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)

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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<in, J.). `

While Appellant did not submit his motion requesting party status along with
his notice of appeal, he did file such a motion shortly thereafter (within 15 days) along
With his Statement of Questions. We conclude that it is within our discretion to
accept Appellant’s motion and take up Appellant’s request for party status. See
V.R.E.C.P. 5(b)(1) (“Failure of an appellant to take any [required procedural] step other
than the timely filing of the notice of appeal does not affect the validity of the appeal
but is ground only for such action as the court deems appropriate, which may include
dismissal of the appeal.”). We do not find Appellant’s error fatal here because he acted
quickly to remedy his omission by submitting a motion seeking party status under
these additional criteria.1 Appellant’s motion put the other parties in this appeal, and
the Court, on clear notice of Appellant’s intentions and provided the other parties with
the opportunity to respond to his motion. Cf. In re Waitsfield Public Water Svstem Act
250 Permit, No. 33-2-10 Vtec, slip op. at 7-9 (Vt. Super. Ct. Envtl. Div. Nov. 2, 2010)
(Durkin, J.) (finding that a prospective appellant had failed to preserve her right to
appeal under particular Act 250 criteria due to her failure to submit a motion
requesting party status under the criteria or a motion requesting an extension of time
in which to do so).

Turning to Appellant’s request, we now ask Whether a “condition exists which
would result in manifest injustice” if we do not allow Appellant to raise his arguments
under criteria 5 and Q(B) for the first time in this appeal, even though he chose not to
do so in the District Commission proceedings 10 V.S.A. § 8504(d)(2)(C). Few
appellants have asked the Court to apply this exception, and it appears to be a
question of first impression for the Court as to how the exception applies in a situation
such as this one: where an appellant Who secured party status from the District
Commission as to some criteria, participated in the discussion of those criteria in the
proceedings below, and chose not to request party status under other Act 250 criteria
(and did not receive it from the District Commission), now seeks that omitted party
status for the first time on appeal. v

Applicant argues that because Appellant did not request party status from the

District Commission as to criteria 5 or 9(B), his current request for party status

 

1 Applicant does not challenge Appellant’S standing under Act 250 criteria l(air), l(B), l(D), l(F), 4, 8, and 9(E).

should be denied. Applicant has not provided any legal citations supporting this
argument, however, and we find nothing in the statute that unconditionally forecloses
a prospective appellant from requesting party status from the Court when that party
has failed to request it below, Instead, § 8504(d)(2)(C) gives this Court the discretion
to allow an appeal by an aggrieved person who did not receive party status below if
“some other condition” is identified that would result in “manifest injustice” were party
status denied in the appeal proceedings

Our Supreme Court has stated, in reference to a subsection of § 8504 that
establishes requirements for appealing decisions of municipal panels, that the
“determination of party status under [10 V.S.A. § 8504(b)(2)] is discretionary . . . and
this discretion is vested in the trial court.” ln re Verizon Wireless Barton Permit, 2010
VT 62, 11 19. We find this interpretation applicable to § 8504(d)(2), whose language
closely aligns with that of § 8504(b](2). Exercising this discretion, we ultimately
conclude, for the reasons discussed below, that the application of § 8504(d)(2)(C) is not
warranted in this instance because Appellant has failed to show that manifest
injustice will result if he is not allowed to include in his appeal issues pertaining to

criteria 5 and 9(E).

I. Is Appellant entitled to party status under criteria 5 and 9(B)?

In determining Whether the exception in § 8504(d)(2)(C) is applicable here, we
first assess whether Appellant has presented sufficient evidence for us to conclude
that he is entitled to party status under criteria 5 and 9(E). Without such a showing,
Appellant cannot invoke the exception in § 8504(d)(2), since an aggrieved person who
lacks party status cannot appeal the issuance of a state land use permit. A majority
of both Appellant’s and Applicant’s filings focus on whether Appellant has party status
under criteria 5 and 9(B), but it is important to note that while being entitled to party
status is a necessary pre-condition for invoking § 8504(d)(2), it is not a sufficient
condition, by itself, to evidence manifest injustice and thereby warrant application of
the exception.

As stated above, party status, as used here, is a term of art indicating that a
party falls Within the categories of persons and entities who can appeal the issuance of
a state land use permit, Although Appellant does not specify the category under
which he is seeking party status, it is implicit from his filings that he is seeking to

qualify as a party under the final subsection, which provides that “any adjoining

property owner or other person who has a particularized interested protected by this
chapter that may be affected by an act or decision by a district commission.” 10
V.S.A. § 6085(0)(1)(E).

