RE: Leisure Real Estate Enterprises, Declaratory Ruling Request #276, Findings of Fact, Conclusions of Law, and Dismissal Order (June 23, 1995) VERMONT ENVIRONMENTAL BOARD 10 V.S.A. Chapter 151 Re: Leisure Real Estate Enterprises Declaratory Ruling Request #276 FINDINGS OF FACT, CONCLUSIONS OF LAW, AND DISMISSAL ORDER I. SUMMARY OF PROCEEDINGS On November 6, 1992, Leisure Real Estate Enterprises ("Petitioner"), through its attorney, Phillip C. Linton, Esq., filed a petition for a declaratory ruling with the Environmental Board as an appeal of Executive Officer Advisory Opinion #EO-92-260A. The Advisory Opinion, issued by Associate General Counsel Aaron Adler, concluded that the Petitioner, the operator of Marble Island Resort ("Resort") in Colchester, must obtain an Act 250 permit for the construction of a boat storage rack and associated boat storage and hauling that occurred at the Resort. The Petitioner believed that it did not need to obtain an Act 250 permit because there has not been a substantial change to the storage facility. The Petitioner contended that the only change is in the nature of the storage facility, and that this change is not a cognizable physical change with the potential for significant impacts. On January 5, 1993, Board Chair Elizabeth Courtney convened a prehearing conference in Essex Junction. On January 19, 1993, the Board issued a Prehearing Conference Report and Order. On March 9, 1993, the Petitioner filed a Motion for Stay of Petition. On April 13, 1993, General Counsel Stephanie Kaplan sent a letter to Mr. Linton stating that the Board had no objection to continuing the petition proceeding provided that the Petitioner file for an Act 250 permit by April 23, 1993. The letter also stated that Mr. Linton should notify the Board if the Petitioner later wished to proceed with the petition. On April 21, 1993, General Counsel Kaplan sent a letter to Douglas G. Robertson of Planning & Development Services Corp. granting his request for an extension of the deadline for the Petitioner to file for an Act 250 permit to May 7, 1993. 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 April 21, 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 April 21, 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 23rd 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\leisure.ord (v) prot\leisure.ord (ry3)