STATE OF VERMONT
ENVIRONMENTAL COURT
}
In re: Sorrentino Building Site Application } Docket No. 231-10-07 Vtec
(Appeal of Sorrentino) }
}
Decision and Order on Pending Motions
Appellant Alfonse Sorrentino appealed from a decision of the Development
Review Board (DRB) of the Town of Woodstock, determining that his application to
develop a residential building site in the Scenic Ridgeline overlay district was
incomplete. Appellant-Applicant is represented by Kirk C. Kardashian, Esq., and Robin
Stern, Esq.; the Town is represented by Todd C. Steadman, Esq.
The Town has moved to dismiss Questions 5 and 6 of the Statement of
Questions,1 and both parties have moved for summary judgment. The following facts
are undisputed unless otherwise noted.
Town’s Motion to Dismiss Questions 5 and 6
Because this appeal is de novo rather than on the record, the question of what the
DRB required from Appellant or from any similarly situated applicants is not relevant,
unless Appellant intended to make a constitutional equal protection argument not
1Questions 2 through 6 of the Statement of Questions are posed in terms of whether the
DRB erred in various ways. However, the Town of Woodstock has not adopted the
procedures necessary for appeals from its decisions to be on the record. Compare 24
V.S.A. §§ 4471(b), 4472(a) (third sentence), and V.R.E.C.P. 5(h) (explaining on-the-record
appeals), with 24 V.S.A. § 4472(a) (second sentence), and V.R.E.C.P. 5(g) (explaining de
novo appeals). For the purposes of the present motions, this decision will treat those
questions as if they had been stated in de novo terms. As the appeal is resolved on the
basis of these motions, we will not require Appellant to file a restated Statement of
Questions.
1
explicitly stated in Question 5. See In re Letourneau, 168 Vt. 539, 549 (1998) (regarding
the required showing in an enforcement context as to selective treatment); see also In re
Valois Airplane Storage Application, No. 254-11-07 Vtec, slip op. at 10–11 (Vt. Envtl. Ct.
Sept. 23, 2008) (Wright, J.).
Similarly, because this appeal is de novo rather than on the record, the accuracy
of the DRB’s minutes is not relevant in the present appeal. Appellant does not claim
that this matter should be remanded for the DRB to correct deficiencies in a decision
reflected in the minutes. See V.R.E.C.P. 5(i); e.g., In re Chandler Repair and Home
Industry Application, No. 79-4-07 Vtec, slip op. at 2, 4 (Vt. Envtl. Ct. Feb. 19, 2008)
(Wright, J.).
Accordingly, the Town’s motion to dismiss Questions 5 and 6 must be
GRANTED.
Cross-Motions for Summary Judgment
Appellant owns property located on Golf Avenue in the Residential Five Acre
zoning district; a portion of the property is also located in the Scenic Ridgeline overlay
zoning district. Appellant is an architect who intends to design the single-family house
at issue in the present proceedings.
Development of a single-family dwelling in the Residential Five Acre district (but
not also within an overlay district) requires only an administrative permit to be
obtained from the Administrative Officer. §§ 302(C)(2), 707, 708(B)(2).2 However,
2
All references are to sections of the Town of Woodstock Zoning Regulations, as
amended through August 7, 2007, unless otherwise noted. We note that amendments to
§ 406 of the Zoning Regulations, Scenic Ridgeline Review, were adopted on December
18, 2007; however, neither party suggests that those amendments were applicable to the
August 2007 application at issue in this proceeding. See 24 V.S.A. § 4449(d) (requiring
that applications submitted after the date of public notice for the first public hearing on
an amended zoning ordinance be reviewed under the proposed regulations).
2
development of a single-family residence in the Scenic Ridgeline overlay district also
requires DRB3 action under § 406. One issue raised by the present motions is whether
§ 406 also requires conditional use review for projects in the Scenic Ridgeline overlay
district, §§ 406(D)(1), (2), 708(C), 710, even if such a project is exempt from § 406(F)
scenic ridgeline review due to a non-visibility determination, § 406(E)(2)(a).
In October of 2005, Appellant had received an Administrative Permit (the 2005
Permit) to build a single-family home on a portion of his property that was not in the
Scenic Ridgeline overlay district. However, after receiving this permit, he determined
that the permitted residence would be quite visible from town highways, contrary to his
own wishes and the purposes of the Scenic Ridgeline overlay regulatory scheme.
