RE: Nehemiah Associates, Inc., Land Use Permit #1R0672-1-EB, Memorandum of Decision April 15, 1994 VERMONT ENVIRONMENTAL BOARD 10 V.S.A. Chapter 151 RE: Nehemiah Associates, Inc. by Land Use Permit James P.W. Goss, Esq. #1R0672-1-EB Abell, Kenlan, Schwiebert & Hall P.O.Box 578 Rutland, VT 05702 MEMORANDUM OF DECISION This decision pertains to three party status requests. As is explained below, the Board denies the requests for party status made by Stephen and Mary Bernia, and grants the requests for party status made by Douglas Baker and Rodney Drown. I. BACKGROUND On October 14, 1993, the District #1 Environmental Commission denied Act 250 Land Use Permit application #1R0672-1 filed by Nehemiah Associates, Inc. (the Applicant) for the proposed subdivision of a 3.38 acre parcel of land into three lots (the Project). The Project is located on Route 3 in Pittsford. The Applicant filed application #1R0672-1 as an amendment to Land Use Permit #1R0672. Land Use Permit #1R0672 authorized the Applicant, in part, to subdivide twelve acres into 10 residential lots, and to retain a 3.38 acre agricultural reserve lot. On December 14, 1993, the Applicant, by and through its attorney, James P.W. Goss, Esq., filed an appeal with the Board from the District Commission's denial of Land Use Permit application #1R0672-1. On January 19, 1994, Associate General Counsel David L. Grayck convened a prehearing conference in Pittsford, Vermont. By agreement of the persons in attendance at the prehearing conference, and in accordance with Board Rule 14, all persons seeking party status were to file written petitions with the Board. On January 31, 1994, Douglas Baker filed a letter requesting party status in this appeal. On March 9, 1994, the Board issued a Memorandum of Decision regarding the party status requests and the use of a hearing panel of the Board. In part, the Board ordered that Mr. Drown and Stephen and Mary Bernia would have until March 18, 1994, to file party status petitions. The Board also ordered that the Applicant would have until March 28, 1994 to respond to Mr. Baker's request, and to any party status petitions filed in compliance with the Board's decision. On March 14, 1994, Rodney Drown filed a party status petition in compliance with the Board's March 9, 1994, Memorandum of Decision. The Board has not received any correspondence from Stephen and Mary Bernia, and nor has the Applicant responded to Mr. Drown's party status request. II. DECISION A. Stephen and Mary Bernia Stephen and Mary Bernia did not file a written party status petition in compliance with Board Rule 14(B) and the Board's March 9, 1994 order. Therefore, they are denied party status. B. Douglas Baker Douglas Baker requests party status pursuant to Board Rule 14(B)(1)(a) under Criterion 8. Mr. Baker owns lot #10 in the residential subdivision authorized by Land Use Permit #1R0672. Mr. Baker contends that the Project will adversely affect the aesthetics of the existing subdivision since the 3.38 acre agricultural reserve lot will be developed. The Applicant contends that Mr. Baker has not demonstrated a sufficient impact on his interest to qualify for party status. The Board concludes that Mr. Baker has demonstrated that the Project may affect his interests under Criterion 8 and, therefore, grants Mr. Baker party status. C. Rodney Drown In accordance with the Board's order of March 9, 1994, Mr. Drown filed a party status petition on March 16, 1994. Mr. Drown requests party status on Criterion 8 pursuant to Board Rule 14(A)(3). Mr. Drown included a map with his party status request. The Board concludes that Mr. Drown is an adjoining property owner, and that he has demonstrated that the Project may have a direct effect on his property under Criterion 8. Therefore, Mr. Drown is granted party status. III. ORDER 1. Stephen and Mary Bernia are denied party status. 2. Douglas Baker is granted party status pursuant to Board Rule 14(B)(1)(a) on Criterion 8 (aesthetics). 3. Rodney Drown is granted party status pursuant to Board Rule 14(A)(3) on Criterion 8 (aesthetics). 4. On or before May 18, 1994, parties shall file final lists of witnesses and exhibits and prefiled testimony for all witnesses they intend to present. 5. On or before June 1, 1994, parties shall file prefiled rebuttal testimony and revised lists showing rebuttal witnesses and exhibits. 6. On or before June 8, 1994, parties shall file in writing all objections to the prefiled testimony and exhibits previously identified, or such objections shall be deemed waived. 7. An administrative hearing panel of the Environmental Board will convene a hearing in this matter on Wednesday, June 15, 1994, to be confirmed by subsequent notice with location. 8. No individual may be called as a witness in this matter if he or she has not been identified in a witness list filed in compliance with this order. All reports and other documents that constitute substantive testimony must be filed with the prefiled testimony. If prefiled testimony has not been submitted by the date specified, the witness will not be permitted to testify. Instructions for filing prefiled testimony are attached. 9. The Board may waive the filing requirements upon a showing of good cause, unless such waiver would unfairly prejudice the rights of other parties. 10. Parties shall file an original and ten copies of prefiled testimony, legal memoranda, all exhibits which are 8« by 11 inches or smaller, and any other documents with the Board, and mail one copy to each of the parties listed on the attached Certificate of Service. Parties are required to file only lists identifying exhibits which are larger than 8« by 11 inches that they intend to present, rather than the exhibits themselves. Exhibits must be made available for inspection and copying by any parties prior to the hearing. 11. To save time at the evidentiary hearing, the Board will require that parties label their prefiled testimony and exhibits themselves and submit lists of exhibits which the Board can use to keep track of exhibits during the hearing. With respect to labeling, each person is assigned a letter as follows: N for the Applicant, P for Martha Perkins, B for Douglas Baker, and D for Rodney Drown. Prefiled testimony and exhibits shall be assigned consecutive numbers: for example, the Applicant will number its exhibits N1, N2, N3, etc. If an exhibit consists of more than one piece (such as a site plan with multiple sheets), letters will be used for each piece, i.e. N2A, N2B, etc. The labels on the exhibits must contain the words ENVIRONMENTAL BOARD, Re: Nehemiah Associates, Inc., #1R0672-1-EB, the number of the exhibit, and a space for the Board to mark whether the exhibit has been admitted and to mark the date of admission. Label stickers which can be used by the parties are available from the Board on request; parties must complete the information sought on the stickers prior to the hearing. Concerning preparation of lists of exhibits, each list must state the full name of the party at the top and the Board's case number. There must be three columns, from left to right: NUMBER, DESCRIPTION, and STATUS. The list must include exhibits and prefiled testimony. An example is as follows: TOWN OF PORT WASHINGTON LIST OF EXHIBITS RE: SMITH, #3215-EB Number Description Status ___1 Prefiled testimony of John Smith ___2A-D Plan dated _____, sheets A1 through A4 The Panel will use the status column to mark whether the exhibit has been admitted. 12. The hearings will be recorded electronically by the Board or, upon request, by a stenographic reporter. Any party wishing to have a stenographic reporter present or a transcript of the proceedings must submit a request by May 18, 1994. One copy of any transcript made of proceedings must be filed with the Board at no cost to the Board. Dated at Montpelier, Vermont, this 15th day of April, 1994. ENVIRONMENTAL BOARD s/s Arthur Gibb Arthur Gibb, Chair Lixi Fortna William Martinez Steve Wright John Ewing c:\mod\1r0672-1.md2