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ENVIRONMENTAL
COURT
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In re: Mad River Valley
Ambulance Service &=
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(Appeal of Siebert and Law=
son) =
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Docket
No. 137-7-05 Vtec
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p;
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Decision
and Order on Motions to Dismiss and for Summary Judgment
Appellants Kirsten Siebert and Sandy Lawton appealed fr=
om a
decision of the Planning Commission of the Town of Waitsfield dated June 2=
3,
2005, approving Appellee-Applicant Mad River Valley Ambulance Service=3Ds application to amend three conditions of its 1999
permit. Appellants are
represented by Paul Gillies, Esq.; Appellee-Applicant Mad River Valley
Ambulance Service is represented by John W. O=3D
Appellee-Applicant has moved to dismiss the appeal for =
lack
of standing of both Appellants and for raising issues beyond the scope of =
the
Planning Commission=3Ds proceedings.
Appellants have moved for summary judgment on the issue of party st=
atus
and also arguing that the Planning Commission was without jurisdiction to =
amend
conditions in the permit, which they characterize as a conditional use
permit. All references to st=
atutory
sections are to the statutes as amended in 2004. The following facts are undisputed
unless otherwise noted.
Standing of Appellants Kirsten Siebert and Sandy Lawson=
Appellants both reside at 4199 Main Street, adjacent to
Appellee-Applicant=3Ds facility. No
party disputes that they meet the interested person definition in 24 V.S.A=
. '4465(b)(3).
However, in order to bring an appeal to the Environmental Court, 10
V.S.A. '8504(b)(1), an interested person must also satisfy the
participation requirements of 24 V.S.A. '4471(a).
Participation is defined in 24 V.S.A. '4471(a) as consisting of Aoffering, through oral or written testimony, evidence o=
r a
statement of concern related to the subject of the proceeding.@
As appears from the minutes at page 4, Appellant Kirsten
Siebert attended the October 6, 2004 public hearing and testified at that
hearing.
On the other hand, while Mr. Lawton qualifies as an
interested person under 24 V.S.A. '4465(b)(3), he did not participate in the proceedings b=
elow
as required by 24 V.S.A. '4471(a) and 10 V.S.A. '8504(b)(1). The written
submission made by Appellant Kirsten Siebert was signed only by her; Mr. L=
awton
has not proffered any instances of written or oral submissions made by
him. Accordingly, he has not=
met
the participation requirement to qualify as an appellant under 24 V.S.A. <=
/span>'4471(a).
However, the requirement that a party have participated=
in
the hearing below, 24 V.S.A. '4471(a), is only a prerequisite for bringing an appeal;=
it
is not required in order to participate as an interested person in an appe=
al
brought by another, 10 V.S.A=
. '8504(b)(1). See,
e.g., Appeal of Sparkman, Docket No. 208-11-04 Vtec (Vt. Env=
tl.
Ct, March 7, 2005) (entry order, cited in published decision of March 22, =
2005)
(parties dismissed for lack of standing allowed to apply in writing to Acontinue as interested parties in the Sparkman appeal if
they only meet 24 V.S.A. ' 4465(b)(3)@).
Appellee-Applicant=3Ds motion to dismiss Mr. Lawton as a party appellant is
HEREBY GRANTED, without prejudice to his applying to continue in the appea=
l as
an interested party.
Standing of Roberta Bonnette and Jean Sherman
These two parties entered their respective appearances =
as
interested persons after the appeal was filed; they did not file the appea=
l as
parties appellant. Accordingly, their&nbs=
p;
failure to present the required Astatement of concern@ regarding this application at the hearings would not of
itself bar them from participating in the appeal brought by Appellants, as=
long
as the appeal is not dismissed for other reasons.
On the other hand, any interested person must demonstra=
te
the requisite interest for individual standing under 24 V.S.A. '4465(b)(3).
Without knowing the location of these individuals=3D properties or how they may be alleged to be affected b=
y the
proposed project, we cannot determine whether they may have or lack standi=
ng to
participate in the appeal. A=
ccordingly,
Appellee-Applicant=3Ds motion to dismiss them is DENIED on the ground stated=
, but
without prejudice to its renewal on other grounds, if applicable. Please be prepared to discuss at =
the
conference whether any discovery is required to address such renewed motio=
n.
Scope of De Novo Proceeding; Jurisdiction of the Planni=
ng
Commission
Appellee-Applicant has moved to dismiss on the grounds =
that
the four issues raised in the statement of questions were not raised to the
Planning Commission, or not raised by Appellants. Appellants have moved for summary
judgment on the grounds that the Planning Commission had no jurisdiction of
this application, as it was or should have been filed with the Zoning Boar=
d of
Adjustment as an application to amend a conditional use permit.
This Court stands in the place of the Planning Commissi=
on,
and may take whatever action on the application that the Planning Commissi=
on
could have taken regarding the application before it. Issues regarding the Planning Com=
mission=3Ds subject-matter jurisdiction (and hence the jurisdicti=
on of
the Court in this de novo appeal), may be raised at any time=
.
However, without the application that was before the
Planning Commission we are unable to determine what action was requested o=
f the
Planning Commission, and therefore whether that request was properly withi=
n the
Planning Commission=3Ds jurisdiction.
That is, if the conditions that Appellee-Applicant is seeking to ch=
ange
originated in the Planning Commission=3Ds site plan approval, it is possible that they need to =
be
ruled on by the Planning Commission as an amendment to the site plan appro=
val,
in advance of (or instead of) the ZBA=3Ds consideration of those issues in connection with
conditional use approval.
Accordingly, we do not now rule on the Motion to Dismis=
s or
on the Motion for Summary Judgment on these issues. On or before December 8, 2005,
Appellee-Applicant shall submit copies of the original site plan approval
decision (or minutes), original conditional use approval decision(or minut=
es),
and zoning permit, as well as the current application (without
attachments). We will hold a
telephone conference on December 12, 2005, (see enclosed notice) to discus=
s the
issues remaining in the present motions, including whether this appeal sho=
uld
proceed as the appeal of the Planning Commission=3D
Accordingly, based on the foregoing, Appellee-Applicant=
=3Ds Motion to Dismiss the appeal for lack of party status=
is
DENIED, because its Motion to Dismiss Kirsten Siebert as an appellant is
DENIED. Appellee-Applicant=3Ds Motion to Dismiss Sandy Lawson as a party-appellant is
GRANTED, but Mr. Lawson is free to intervene as an interested party in the
Siebert appeal. Appellee-App=
licant=3Ds Motion to Dismiss Roberta Bonnette and Jean Sherman as
interested persons is DENIED, without prejudice to the motion=3Ds renewal on grounds related to standing as an interest=
ed
person under 24 V.S.A. '4465(b)(3). The
remaining motions will be discussed at the December 12, 2005 conference.
Done at Berlin, Vermont, this 1st day of
December, 2005.
_________________________________________________
Merideth Wright
Environmental Judge
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