RE: William and Tarra Ferrone, d/b/a Sykes Hollow Kennels, Declaratory Ruling Request #294, Memorandum of Decision May 19, 1994 VERMONT ENVIRONMENTAL BOARD 10 V.S.A. Chapter 151 Re: William and Tarra Ferrone, d/b/a Sykes Hollow Kennels Declaratory Ruling Request #294 MEMORANDUM OF DECISION This decision pertains to a dismissal order issued concerning a declaratory ruling request filed by William and Tarra Ferrone d/b/a Sykes Hollow Kennels (the Petitioners) with respect to a kennel in Town of Rupert, Vermont. I. BACKGROUND On July 1, 1974, the District #8 Environmental Commission issued Land Use Permit #8B0080 (the Permit) to Elinor C. Ayers, authorizing the construction and operation of a dog kennel in the Town of Rupert, Vermont. On July 17, 1992, the District Commission issued Land Use Permit #8B0080-1 (the Permit Amendment) to the Estate of Elinor C. Ayers, authorizing the extension of the expiration date contained in the Permit from January 1, 1995 to January 1, 2018. William and Tarra Ferrone presently run the kennel authorized in the Permit, doing business as Sykes Hollow Kennels. They have operated the kennel since July 1992. During October 1993, the District Commission convened a hearing to evaluate complaints about noise allegedly emanating from the kennel. During the hearing, the Petitioners challenged the District Commission's authority to impose new conditions to limit noise. On November 12, 1993, District #8 Coordinator Warren Foster issued Advisory Opinion #8-124, concluding that a permit amendment is required for the present operation of the kennel because, in his view, that operation constitutes a material change from the operation authorized by the Permit and Permit Amendment. In the opinion, the District Coordinator cited Environmental Board Rules 2(A)(5) and 2(P) in support of his conclusion. On December 10, 1993, the Petitioners filed a petition for declaratory ruling with the Board pursuant to 10 V.S.A. § 6007(c) and Board Rule 3(C). Due to the Board's heavy caseload and to confusion caused by a confrontation between Governor Howard Dean and the Vermont Senate over gubernatorial re-appointments to the Board, the Board was unable to hold a prehearing conference in this matter until February 17, 1994. On that date, Board Counsel Aaron Adler convened a prehearing conference in West Pawlet. On February 28, 1994, the Board received a petition for party status from Edward and Wendy Canning dated February 25, 1994. On March 2, the Board received a correction to that petition. On March 4, 1994, Counsel issued a prehearing conference report and order which is incorporated by reference. On that date, the Petitioners filed a letter stating that they withdraw their declaratory ruling request. On April 1, 1994, the Board issued an order dismissing this matter. The April 1 order is incorporated by reference. On April 8, 1994, the Ferrones filed a motion to alter the dismissal order. On April 18, the Cannings filed a response. The Board deliberated on May 4. II. DISCUSSION The Board's April 1 dismissal order included the following discussion: The Board has authority to disallow withdrawal if it concludes that withdrawal will prejudice the values Act 250 is designed to protect. Re: Wilcock and Burns, Declaratory Ruling #224, Memorandum of Decision (Sep. 17, 1990), citing Jones v. Securities & Exchange Commission, 298 U.S. 1, 22 (1936); Oil, Chemical & Atomic Workers International Union, AFL-CIO v. National Labor Relations Board, 806 F.2d 269, 272 (DC Cir. 1986). The Board concludes that withdrawal in this matter will not prejudice the values Act 250 is designed to protect because the Board understands that this declaratory ruling request was filed to challenge the District #8 Commission's authority to proceed with a hearing concerning complaints about kennel noise. If the declaratory ruling request is withdrawn, then the District Commission's jurisdiction is not challenged, and the District Commission is therefore free to proceed with its noise evaluation. In their motion, the Ferrones state that they did not file the declaratory ruling petition to challenge the District #8 Commission's jurisdiction. They state that the District Commission never issued a decision concerning such jurisdiction from which they could take appeal. They further state that they do not concede the District Commission's jurisdiction. They do not specifically request that the Board delete the language with which they disagree, although this appears to be their goal. The Ferrones do not dispute that the declaratory ruling petition was filed to appeal the District #8 Coordinator's advisory opinion. Rather, they state that, if their petition is withdrawn, the District Coordinator's opinion "remains unappealed." The Ferrones' attempt to draw a distinction between the District Commission's jurisdiction and the District Coordinator's advisory opinion elevates form over substance. The District Coordinator's opinion is that the current kennel operation constitutes a material change from the operation for which the District Commission issued a permit, and therefore that a permit amendment is required. Under the statute and rules, such an amendment would be issued by the District Commission. Moreover, the District Coordinator's opinion clearly indicates that it is issued in response to the Ferrones' challenging the District Commission's jurisdiction at the hearing to evaluate noise complaints. Thus, the ultimate origin of the Ferrones' declaratory ruling request is indeed their challenge to the District Commission's jurisdiction. Under 10 V.S.A. § 6007(c) and Board Rule 3(C), the purpose of declaratory ruling proceedings is to provide an administrative avenue for making determinations about jurisdiction. If the Ferrones continue to contend that the District Commission does not have jurisdiction, then they should go forward with their petition. Conversely, if they withdraw the petition, then they are no longer challenging jurisdiction. Any other conclusion would prejudice the orderly administration of Act 250 because the jurisdictional question would be unresolved. Accordingly, the Board will deny the motion to alter and will give the Ferrones 30 days in which to renew their request for a declaratory ruling. If such a renewal is filed, the Board will hear their request. If no such renewal is filed, then the Board's April 1 dismissal order will become final. III. ORDER 1. The Ferrones' motion to alter is denied. 2. Within 30 days from the date of this order, the Ferrones shall file a written request for renewal of their declaratory ruling petition. If such a request is filed, the Board will hear their petition. If no such request is filed, then the Board's April 1 dismissal order will be final, and therefore the District #8 Commission will be able to go forward with its hearing to evaluate noise complaints. Dated at Montpelier, Vermont this 19th day of May, 1994. ENVIRONMENTAL BOARD /s/ Lawrence H. Bruce, Jr. (by ADA) ________________________________ Lawrence H. Bruce, Jr., Acting Chair Lixi Fortna Arthur Gibb Samuel Lloyd Steve E. Wright c:\pah\decision\ferrone.mod ferrone.mem (awp16) a:\dr294.mod (dec. disk)