RE: Caldwell and Meyer, Application #5L1199-EB, Findings of Fact, Conclusions of Law, and Dismissal Order (Altered) (March 13, 1995) Page # VERMONT ENVIRONMENTAL BOARD 10 V.S.A. Chapter 151 Re: Michael Caldwell and Estate of Gilbert H. Meyer, Jr. Application #5L1199-EB FINDINGS OF FACT, CONCLUSIONS OF LAW, AND DISMISSAL ORDER (ALTERED) This decision pertains to an appeal of a permit issued to Michael Caldwell and Gilbert Meyer (the Applicants) authorizing the creation of six lots. As is explained below, the Environmental Board dismisses the appeal because the notice of appeal does not comply with the requirements of Environmental Board Rule (EBR) 40(A). I. SUMMARY OF PROCEEDINGS A. Proceedings through December 13, 1994 Decision On September 1, 1994, the District #5 Commission issued Land Use Permit #5L1199 (the Permit), authorizing the Applicants to subdivide 19.8 acres into six parcels: five residential lots of approximately one acre each and the remaining acreage to be owned in common by the owners of the five lots. The project includes construction of an access road 650 feet long. It is planned for a tract located off Randolph Road in the Town of Morristown. The basis for jurisdiction under 10 V.S.A. Chapter 151 (Act 250) is stated in the findings of fact which accompany the permit. On September 29, 1994, adjoining property owners William and Suzanne Kempe and Christopher and Susan Ludington (collectively, the Appellants) filed a letter with the Board stating that they appeal the Permit. On that date, Board staff informed appellant Suzanne Kempe by telephone that the notice of appeal did not conform to EBR 40(A) in several respects, including that it did not list the reasons why the District Commission was in error and the issues deemed relevant. On October 3, 1994, the Appellants filed a revised notice of appeal with the Board. On November 7, 1994, Board Chair Arthur Gibb convened a prehearing conference, with the following parties participating: The Applicants by Charles D. Burnham, Jr. and Michael Caldwell The Appellants by William Kempe During the prehearing conference, the Appellants filed a "letter of intent" with the Board, stating: (1) that they request a site visit, (2) that they may provide relevant photographs, and (3) that they seek to submit a petition signed by other adjoining property owners who had not participated before the District Commission and have not sought party status before the Board. The Chair made a preliminary ruling, pursuant to EBR 16(B), that such a petition would be disallowed. Also during the prehearing conference, the Applicants raised an objection that the notices of appeal are not adequate under EBR 40(A). After hearing from both the Applicants and the Appellants, the Chair made a preliminary ruling, pursuant to EBR 16(B), to dismiss the appeal. Parties were informed during the conference that they may object to preliminary rulings and that any such objections were to be filed in writing no later than November 14, 1994. Parties stated that they did not seek a hearing before the Board concerning the Chair's preliminary rulings. They were informed that the Board would consider objections in deliberative session during the Board's meeting scheduled for November 30, 1994.(FN1) On November 10, 1994, the Chair issued a memorandum to parties concerning his preliminary ruling to dismiss the appeal. On November 14, the Applicants and the Appellants each filed a written response to the preliminary ruling. The Board deliberated concerning this matter on November 30. On December 13, the Board issued findings of fact, conclusions of law, and an order dismissing the appeal. B. Motion to Alter On January 11, 1995, the Appellants (through an attorney, Averill Laundon, Esq.) filed a motion to alter the December 1994 decision pursuant to EBR 31(A). On February 13, the Applicants filed a memorandum in opposition to the motion to alter. On February 17, the Appellants filed a reply. The Board deliberated on February 22, 1995 and decided to make an alteration to the December 1994 decision with respect to an argument raised by the Appellants concerning a prior Board decision, Re: Durward Starr and George Halikas, #7R0594-1-EB, Findings of Fact, Conclusions of Law, and Order (April 30, 1986). The Board otherwise denies the Appellants' motion to alter. On February 23, 1995, the Board received a copy of an objection filed by the Applicants to the Appellants' February 17 reply. Because the Board is denying the motion to alter, the Board need not reconvene to consider the Applicants' objection. II. ISSUE Whether, pursuant to EBR 18(D), to dismiss this appeal because the notices of appeal filed by the Appellants do not conform to EBR 