RE: Northern Development Enterprises, Land Use Permit Amendment #5W0901-R-5-EB, Memorandum of Decision (August 21, 1995) VERMONT ENVIRONMENTAL BOARD 10 V.S.A. Chapter 151 Re: Northern Development Land Use Permit 5W0901-R-5-EB Enterprises MEMORANDUM OF DECISION The Environmental Board hereby dismisses this appeal. I. PROCEDURAL BACKGROUND On February 16, 1995, the members of the Shaw Mansion Road Union of Concerned Neighbors ("SMRUCN"), by the organization's President, William O. Boyde, filed an appeal ("Appeal") from the District #5 Environmental Commission's January 17, 1995 Land Use Permit Amendment #5W0901-R-5 ("Permit") and supporting Memorandum of Decision ("Decision"). The Permit authorizes Northern Development Enterprises ("NDE") to develop Lot #13 in the Mansion Hollow Subdivision ("Subdivision") for a single-family residence ("Project"). Lot #13 is +/- 2.8 acres in size and located off Shaw Mansion Road in the Town of Waterbury, Vermont. Mr. Boyde, on behalf of SMRUCN, asserts in the letter by which the Appeal is noted ("Notice of Appeal") that the District #5 Environmental Commission ("District Commission") erred with respect to the following criteria of 10 V.S.A. § 6086(a): 8 (aesthetic, scenic or natural beauty) and 8(A) (wildlife) and subparagraphs A3, A4 and A5 of Environmental Board Rule ("EBR") 51. On February 24, 1995, NDE filed a Motion to Dismiss, a Motion to Require Shaw Mansion Road Union of Concerned Neighbors to be Represented by an Attorney and supporting memoranda. In the Motion to Dismiss, NDE asserts that the Appeal was not timely filed. On February 27, 1995, Mr. Boyde, on behalf of SMRUCN, filed a response to NDE's motions. On March 14, 1995, Mr. Boyde, on behalf of SMRUCN, filed a Petition for Party Status in which it requests party status under "Rule 14B-2". On March 27, 1995, Board Chair Ewing convened a prehearing conference ("Conference") in Montpelier, Vermont. The following entities participated at the Conference and sought party status in the Appeal: NDE, by Bruce Bjornlund, Esq. SMRUCN, by William O. Boyde, President The following persons attended the Conference but did not seek party status in the Appeal: Lawrence Murphy -- Homeowner Dennis W. Marshall -- Landowner Mr. Bjornlund noted that he would serve as NDE's representative in the Appeal. Mr. Boyde confirmed that he had filed the Notice of Appeal on behalf of SMRUCN and that he would serve as SMRUCN's representative during the Appeal. Finally, Mr. Murphy indicated that he was a member of the Mansion Hollow Home Owners Association (MHHOA) which had not appealed the Permit or Decision and was not seeking party status in the Appeal. On May 11, 1995, Chair Ewing issued a Prehearing Conference Report and Order ("Order") addressing the several issues raised before, during and shortly after the Conference. Section IV of the Order provided: 1. SMRUCN is the Appellant in the Appeal. 2. NDE's request that the Board order SMRUCN to provide NDE with an original or a copy of SMRUCN's tape recording of the Conference is DENIED. 3. NDE's February 24, 1995 Motion to Dismiss is DENIED. 4. NDE's February 24, 1995 Motion to Require Shaw Mansion Road Union of Concerned Neighbors to be represented by an Attorney is DENIED. 5. SMRUCN's efforts to obtain party status through a petition for party status or otherwise are, under all Criteria addressed therein, DENIED. 6. NDE's April 21, 1995 Motion to Dismiss is GRANTED, and the Appeal is DISMISSED WITH PREJUDICE. 7. Pursuant to Board Rule 16, each and every aspect of this Order shall be binding upon the parties who have received notice of the prehearing conference unless a written objection specifically identifying the specific provision at issue and the basis for the objection is filed with the Board within 30 days of the date of this Order. 8. If an objection is filed, the Board shall, if necessary, establish a briefing and argument schedule. On June 9, 1995, SMRUCN filed a Motion to Vacate Order ("Motion to Vacate") in which it asked the Board to "abandon" the Order and "set aside" the Motion to Dismiss as defective. SMRUCN did not request oral argument on the Motion to Vacate. On June 15, 1995, Mr. Gay advised Mr. Bjornlund in writing that NDE could respond to the Motion to Vacate on or before June 21, 1995 and the Board would begin deliberations concerning the Motion to Vacate on Wednesday, June 28, 1995. On June 19, 1995, NDE filed a timely Objection to Certificate of Service ("NDE Objection") and a response to the Motion to Vacate ("NDE Response"). In the NDE