RE: Cersosimo Lumber Co., Inc., Land Use Permit #2W0957-EB, Memorandum of Decision (May 23, 1995) VERMONT ENVIRONMENTAL BOARD 10 V.S.A. Chapter 151 Re: Cersosimo Lumber Co., Inc. Land Use Permit #2W0957-EB MEMORANDUM OF DECISION The Agency of Natural Resources ("ANR") moves to dismiss this appeal. In response, Cersosimo Lumber Co., Inc. ("Cersosimo") moves to amend its March 14, 1995 Notice of Appeal. As explained below, ANR's motion is denied, and Cersosimo's motion is granted. I. PROCEDURAL BACKGROUND Sections I and II of the April 21, 1995 Prehearing Conference Report and Order ("Order") are incorporated herein by reference. ANR and Cersosimo (collectively "Parties") filed memoranda in accordance with paragraphs 5 and 6 of Section VI of the Order. On May 16, 1995, the Parties argued all pending motions before Hearing Officer Harding ("Preliminary Hearing"). II. CONCLUSIONS The Permit requires Cersosimo to establish a 100-foot Buffer from the top of the bank of the West River ("Buffer"). The Commission imposed the Buffer to protect streams under 1(E), shorelines under 1(F) and Wildlife under 8(A). The Buffer is the only Commission error identified by Cersosimo in the Revised Notice. Likewise, it is the only issue raised therein. Cersosimo states: "[T]he project made little or no impact on the shoreline of the West River and therefore [it] goes beyond what is required by 10 V.S.A., (sic) Section 6086 (a)(1)(F)." Cersosimo does not address Criteria 1(E) and 8(A) in the Revised Notice. ANR asserts that the Revised Notice fails to state a claim upon which the Board can grant relief, and therefore, the Appeal must be dismissed. This assertion is without merit. The Revised Notice is sufficient under 10 V.S.A. § 6089 and Environmental Board Rule 40. It contains a statement of alleged Commission error and relevant issues. FN1 ANR also asserts that the Appeal is moot due to Cersosimo's failure to address Criteria 1(E) or 8(A) in the Revised Notice. ANR suggests that even if Cersosimo prevails on its claim under 1(F), the Buffer will remain a requirement under 1(E) and 8(A). The Board's rules are more than mere guidelines. They are precise rubrics which must be followed. The Board has made clear time and time again that it will strictly enforce them. However, the Board does not apply its rules unjustly, unfairly or in a manner which promotes form over substance. To do so would have a chilling effect upon citizen participation. The Act 250 process must be understandable, reasonable, efficient and balanced. The Board has stated that an appellant must identify criteria "on which the [Commission] made findings to which the appellant objects. " Re: Rutland Schools, #1R0038-4-EB, Memorandum of Decision at 5 (Jan. 29, 1992). However, the Board has, on occasion, expanded the Criteria on appeal beyond those which are set forth in the notice of appeal. Re: Crushed Rock, Inc. and Pike Industries, Inc., #1R0489-4-EB, Memorandum of Decision at 3 (Mar. 9, 1993). Under the circumstances of the Appeal, it is appropriate to expand the Criteria at issue to include 1(E) and 8(A) along with 1(F). ANR has not been adversely affected by Cersosimo's imprecise pleading. ANR acknowledged at the Preliminary Hearing that it has understood throughout the Appeal that the Buffer is the issue. ANR has known at all times relevant hereto that Cersosimo objects to the Buffer under 1(E) and 8(A) as well as 1(F). Further, ANR admits that it has not suffered any prejudice due to the Revised Notice. Even if the Criteria at issue are expanded to include 1(E) and 8(A), the cornerstone of the Appeal is the Buffer. Consequently, expansion of the Criteria under consideration is viewed as a "housekeeping" detail as it was in Re: Crushed Rock. III. ORDER 1. ANR's Motion to Dismiss is DENIED. 2. Criteria 1(E) (streams), 1(F) (shorelines) and 8(A) (wildlife) are at issue in the Appeal. To the extent it is consistent with this determination, Cersosimo's April 28, 1995 Motion to Amend is GRANTED. 3. As a result of the foregoing paragraph 2, Cersosimo's other efforts to amend the Revised Notice are moot and not addressed herein. Dated at Montpelier, Vermont this 23rd day of May, 1995. ENVIRONMENTAL BOARD s/s Marcy Harding Marcy Harding, Hearing Officer FN1 The March 15, 1995 amendments to 10 V.S.A. SS 6089 do not apply to this matter. a:Cers.MD.(G3)