RE: Nehemiah Associates, Inc., Land Use Permit #1R0672-1-EB, Memorandum of Decision March 9, 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 preliminary issues raised by Nehemiah Associates, Inc. (the Applicant) and by persons seeking party status. As is explained below, the Environmental Board rules that this appeal shall be heard by a hearing panel of the Board. With regard to the party status requests, the Board denies the request for party status made by Martha and James Holden and John Haines; allows Rodney Drown, and Stephen and Mary Bernia, more time to file party status petitions, and the Applicant an opportunity to respond to such petitions; defers ruling on Douglas Baker's party status petition until after the Applicant has had an opportunity to respond to it; and grants the request for party status made by Martha Perkins. I. BACKGROUND On October 14, 1993, the District #1 Environmental Commission denied Act 250 land use permit application #1R0672-1 filed by the Applicant for the proposed subdivision of a 3.38 acre parcel of land into three lots (the Project). The proposed Project is located on Route 3 in Pittsford, Vermont. The Applicant filed application #1R0672-1 to obtain an amendment to Act 250 land use permit #1R0672. Act 250 land use permit #1R0672 authorized an eleven lot residential subdivision, and required that the Applicant execute a "deed covenant" with all lot purchasers ensuring that the 3.38 acres parcel that the Applicant now seeks to develop would remain "open, cleared, uncluttered, and unencumbered." On November 5, 1993, the Applicant filed with the District Commission a motion to alter and a motion for reconsideration of the denial of Act 250 land use permit application #1R0672-1. On November 15, 1993, the District Commission denied the Applicant's motion to alter and motion for reconsideration. 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 Act 250 land use permit application #1R0672-1. The Applicant contends that the District Commission erred when it concluded that the Project would have an undue adverse effect on the scenic or natural beauty of the area, aesthetics, historic sites, or rare or irreplaceable natural areas pursuant to 10 V.S.A. § 6086(a)(8). On January 19, 1994, Associate General Counsel David L. Grayck convened a prehearing conference in Pittsford, Vermont. At the prehearing conference, various requests for party status were made, and the Applicant raised the issue of whether this appeal should be heard by a hearing panel of the Board pursuant to Board Rule 41. By agreement of the persons in attendance at the prehearing conference, party status petitions and objections to the use of a panel were to be filed with the Board on or before February 2, 1994. Objections to party status requests and memoranda in favor of the use of a panel were to be filed with the Board on or before February 7, 1994. On February 16, 1994, Environmental Board Chair Courtney issued a Prehearing Conference Report. On February 16, 1994, Environmental Board Chair Courtney designated Board member Art Gibb as acting chair in this appeal. II. HEARING PANEL OF THE BOARD The Applicant requests the use a hearing panel of the Board pursuant to Board Rule 41. The Applicant contends that this appeal is suitable for a panel because the appeal is limited to the single issue of Criterion 8, and it is not anticipated that the hearing will involve extended testimony or expert witnesses. Ms. Perkins objects to the use of a panel. She contends that this appeal raises the issue of to what extent private covenants in a deed or permit conditions can establish a community standard for purposes of judging undue and adverse aesthetic impacts under Criterion 8. Ms. Perkins contends that this appeal will involve complicated legal theories including res judicata and estoppel. Under Board Rule 41, once an objection has been made to the use of a panel, the Board must decide whether "by reason of complexity, necessity to judge the credibility of witnesses, or other appropriate reasons, the matter should be heard by the full board." The Board has heard numerous cases involving the legal principles of res judicata and estoppel. See e.g. Re: Rockwell Park Associates and Bruce J. Levinsky, #5W0772-5-EB, Initial Findings of Fact, Conclusions of Law, and Order: Authority to Impose Permit Conditions at 23 (Aug. 9, 1993); Re: Berlin Associates, #5W0584-14-EB, Memorandum of Decision at 2 (Feb. 4, 1993); Re: Cabot Creamery Cooperative, Inc., #5W0870-13-EB, Memorandum of Decision at 8 (Dec. 23, 1992); Re: John A. Russell Corp., #1R0257-2A-EB, Memorandum of Decision at 4 (Oct. 22, 1992); Re: R.J. Colton Company, Inc., #9A0082-1R-2-EB, Findings of Fact, Conclusions of Law, and Order at 9 (April 17, 1992); Re: Rome Family Corporation, #1R0410-3-EB, Findings of Fact, Conclusions of Law, and Order at 6 (Oct. 11, 1990); Re: John Litwhiler and H.A. Manosh, #5L1006-EB, Memorandum of Decision at 2 (Feb. 28, 1990). Since there is