In August of 2007, Appellant therefore submitted a new application for
conditional use approval4 (the 2007 Plan) to place the house on a portion of his property
within the Scenic Ridgeline overlay district, but placed so that it would be screened
from visibility by what he characterized (in the Project Description appended to his
application) as a “thick wall of mature hemlock trees.” Under the 2005 Permit some of
these trees would have been removed for construction of the house and its driveway.
The 2007 Plan depicts the stand of mature hemlocks with the note: “existing 100 foot
hemlocks to remain as necessary to provide adequate screening.”
The 2007 Plan also depicts the footprint of what is depicted on the plan and
labeled as the “proposed residential building envelope,5” and shows the “limits of
3 The Zoning Regulations still refer separately to the Planning Commission and the
Zoning Board of Adjustment; this decision will refer to the DRB as the Town of
Woodstock now has a DRB.
4 See Appellant’s Ex. 1 at 3. This form, entitled “Overlay Zoning Conditional Use
Support Statement,” was submitted by Appellant as part of his 2007 application.
5
The term “building envelope” is commonly used to indicate a two-dimensional area
laid out on a plan or topographical map. See In re Rouleau Property Appeals, Nos. 231-
12-04 Vtec, 29-2-05 Vtec, 192-9-05 Vtec, 28-2-05 Vtec, 193-9-05 Vtec, slip op. at 4 (Vt.
Envtl. Ct. Nov. 17, 2006) (Wright, J.). The term may be used in the sense of all of the
3
disturbance” as just outside that footprint. Note 6 to the 2007 Plan gives the dimensions
of this “proposed residential building envelope” as “length = 230’, width = 100’, height =
35’.” That is, Appellant provided the maximum extent of the volume of space within
which the building would be constructed.6 He requested in his Project Description that
the Conservation Commission use that maximum volume to determine whether any
portion of it would be visible, as required by § 406(E)(2)(a).
Appellant did not at that time submit the building elevations required for an
administrative permit application by § 708(B)(2)(c), as he was applying first for
conditional use approval and wished to obtain the non-visibility determination at the
outset. He preferred not to design the building until the Conservation Commission
would have determined that the entire potential building volume is not visible from
any Town highway, and therefore that review by the DRB under the Scenic Ridgeline
overlay district criteria in §§ 406(F) and (G) would not be required.
In August of 2007, Appellant submitted the 2007 Plan application to the Zoning
Administrator, who forwarded it7 to the Conservation Commission for the required
visibility determination applicable to projects in the Scenic Ridgeline overlay district
pursuant to § 406(E)(2)(a). Under that section, the Conservation Commission must
surface area of the property within which a building legally could be built, e.g., In re
LaBounty Enters. Variance Application, No. 18-2-06 Vtec, slip op. at 4 (Vt. Envtl. Ct. July
14, 2006) (Durkin, J.), or in the sense of a smaller proposed development area within
which an applicant actually proposes to place a building, e.g., In re Anne C. Rose
Revocable Trust Bldg. Permit, No. 290-12-07 Vtec, slip op. at 3 (Vt. Envtl. Ct. Sept. 30,
2008) (Wright, J.), aff’d, No. 2008-450 (Vt. Mar. 5, 2009) (unpublished mem.). Because
Appellant actually proposed a maximum potential building volume, this decision will
not otherwise use the term “building envelope.”
6
Appellant does not plan to construct a residence that would occupy the entire volume
of this volume of space; the actual residence would occupy only a portion of it.
7 The Zoning Administrator must have determined the application to be complete, as
the time period for § 406(E)(2)(a) action by the Conservation Commission is measured
from “receipt by the Zoning Administrator of a complete application.”
4
determine whether “the proposed land development will be visible to the naked eye
from at least one vantage point on Class I and II town highways, or from at least two
vantage points on Class III town highways, with those vantage points being separated
by at least 500 feet.” This visibility or non-visibility determination is solely within the
jurisdiction of the Conservation Commission under § 406(E)(2)(a); the DRB does not
participate in that determination and the Regulations do not give the DRB any authority
to change, disregard or overrule the Conservation Commission’s visibility8 or non-
visibility determination.
