RE: MBL Associates, Inc., Application #4C0948-EB, Memorandum of Decision (October 2, 1995) VERMONT ENVIRONMENTAL BOARD 10 V.S.A. Chapter 151 Re: MBL Associates, Inc. Land Use Permit #4C0948-EB MEMORANDUM OF DECISION AND ORDER This memorandum pertains to various motions to alter which have been filed concerning the Environmental Board's decision in the above-referenced matter. The Board's decision consists of the following: Findings of Fact, Conclusions of Law, and Order #4C0948-EB issued May 2, 1995, and Land Use Permit and Supplemental Findings of Fact, Conclusions of Law, and Order #4C0948-EB issued June 20, 1995 (collectively, the Decision). The Decision is incorporated by reference. All dates below refer to 1995. Motions to alter the Decision have been filed as follows: (a) by Vincent Bolduc (June 27); (b) by the Applicant (asking alteration on the Board's "own motion") (July 3); (c) by John Jewett (July 19); (d) by Elizabeth and Jeff Goldberg (July 17); (e) by the Town of Shelburne (July 20); (f) by the State of Vermont Agency of Development and Community Affairs (DCA) (July 20); and (g) by Alex and Sandy Blair (July 20). The Applicant filed a response to Mr. Bolduc's motion on June 29 and to all the other motions on August 9. DCA filed a correction to its motion on July 21. The applicable rule is (Environmental Board Rule) EBR 31(A), which provides: Motions to alter decisions. A party may file within 30 days from the date of a decision of the board or district commission such motions to alter as may be appropriate with respect to the decision. The board or district commission shall act upon motions to alter promptly. The running of any applicable time in which to appeal to the board or supreme court shall be terminated by a timely motion filed under this rule. The full time for appeal shall commence to run and is to be computed from issuance of a decision on said motion. It is entirely within the discretion of the board or district commission whether or not to hold a hearing on any motion. The Board deliberated on September 13, 1995 and made the following decisions: 1. The Applicant's objection to DCA's participation and filing of a motion to alter is denied. DCA may file a motion to alter, without prior participation, because it is a "statutory" party under 10 V.S.A. §§ 6084-85 and EBR 14(A)(2). In this regard, the case cited by the Applicant, Ernst v. Rocky Road, Inc., 141 Vt. 637 (1982), is not applicable. Ernst concerns an untimely application for intervention by a "non-statutory" party under VRCP 24(a)(2). Id at 639. Neither Act 250 nor EBR 14(A)(2) contains a requirement of "timely application" for a statutory party. 2. Like any party, DCA must comply with the Board's standards regarding motions to alter (such as no new evidence) as stated in Re: Taft Corners Associates, Inc., #4C0696-11-EB (Remand), Memorandum of Decision at 6-7 (May 5, 1995), and the precedent cited therein. 3. The two affidavits attached to DCA's motion to alter are not appropriate under EBR 31(A) because they constitute new evidence. The affidavits will not be considered by the Board. 4. The portions of Mr. Bolduc's motion to alter relating to Criterion 10 (regional plan) of 10 V.S.A. § 6086(a) are not appropriate because Mr. Bolduc was a party only on Criterion 8 (aesthetics). The Applicant's objection to those portions is sustained and the Board will not consider them. 5. It is improper for the Applicant to request that the Board alter the Decision "on its own motion." When a party asks the Board to change a decision within 30 days, it is in fact moving the Board to alter. The Board therefore deems the Applicant's letter filed July 3 to be a motion to alter. 6. Except as discussed above, the motions to alter otherwise are appropriate under EBR 31(A) and the standards stated in Taft Corners, supra. In this regard, the Board notes that the Applicant's list of the standards for motions to alter, as contained in its August 9 filing, is not accurate. 7. The Board will reconsider and determine whether to alter the Decision. Such reconsideration and possible alteration will pertain only to the following: a. The matters raised in the Applicant's motion to alter. b. The Decision's findings of fact, conclusions of law, and permit conditions with respect to Criteria 8 (aesthetics) and 10 (regional plan). 8. The Board declines to reconsider with respect to Criterion 1(B) (waste disposal). 9. Only seven members are serving on this difficult and important case. The Board is constituted as a nine-person body, with five votes required to make a decision. 10 V.S.A. § 6021(a); 1 V.S.A. § 172. To avoid the possibility that the Board may be unable to make a decision on reconsideration for lack of votes, the Board will request two members not presently serving (or alternates pursuant to 10 V.S.A. § 6021(a)) to review the existing record and participate. 10. As part of its reconsideration, the Board will hold oral argument. Such argument shall be based on the existing record before the Board and will be limited to the items listed in paragraph seven, above. 11. Oral argument likely will be scheduled for Wednesday, November 8, 1995. A notice will be issued subsequently with location and time allotments for presenting argument. 12. With respect to the Applicant's motion to alter, the Applicant is directed to file, on or before Tuesday, October 31, 1995: a. A copy of the deed by which the subject parcel was conveyed to the Applicant, so that the Board may determine the name of the record title holder. This is in response to the Applicant's request to change the name on the permit. b. A written statement of precisely what changes the Applicant is seeking to Conditions #16 and 17, what these changes will mean, why they are needed, and how they are supported by the existing record before the Board. Dated at Montpelier, Vermont this 2nd day of October, 1995. ENVIRONMENTAL BOARD /s/Arthur Gibb Arthur Gibb, Acting Chair Lawrence H. Bruce, Jr. John M. Farmer Samuel Lloyd William Martinez Robert G. Page Steve E. Wright mblalter.dec(a14)