Response, NDE seems to object to paragraph 2, Section IV of the Order which addresses the tape recording SMRUCN made of the Conference. NDE did not request oral argument on either the NDE Objection or the NDE Response. On June 21, 1995, SMRUCN filed a Motion to Ignore the NDE Objection and the NDE Response. The Board deliberated concerning the Motion to Vacate on June 28, 1995. On July 21, 1995, SMRUCN filed an Addendum, Objection to Order ("Addendum") in which it supplemented the Motion to Vacate. On August 1, 1995, NDE filed an Objection to the Addendum. Finally, on August 3, 1995, SMRUCN filed a Motion to ignore NDE's Objection to the Addendum. On August 16, 1995, the Board deliberated again on the Motion to Vacate and, for the first time, on all of those pleadings filed on or after June 21, 1995. This matter is now ready for decision. II. PRELIMINARY ISSUES Tape Recording At the outset of the Conference, SMRUCN noted its intent to tape record the proceedings. NDE objected.(FN1) Mr. Boyde stated that he had spoken with the Board's General Counsel, George E. H. Gay, prior to the Conference about this procedural question, and Mr. Gay had assured him that SMRUCN could tape the proceedings. Chair Ewing allowed the tape recording upon the suggestion that either the original or a copy of it be made available to NDE. On March 28, 1995, SMRUCN filed a letter stating: "Upon conferring with group members, we have elected not to provide a copy of the hearing recording to applicant's counsel." On March 29, 1995, NDE wrote directly to Mr. Boyde asking: "Could you please forward the tape recording of the March 27, 1995 Pre-hearing conference held at 58 East State St., Montpelier, Vermont for copying. I will send back to you three business days after receipt." EBR 16 controls the Conference proceedings. Despite the parties contentions, EBR 18 does not. The latter rule pertains to contested case hearings. The Conference is not such a hearing. EBR 16 provides that the convening officer may make decisions as to procedural matters that are necessary to expedite the hearing process. It does not specifically address whether or not the prehearing Conference may be taped, and if so, whether or not the convening officer has the authority to impose conditions upon the tape recording. NDE could have arranged to tape record the proceedings. NDE did not make such arrangements. SMRUCN did. SMRUCN should not be required to suffer inconvenience or cost due to NDE's inaction. Nor should NDE be allowed to benefit from SMRUCN's action. Consequently, SMRUCN is not compelled to share its tape recordings of the Conference with NDE. Motion to Dismiss The Permit and Decision are dated January 17, 1995. SMRUCN filed its Notice of Appeal on February 16, 1995. Appeals must be filed within 30 days of the District Commission decision from which they are noted. 10 V.S.A. § 6089 (a). SMRUCN filed the Appeal on the 30th day after the Permit and Decision were issued. The Appeal is timely. Motion for Counsel NDE asked the Board to order SMRUCN to have legal counsel represent it before the Board in the Appeal. In support of its request, NDE directed the Board to Vermont Agency of Natural Resources v. Upper Valley Regional Landfill Corporation, 159 Vt. 454 (1992). In Upper Valley, the Court considered whether an unincorporated organization must appear through counsel even if the requirement would preclude the organization's appearance. The Upper Valley Court found: Although the lawyer-representation rule serves important public interests, it should not be rigidly enforced in cases where those interests are not threatened and enforcement would preclude appearance by the organization. Id. at 458. Despite NDE's arguments, if the holding in Upper Valley was applied to the Appeal, NDE's motion for counsel would fail. However, the Appeal is not controlled by Upper Valley. First, Upper Valley involved representation before the Environmental Court not the quasi-judicial Environmental Board. Second, the Environmental Board has a long history of promoting not discouraging citizen involvement in the Act 250 process. In fact, efficient operation of the process depends upon such involvement. NDE's motion for counsel runs contrary to this tradition. Third, EBR 14(3)(D), expressly authorizes a party before the Board to be "represented by an attorney or other representative of his choice." (emphasis added). Fourth, in 1985 the Legislature ratified the Board's rules such that they have the same effect as any law passed by the Legislature in the