RE: Okemo Mountain, Inc., Application #2S0351-16-EB, Findings of Fact, Conclusions of Law, and Dismissal Order (June 28, 1995) VERMONT ENVIRONMENTAL BOARD 10 V.S.A. Chapter 151 Re: Okemo Mountain, Inc. Application #2S0351-16-EB FINDINGS OF FACT, CONCLUSIONS OF LAW, AND DISMISSAL ORDER I. SUMMARY OF PROCEEDINGS On October 14, 1992, an appeal was filed with the Environmental Board by Okemo Mountain, Inc., by Timothy Mueller, its President, from the Memorandum of Decision on Motions to Alter Application #2S0351-16, Okemo Master Plan, issued by the District #2 Environmental Commission on September 22, 1992. The project is located in the Towns of Ludlow, Weston, and Andover, Vermont. The Appellant believed the Commission erred with respect to the following criteria of 10 V.S.A. § 6086(a): (9)(F) (energy conservation) and (10) (conformance with the town plan) and with respect to its decision to accept the Motion to Alter filed by the Department of Public Service (DPS). On October 27, 1992, DPS filed a notice of cross-appeal concerning On November 16, 1992, Acting Board Chair Darby Bradley convened a prehearing conference in Ludlow. During the prehearing conference, Mount Holly Concerned Citizens on Public Issues (MHCCPI) filed a petition for party status on Criteria 9(A), 9(K) and 10. Also during the prehearing conference, the Appellant and DPS agreed by stipulation to withdraw all issues raised in the appeal and cross-appeal regarding Criteria 9(F) and 9(J). On November 24, 1992, MHCCPI filed a request that Chair Bradley recuse himself from the appeal. A Prehearing Conference Report and Order was issued on November 25, 1992. On December 1, 1992, the Appellant filed a memorandum in opposition to MHCCPI's request for party status and on December 12, 1992, MHCCPI filed a response to the opposition. On December 17, 1992, the Board deliberated in Brandon on Appellant's memorandum in opposition but was not able to reach a decision. On January 22, 1993, the Executive Officer issued a memo stating that Acting Chair Bradley would step down in the appeal, and that Board Chair Elizabeth Courtney would chair the appeal. On February 24, 1993, the Board again deliberated and reached a decision. On March 1, 1993, the Board issued a Memorandum of Decision granting party status to MHCCPI on Criterion 10 and denying party status to MHCCPI on Criteria 9(A) and 9(K). On March 19, the Appellant filed a "motion to alter the Board's decision dated March 1, 1993" opposing the grant of party status to MHCCPI. On March 26, 1993, the Appellant and the Town of Mount Holly filed a request for a continuance of 60 days. On July 19, 1993, the Appellant, the Town of Mount Holly and MHCCPI filed a request to continue the recess. On January 28, 1994, the Appellant filed a request to withdraw its appeal. A Proposal for Dismissal and proposed decision were sent to the parties on May 16, 1995, and the parties were provided an opportunity to file a Motion to Revoke Proposal for Dismissal before the full Board. No party filed a Motion to Revoke Proposal for Dismissal with the Board. The Board deliberated concerning this matter on June 21, 1995. This matter is now ready for decision. II. FINDINGS OF FACT 1. The most recent Board file entry prior to the issuance of the Proposal for Dismissal in this matter is dated January 28, 1994. 2. On May 16, 1995, the Board Chair, John T. Ewing, issued a Proposal for Dismissal in this matter, which included a copy of the Docket Management Notice. 3. No party filed a Motion to Revoke Proposal for Dismissal with the Board on or before seven days prior to the Board's deliberations in this matter. III. CONCLUSIONS OF LAW 10 V.S.A. § 6083(d) requires the Board to process permits in a prompt manner and to establish time limits for permit processing. Pursuant to this authority, the Board has established a docket management protocol governing the failure of parties to diligently prosecute appeals. This protocol is described in a Docket Management Notice provided to all parties. This notice states in pertinent part: In any appeal of a permit, the Board Chair may issue, without notice, a Proposal for Dismissal where no document has been filed with the Board by any Appellant: After the expiration of six months from the most recent Board file entry in the case. However, if a continuance or stay with a definite termination date which has been issued by the Board is in effect, this time period will commence on the termination date; or In the case of an indefinite continuance or stay issued by the Board, after the expiration of twelve months from the issuance of the continuance or stay by the Board. The Board Chair may also issue, without notice, a Proposal for Dismissal upon request of the Board's Director of Administration, where twelve months have passed from the commencement of the appeal, and in the opinion of the Director, the appeal is not being diligently prosecuted. Where the Board Chair has issued a Proposal for Dismissal, the Board will dismiss the appeal at the next Board deliberation after 30 days have passed from the issuance of the Proposed Dismissal Order, unless any of the parties files a "Motion to Revoke Proposal for Dismissal" on or before seven days prior to the Board deliberation. A form motion will be provided to the parties when the Proposal for Dismissal is issued. If a Motion to Revoke Proposal for Dismissal is timely filed in proper form prior to deliberation on the Proposal for Dismissal by the Board, the Board will postpone consideration on the proposal until the next Board deliberation after 30 days have passed. At that time, the Board will consider the motion and shall either revoke the proposal for dismissal, or dismiss the appeal. The most recent Board file entry prior to the issuance of the Proposal for Dismissal in this matter is dated January 28, 1994. On May 16, 1995, the Board Chair, John T. Ewing, issued a Proposal for Dismissal in this matter, which included a copy of the Docket Management Notice. No party filed a Motion to Revoke Proposal for Dismissal with the Board on or before June 14, 1995. As a result, dismissal of this appeal by the Board is proper. IV. ORDER Dismissal of this matter is not contrary to the values embodied in Act 250. This matter is DISMISSED WITH PREJUDICE. This Dismissal Order is limited in effect to the appeal proceeding before the Environmental Board. Dated at Montpelier, Vermont this 28th day of June, 1995. ENVIRONMENTAL BOARD s/s John T. Ewing _________________________ John T. Ewing, Chair John M. Farmer Arthur Gibb Marcy Harding Samuel Lloyd William Martinez Rebecca M. Nawrath Robert Page Steve E. Wright prot\okemo16.ord (ry3)