Granville Mfg Co., Inc. Act 250

STATE CF VERMONT SUPERIOR COURT - ENVIRONMENTAL DIVISION Docket No. 2-1-11 Vtec (Appeal from District 3 Environmental Commission determination) In re Granville Manufacturing Co., Inc. (Appeal by Hewett) ».,_¢\_.,_¢»..~».,_/W Decision on Motion for Party Status Appellant Dan Hevvitt (“Appellant”) has appealed a decision by the District 3 Environmental Commission (“District Commission”) to issue a state land use permit to Granville Manufacturing Company, Inc. (“Applicant”) for the extraction, screening, and crushing of stone, grayel, and sand (collectively, “aggregate”) on a 551L acre parcel located near the Town of Granville. Currently before the Court is a motion by Appellant seeking party status under criteria 5 and Q(B) of § 6086 of lO V.S.A., Chapter 151, commonly known as Act 250. Appellant appears pro se in this appeal; Applicant is represented by Christopher J. Nordle, Esq. The Land Use Panel of the Vermont Natural Resources Board has chosen to participate in this proceeding, pursuant to 10 V.S.A. § 6085(c)(l), and is represented by Melanie Kehne, Esq. The Vermont Agency of Natural Resources has also chosen to participate in this proceeding and is represented by Donald J. Einhorn, Esq. Only Applicant has responded to Appellant’s motion,.tiling a response in opposition Both Appellant and Applicant have also filed supplemental memoranda in support of or in opposition to the pending party status motion. Appellant has submitted most of his additional memoranda in conjunction With two motions seeking to introduce supplemental information in support of his motion for party status. In a separate Entry Order issued today, We granted Appellant’s motions concerning these supplemental filings. As a result of that ruling, our Decision here takes into account Appellant’s initial motion, Applicant’s response in opposition and Appellant’s initial reply, plus all of the following: (l) the additional information Appellant submitted With his two motions; (2) the subsequent response in opposition that Applicant tiled; and (3) the ensuing reply memorandum that Appellant filed. Factual Background For the sole purpose of putting the pending motion into conteXt, we recite the following facts, which we understand to be undisputed unless otherwise noted: l. On December 28, 2009 Applicant applied to the District Commission for a state land use permit that would provide Applicant with approval for its previous and continuing activities involving the extracting, screening, and crushing of aggregate on a 55i acre parcel located near the Town of Granville. 2. During the proceedings below and at Appellant’s request, the District Commission granted Appellant preliminary party status as to criteria l(air), l(B), l(D], l(F), 4, 8, and Q(E) of Act 250, and subsequently determined that Appellant should retain such party status for all of these criteria at the end of the proceedings.' In so doing, the District Commission granted final party status to Appellant on all of the criteria for which he requested it. 3. During the District Commission proceedings, Appellant did not request party status as to criteria 5 or Q(B). 4. On December 14, 2010 the District Commission issued a decision granting Applicant the requested state land use permit, subject to certain conditions that would ensure the project’s compliance with each of the applicable Act 250 criteria. 5. On January l l, 2011 Appellant appealed the District Commission decision and on January 24, 2011, along With his Statement of Questions, he sought, via a motion, to be granted party status to raise issues pertaining to criteria 5 and 9(B). Appellant later sought to supplement the information he supplied with his original motion through two separate motions to introduce additional information. We granted Appellant’s supplemental information motions in a separate Entry Order issued today. The following discussion addresses Appellant’s motion for party status as to Act 250 criteria 5 and 9(b). Discussion Appellant requests that this Court grant him party status under Act 250 criteria 5 and 9(B) in his appeal of the District Commission’s decision issuing a state land use permit to Applicant for the extraction, screening, and crushing of aggregate on a 55i acre parcel located near the Town of Granville. Appellant argues that he should have party status under both of these additional criteria and thus should be able to raise issues under those criteria in this appeal. Applicant opposes the motion, arguing that Appellant cannot seek party status for the first time on appeal and that, even if he could, he has not demonstrated that he has fulfilled the statutory prerequisites for securing party status under criteria 5 and Q(B). In an Act 250 context, party status is a term of art indicating that a party falls within a defined class of persons and entities Who can, among other things, secure standing to participate in the district commission proceedings and appeal the district commission determination on a permit application See 10 V.S_.A. §§ 6085(0)(1), 8504(d)(l). Persons with party status can appeal the issuance of a state land use permit, and raise issues under particular Act 250 criteria in the subsequent appeal, if they are “aggrieved person[s],” provided that they meet three additional requirements: (1) they were granted party status as to the criteria by the district commission; (2) they “participated” in the district commission proceedings; and (3) they retained party status as to the criteria at the end of the district commission proceedings 10 V.S.A. § 8504(a), (d)(l). In other words, an “[aggrieved] person may only appeal those issues under the criteria with respect to which the person was granted [final] party Status.” I_d. The Vermont Legislature provided some relief from these various restrictions on who is entitled to appeal an Act 250 determination: parties who do not meet the requirements of § 8504(d)(1), but who are entitled to party status under § 6085(c)(1), can nonetheless appeal if they fall within one of the three exceptions listed in § 8504(d)(2). In the present appeal, Appellant argues he should be granted party status under criteria 5 and 9(B) pursuant to the third exception, which allows this Court to grant a request for party status and allow an appeal When “some other condition exists which Would result in manifest injustice if the person’s right to appeal was disallowed.” 10 V.S.A. § 8504(d)(2)(C). Before delving into our analysis of whether Appellant falls under this exception, we first note that Appellant did not strictly comply with our procedural rules regarding the submission of motions requesting party status pursuant to § 8504(d)(2). Such motions are required to be filed along with a party’s notice of appeal, See V.R.E.C.P. 5(d)(2) (“An appellant who claims party status under 10 V.S.A. § 8504(b)(2), (d)(2), or (e)(2) . . . must assert that claim by motion filed with the notice of appeal.”). The purpose of this policy is principally to “put the parties and the Court on clear notice of the exceptional circumstances that Warrant an appeal under § 8504(d)(2).” Verizon Wireless Barton Act 250 Perrnit, No. 6-1-09 Vtec, slip op. at 7 (Vt. Envtl. Ct. Feb. 2, 2010) (Duri