RE: City of Montpelier Water Treatment Facility, Declaratory Ruling Request #260, Findings of Fact, Conclusions of Law and Dismissal Order (June 28, 1995) VERMONT ENVIRONMENTAL BOARD 10 V.S.A. Chapter 151 Re: City of Montpelier Water Treatment Facility Declaratory Ruling Request #260 FINDINGS OF FACT, CONCLUSIONS OF LAW, AND DISMISSAL ORDER I. SUMMARY OF PROCEEDINGS On November 27, 1991, a petition for a declaratory ruling was filed with the Environmental Board by the Town of Berlin and its Board of Selectmen ("Petitioner"), through its attorney, Robert Halpert, Esq., requesting that the proposed construction of the City of Montpelier's ("Respondent") Water Treatment Facility be found to be subject to Act 250 jurisdiction. The Petitioner disagreed with the conclusion of an advisory opinion by the District #5 Coordinator, dated October 28, 1991, that the proposed water treatment facility could not be considered a "substantial change" since it would not expand the capacity of the City of Montpelier's municipal water facility by more than 10 percent and that no Act 250 permit was therefore required. On December 18, 1991, the Respondent filed a Request for Continuance on the grounds that the petition was moot pending an appeal to the Supreme Court by the Respondent from a decision of the Town of Berlin Zoning Board of Adjustment denying permission to construct the facility on the proposed site in the Town of Berlin. On December 20, 1991, Board Chair Elizabeth Courtney issued a memorandum to interested persons stating that the Board would grant the Respondent's request to stay the proceeding unless an objection was received by the Board on or before January 10, 1992. On January 10, 1992, the Petitioner filed a Notice of Opposition to Request for Continuance with the Board. The Board deliberated on February 12, 1992 in St. Johnsbury. On March 23, 1992, the Board issued a Memorandum of Decision granting the request of Respondent for a continuance. On February 8, 1993, the Respondent filed a Request to Dismiss on the ground that the development described in the petition proceeding would not proceed on the site described, or in the configuration described, or involve the land described, and that therefore the pending proceeding no longer applied to any proposed development. 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 February 8, 1993. 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. § 6007(c) and 3 V.S.A. § 808 require that the Board consider and dispose of declaratory ruling petitions in a prompt manner. Pursuant to this authority, the Board has established a docket management protocol governing the failure of parties to diligently prosecute declaratory ruling petitions. This protocol is described in a Docket Management Notice provided to all parties. This notice states in pertinent part: In any declaratory ruling petition proceeding, the Board Chair may issue, without notice, a Proposal for Dismissal where no document has been filed with the Board by the Petitioner: 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 petition proceeding, and in the opinion of the Director, the petition is not being diligently prosecuted. Where the Board Chair has issued a Proposal for Dismissal, the Board will dismiss the petition 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 petition. The most recent Board file entry prior to the issuance of the Proposal for Dismissal in this matter is dated February 8, 1993. 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 petition 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 petition 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 prot\montpeli.ord (ry3)