RE: Atlantic Cellular Company, L.P. and Elwin F. Davis, Land Use Permit #3W0726-EB, Memorandum of Decision February 24, 1994 VERMONT ENVIRONMENTAL BOARD 10 V.S.A. Chapter 151 Re: Atlantic Cellular Company, L.P. and Elwin F. Davis Land Use Permit #3W0726-EB MEMORANDUM OF DECISION This decision pertains to a request by Atlantic Cellular Company, L.P. for the Environmental Board to dismiss the appeal of the Royalton Planning Commission (RPC). For the reasons explained below, the Board has determined not to dismiss the appeal and to hold a hearing. I. BACKGROUND On December 30, 1993, the Board issued a Memorandum of Decision in which it ordered a hearing for the purpose of taking testimony concerning when a copy of Atlantic Cellular's application was sent to the RPC and when the RPC received it. On January 5, 1994, Atlantic Cellular submitted a letter in which it requested the Board to reconsider its decision to hold a hearing, based upon legal issues it had raised earlier. On January 20, the RPC filed a response to Atlantic Cellular's January 5 letter. On January 20, Holly Wolff filed a letter requesting party status. Due to issues in the Vermont Senate concerning confirmation of Board members, the deliberations were postponed. On February 11, 1994, the Board deliberated. II. DECISION Dismissal Atlantic Cellular contends that the following facts are not disputed: 1) the RPC received written notice of the application and the hearing from the District Coordinator more than three weeks before the District Commission hearing; 2) the RPC received a copy of the Act 250 application prior to the hearing; 3) the RPC participated in the September 1, 1993 hearing; and 4) the RPC did not bring the issue of late receipt of the application to the District Commission's attention. Based on these facts, Atlantic Cellular argues that the appeal should be dismissed because the RPC received due process from the District Commission and the RPC waived its right to appeal the issue of late receipt of the application. The RPC disputes the facts as presented by Atlantic Cellular. The RPC states that it did not receive a copy of the application until almost a month after Atlantic Cellular had filed it; that the RPC was not able to participate substantively in the hearing because it had not had sufficient time to review the application; and that the issue of late receipt of the application was brought to the attention of the District Commission at the hearing. Board Rule 18(D) states the following, concerning dismissal: The board may, on its own motion or at the request of a party, consider the dismissal, in whole or in part, of any matter before the board for reasons provided by these rules, by statute, or by law. At the request of a party or on its own motion, the board will entertain oral argument prior to considering any such dismissal; such argument shall be preceded by notice to the parties unless dismissal is considered at a regularly convened hearing on the matter. A decision to dismiss shall include a statement of findings of fact and conclusions of law and shall be made within 20 days of the final hearing at which dismissal is considered. The RPC has requested a hearing on its appeal. Based upon Rule 18(D), the Board must at least convene a hearing for the purpose of hearing oral argument. 10 V.S.A. § 6089(a) states that "[t]he board shall hold a de novo hearing on all findings requested by any party." The Administrative Procedure Act, 3 V.S.A. § 809(a), which applies to the Board's proceedings, states: "In a contested case, all parties shall be given an opportunity for hearing after reasonable notice." Because the RPC has requested a hearing on the facts and because the facts are in dispute, we believe we are required to hold an evidentiary hearing to allow the parties to present their facts and cross-examine witnesses. Party Status A request for party status was filed by Holly Wolff on January 20, 1994. Ms. Wolff states that she sought party status at the District Commission hearing concerning the visual impact of the tower, and that she was denied party status. She states that she is an interested party directly affected by the view of the tower from her farm and that she can provide a first-hand account of the events at the District Commission's September 1 hearing. Because this appeal involves only the issues of the RPC's receipt of the application and certain actions of the RPC, and not the visual impact of the tower, Ms. Wolff does not qualify as an interested party under Board Rule 14(B)(1)(a). The Board therefore denies her party status. However, if any parties believe that Ms. Wolff possesses information that would support their position in this appeal, they may call her as a witness at the hearing. III. ORDER 1. This appeal is not dismissed. 2. The Board will convene a public hearing on Thursday, March 17, 1994 at 9:30 a.m. at the Holiday Inn, Depot Room, White River Junction, Vermont, for the purpose of taking testimony concerning the issues raised in the Royalton Planning Commission's notice of appeal and subsequently argued by the parties in documents submitted to the Board. These issues include when Atlantic Cellular sent the RPC a copy of its application; when the RPC knew about the application; whether the RPC had sufficient notice of the application to participate in the hearing; and whether the RPC raised the issue of late receipt of the application with the District Commission. 3. On or before March 9, 1994, parties shall file lists of exhibits and witnesses and a brief description of the testimony that each witness will present. If documents are needed from the District Commission file, these should also be identified in the list submitted on March 9. 4. Holly Wolff is denied party status. Dated at Montpelier, Vermont this 24th day of February, 1994. ENVIRONMENTAL BOARD /s/s/Robert Opel _________________________ Robert Opel, Acting Chair Ferdinand Bongartz Rebecca Day Lixi Fortna Arthur Gibb Samuel Lloyd William Martinez Steve E. Wright c:\wp51\decision\atlantic.dec (v) a:atlantic.dec (s5)