Section 406(E)(2)(a) exempts “land development that will not be visible from any
town highway” from further review under § 406. This is a self-executing provision once
the Conservation Commission makes the determination that the proposed project will
not be visible; that is, it does not require a ruling by the DRB. Section 406(E)(2)(a) then
requires that the Conservation Commission “so report” the non-visibility exemption to
the DRB.
In the present case, after a site visit, the Conservation Commission addressed the
issue of visibility in its September 19, 2007 meeting. While the approved minutes reflect
that some members of the Conservation Commission felt that the application was
incomplete, due to the lack of a “house plan,” others felt that if the site is not visible
then it should not matter if a house plan is submitted or not. The approved minutes
reflect that the Town Planner reported to the Commission that the site cannot be seen
from any town road or state highway. The approved minutes also state that “[t]he area
is heavily forested with a strong band of mature hemlock located due west of the
8 If a development will be visible, the Conservation Commission must go on to prepare
and submit to the DRB a report concerning the development, with recommendations.
§ 406(E)(2)(b),(c). The DRB does have discretion to accept, disregard, or change these
Conservation Commission recommendations. § 406(E)(6). The DRB must review a
visible development under the criteria contained in §§ 406(F) and (G), and may impose
conditions on its approval of a visible development under § 406(H).
5
building envelope. This effectively blocks any possible views from Pine Street or South
Street.” The approved Conservation Commission minutes state that the following
motion passed by a vote of 5-2: “based on the evidence thus far presented this site
appears to be a better site than the current approved administrative permit[,]with
acknowledgement that a building plan was not filed.” While the phrase: “the
C[onservation] C[ommission] per Section 406 E.2 states the proposed site is not visible
from a town road or state highway” was deleted from the draft minutes,9 the DRB’s
September 25, 2007 minutes reflect that the Conservation Commission had reported its
non-visibility determination to the DRB, as follows: “[t]he Conservation Commission,
with a 5-2 vote, felt that the building envelope site is not visible from any town road or
state highway and therefore according to Section 406 E.2 should be exempt from Section
406 and proceed under other applicable regulations.” Attach. to Joint Statement of
Material Facts, Ex. 4, at 2.
At its September 25, 2007 meeting, the DRB determined that the application was
incomplete “due to a lack of floor plans . . . [,] a tree plan, landscape plan[,] and grade
plan,” and stated that “[a]t a minimum, a design and location of structures and a tree
plan . . . are required.” Attach. to Joint Statement of Material Facts, Ex. 4, at 3. The DRB
continued the hearing to give Appellant an opportunity to provide additional
application materials; Appellant declined to do so and this appeal followed.
It is necessary to step back from the particular issues of the present case to
understand the sequencing of the various permits that a given project might require.
All projects, no matter where they are located, require a zoning permit (administrative
permit) to be issued by the Administrative Officer. § 707. However, projects that also
9That is, the phrase appears in the draft minutes, but not in the approved minutes.
Compare Attach. to Joint Statement of Material Facts, Ex. 3, at 3 (draft minutes), with
Attach. to Joint Statement of Material Facts, Ex. 2, at 3 (approved minutes).
6
require site plan approval or conditional use approval must obtain those approvals
from the DRB before the Administrative Officer may issue a zoning permit. §§ 709(A)
(site plan approval), 710(A) (conditional use approval). The application requirements
for a zoning permit (administrative permit) are found in the several subsections of
§ 708(B), depending on the nature of the application. The application requirements for
conditional use approval (and site plan approval) are found in § 708(C).
In some of the overlay zoning districts, additional prior evaluation and approval
is required, and additional application elements are required to allow that prior
evaluation to occur. For example, in the Design Review overlay district, the required
application materials include a detailed scaled drawing illustrating the proposed
construction. § 404. An advisory Design Review Board considers each application
before making recommendations to the DRB, which acts on the Design Review
application according to the criteria found in § 404(F). Design Review approval is
separate from the other approvals, such as site plan approval, that may also be
applicable to a particular project. See § 404(D)(3)(c)(ii) (providing that deemed
approval of a design review decision does not apply to “any additional zoning
requirements that may apply to the” proposed project).
The process is similar in the Scenic Ridgeline overlay district, but featuring the
Conservation Commission rather than the Design Review Board. However, prior to
considering the merits of the application, the Conservation Commission also has the
responsibility for the crucial preliminary step of determining if the project will be
visible from the specified roadways. § 406(E)(2)(a).