Appellants may qualify for party status under this subsection if they show (1)
that they have a particularized interest; (2) that this interest is protected by the Act
250 criteria for which they are seeking party status; and (3) that this interest may be
affected by the District Commission’s issuance of the state land use permit now under
appeal, See In re Pion Sand & Gravel Pit, No. 245-12-09 Vtec, slip op. at 7 (Vt. Super.
Ct. Envtl. Div. July 2, 2010) (Durkin, J.). The test we apply to determine whether the
interests Appellant alleges are particularized to him is the same test we apply in a
standing analysis_the Court asks whether the interests alleged are specific to
Appellant or are generalized concerns shared by members of the general public. See
Q.; In re Champlain Marina, Inc., Dock Expansion, No. 28-2-09 Vtec, slip op. at 5~7
(Vt. Envtl. Ct. July 31, 2009) (Durkin, J.). Appellant must also provide an offer of
proof that shows how the particularized interests he alleges may be affected by the
issuance of the state land use permit; in other words, he must refer to evidence that
demonstrates a non-speculative causal connection between the proposed project and
the particularized interests he claims are protected by the criteria in question. See
Pion Sand 85 Gravel Pit, No. 245-12-09 Vtec, slip op. at 7 . We therefore turn our focus
to the impacts Appellant alleges and the specific legal analysis employed under criteria
5 and Q(B).

A. Criterion 5

Criterion 5 requires that a project “will not cause unreasonable congestion or
unsafe conditions with respect to the use of highways . . . and other means of
transportation existing or proposed.” 10 V.S.A. § 6086(a)(5). Regarding criterion 5,
Appellant argues that he owns property along Route 100, Where he alleges trucks
associated With the project travel, and that he is concerned that the level of the
project-associated traffic will have safety, noise, dust, and aesthetic impacts on his
property and affect his enjoyment of, and investment in, his property. He also alleges
that there is an exit onto Route 100 from his property that cars and farm equipment

use as they travel to and from his property.2

 

2 From this allegation we are left to presume that Appellant believes that this intersecting traffic will be adversely
impacted by the traffic from the proposed proj ect, but he provides rio specific factual allegations in this regard.

Appellant also expresses concern that project~associated traffic on Route 100
and the other local roads will make these transportation routes congested and unsafe
for others, including cyclists, school buses, and motorists A final reason Appellant
argues he should have party status under criterion 5 is because, he asserts, the
District Commission relied upon unsubstantiated and inconsistent claims by
Applicant when it decided to approve the application and issue Applicant a state land
use permit,

Some of Appellant’s alleged interests are clear examples of generalized interests
not warranting a grant of party status T hese include the general concerns Appellant
expresses on behalf of others for road congestion and safety and his allegations as to
errors in the District Commission’s analysis Appellant fails to show how these harms,
if they exist, could impact him in a manner distinct from other members of the general
public. b

The other traffic-related interests Appellant alleges also fall short of being
sufficient to show he has a particularized interest to protect; in order for the Court to
conclude that Appellant himself may be impacted in a manner particular to him, we
would have to assume a number of factual allegations that Appellant neither explicitly
asserts nor supports with an offer of proof. First, Appellant alleges that his property is
along one of the transportation routes for project-associated traffic, Route 100, and
that his property has an exit onto Route 100. However, he fails to indicate how
regularly he uses this exit and section of Route 100, and he offers little factual
foundation for his rejection of Applicant’s representation that traffic from its project
site will travel north on Route 100 and away from Appellant’s property rather than
towards or past his property. Cf. Pion Sand 85 Gravel, No. 245-12-09 Vtec, slip op. at
14 (“In determining whether party status is appropriate [under criterion 5], ‘the
relevant inquiry is whether the petitioner uses the roads that may be impacted by a
project on a regular basis.”’) (quoting Re: Pike Industries, Inc., No. 5Rl4l5-EB, Mem.
of Decision, at 2 (Vt. Envtl. Bd. Nov. 19, 2004)).

It is unclear from Appellant’s filings whether there are other roads offering
egress and ingress from Appellant’s property. Cf. Q. (“Neighbors have demonstrated
that they use Route 100 on a regular basis because it provides the sole access to their

property . . . .”). lt is also unclear What impacts Appellant believes the project will

have on his travel on Route 100.3 Cf. id. (“[Neighbors] have established that the daily
addition of forty-five one-way heavy truck trips on Route 100 may affect safe access to
their property. Further, Neighbors’ expert . . . concluded . . . that the proposed . . .
sight distance planned for the project’s access point to Route 100 may be an
inadequate stopping distance for established vehicle speeds.”). Thus, Appellant fails to
distinguish his interest in using Route 100 from that of the general public.