40(A). III. FINDINGS OF FACT The findings of fact below are based solely on the undisputed date of the Permit and on the notices of appeal filed by the Appellants: On September 1, 1994, the District #5 Commission issued Land Use Permit #5L1199 to Michael Caldwell and Gilbert Meyer. On September 29, 1994, the Board received a letter dated September 26, 1994 from William and Suzanne Kempe and Christopher and Susan Ludington (the Appellants). The letter states that it concerns "5L1199 Stoweview." The text of the letter in its entirety is as follows: The above parties hereby appeal the land use permit granted to Michael Caldwell and Gilbert H. Meyer Jr. dated September 1, 1994 for Stoweview based on Criterion 8, Aesthetics. Enclosed you will find the required filing fee for appeal. Copies of this notice of appeal have been mailed to all parties listed on the certificate of service in the permit. On October 3, 1994, the Board received a letter dated September 30, 1994 from the Appellants. The letter states that it concerns "5L1199 Stoweview." The text of the letter in its entirety is as follows: The above parties hereby appeal the land use permit granted to Michael Caldwell and Gilbert H. Meyer Jr. dated September 1, 1994 for Stoweview based on Criterion 8, Aesthetics. Based on the commissions [sic] findings we believe the proposed project will have an undue and adverse impact on the scenic beauty of the area. We feel the applicants should submit the additional evidence requested by the commission prior to the sale or construction of any infrastructure. The required filing fee for appeal was enclosed with the original notice of appeal dated September 26, 1994. Copies of this notice of appeal have been mailed to all parties listed on the certificate of service in the permit. IV. CONCLUSIONS OF LAW EBR 18(D) states, in relevant part, that "[t]he 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." The rule states that decisions concerning dismissal are to include findings of fact and conclusions of law. The issue regarding dismissal in this case pertains to the notices of appeal filed by the Appellants. Concerning appeals, 10 V.S.A.  6089(a) provides in relevant part: An appeal from the district commission shall be to the board and shall be accompanied by a fee prescribed by rule of the board which shall be reasonably related to the costs associated with hearing the appeal. The board shall hold a de novo hearing on all findings requested by any party. Notice of appeal shall be filed with the board within 30 days. Interpreting and implementing this provision, the Board has promulgated EBR 40(A), which provides: Any party aggrieved by an adverse determination by a district commission may appeal to the board and will be given a de novo hearing on findings, conclusions and permit conditions issued by the district commission. An appeal shall be filed with the board within 30 days after the date of the decision of the commission. The appeal shall consist of the original and 10 copies of the appeal and of the decision of the commission, and a statement of the reasons why the appellant believes the commission was in error and the issues the appellant claims are relevant. A filing fee in the amount established in Rule 11 of these rules payable to the State of Vermont shall accompany the appeal. (Emphasis added.) A prior version of EBR 40, containing the above requirements to state the reasons why the commission was in error and the issues deemed relevant, was ratified by the full General Assembly in 1985. Therefore, the requirement to include such statements in a notice of appeal has the force and effect of a legislative enactment. 1985 Vt. Laws No. 52  5; In re Spencer, 152 Vt. 330, 336 (1989).(FN2) In Re: Finard-Zamias Associates, #1R0661-EB, Memorandum of Decision (March 28, 1990), the Board stated that EBR 40 governs the content of appeal notices and that the rule's "purpose is to prompt appellants to focus their appeals and state the issues with reasonable specificity. The policy of the Board has always been to construe notices of appeal liberally." Id. at 5. Based on the foregoing facts, authorities, and precedent, the Board concludes that the notices of appeal filed by the Appellants are not sufficient under EBR 40(A). Even construed liberally, the notices are not adequate with respect to the reasons why the commission was in error and the issues claimed to be relevant. The notices are too general to meet the goals of focusing the appeal and stating specific issues. They do not allege error with regard to any specific statements in the District Commission's conclusions of law or findings of fact, or with regard to any permit conditions issued, and do not state any