiants do not “derive any profit or consideration ... or acquire any other beneficial interest” from the partition of the land or development activities. Rather than finding that further evidence was needed to decide the factual matter of the existence of a beneficial interest, the trial court wrote, “we conclude as a matter of law from the undisputed facts, even when viewed in a light most favorable to Appellants, that all Appellants . . . are ‘persons’ for purposes of Act 250 jurisdiction.” (Emphasis added.) The court then held: “Appellants have not provided any factual foundation” to meet their burden of proof that they will not derive any profit, consideration, or' any other beneficial interest from the land development activities. The court wrote “[t]heir general assertion that they derive no benefit from the Trust or other related entities cannot be viewed as fulfilling their burden of proof.” It then cited *159to Gore v. Green Mountain Lakes, Inc. in support, with a parenthetical that explained “to survive summary judgment, a party may not merely rely upon assertions or allegations.” 140 Vt. 262, 266, 438 A.2d 373, 375 (1981). Reliance on Gore would have been appropriate had there been an adversarial party arguing for summary judgment, but there was not. If the court had reached the same conclusion after a full opportunity for appellants to develop a factual record after a de novo hearing, I would agree. While the majority may be correct in holding that the affidavits contained only “ultimate or conclusory facts and conclusions of law,” ante, ¶ 17 (quotation omitted), a contested issue of material fact existed and appellants should have been allowed to go forward with their proof. I would therefore remand.
¶23. And, I suggest, on such a remand the court would be obligated to consider all relevant statutory language. The central question before the court was what constitutes a “person” for purposes of Act 250 jurisdiction. “Person” is defined broadly within the Act, see 10 V.S.A. § 6001(14), and we have recognized that the Act’s aim is to “include those who may not be mentioned specifically in the conveyance, but who may nevertheless derive some benefit from partition or division of the land.” In re Spencer, 152 Vt. 330, 339, 566 A.2d 959, 964 (1989). For purposes of a “subdivision,” the term “person”:
(i) shall mean an individual, partnership, corporation, association, unincorporated organization, trust or other legal or commercial entity, including a joint venture or affiliated ownership;
(iii) includes individuals and entities affiliated with each other for profit, consideration, or any other beneficial interest derived from the partition or division of land; [and]
(iv) includes an individual’s parents and children, natural and adoptive, and spouse, unless the individual establishes that he or she will derive no profit or consideration, or acquire any other beneficial interest from the partition or division of land by the parent, child or spouse.
*160Id. § 6001(14)(A); see 6 Code of Vt. Rules 12 004 060-2, available at http://www.michie.com/vermont.
¶24. The Environmental Court concluded that Shlansky and Chang, as parents, benefit from the division/partition of land merely because their children would benefit from the Trust’s development activities: “Profits accumulated by the Trust will provide for the children of David Shlansky and Ting Chang, which will thereby diminish the parents’ burden to provide for their minor children.” Before examining the strength of that analysis, it is important to recognize that § 6001(14)(B) identifies individuals and entities not presumed to be persons for purposes of the Act: “The following individuals and entities shall be presumed not to be affiliated for the purpose of profit, consideration, or other beneficial interest within the meaning of [Act 250], unless there is substantial evidence of an intent to evade the purposes of this chapter.” 10 Y.S.A. § 6001(14)(B) (emphases added). This presumption extends to those who take actions solely “as an agent of another within the normal scope of duties of a court appointed guardian, a licensed attorney, real estate broker or salesperson, engineer or land surveyor, unless the compensation received or beneficial interest obtained as a result of these duties indicates more than an agency relationship.” Id. § 6001(14)(B)(ii). Shlansky operates as the Trust’s attorney. In his affidavit he asserted that his role is that of an agent within the normal scope of duties of a licensed attorney. Chang is a trustee of the Trust and, by law, is strictly governed by requirements that she “administer the trust solely in the interests of the beneficiaries.” 14A V.S.A. § 802(a). In her affidavit she avowed that she “is prohibited from obtaining profit or other beneficial interest from her position as fiduciary trustee.” The court did not discuss § 6001(14)(B) in its decision, even though it was raised below by appellants. The majority ignores the section. I do not believe we can. And, as the case stands, I can see no evidence of an intent to evade the purposes of the chapter.