Second, Appellant asserts that his enjoyment of, and investment in, his
property will be impacted by project-associated traffic. However, he does not indicate
how. He refers to safety impacts without further explanation of what these impacts
are and how we may conclude that they may be adverse, and his reference to dust,
noise, and aesthetic impacts do not appear relevant under criterion 5 without further
discussion of how they relate to the statutory triggers: “unreasonable congestion [and]
unsafe conditions.” 10 V.S.A. § 6086(a)(5). Without more information and evidence
we are left to conclude that any traveller or property owner along the length of Route
100 where project-associated traffic may pass will face the same potential impacts
Appellant now claims Thus, Appellant has failed to show that he has a particularized

interest supporting the grant of party status under criterion 5.

B. Criterion 9(B)

Criterion Q(B) addresses primary agricultural soils and requires an applicant to
demonstrate, among other things, that its proposed project “either . . . will not result
in any reduction in the agricultural potential of the primary agricultural soils; or . . .
will not significantly interfere with or jeopardize the continuation of agriculture . . . on
adjoining lands or reduce their agricultural . . . potential.” 10 V.S.A. § 6086(a)(9)(]3).
In relation to criterion 9(B), Appellant argues that he owns a farm abutting Applicant’s
property which he is currently leasing to a sheep farmer while he completes a degree
program overseas I-le states that he is the President of Three Owls Farm Company
and maintains a license for a cheese facility in Vermont. Appellant also alleges that he
has purchased hay grown on Applicant’s land, that Applicant’s land has been hayed
recently, and that he has previously requested the ability to graze sheep on Applicant’s

land.

 

3 lnstead of identifying a potential irnpact, Appellant states that there “seems to have been no analysis of traffic
impacts along truck routes” by the District Commission. (See Supplemental Inforrnation on Mot. for Party Stat_us 4,
Eled Apr. 13, 2011.)

Appellant expresses concern that the proposed project, and Applicant’s current
unpermitted activities, have and will further limit his and other farmers’ ability to farm
sustainany and efficiently in this region. I-le states that there is not a great deal of flat
agricultural land in the area, which he describes as a small, narrow valley, and that
the project will create a loss in agricultural potential because it will preclude the
primary agricultural soils on the project property from being used for agriculture in
the future. He is concerned there will not be enough agriculturally viable land to
maintain a local source of hay, corn, and vegetables or to graze animals without facing
high trucking costs He states that he has had to truck in hay and that it is expensive
to do so. As with criterion 5, Appellant also argues he should have party status under
criterion Q(B) because the District Commission relied upon unsubstantiated and
inconsistent claims by Applicant when it decided to issue Applicant a state land use
permit

Appellant has provided sufficient allegations and a sufficient offer of 'proof to
demonstrate that he has particularized interests protected under criterion 9(B) that
may be impacted by the issuance of a state land use permit to Applicant. Appellant
declares a sincere interest in both the protection of primary agricultural soils on the
site of the proposed project as well as the viability of agricultural operations on his
own adjoining property. In an appeal where similar interests were asserted under
criterion 9, this Court concluded that the appellant had made a sufficient showing of a
“protectable” interest under criterion 9(E). See ln re Morgan Meadows/Black Dog
Realtv Subdivision Act 250 Permit, No. 267~12-07 Vtec, slip op. at 7-9 (Vt. Envtl. Ct.
Dec. 1, 2008) (Wright, J.).

Appellant also describes how the project might impact the interests that
concern him: he asserts that development on the project site has already and will
continue to reduce the amount of nearby land available for farming, particularly for
growing hay and grazing animals This impact, Appellant asserts, is particularly
adverse because there is already limited agricultural land in the area. He discusses
how this loss could impact his own operations by forcing him to seek more distant
places to graze his animals and for sources of animal feed as well as by raising his
costs for operation.

Appellant’s offer of proof comes in the form of statements that the project site

contains primary agricultural soil, that he has previously purchased hay grown on the

site, and that he has sought use of the site for grazing animals He also indicates that
he has trucked in hay, which he asserts is expensive. While we would prefer to see
Appellant’s assertions in affidavit form, rather than simply in signed memoranda, we
view his statements as providing a sufficient offer of proof in regards to party status:
Appellant describes specific acts he has taken, the accuracy of which is rooted in
personal knowledge rather than speculation, that concretely demonstrate a causal
connection between the proposed project and Appellant’s alleged interests Cf. ln_re

RCC Atlantic lnc., No. 163-7-08 Vtec, slip op. at 8~9 (Vt. Envtl. Ct. May 8, 2009)

 

(Durkin, J.) (concluding that the prospective appellants had failed to provide a
sufficient offer of proof in the context of requesting party status because they
neglected to reference any specific evidence in the form of credible documentation or
an affidavit describing a factual basis for their concerns).

