RE: Leduc & Many, Inc. & Howrigan Bros., Inc., Land Use Permit #6F0394-EB, Findings of Fact, Conclusions of Law, and Dismissal Order (June 28, 1995) VERMONT ENVIRONMENTAL BOARD 10 V.S.A. Chapter 151 Re: Leduc & Many, Inc. & Howrigan Bros., Inc. Land Use Permit #6F0394-EB FINDINGS OF FACT, CONCLUSIONS OF LAW, AND DISMISSAL ORDER I. SUMMARY OF PROCEEDINGS On September 9, 1988, an appeal was filed with the Environmental Board by Leduc and Many, Inc. and Howrigan Brothers, Inc. (Appellants) through their attorney, William F. Rugg, Esq., from Land Use Permit #6F0394-EB issued by the District #6 Environmental Commission on August 12, 1988. The permit authorizes the Appellants to construct and operate a 27 acre borrow pit to be served by a 24 foot wide by 1,800 foot long paved and stoned access road with on-site water and septic services, truck scales and an office trailer in the Town of Highgate. The Appellants object to Condition #12 of the permit requiring them to conduct an archeological survey. On October 12, 1988, the Board convened a prehearing conference in St. Albans. On February 22, 1989, Executive Officer Stephanie Kaplan sent a memorandum to the parties requesting that they notify the Board as to whether the appeal should be stayed or whether a hearing was needed. On March 31, 1989, Executive Officer Kaplan notified the parties that a hearing would be held unless the Board received a response with a status report on or before April 19, 1989. On April 11, 1989, Mark Sinclair of the Agency of Natural Resources notified the Executive Officer on behalf of the Division of Historic Preservation that the Division was not opposed to a stay of the appeal provided the permittee complied with Condition #12 of the permit. On April 24, 1989, Mr. Rugg notified the Executive Officer that the stay requested by the Appellants was based on the understanding recited in the letter by Mr. Sinclair. On August 20, 1991, Executive Officer Kaplan wrote to Mr. Rugg requesting to know the status of this matter. On September 3, 1991, Mr. Rugg requested that the pending appeal remain stayed. A Proposal for Dismissal and proposed decision were sent to the parties on May 16, 1995, and the parties were provided an opportunity to file a Motion to Revoke Proposal for Dismissal before the full Board. No party filed a Motion to Revoke Proposal for Dismissal with the Board. The Board deliberated concerning this matter on June 21, 1995. This matter is now ready for decision. II. FINDINGS OF FACT 1. The most recent Board file entry prior to the issuance of the Proposal for Dismissal in this matter is dated September 3, 1991. 2. On May 16, 1995, the Board Chair, John T. Ewing, issued a Proposal for Dismissal in this matter, which included a copy of the Docket Management Notice. 3. No party filed a Motion to Revoke Proposal for Dismissal with the Board on or before seven days prior to the Board's deliberations in this matter. III. CONCLUSIONS OF LAW 10 V.S.A. § 6083(d) requires the Board to process permits in a prompt manner and to establish time limits for permit processing. Pursuant to this authority, the Board has established a docket management protocol governing the failure of parties to diligently prosecute appeals. This protocol is described in a Docket Management Notice provided to all parties. This notice states in pertinent part: In any appeal of a permit, the Board Chair may issue, without notice, a Proposal for Dismissal where no document has been filed with the Board by any Appellant: After the expiration of six months from the most recent Board file entry in the case. However, if a continuance or stay with a definite termination date which has been issued by the Board is in effect, this time period will commence on the termination date; or In the case of an indefinite continuance or stay issued by the Board, after the expiration of twelve months from the issuance of the continuance or stay by the Board. The Board Chair may also issue, without notice, a Proposal for Dismissal upon request of the Board's Director of Administration, where twelve months have passed from the commencement of the appeal, and in the opinion of the Director, the appeal is not being diligently prosecuted. Where the Board Chair has issued a Proposal for Dismissal, the Board will dismiss the appeal at the next Board deliberation after 30 days have passed from the issuance of the Proposed Dismissal Order, unless any of the parties files a "Motion to Revoke Proposal for Dismissal" on or before seven days prior to the Board deliberation. A form motion will be provided to the parties when the Proposal for Dismissal is issued. If a Motion to Revoke Proposal for Dismissal is timely filed in proper form prior to deliberation on the Proposal for Dismissal by the Board, the Board will postpone consideration on the proposal until the next Board deliberation after 30 days have passed. At that time, the Board will consider the motion and shall either revoke the proposal for dismissal, or dismiss the appeal. The most recent Board file entry prior to the issuance of the Proposal for Dismissal in this matter is dated September 3, 1991. On May 16, 1995, the Board Chair, John T. Ewing, issued a Proposal for Dismissal in this matter, which included a copy of the Docket Management Notice. No party filed a Motion to Revoke Proposal for Dismissal with the Board on or before June 14, 1995. As a result, dismissal of this appeal by the Board is proper. IV. ORDER Dismissal of this matter is not contrary to the values embodied in Act 250. This matter is DISMISSED WITH PREJUDICE. This Dismissal Order is limited in effect to the appeal proceeding before the Environmental Board. Dated at Montpelier, Vermont this 28th day of June, 1995. ENVIRONMENTAL BOARD s/s John T. Ewing _________________________ John T. Ewing, Chair John M. Farmer Arthur Gibb Marcy Harding Samuel Lloyd William Martinez Rebecca M. Nawrath Robert Page Steve E. Wright c:\wp51\decision\leduc.ord (v) prot\leduc.ord (ry3)