RE: Stokes Communications Corp., Land Use Permit #3R0703-EB (Light Shield Revocation), Memorandum of Decision (Oct. 10, 1996) VERMONT ENVIRONMENTAL BOARD 10 V.S.A. §§ 6001 - 6092 Re: Stokes Communications Corp., Land Use Permit #3R0703-EB (Light Shield Revocation) MEMORANDUM OF DECISION As explained below, Pierre LaFrance's July 31, 1996 Motion to Alter ("Motion") is hereby denied. I. PROCEDURAL BACKGROUND On July 1, 1996, the Environmental Board ("Board") denied a petition to revoke a land use permit and a related motion for summary judgement which Mr. LaFrance and others filed on October 11, 1996 ("Decision"). The Decision contains a detailed summary of the procedural background of this matter prior to the date on which it was issued. On July 31, 1996, Mr. LaFrance filed the Motion. On August 23, 1996, Bell Atlantic NYNEX mobile ("BANM") filed a Memorandum in Response to Motion to Alter. On September 9, 1996, BANM filed a Further Response to Motion to Alter. On September 25, 1996, Richard Theken, pro se, and BANM by its attorney, Jon Anderson, Esq., presented oral argument and the Board deliberated relative to the Motion. This matter is ready for decision. II. MOTION Mr. LaFrance raises several issues. First, he asserts that the Board has no jurisdiction to approve the post-deadline installation of the Light Shields. He argues that only the District #3 Environmental Commission has such jurisdiction. Second, Mr. LaFrance asserts that the Board s determination that the Light Shields were installed 28 days late was incorrect.(FN1) Third, he contends that the Board gave undue weight to the testimony of Steven Langlais, an expert in aviation engineering, who testified on behalf of BANM. Fourth, Mr. LaFrance seems to suggest that the Board should have determined whether or not the Light Shields sufficiently reduced the direct visibility of the light before determining whether or not the permittees should be allowed to cure the installation timeliness violation. Lastly, He argues that the Board inappropriately allocated the burdens of production and proof. III. DISCUSSION Parties face a heavy burden when asking the Board to alter permit conditions or Board decisions. As recently noted: In general, the Board disfavors reconsideration under EBR 31 (A) because it causes appeals to take longer and ties up resources which are then not available for later-filed appeals. The Board therefore believes that reconsideration under EBR 31 (A) should not be liberally granted. Mt. Mansfield Co., Inc., #5L1125-4-EB, Memorandum of Decision at 1 (August 14, 1995) quoting St. Albans Group and Wal Mart Stores, Inc., #6F0471-EB, Memorandum of Decision on Motions to Alter at 4 (June 27, 1995). The Board has reviewed the record, the relevant permits and related decisions and concludes that the Motion is without merit. The Decision is sound for the reasons stated therein. Specifically: 1. This is a revocation proceeding. Pursuant to EBR 38, only the Board has jurisdiction over such matters. 2. On December 6, 1996, the Board stated, in no uncertain terms for the first time, that the permittees had 67 days from the date on which the Supreme Court issued its decision in In re Stokes Communications Corporation, Vt Law Week 210(1995) to install the Light Shields. See Stokes Communications Corp., #3R0703-EB, (Amendment Application Revocation) Memorandum of Decision at 5 (December 6, 1995). The Supreme Court s decision was issued on July 21, 1996. 67 days from July 21, 1995 is September 26, 1995. September 26, 1995 is before December 6, 1995 -- the date on which the permittees, at the latest, understood the 67 day deadline. See Stokes Communications Corp., #3R0703-EB, (Amendment Application Revocation) Memorandum of Decision at 9, fn. 6 (March 20, 1996) It would be unfair to hold the permittees to a deadline that they did not know about until after such deadline had passed. Consequently, the 67 days begins on December 6, 1995 and ends on February 12, 1996. Thus, the Light Shields, installed on March 11, 1996, were installed 28 days late. 3. Mr. Langlais provided credible expert testimony which the Board afforded weight in light of the lack of any conflicting expert testimony. 4. It was appropriate for the Board to bifurcate the alleged violation into timeliness and effectiveness. Further, it was appropriate for the Board to consider whether or not to afford the permittees an opportunity to cure the timeliness violation before considering the effectiveness issue. In this matter, had the Board decided not to afford the permittees the opportunity to cure, the Petition for Revocation would have been granted by the Board. 5. Permit revocation is serious. The Board will order it only upon clear and compelling evidence. It is appropriate to impose the burdens of production and proof upon those who seek revocation. IV. ORDER 1. Mr. LaFrance's July 31, 1996 Motion to Alter is DENIED. Dated at Montpelier Vermont this 10th day of October, 1996. ENVIRONMENTAL BOARD S/s John T. Ewing _________________________ John T. Ewing, Chair Arthur Gibb Steve Wright Marcy Harding Rebecca M. Nawrath Larry Bruce, Esq. Rebecca Day * Board members Anthony Thompson and Robert G,. Page, M.D., were not present during the September 25, 1996 oral argument and susequent deliberation. Therefore, they did not particiate in this decision. --------------------------------------------------------------------------- Footnotes FN1. BANM agrees with Mr. LaFrance on this point. See BANM s Memorandum in Response to Motion to Alter at 1.