specific issues concerning the project's aesthetic impacts. The Board notes that, in their filing received November 14, the Appellants have identified issues with somewhat greater specificity. Without commenting on whether this further identification is sufficient, the Board concludes that it cannot consider the further identification. This is because the Board interprets EBR 40 to require that an adequate notice of appeal be filed within the 30-day period for filing appeals. Calculated in accordance with EBR 6, such time period ended at the close of business on October 3, 1994. With respect to whether the requirements of EBR 40 must be met within the 30-day appeals period, the Appellants argue that dismissal of their appeal is contrary to the case of Re: Durward Starr and George Halikas, #7R0594-1-EB, Findings of Fact, Conclusions of Law, and Order (April 30, 1986). In that case, an appellant filed a one-sentence notice of appeal and the Board declined to dismiss the appeal, allowing the appellant to meet the requirements of EBR 40 subsequent to the appeals period. The Board reasoned that requiring full compliance with EBR 40 within such period would be contrary to statute, stating: Section 6089(a) [of Title 10] requires "Notice of appeal shall be filed with the board within 30 days." The statute does not establish any requirements as the contents of an appeal notice. We believe this Board has the authority to determine what must be filed before appeal proceedings commence but it does not have the authority to alter its appellate jurisdiction by the promulgation of an administrative rule. Id. at 2. The Board does not depart from its precedent lightly. However, the reasoning of Starr on the issue before us is flawed and is therefore overruled. A requirement to comply with EBR 40 within the appeals period does not alter the appellate jurisdiction set out in statute. The statute presently does not define the phrase "notice of appeal" or set out what the contents of such a notice should be. In a valid exercise of rulemaking authority under 10 V.S.A.  6025(a), the Board has interpreted and implemented this undefined phrase through EBR 40. Therefore, a "notice of appeal" under Section 6089(a) is one which meets EBR 40's specifications. Further, the Starr reasoning promotes inefficiency and delay. If the errors made by the district commission and the relevant issues are not stated, then inevitably the Board must hold a prehearing conference so that these errors and issues are identified and parties can meaningfully respond at a subsequent hearing. However, 10 V.S.A.  6085(b) allows the Board to choose to hold either a hearing or prehearing conference, as long as the chosen event occurs within 40 days of receipt of the appeal notice. In cases in which the citation of errors and issues reveals the need for only a limited factual inquiry, or a brief oral argument on a potentially dispositive legal issue, the Board may choose to hold, within the 40-day period, a hearing by a hearing officer or panel, or a legal argument before the Board. See, e.g., Re: Derby Plaza Associates Limited Partnership, #7R0886-EB, Memorandum of Decision at 5 (Feb. 25, 1994). In addition, should the Board decide to hold a prehearing conference, the citation of errors and issues in the notice of appeal allows parties to respond meaningfully during the conference because they are not discovering the alleged errors and issues for the first time. Such citation also may allow parties to stipulate during the conference to facts or legal points which are not in dispute, thus possibly narrowing the scope of the Board's inquiry. Based on the foregoing, the Board will dismiss this appeal, and therefore does not reach the issues raised regarding a petition signed by various non-party adjoining landowners. V. ORDER 1. This appeal is dismissed. 2. Findings of Fact, Conclusions of Law, and Dismissal Order #5L1199-EB (Altered) supersedes Findings of Fact, Conclusions of Law, and Dismissal Order #5L1199-EB issued December 13, 1994. Dated at Montpelier, Vermont this 13th day of March, 1995. ENVIRONMENTAL BOARD \s\John T. Ewing John T. Ewing, Chair Rebecca Day Arthur Gibb Marcy Harding Samuel Lloyd William Martinez Robert Page Steve E. Wright FN1. Other matters, pertaining to what would occur if the Board does not dismiss this appeal, were discussed at the prehearing conference. These matters are not addressed here because the Board is dismissing the appeal. For the same reason, no separate prehearing conference report is being issued. All relevant items from the prehearing conference are discussed above. FN2. The Board notes that Rule 18(D) also was ratified by the General Assembly in 1985. caldwell.dec(a8)