first instance. In effect, the ratified Board rules have "effectively become part of the Act 250 legislative scheme codified at Chapter 151 of Title 10." In re Barlow, 160 Vt. 513, 521 (1993); In re Spencer, 152 Vt. 330, 336 (1989). III. NDE's APRIL 21, 1995 MOTION TO DISMISS On April 21, 1995, NDE filed a Motion to Dismiss the Appeal. NDE asserts that SMRUCN has not satisfied the requirements of either EBR 14(A) or (B). On April 24, 1995, SMRUCN filed its response thereto. In the Notice of Appeal SMRUCN seeks party status under 10 V.S.A. §6089(a) -- Criterion 8 (aesthetics and scenic and natural beauty) and Criterion 8(A) (wildlife). At the Conference, SMRUCN stated that it is seeking party status under the following Criteria: 1 (water pollution), 1(C) (water conservation), 5 (traffic), 8 (aesthetics, scenic or natural beauty) 9(F) (Technology) and 10 (conformance with local and regional plan) ("Contested Criteria"). Chair Ewing asked SMRUCN for reasons/facts which support its request. SMRUCN referred the Chair to paragraph one of the Notice of Appeal. SMRUCN provided no additional material support of its request. On March 28, 1995, SMRUCN filed a summary of the issues as set out at the Conference. These issues were keyed to provisions of EBR 51 A(1)-A(5). A copy of SMRUCN's Summary of Report is attached hereto and incorporated herein. It does not contain any material, substantive support for SMRUCN's petition for party status. Findings of Fact 1. On February 16, 1995, William O. Boyde filed a Notice of Appeal from the Permit and Decision on behalf of SMRUCN. 2. SMRUCN implies in the Notice of Appeal that it requested a hearing on the Project in its September 8, 1995 letter to the District Commission. However, in this letter, Eleanor F. Boyde and William O. Boyde requested a hearing before the District Commission. SMRUCN did not make such a request. 3. In the Notice of Appeal, SMRUCN seeks party status under 10 V.S.A. § 6086(a) -- Criteria 8 (aesthetics and scenic or natural beauty) and 8(A) (wildlife); requests a hearing on the Appeal; asserts that "the District Commission's instructional information guiding our request for hearing is flawed . . . "; and contends that the District Commission unlawfully applied EBR 51. 4. SMRUCN asserts that it is comprised of all neighbors adjoining lot #13 as well as other property owners. 5. SMRUCN's members are concerned with the lasting impact that the Project will have on the quality of their surroundings and in preventing dangers to life, health and property. 6. SMRUCN's purpose is to represent its members vis-a-vis the Project throughout the Act 250 process; and to document the experiences its members have had regarding the subdivision. 7. On February 27, 1995, Mr. Boyde advised the Board that he will represent SMRUCN in the Appeal. 8. On March 14, 1995, SMRUCN advised the Board that it would rely upon paragraph one of the Notice of Appeal to support its request for party status. 9. The Mansion Hollow Home Owners Association (MHHOA) did not appeal the Permit and Decision. 10. Although the membership of MHHOA and that of SMRUCN contain some of the same people, the organizations are not one and the same. Conclusions of Law In proceedings before the Board, parties may participate either by right or by permission. EBR 14(A) and (B). Under EBR 14(A), certain governmental entities and adjoining property owners are entitled to party status. An adjoining property owner may participate as a party by right "to the extent that [she] demonstrates that proposed development or subdivision may have a direct effect on [her] property under any of the 10 Criteria. . . ." EBR 14(A)(3). In making a request for party status, adjoining property owners must satisfy certain filing requirements to perfect the request. Id. at (a) and (b). Under EBR 14(B), the Board may grant party status to someone whose interests are affected under one or more of the Criteria or who can materially assist the Board. Re: St. Albans Group and Wal Mart Stores, Inc., #6F0471-EB, Memorandum of Decision at 4 (April 15, 1994). In either instance, the decision whether or not to grant party status is solely within the discretion of the Board. Re: Sherman Hollow, #4C0422-5-EB, Memorandum of Decision, at 5 (February 3, 1988). If SMRUCN is seeking party status pursuant to EBR 14(A)(3), its effort fails. First, the generalized statements contained in paragraph one of the Notice of Appeal do not meet the more exacting requirements of EBR 14 (A)(3)(b). SMRUCN's filings simply do not contain anything