In addition, § 406(D)(1) also requires conditional use approval to be obtained for
land development in the Scenic Ridgeline overlay district; § 406(D)(2) allows the
applicant to request concurrent review from the DRB of the conditional use approval
requirements and the scenic ridgeline criteria (for projects that are subject to both
sections). Section 406(D)(1) is entitled “Prohibition Without Approval,” and reads in
7
full as follows:
Notwithstanding any other provisions in these Regulations, except as
hereinafter provided, no land development shall take place in any Scenic
Ridgeline District without the applicant first obtaining conditional use
approval of a plan for such development from the [DRB].
That requirement in § 406(D)(1) contains two modifying initial clauses, which are not a
“model of clarity” in legislative drafting and have resulted in some of the confusion in
the present appeal. E.g., Brattleboro Tennis Club, Inc. v. Vermont Dept. of Taxes, 166
Vt. 604, 605 (1997) (mem.); In re Duncan, 155 Vt. 402, 407 (1990).
Zoning ordinances are construed according to the same rules that are used to
interpret statutes. In re St. Mary’s Church Cell Tower, 2006 VT 103, ¶ 4, 180 Vt. 638
(mem.) (citing In re Nott, 174 Vt. 552, 553 (2002) (mem.)). The Court’s primary goal in
construing an ordinance is to give effect to the intent of the drafters. In re Pierce
Subdivision Application, 2008 VT 100, ¶ 28 (citing Lubinsky v. Fair Haven Zoning Bd.,
148 Vt. 47, 49 (1986)). To determine the drafters’ intent, the Court must first look to the
plain language of the ordinance, In re Handy, 171 Vt. 336, 341 (2000) (citing Town of
Hinesburg v. Dunkling, 167 Vt. 514, 525 (1998)), and should read the ordinance as a
whole in order to give effect to every part, In re Pierce Subdivision Application, 2008 Vt
100, ¶ 28 (citing In re Stowe Club Highlands, 164 Vt. 272, 279 (1995)).
The plain language of § 406(E)(2)(a) exempts only non-visible development from
§ 406 review. § 406(E)(2)(a) (“Land development that will not be visible from any town
highway is exempt from this Section 406 . . . .”). Nothing in the plain language of
§ 406(E)(2)(a) exempts non-visible development from the § 710 conditional use review
required for all development in the Scenic Ridgeline overlay district by § 406(D)(1).
Appellant argues that the “except as hereinafter provided” language of
§ 406(D)(1) exempts non-visible development from § 710 conditional use review as well
as from § 406 Scenic Ridgeline review. This interpretation is not supported by the
overall purpose of § 406, and is not consistent with other provisions of § 406 when read
8
as a whole. See In re Ambassador Ins. Co., 2008 VT 105, ¶ 22 (interpreting statute to be
consistent with the statute’s overall purpose); In re Margaret Susan P., 169 Vt. 252, 262
(1999) (“We interpret the statute as a whole, looking to the reason and spirit of the law
and its consequences and effects to reach a fair and rational result.”).
Most importantly, a proposed development may be exempt from § 406 due to
non-visibility, for example, because a dense belt of trees prevents it from being visible
from the specified roadways, or because the building is set back a certain distance from
the edge of a cliff, or is limited to a single story. Once it is exempt from further review
under § 406, the DRB cannot use the authority of § 406(H) to impose conditions.
Exemption from further review under § 406 therefore cannot also exempt a project from
the requirement of obtaining conditional use approval, because the DRB then would
have no mechanism by which to impose the conditions that resulted in the exemption.
Conditional use review allows the DRB to “attach such additional reasonable
conditions and safeguards as it may deem necessary” to approval of a proposed
development in order “to implement the purposes” of the Regulations. § 710(C). Non-
visible development in the Scenic Ridgeline overlay district requires conditional use
approval in order to ensure that the proposed development remains non-visible after
development. This interpretation of the Regulations avoids an absurd result. See
Bergeron v. Boyle, 2003 VT 89, ¶ 11 n.1, 176 Vt. 78 (citing Springfield Terminal Ry. Co.
v. Agency of Transp., 174 Vt. 341, 348 (2002)) (explaining that courts avoid a statutory
construction that leads to absurd results). Thus, the requirement for obtaining
conditional use approval is the means by which the DRB can ensure that the exemption
conditions will be enforceable into the future. To use the same examples as in the
preceding paragraph, conditional use approval can impose the conditions that the
project be constructed according to certain plans, that a dense belt of trees not be cut
down, that a building be located so that it is set back a certain amount from the edge of
a cliff, or that a building be limited in height or lateral extent.
