                                      State of Vermont
                           Superior Court—Environmental Division

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                           ENTRY ORDER
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B & M Realty Act 250 Application                                  Docket No. 103-8-13 Vtec
(B & M Realty’s Appeal of District 3
Environmental Commission Decision)

Title:   Applicant’s Motion to Amend Statement of Questions (No. 2)
Filed: October 1, 2013
Filed By: B & M Realty, LLC
Response by Two Rivers-Ottauquechee Regional Commission filed October 10, 2013
Reply by B & M Realty, LLC filed October 28, 2013


Title: Applicant’s Motion for Enlargement of Time (No.1)
Filed: September 30, 2013, revised November 15, 2013
Filed By: B & M Realty, LLC
Response: None

 X Granted                                  Denied                           Other

       B & M Realty, LLC (Applicant) has appealed the July 3, 2013 decision of the District 3
Environmental Commission (Environmental Commission) denying an Act 250 permit for the
construction of nine commercial buildings and one residential building in Hartford, Vermont.

                           Motion to Amend Statement of Questions

        In its appeal, Applicant presented six questions for the Court’s review. On August 9,
2013, Applicant filed a corrected Statement of Questions containing 10 questions. Pending
before the Court is Applicant’s October 1, 2013 motion to amend its Statement of Questions by
adding eight questions, removing four, and revising several others, for a total of 14 questions.

        Interested Person Two Rivers-Ottauquechee Regional Commission (Regional
Commission) asks the Court to deny Applicant’s motion to amend as to Question 11 which
states:

         Whether the [Two Rivers-Ottauquechee Regional (TROR)] 2003 Plan, the TROR
         2007 Plan, and/or the TROR 2012 Plan were appropriately ratified and approved
         by the Two Rivers-Ottauqueechee Regional Planning Commission (the “TROR
         Commission”) and, if not, whether such Plans are applicable under Act 250
         criterion 10.
B & M Realty A250 Applic., 103-8-13 Vtec (EO re Motion to Amend SOQ) (11-26-13)                Pg. 2 of 3


          The Regional Commission argues that Question 11 is inappropriate at this stage because
  the issue was not raised in the Environmental Commission proceeding and the two-year statute
  of limitations for challenging the procedural validity of the 2003 and 2007 plans addressed by
  the question has run. (Two Rivers-Ottauquechee Reg’l Comm’n’s Mem. in Opp. to Appellant’s
  Mot. to Amend at 1, filed Oct. 10, 2013); see 24 V.S.A. § 4483(b) (limiting actions alleging
  procedural defects in any plan or bylaws to two years). Because of the expired time limit, the
  Regional Commission argues, adding Question 11 will also result in an unwarranted use of
  resources by the Court and parties.

          “Like motions to amend a complaint under V.R.C.P. 15, motions to amend a Statement
  of Questions are to be liberally granted, so long as they do not prejudice the other party . . . .” In
  re Ridgewood Estates Homeowners’ Ass’n & Indian Creek Homeowners’ Ass’n, No. 57-4-10
  Vtec, slip op. at 7 (Vt. Super. Ct. Envtl. Div. Jan. 26, 2011) (Wright, J.). Prejudice may occur, for
  example, “where a motion to amend is submitted after trial, after a statement of questions [has]
  already been amended, or after a motion for summary judgment was denied.” In re All Metals
  Recycling, Inc. Discretionary Permit Application, No. 171-11-11 Vtec, slip op. at 10 (Vt. Super.
  Ct. Envtl. Div. Apr. 23, 2012) (Walsh, J.). Moreover, “a motion to amend is “typically granted
  when it ‘is neither frivolous nor made as a dilatory maneuver or in bad faith.’” Verizon Wireless
  Barton Act 250 Permit Telecomms. Facility, No. 6-1-09 Vtec, slip op. at 11 (Vt. Envtl. Ct. Feb. 2,
  2010) (Durkin, J.).

          Regardless of Question 11’s merit, we are directed to liberally grant its addition absent a
  showing of prejudice, frivolousness, or bad faith. The Regional Commission has not shown
  how it will be prejudiced by the addition of Question 11 at this early stage of the case. The
  parties are in the middle of discovery and therefore have time and opportunity to address this
  issue. Moreover, this amendment leaves sufficient time for any related pretrial motions, now
  due April 15, 2014 pursuant to this Entry Order, over six months after Applicant’s motion to
  amend. The Regional Commission also fails to present any evidence to support a claim that
  Question 11 is frivolous or made in bad faith. The question relates to the project’s conformance
  with a regional plan under Criterion 10, an issue raised below, and is therefore relevant to this
  appeal. Furthermore, an opposition to a motion to amend the Statement of Questions is not the
  appropriate means for arguing that a question is time barred.

         Because the addition of Question 11 will not prejudice the Regional Commission, and
  the Regional Commission has not shown that the question is frivolous or a product of bad faith,
  Applicant’s motion to amend as to Question 11 is GRANTED. We also GRANT Applicant’s
  motion to amend as to the remaining 13 questions which are unopposed.
B & M Realty A250 Applic., 103-8-13 Vtec (EO re Motion to Amend SOQ) (11-26-13)                 Pg. 3 of 3


                                        Motion to Continue

         Also pending before the Court is Applicant’s unopposed motion to revise the pre-trial
  schedule to extend the discovery and pre-trial motion deadlines by four months. Applicant’s
  motion to move the discovery deadline to January 26, 2014 and pre-trial motion deadline to
  April 15, 2014 is GRANTED.


  _________________________________________                           November 26, 2013
         Thomas G. Walsh, Judge                                          Date
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  Date copies sent: ____________                                    Clerk's Initials: _______
  Copies sent to:
      Christopher D. Roy, Esq. and Paul S. Gillies, Esq., Attorneys for Applicant
      Robert E. Woolmington, Esq., Attorney for Two Rivers-Ottauquechee Regional Commission
      Melanie Kehne, Esq., Attorney for the Natural Resources Board
      Interested Person Carol Rataj
      Interested Person David Rataj
