RE: Stokes Communications Corp. and Idora Tucker, Land Use Permit #3R0703-EB, Memorandum of Decision (September 29, 1995) VERMONT ENVIRONMENTAL BOARD 10 V.S.A. Chapter 151 RE: Stokes Communications Corp. and Idora Tucker, Land Use Permit #3R0703-EB MEMORANDUM OF DECISION This decision pertains to requests to clarify and change certain compliance deadlines set by the Board in condition #2 of Land Use Permit #3R0703-EB, and in paragraph 1 of Section V of Re: Stokes Communication Corp., #3R0703-EB, Findings of Fact, Conclusions of Law, and Order (Dec. 13, 1993). As explained below, the Board concludes that jurisdiction over this matter is with the District #3 Environmental Commission such that the Board denies the requests. I. PROCEDURAL SUMMARY AND BACKGROUND On August 25, 1992, the District #3 Environmental Commission issued Land Use Permit #3R0703 (the "District Commission Permit") to Stokes Communication Corporation and Idora Tucker (the "Permittees"). On September 22, 1992, Pierre LaFrance, Richard Theken, Bryant Smith, Elizabeth LaFrance and Joan Sax (the "Appellants") filed an appeal from the District Commission Permit. On December 13, 1993, the Board issued Re: Stokes Communication Corp., #3R0703-EB, Findings of Fact, Conclusions of Law, and Order (Dec. 13, 1993) (the "Decision") and Amended Land Use Permit #3R0703-EB (the "Board Permit") to the Permittees. On February 10, 1994, former Chair Courtney appointed member Art Gibb acting chair of this appeal. On April 8, 1994, the Permittees filed a Notice of Appeal and Motion for Stay of Decision Pending Appeal. The Permittees appealed the Decision to the Vermont Supreme Court. On June 1, 1994, the Board issued Re: Stokes Communication Corp. and Idora Tucker, #3R0703-EB, Memorandum of Decision (June 1, 1994) (the "Stay Decision") in which the Board granted the Permittees' request for a stay pending their appeal to the Vermont Supreme Court. On July 21, 1995, the Vermont Supreme Court issued In re Stokes Communications Corporation, No. 94Ä208 (slip. op., July 21, 1995) (the "Supreme Court Decision"). On August 7, 1995, Messrs. Theken and LaFrance filed a letter with the Board requesting confirmation of the date by which the Permittees must comply with paragraph 1 of Section V of the Decision. On August 8, 1995, Acting Chair Gibb issued a memorandum to parties allowing them an opportunity to respond to Messrs. Theken and LaFrance's letter. On August 25, 1995, the Permittees filed a response requesting new deadlines for compliance with paragraph 1 of Section V of the Decision and condition #2 of the Board Permit. On August 29 and 31, and September 1, 1995, the parties filed additional correspondence with the Board. On September 13, 1995, the Board deliberated regarding this matter. II. DECISION The Appellants contend that jurisdiction over this proceeding is with the District #3 Environmental Commission. The Permittees contend that complying with paragraph 1 of Section V of the Decision is ministerial, and that the Board has jurisdiction to change the compliance date required by condition #2 of the Board Permit to allow the Permittees more time to have the light shields required therein approved by the Federal Aviation Administration, manufactured and installed. Paragraph 1 of Section V of the Decision orders that on or before January 26, 1994, the Permittees must file an application for an amendment to the Permit. Paragraph 2 of Section V of the Decision orders that the Board Permit is issued to the Permittees, and that jurisdiction is returned to the District #3 Environmental Commission. Condition #2 of the Board Permit requires that, on or before February 18, 1994, the Permittees install light shield devices on the tower as authorized by the Board Permit. The Stay Decision orders that the Permittees obligation to comply with paragraph 1 of Section V of the Decision, and condition #2 of the Board Permit, is stayed pending the issuance of the Supreme Court Decision. The Supreme Court Decision affirmed the Decision in all respects. Therefore, the Board concludes that, on July 21, 1995, the stay dissolved according to its own terms, and jurisdiction vested with the District #3 Environmental Commission pursuant to paragraph 2 of Section V of the Decision. The Board notes that the Permittees obligation to promptly and completely comply with paragraph 1 of Section V of the Decision, and condition #2 of the Board Permit, according to their self-evident deadlines, is final unless a permit amendment is issued by the District #3 Environmental Commission and not appealed to the Board. III. ORDER 1. The Board does not have jurisdiction over this matter. Jurisdiction is with the District #3 Environmental Commission. 2. The parties' respective requests to clarify or extend compliance dates are denied. Dated at Montpelier, Vermont, this 29th day of September, 1995. ENVIRONMENTAL BOARD /s/ Art Gibb Art Gibb, Acting Chair John T. Ewing Becky Nawrath Robert Page, M.D. John M. Farmer Marcy Harding Sam Lloyd Steve E. Wright *On February 1, 1995, John T. Ewing became Chair of the Board. Art Gibb has continued as Acting Chair on this case at Mr. Ewing's request. c:\ccm\mod\3r0703.mo3 (d5)