9
In this way, it gives effect to all sections of the ordinance to interpret the
“hereinafter” of “except as hereinafter provided” as referring only to the remaining
subsections of § 406(D). See In re Pierce Subdivision Application, 2008 Vt 100, ¶ 28
(citing In re Stowe Club Highlands, 164 Vt. 272, 279 (1995)). That is, § 406(D)(1)
prohibits “land development” in the Scenic Ridgeline overlay district without
conditional use approval. The term “land development” is otherwise only defined in
the state enabling statute (adopted by reference for administrative permits in § 707).
For the purposes of § 406(D), land development is more specifically defined by a list of
covered activities in § 406(D)(3). Therefore, to interpret “except as hereinafter
provided” to modify the term “land development” in § 406(D)(1), referring to the types
of land development listed in § 406(D)(3), is a rational interpretation of the ordinance as
a whole. See also In re Curtis, 2006 VT 9, ¶¶ 6, 8, 179 Vt. 620 (mem.) (citing State v.
Teachout, 142 Vt. 69, 73 (1982)) (giving effect to more specific provision of zoning
ordinance over more general provision that could apply to the same activity); In re
Binkhorst Lake Access, No. 286-12-07 Vtec, slip op. at 5–6 (Vt. Envtl. Ct. Mar. 9, 2009)
(Wright, J.).
Under this interpretation, § 406(D)(1) requires conditional use review for all
proposed projects in the Scenic Ridgeline overlay district that meet the more specific
definition of “land development” in § 406(D)(3). The “except as hereinafter provided”
language in § 406(D)(1) does not refer to any of the provisions of § 406(E), so that it does
not exempt non-visible development from conditional use review. Therefore, an
application for development in the Scenic Ridgeline overlay district that meets the
definition of “land development” in § 406(D)(3), such as the application submitted by
Appellant in the present appeal, requires conditional use approval under § 710. As the
Conservation Commission has determined that Appellant’s proposed development will
not be visible under § 406(E)(2)(a), scenic ridgeline review under § 406(F)–(H) is not
required.
10
With regard to the completeness of the application, it is necessary to examine the
separate application requirements necessary for the scenic ridgeline visibility
determination, for conditional use approval, and for the zoning permit (administrative
permit).
A complete application for scenic ridgeline review does not require prior
application for the zoning permit (administrative permit). It does require the applicant
to submit an application for conditional use approval (§§ 710, 708(C)), as well as the
elements required by § 406(E)(1): the location of the proposed land development, in
relation to the district and the topography; a to-scale map or sketch of the property,
with the area to be developed clearly indicated; a detailed description, including the
type and extent of the proposed development; a utility plan; and a tree plan, showing
where trees will remain, be thinned, and be removed.
Appellant provided all of the elements10 required by § 406(E)(1) in the present
application, thereby allowing the Conservation Commission to make the non-visibility
determination. Appellant provided three different site plans, which together meet the
requirements of §§ 406(E)(1)(b), (c), and (e), as well as the detailed description required
by § 406(E)(1)(d). Appellant provided the Conservation Commission with a maximum
potential building volume, that is, a three-dimensional block of space within which the
building would be proposed to be built; this showed the complete “extent11 of proposed
10 In terms of the utility plan required by § 406(E)(1)(f), the 2007 Site Plan shows the
location of the proposed driveway and the approved septic sites. Most of the driveway
depicted on the 2007 Site Plan is not located within the Scenic Ridgeline overlay district.
The parties do not discuss in their memoranda whether a more detailed utility plan was
needed by the Conservation Commission to make the visibility determination.
11
A two-dimensional building envelope would not have been sufficient for the
Conservation Commission to carry out its task, because it would not show the potential
height of the volume of space, from which the Conservation Commission could
determine whether it would be visible.
11
development” required by § 406(E)(1)(d).12 The method used by Appellant of providing
a maximum potential building volume was sufficient for the Conservation Commission
to make the visibility determination required by § 406(E)(2)(a).