¶ 25. The statute presumes, for the purpose of counting subdivisions, that the term “person” includes an individual’s parents “unless the individual establishes that he or she will derive no profit or consideration, or acquire any other beneficial interest from the partition or division of land by . . . [the] child.” 10 V.S.A. § 6001(14)(A)(iv). The key term for the Environmental Court was “beneficial interest.” That term does not, as the court’s opinion *161suggests, mean any conceivable benefit whatsoever. Black’s Law Dictionary defines “beneficial interest” as “[a] right or expectancy in something (such as a trust or an estate), as opposed to legal title to that thing.” Black’s Law Dictionary 149 (7th ed. 1999). Redefining this term so broadly to include “collateral benefit” — the court’s term — or any relief from parental obligations of support would make the parental presumption of personhood contained in § 6001(14)(A)(iv) virtually insurmountable. The majority affirms this broad expansion of the statutory term, holding that “any financial benefit to the minor children constitutes a financial advantage to the parents ordinarily responsible for their support.” Ante, ¶ 15. I do not equate a financial advantage with a beneficial interest for purposes of the statute.
¶ 26. In order to apply the standard contained in § 6001(14)(A)(iv), however, it is critical to know how the Trust operates. Appellants argue that, because the Trust is “irrevocable,” they receive no benefit from its land-development activities. I agree this assertion is likely insufficient for the trial court to evaluate, notwithstanding that it arrives before the court uncontested. But, without information about when and how income and/or assets from the Trust would be distributed to the beneficiaries, the opposite conclusion cannot be established. It may be that the children will not receive any value from the Trust until they are each eighteen years old, in which case there would no longer be any responsibility placed on the parents to support their offspring and the flaw in the court’s analysis would be apparent. This information bears on any finding by the court of a beneficial interest received by Shlansky and Chang. Assuming the parents would benefit simply because their children received or will receive some unknown value at some unspecified time is to make an unfounded assumption of fact contrary to the evidence submitted by the moving party, and then use it as a basis for not merely denying the party’s motion, but actually holding against it. It is one thing for the court to find affidavits insufficient to support a party’s position, but it is quite another for the court to determine that no issue of material fact exists based on the court’s own unsupported assumptions.
¶ 27. As with the subdivision analysis, there needed to be additional factual development before the issue of Shlansky and Chang’s affiliation with the Trust’s land-development activities could be properly addressed. This includes additional factual *162evidence regarding the precise terms of the Trust and the corporate structure of the various entities at issue, an explanation of Shlansky’s role as agent and manager and Chang’s responsibilities as trustee, and presumably an evaluation of the weight of the evidence and the credibility of the witnesses. In addition to considering whether Shlansky and Chang receive a beneficial interest from the Trust’s land-development activities, the court should have also evaluated whether, alternatively, these parties exercised “control” over the developments (or subdivisions) in question such that they should be considered “persons” for purposes of Act 250. See, e.g., State Envtl. Bd. v. Chickering, 155 Vt. 308, 315-16, 583 A.2d 607, 611-12 (1990) (explaining that “control” of a corporation for Act 250 purposes not limited to cases where a person holds majority of a company’s stock, and court will disregard fiction of corporation’s separate identity whenever concept asserted in endeavor to circumvent statute and defeat legislative policy).
¶ 28. Through this affirmance, the majority approves a procedure in which a party puts forth an unopposed motion for summary judgment — albeit lacking in evidence sufficient to allow the court to make a finding, one way or the other, of a contested material fact — and, instead of concluding that the matter cannot be resolved on summary judgment, the court determines there are no material facts at issue and grants judgment against the movant. The result in this case is an expansion of the statutory definition of “person” — a central jurisdictional prerequisite for Act 250 — so that any parent is swept into the Act 250 process if their child — dependent or not — benefits from a proposed land development. This is far beyond the broad definition of that term that we have recognized under the Act. See Spencer, 152 Vt. at 339, 566 A.2d at 964. Regardless of the merits of appellants’ application, I would reverse and remand this case for further factual development and analysis.
¶ 29. I am authorized to state that Justice Dooley joins this dissent.I do concur with the majority’s determination of appellants’ third claim of error. Ante, ¶ 18. Appellants failed to adequately raise their constitutional argument below and may not do so now.