RE: Okemo Mountain, Inc., Land Use Permits #2S0351-8, #2S0351-8-EB, and #2S0351-10 (Revocation), Findings of Fact, Conclusions of Law, and Dismissal Order (June 29, 1995) VERMONT ENVIRONMENTAL BOARD 10 V.S.A. Chapter 151 Re: Okemo Mountain, Inc. Land Use Permits #2S0351-8, #2S0351-8-EB, and #2S0351-10 (Revocation) FINDINGS OF FACT, CONCLUSIONS OF LAW, AND DISMISSAL ORDER I. SUMMARY OF PROCEEDINGS On January 27, 1989, a Petition for Revocation was filed with the Environmental Board by Michael Frassler ("Petitioner") through his attorney, John D. Hansen, Esq., from Land Use Permits #2S0351-8, #2S0351-8-EB, and #2S0351-10 issued to Okemo Mountain, Inc. ("Permittee") by the District #2 Environmental Commission ("District") on July 9, 1986, April 24, 1987, and August 8, 1988 respectively. The permits authorize the Permittee to create a seven lot subdivision, construct seven single family homes, 1,200 feet of road and a skier bridge and create an eight lot subdivision and 800 feet of road respectively in the Town of Ludlow. The Petitioner contended that the Permittee violated Condition #4 of Land Use Permit #2S0351-8 regarding the proximity of the proposed development road to an existing well and Condition #1 of Land Use Permit #2S0351-8-EB regarding construction of an access road. The Petitioner also contended that the Permittee failed to implement a landscaping plan, failed to grade and contour the project as required, created an adverse effect on aesthetics with respect to the house on Lot #39, did not construct guardrails as required and used a mixture of sand and salt on the access road in connection with winter maintenance. The Petitioner further contended that District Coordinator April Hensel failed to recuse herself on grounds of conflict of interest. On January 9, 1992, Assistant Executive Officer Aaron Adler sent a letter to Mr. Hansen stating his understanding that the revocation petition was placed on hold pending resolution of an appeal concerning Land Use Permit #2S0351-10 and his belief that the referenced appeal was resolved. In the letter, the Assistant Executive Officer also requested that Mr. Hansen advise the Board of the Petitioner's intentions with regard to the revocation petition. 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 9, 1992. 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 Enivronmental Board Rule 38(B)(2) requires that the Board consider and dispose of revocation petitions in a prompt manner. Pursuant to this authority, the Board has established a docket management protocol governing the failure of parties to diligently prosecute revocation petitions. This protocol is described in a Docket Management Notice provided to all parties. This notice states in pertinent part: In any revocation petition proceeding, the Board Chair may issue, without notice, a Proposal for Dismissal where no document has been filed with the Board by the Petitioner: 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 petition proceeding, and in the opinion of the Director, the petition is not being diligently prosecuted. Where the Board Chair has issued a Proposal for Dismissal, the Board will dismiss the petition 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 petition. The most recent Board file entry prior to the issuance of the Proposal for Dismissal in this matter is dated January 9, 1992. 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 petition 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 petition proceeding before the Environmental Board. Dated at Montpelier, Vermont this 29th day of June, 1995. ENVIRONMENTAL BOARD /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\okemo8.ord (ry3)