Appellant may not have provided all the elements required by § 708(C) for the
DRB to perform conditional use review; it is ordinarily for the DRB to determine if it
requires more information for that purpose. The tree plan provided by Appellant may
not be sufficient for the purposes of conditional use review or the establishment of
enforceable screening conditions as to the extent to which trees will remain or be
removed from the screening stand of hemlocks. Furthermore, if Appellant provided a
site plan depicting proposed “landscaping, fencing, and screening,” § 708(C)(3)(d); a
“[c]onstruction sequence and time schedule for completion of each phase,” § 708(C)(4);
and confirmation of on-site septic approval from the Town and the State, § 708(C)(5),
these materials have not been provided to the Court. The DRB, and hence this Court in
a de novo appeal, may require additional information pursuant to § 708(C)(3)(d) and
§ 708(D).
On the other hand, nothing in the applicable version of the Zoning Regulations
requires an applicant to submit an application for the administrative permit prior to or
concurrently with an application for conditional use approval. Rather, the DRB’s work
on conditional use approval (or on site plan approval for projects that require it) must
be completed before the administrative officer may rule on the zoning permit
(administrative permit) application. §§ 709(A), 710(A). Although ordinarily an
applicant submits all the applications concurrently, an applicant is entitled to postpone
the submittal of the final zoning permit application until after obtaining the other
prerequisite approvals from the DRB. See §§ 707, 708(B). For a single-family dwelling,
12The site plan showed the extent of disturbance of the trees on the site as being
coterminous with the lateral extent of proposed development, and showed the stand of
mature hemlocks proposed to be retained as necessary to block visibility.
12
it is only in § 708(B)(2)(b) and (c) that a site plan showing the location of all proposed
structures, and an “[e]levation plan (showing all sides of building)” is required. The
materials required by § 708(B)(2) must be submitted by Applicant to obtain an
administrative permit before the proposed residence can be constructed, but they were
not necessary to the Conservation Commission’s determination of visibility under
§ 406(E)(2)(a), nor are they required to be submitted prior to conditional use review
under the applicable versions of §§ 708(C) and 710.
Accordingly, based on the foregoing, it is hereby ORDERED and ADJUDGED
that the Town’s Motion to Dismiss Questions 5 and Question 6 is GRANTED.
Both parties’ Motions for Summary Judgment are GRANTED in part and
DENIED in part, as follows:
As to Question 1, Appellant’s application met the requirements of
§ 406(E)(2)(a) for a determination of non-visibility, and therefore does not require
further review under § 406(F), but Appellant’s application requires conditional
use approval prior to its being considered for an administrative permit from the
Administrative Officer under § 302(C)(2).
As to Questions 2 and 4, summary judgment is GRANTED to Appellant;
the application was complete to the extent required for the Conservation
Commission to make its visibility determination under § 406(E)(2)(a), and with
regard to the minimum requirements of § 708(C) for conditional use approval,
although the DRB may require additional information in the context of
conditional use approval. § 708(D).
As to Question 3, summary judgment is GRANTED in part to Appellant,
in that it is the Zoning Administrator who has authority to determine whether an
application under § 406 is complete to the extent required for the Conservation
Commission to make a visibility determination under § 406(E)(2)(a), but in part
13
to the Town, in that the DRB has the authority to determine whether an
application for conditional use approval is complete.
This decision appears to conclude the issues raised by the Statement of Questions
in this appeal. However, while consideration of an application for conditional use
approval must ordinarily be performed by the DRB prior to its consideration by this
Court, Appellant’s 2007 application was an application for conditional use approval, see
n. 4, supra, which the DRB should have proceeded to consider13 as soon as it received
the non-visibility determination from the Conservation Commission. Accordingly, a
telephone conference has been scheduled (see enclosed notice) to determine whether
Appellant wishes to proceed in this Court with the conditional use application, or
whether the case should be concluded in this Court and remanded for the DRB to rule
on the conditional use application, and for the Administrative Officer thereafter to rule
on an application for the zoning permit (administrative permit). Please be prepared to
discuss at the conference the application requirements for both remaining approvals,
whether there is any disagreement as to which version of the Zoning Regulations is
applicable, and whether mediation may now be appropriate in this matter.
Done at Berlin, Vermont, this 6th day of April, 2009.
_________________________________________________
Merideth Wright
Environmental Judge
13 Under the regulations applicable to the 2007 application.
14