substantial prior precedent where the doctrines of res judicata or estoppel were at issue, the Board concludes that this appeal is not so complex that the matter should be heard by the full Board. Furthermore, based on the limited number of witnesses identified in the Prehearing Conference Report, the Board does not anticipate that there will be a large number of witnesses in this appeal. Therefore, the evidentiary hearing in this appeal will be heard by a panel of the Board comprised of Acting Chair Gibb and members Fortna and Martinez. The parties should note, however, that pursuant to Board Rule 41(D), the hearing panel shall prepare and transmit to the full Board recommended findings of fact and conclusions of law. In addition, a record of proceedings shall be prepared and made available to all Board members for their review. Pursuant to Board Rule 41(E), upon its review of the record and the panel's recommendations, the full Board shall determine whether the record is complete and whether the hearing should be adjourned. Parties may request an opportunity for oral argument before the Board prior to the Board rendering the final decision in this case. The due date for the submission of prefiled testimony and the date of the evidentiary hearing shall be set after the Board deliberates on the remaining issues identified in Section III. III. PARTY STATUS 1. Martha and James Holden Martha and James Holden are not adjoining landowners to the Project. They requested party status at the prehearing conference pursuant to Board Rule 14(B). They have not filed a written submission in support of their request for party status in fulfillment of the requirements of Board Rule 14(B). Therefore, the Board denies their request. 2. John Haines. John Haines filed a letter with the Board on January 14, 1994, which explained his position in this matter and that he would be unable to attend the prehearing conference due to a job related commitment. Mr. Haines requested that he be informed of all public hearings or discussions relative to this appeal. On January 14, 1994, Associate General Counsel Grayck sent a letter to Mr. Haines requesting that he clarify by telephone call on January 17, 1994 whether or not his letter of January 13, 1994, was a request for party status. Mr. Haines has not communicated with the Board since the filing of his letter on January 14, 1994. The Board concludes that Mr. Haines' silence means that he is not seeking party status in this appeal. Therefore, Mr. Haines shall be listed under the For Your Information Only portion of the Board's certificate of service. 3. Douglas Baker Douglas Baker filed a letter in support of his request for party status with the Board on January 31, 1994. Mr. Baker, however, did not provide a certificate of service with his letter stating that he sent a copy of his letter to the other parties. On February 3, 1994, the Board notified Mr. Baker in writing that he must submit a certificate of service. On February 24, 1994, the Board received a certificate of service from Mr. Baker. In its memorandum in opposition to Ms. Perkins' party status request, the Applicant did not respond to Mr. Baker's request for party status because the Applicant had not yet received a copy of it. Pursuant to the schedule provided for in Section IV, the Board will defer ruling on Mr. Baker's request for party status until after the Applicant has had an opportunity to respond to Mr. Baker's request. 4. Rodney G. Drown. Mr. Drown did not request party status prior to the convening of the prehearing conference, and he did not attend the prehearing conference. On January 24, 1994, however, Mr. Drown filed a letter with the Board in which he requested party status. Mr. Drown stated in his letter: On Wednesday, January 19, 1994 I was planning on attending the Pre-hearing Conference, Ref. Nehemiah Associates Inc., Land Use Permit #1R0672-1-EB. At approximately 0915 Hours on January 19, 1994, I was called away on town business in may capacity as First Constable for the town of Pittsford, Vt. Because of this problem, I was unable to attend the Pre- hearing conference. It is requested that I be given party status. The Applicant contends that Mr. Drown should be denied party status because his written request came after the deadline set in the Act 250 Notice of Prehearing Conference (the Notice). The Notice provided: Those who are not able to attend the prehearing conference should notify the Board in writing by Tuesday, January 18, 1994, of their intention to appear at the public hearing, the issues they intend to address, and the witnesses and exhibits they intend to present. Any nonstatutory parties who do not notify the Board or appear at the prehearing will be presumed to have waived rights to further notice. The Board concludes that Mr. Drown should not be penalized for not foreseeing that he would be called away on official business in his capacity as First Constable of Pittsford. Therefore, the Board grants Mr. Drown the opportunity to file a party status petition, and the Applicant an opportunity to respond to such petition, as provided for in Section IV of this decision. 