RE: Barre City School District, #5W1160 (Reconsideration)-EB, Interlocutory Appeal February 17, 1994 VERMONT ENVIRONMENTAL BOARD 10 V.S.A. Chapter 151 Re: Barre City School District #5W1160 (Reconsideration)-EB by John R. Ponsetto, Esq. Interlocutory Appeal Gravel and Shea P.O. Box 369 Burlington, VT 05402-0369 MEMORANDUM OF DECISION On December 21, 1993, Marcia Kepnes (the Appellant) filed with the Environmental Board a request for permission to take an interlocutory appeal from the District #7 Environmental Commission's Recess Order dated December 21, 1993. The Recess Order pertains to the Barre City School District's pending application for Act 250 land use permit #5W1160 (Reconsideration). In its Recess Order, the District Commission denied the Appellant's request for party status. It is from this denial that the Appellant brings her motion for interlocutory appeal. The Appellant has also requested that the Board conduct a hearing on her motion for interlocutory appeal. The Board deliberated on the motion for interlocutory appeal on February 11, 1994. As is explained below, the Board denies the Appellant's request for a hearing and denies her motion for interlocutory appeal. I. BACKGROUND The Barre City School District is presently seeking an Act 250 land use permit for the construction of a new school in Barre City. The original application was denied by the District Commission on May 7, 1993. In the original proceeding, the District Commission granted the Appellant party status under Criterion 9(K) (public investments and facilities). In the reconsideration proceeding, the District Commission denied the Appellant's party status request under Criteria 9(K) and 5. The District Commission explained the denial of party status in its Recess Order of December 21, 1993: In the original proceeding, [the Appellant] had been granted party status under Criterion 9(K) Public Facilities pursuant to board Rule 14(B). However in its decision, the Commission ruled that the issues of providing public access to the new school and requiring certain accessibility standards within the school were not within the domain of Act 250. The Environmental Board has ruled that impacts on a public investment, which is the subject of an application, are not within the scope of its review under Criterion 9(K). See Re: Rutland Public Schools, Land Use Permit #1R0038-EB, Findings of Fact at 2 (June 26, 1992). Therefore, [the Appellant's] party status under Criterion 9(K) was rendered moot in the original proceeding. During the hearing on reconsideration, [the Appellant] renewed her request for party status under Criteria 5 and 9(K) arguing that these issues were relevant. For the above reasons, this request was denied. II. DECISION A. Request for Hearing The Appellant has requested that the Board conduct a hearing on whether to grant her motion for interlocutory appeal. Under Board Rule 43(A), the Board has the discretion to hold a hearing. Since both parties have adequately briefed the issues involved in this case, the Board declines to conduct a hearing on whether to grant the motion for interlocutory appeal. B. Motion for Interlocutory Appeal Unlike an appeal from a district commission permit decision, the Board, in an interlocutory appeal, has the discretion to refuse to hear the appeal. Board Rule 43(A) provides, in part: Upon motion of any party, the board may permit an appeal to be taken from any interlocutory (preliminary) order or ruling of a district commission if the order or ruling involves a controlling question of law as to which there is a substantial ground for difference of opinion and an immediate appeal may materially advance the application process. In Re: Maple Tree Place Associates, #4C0775-EB, Memorandum of Decision (Dec. 22, 1988), the Board refused to accept an interlocutory appeal from a district commission's denial of a party status request. In Maple Tree, the Board ruled that under Board Rule 43(A), it may accept an interlocutory appeal if the order or ruling appealed from (1) involves a controlling question of law (2) as to which there is substantial ground for difference of opinion and (3) an immediate appeal may materially advance the application process. Each of these three elements must be met for the Board to accept an interlocutory appeal. Because the Board concludes that the Appellant's motion for interlocutory appeal does not involve a controlling question of law, the Board does not address the second and third elements of the standard established in the Maple Tree decision. 1. Controlling Question of Law In Maple Tree, the Board concluded that a question of law is one which can be answered without holding an evidentiary hearing. The Board next concluded that "controlling" means an examination of the potential consequences of the order at issue. Thus, in Maple Tree, the Board concluded that the appeal of the denial of a party status request, while a question of law, was not a controlling question of law: Interlocutory appeal is not the only means of appeal regarding party status denials. Any person denied party status may appeal that denial to the Board following a district commission's decision to approve or deny a permit application. . . Denial of the present motions regarding interlocutory appeal does not leave the Appellants without an opportunity to appeal the District Commission's denial of party status, and therefore the consequences of the District Commission's order are not so grave as to be controlling. The Appellant contends that the District Commission's decision to construe Criterion 9(K) so narrowly as to exclude her from participating in the reconsideration of Barre City School District's Act 250 application when she had party status in the original proceeding is an arbitrary decision, and presents a controlling issue of law because the Board is being requested to interpret the scope of Criterion 9(K) in relation to non-driving parents and disabled users of the proposed new school building. The Board's refusal to accept the Appellant's motion for interlocutory appeal does not prevent the Appellant from appealing the District Commission's denial of party status after the District Commission issues its final decision on the merits of the permit application. At that time, the Appellant may raise the issue of what is the proper scope of Criterion 9(K) in relation to her request for party status. Therefore, the Board denies the Appellant's motion for interlocutory appeal because the issue of party status in this motion for interlocutory appeal does not present a controlling question of law. III. ORDER 1. The request for a hearing is this matter is denied. 2. The motion for interlocutory appeal is denied. Dated at Montpelier, Vermont this 17th day of February, 1994. ENVIRONMENTAL BOARD _________________________ Robert Opel, Acting Chair Ferdinand Bongartz Lixi Fortna Arthur Gibb Samuel Lloyd William Martinez Steve E. Wright Rebecca Day c:\ccm\decision\5w1160.int (d3)