even close to a description of the potential effect of the proposed project upon the adjoiners' properties vis-a-vis any of the Criteria under which party status is sought. Second, even if the requirements of EBR 14(A)(3)(a) and (b) are met, SMRUCN has not demonstrated in the appeal that the Project may have a direct effect on the adjoining properties. If SMRUCN is seeking to participate in this proceeding pursuant to EBR 14(B), its effort must, likewise, fail. EBR 14(B) sets up two distinct classes of parties by permission. Under EBR 14(B)(1)(a), the Board may allow as parties to a proceeding a group that has adequately demonstrated that a project may affect its interests under any of the Criteria. SMRUCN has not made such a demonstration. There is no indication in the Appeal that the Project will affect the interests of SMRUCN. Under EBR 14(B)(1)(b), the Board may allow as parties to a proceeding groups whose participation will "materially assist" the Board. It does not appear as though SMRUCN's request for party status was filed under this provision. However, assuming, arguendo, that it was, it is denied. There is no indication in this matter that the participation of SMRUCN will materially assist the Board.(FN2) Because of our conclusion of law on the issue of party status, we will not decide whether or not SMRUCN has standing or the right to file the Appeal. However, we note that SMRUCN did not request a hearing before the District Commission and that such a request in a Rule 51 matter should be a prerequisite to appealing a District Commission's decision to deny a hearing request. IV. POST ORDER ISSUES Motion to Vacate The Motion to Vacate was timely filed in accordance with EBR 16. It contains, in part, a selective annotation of certain parts of the record. It does not convince us that SMRUCN is entitled to party status in this matter under EBR 14. Objection to Addendum On July 21, 1995, SMRUCN filed an addendum to the Motion to Vacate. On August 1, 1995, NDE filed the Objection to the Addendum. The Board does not allow parties, without a strong showing of good cause to the contrary, to file pleadings that are not authorized by Act 250, the Board's Rules or order of the Board. An "open ended" filing policy would severely impair the Board's ability to manage each case and its overall docket. Filing deadlines and limitations put some predictability in the Board's process and enable the Board to process each case efficiently. NDE argues that the Addendum was not authorized and/or timely filed. NDE argues that it should not be considered by the Board. We agree. We have not considered the Addendum although it shall be included in the record of this matter. Other Matters All other post order issues are addressed in Section V of this Memorandum of Decision. V. ORDER Based upon the foregoing sections of this Memorandum of Decision, we order the following: 1. SMRUCN is the Appellant in the Appeal. 2. NDE's request that the Board order SMRUCN to provide NDE with an original or a copy of SMRUCN's tape recording of the Conference is DENIED. 3. NDE's February 24, 1995 Motion to Dismiss is DENIED. 4. NDE's February 24, 1995 Motion to Require SMRUCN to be represented by an Attorney is DENIED. 5. SMRUCN's efforts to obtain party status through a petition for party status or otherwise are, under all Criteria addressed therein, DENIED. 6. NDE's April 21, 1995 Motion to Dismiss is GRANTED, and the Appeal is DISMISSED WITH PREJUDICE. 7. SMRUCN's June 9, 1995 Motion to Vacate is DENIED. 8. NDE's June 19, 1995 NDE Objection is DENIED; 9. SMRUCN's June 21, 1995 Motion to Ignore is DENIED. 10. NDE's August 1, 1995 Objection to Addendum is GRANTED; and 11. SMRUCN's August 3, 1995 Motion to Ignore NDE's August 1, 1995 Objection to Addendum is DENIED. Dated at Montpelier, Vermont this 21st day of August, 1995. ENVIRONMENTAL BOARD s/s John T. Ewing _________________________ John T. Ewing, Chairman John Farmer Arthur Gibb Marcy Harding Samuel Lloyd William Martinez Rebecca M. Nawrath Robert Page FN1. In its April 21, 1995 Motion to Dismiss which is discussed at length later in this Memorandum of Decision, NDE asks the Board to order SMRUCN to "turn over" the tape to NDE. FN2. If we assume that SMRUCN's filings on the appeal are actually those of Messrs. Boyde and/or Murphy in their individual capacity, and that, as a result, these two men seek party status in place of or in addition to SMRUCN, our conclusion is the same: party status is denied under both EBR 14(A) and (B). c:wp51\decision\nde.dec (v)