5. Stephen and Mary Bernia. At the prehearing conference, a letter from Stephen and Mary Bernia was delivered to Associate General Counsel Grayck. The letter explained that they would be unable to attend the prehearing conference. The Bernias' letter concluded by stating that "we would like the board to recognize this letter and allow our views to be counted." The Board is unclear as to the meaning of this letter. Therefore, Mr. and Mrs. Bernia will be given the opportunity to file a party status petition, and the Applicant an opportunity to respond to such petition, as provided for in Section IV of this decision. 6. Martha Perkins. On February 1, 1994, Martha Perkins, by and through her attorneys, Witten, Saltonstall, Woolmington & Bongartz, P.C., filed a petition for party status with the Board. Ms. Perkins seeks party status pursuant to Board Rule 14(A)(3) or, in the alternative, pursuant to Board Rule 14(B). In her petition for party status under Board Rule 14(A)(3), Ms. Perkins states that the area which the Applicant now seeks to convert from agricultural open-space to housing is directly next to her property, that the conversion of the reserved open space to new housing would affect the foreground view from her property and, therefore, her interests are directly implicated under Criterion 8. The Applicant objects to Ms. Perkins' request for party status on the two grounds. First, the Applicant contends that since Ms. Perkins failed to seek party status or participate in the district commission proceeding, she has no standing to seek party status in the Applicant's appeal. Second, the Applicant contends that even if Ms. Perkins does have standing to seek party status, she has not demonstrated a direct effect on her property or a material effect on her interests under Criterion 8 sufficient to warrant participation as a party at this time as the only potential direct impact she can show is economic, not aesthetic, in nature. In the recently decided case Re: Derby Plaza Associates Limited Partnership, #7R0886-EB, Memorandum of Decision at 5 (Feb. 25, 1994), the Board concluded that being a party, or at least requesting party status, is a prerequisite to appealing a district commission decision. However, the Board stated in a footnote that this conclusion "in no way implies that a person who did not have party status before a district commission cannot participate before the Board on an appeal properly filed by a party." Id. See Re: L & S Associates, #2W0434-8-EB, Memorandum of Decision (Nov. 24, 1992); Re: Okemo Mountain, Inc., #2S0351-12A-EB, Memorandum of Decision at 1 (July 18, 1991). In this case, the Applicant, a party before the District Commission, appealed the District Commission's decision to deny its permit amendment application under Criterion 8. Therefore, the Board concludes that Ms. Perkins has standing to seek party status under Criterion 8 in this appeal. To be granted party status, Ms. Perkins must comply with the requirements of Board Rule 14(A)(3) or 14(B). The Board concludes that Ms. Perkins has complied with the requirements of Board Rule 14(A)(3). Ms. Perkins is an adjoining landowner to the Project, she has described the location of her property in relation to the Project, and has included a map, and, as noted above, has described the potential effect of the Project upon her property with respect to Criterion 8. Therefore, the Board grants Ms. Perkins party status under Criterion 8 pursuant to 10 V.S.A. § 6085(c) and Board Rule 14(A)(3) in the appeal brought by the Applicant. The Board does not reach Ms. Perkins' request for party status under Board Rule 14(B) since it was made in the alternative to her request for party status under Board Rule 14(A)(3). IV. ORDER 1. This appeal will be heard by a panel of the Board. The due date for the submission of prefiled testimony and the date of the evidentiary hearing shall be set after the Board deliberates on the remaining issues identified in Section III. 2. Martha and James Holden are denied party status in this appeal. 3. Mr. Haines shall be listed under the For Your Information Only portion of the Board's certificate of service. 4. On or before Friday, March 18, 1994, Mr. Drown, and Stephen and Mary Bernia, shall file party status petitions. 5. On or before Monday, March 28, 1994, the Applicant shall file any objections to Mr. Baker's request for party status, and to any other party status petitions which may be filed in compliance with this Order. 6. The Board grants Ms. Perkins party status under Criterion 8 pursuant to 10 V.S.A. § 6085(c) and Board Rule 14(A)(3). Dated at Montpelier, Vermont, this 9th day of March, 1994. ENVIRONMENTAL BOARD ____________________________ Arthur Gibb, Acting Chair Lixi Fortna Samuel Lloyd William Martinez Steve Wright c:\ccm\decision\1r0672-1.mod (d5)