RE:  Algiers Fire District #1, Declaratory Ruling Request #297, Proposal for
Dismissal October 18, 1994


                                    
                      VERMONT ENVIRONMENTAL BOARD
                         10 V.S.A. Chapter 151
     
     RE:  Algiers Fire District #1
          Declaratory Ruling Request #297
     
                         PROPOSAL FOR DISMISSAL
     
    This proposed order of dismissal pertains to the timeliness of a petition
  for a declaratory ruling filed by the Algiers Fire District #1 (the Fire
  District) by and through Mark P. Youngstrom, P.E., Wright Engineering Ltd,
  concerning the applicability of 10 V.S.A. Chapter 151 (Act 250) to the
  construction of a wastewater collection system (the Project).  For the
  reasons explained below, I propose that the petition be dismissed because
  it was filed after the deadline established in Act 250.
     
    I.   BACKGROUND
     
    On January 6, 1994 Assistant District II Coordinator Julia Schmitz issued
  an advisory opinion in the form of a project review sheet.  Assistant
  Coordinator Schmitz concluded that the Project was subject to Act 250
  jurisdiction.
     
    On January 21, 1994 the Fire District requested that the Assistant
  Coordinator reconsider her conclusion that the Project was subject to Act
  250 jurisdiction.
     
    On February 2, 1994 Assistant Coordinator Schmitz issued a response to
  the Fire District's January 21, 1994 letter.  Assistant Coordinator Schmitz
  again concluded that the Project was subject to Act 250 jurisdiction.
     
    On March 30, 1994 the Fire District provided Assistant Coordinator
  Schmitz with additional information relative to the Project and again
  requested that she reconsider her conclusion that the Project was subject
  to Act 250 jurisdiction.
     
    On May 5, 1994 Assistant Coordinator Schmitz issued a response to the
  Fire District's March 30, 1994 letter.  Assistant Coordinator Schmitz again
  concluded that the Project was subject to Act 250 jurisdiction.
     
    On July 5, 1994 the Fire District filed a petition for a declaratory
  ruling with the Board.
     
    II.  ISSUE
     
    Whether the petition for a declaratory ruling must be dismissed because
  it was filed after the statutory deadline. 

    III. PROPOSED DECISION
     
    Board Rule 16(B) provides that the Chair of the Board may make
  preliminary rulings without convening a prehearing conference.  If any
  party objects to the ruling, the ruling will be reviewed and the matter
  resolved by the Board.
     
    In accordance with Board Rule 16(B), I propose to dismiss the Fire
  District's petition for a declaratory ruling as being untimely filed.
     
    10 V.S.A. § 6007(c) provides, in pertinent part:
     
    [P]rior to the commencement of development, any person may . . . request
  an advisory opinion from the district coordinator concerning the
  applicability of this chapter.  An advisory opinion of a district
  coordinator may be appealed to the executive officer of the board, or
  directly to the board, in the discretion of the appellant. . . Appeals from
  an advisory opinion of a district coordinator or the executive officer or
  an assistant executive officer must be filed within 30 days of the mailing
  of the advisory opinion.  Appeals to the board are by means of a petition
  for a declaratory ruling and must be accompanied by a $25.00 filing fee.
     
    (Emphasis added.)
     
    A document is considered "filed" with the Board on the date it is
  received at the Board's office.  Board Rule 12(A).
     
    The advisory opinion was issued on January 6, 1994 and the final response
  to the Fire District's requests for reconsideration was issued on May 5,
  1994.  The Fire District's petition for a declaratory ruling was received
  by the Board on July 5, 1994.  In either case, the Fire District's petition
  was filed with the Board after the 30-day deadline had passed.  
     
    Filing deadlines are jurisdictional and the Board therefore has no
  discretion to waive a deadline established by statute.  In re Town of
  Putney Interim Solid Waste Certification, No. 93-185, slip. op. (Vt. Sept.
  22, 1993); Allen v. Vermont Employment Security Board, 133 Vt. 166 (1975).  
  The Board has dismissed a petition for a declaratory ruling where the
  petition was filed after the 30-day statutory deadline.  Re: Earth
  Construction Company, Declaratory Ruling Request #278 at 2 (March 16,
  1993).  The Board has also dismissed appeals of permits where such appeals
  were filed after the 30-day statutory deadline for filing appeals.  See,
  e.g., Re: Haystack Group, #700002-10-EB, Memorandum of Decision (March 29,
  1989); Re Club 107, #3W0196-3-EB, Memorandum of Decision (Feb. 2, 1987);
  Re: Puppy Acres Boarding Kennel, #2W0568-2-EB, Memorandum of Decision (Oct.
  11, 1985), aff'd, In re Puppy Acres Boarding Kennel, No. 85-490 (Vt.
  1986).
     
    Because the 30-day filing deadline is established by statute with no
  provisions for extensions, neither the Board Chair nor the Board has the
  discretion to extend the deadline for the submission of a petition for a
  declaratory ruling.  
     
    IV.  ORDER
     
    1.   The Fire District's petition for a declaratory ruling is dismissed.
     
    2.   Any party who objects to the Chair's ruling and would like a review
  by the full Board shall file such objection in writing on or before
  November 17, 1994.
     
    Dated at Montpelier, Vermont, this 18th day of October, 1994.
     
                                   ENVIRONMENTAL BOARD 
     
     
     
                                   /s/Arthur Gibb
                                   Arthur Gibb, Chair
                               
     
     
     
c:\pho\:dr297.dis (d7)