We note that some of Appellant’s allegations reference generalized interests that
do not support a grant of party status (e.g., his allegations as to errors in the District
Commission’s analysis). However, because we find that his other assertions provide a
sufficient showing of particularized interests that may be impacted by this project, we
conclude that Appellant is entitled to party status under criterion 9(B).

To summarize, we are unable to conclude that Appellant has a particularized
interest that supports his assertion that he is entitled to party status under criterion
5. While Appellant expresses concerns that appear genuine about the impact of the
project-associated traffic on the safety and congestion of the local roads, he has failed
to show how these impacts affect him particularly, as distinct from the general public.
He has, however, shown that he has a particularized interest that supports his
assertion that he is entitled to party status under criterion 9(B).

We turn now to an analysis of whether additional conditions exist that, when
combined With Appellant’s showing that he is entitled to party status under criterion
Q(B), would create manifest justice were we to disallow Appellant from pursuing his

appeal of criterion 9(B) issues

II. Will manifest injustice result?

Appellant asks that we exercise the discretion afforded this Court in 10 V.S.A.
§ 8504(d)(2)(C) to allow him to maintain his appeal under Act 250 criterion Q(B), even
though he chose not to request or otherwise'secure that additional party status in the

proceedings before the District Commission. As discussed above, if not for the

10

exceptions found in § 8504(d](2), Appellant’s failure to secure party status as to
criterion 9(B) below would definitively foreclose his right to raise issues under that
criterion in his appeal, See 10 V.S.A. § 8504(d)(1)(“No aggrieved person may appeal an
act or decision that was made by a district commission unless the person was granted
party status by the district commission . . . , participated in the proceedings before the
district commission, and retained party status at the end of the district commission
proceedings.”). Appellant asserts that he should be permitted to raise issues under
criterion 9(B) in this appeal because to do otherwise would result in “manifest
injustice,” triggering the exception in § 8504(d)(2)(C). For the reasons stated below,
however, we conclude that Applicant has failed to present a sufficient showing to
establish that such manifest injustice will occur.

“Manifest injustice” is a term used in a variety of legal discussions, but those
discussions rarely provide a definition for the term, and the parties here have not
offered their understanding of the definition for the term as used in § 8504(d)(2)(C).
One reference source defines the term as “[a]n error in the trial court that is direct,
obvious, and observable, such as a defendant’s guilty plea that is involuntary or that
is based on a plea agreement that the prosecution rescinds.” Black’s Law Dictionary,
982 (Sth ed. 2004). From this reference and our review of the instances in which the
term has arisen in Vermont case law, we understand that “manifest injustice” presents
extraordinary circumstances where some mistake of fact or law will cause a significant
harm or loss of rights to a party if not remedied. We need not rely too heavily on a
particular definition, however, as the record before us reveals no circumstances that
lead us to believe Appellant will face any serious injustice by not being able to raise
issues under criterion Q(B) in this appeal.

Appellant’s main, and perhaps sole, assertion as to why there will be manifest
injustice if he is not allowed to raise arguments under criterion 9(B) appears to be that
the District Commission’s analysis under the criterion is faulty and that, therefore, its
ruling is itself manifestly unjust. We have found no legal support for this argument,
Simply because a party cannot challenge a district commission decision that the party
believes has faulty factual findings or legal conclusions does not evidence manifest
injustice; anyone seeking to appeal a district commission decision is asserting some
fault with the decision. Were we to adopt Appellant’s argument, any non-participating

parties who wish to appeal from a district commission decision need only allege that

ll

they disagree with the decision to make an end run around the standing requirements
carefully enumerated in 10 V.S.A. § 8504(d)(1). We cannot support such a direct
contradiction of the statutory provisions restricting the right to appeal to those who
have secured party status and participated in the district commission’s discussion of
that specific Act 250 criterion. See 10 V.S.A. § 8504(d)(l).

When assessing whether there is a risk of manifest injustice here, we take into
account the undisputed fact that Appellant had a full opportunity throughout the
District Commission proceedings to request party status as to criterion 9(E).4
Appellant did seek, and was granted, party status as to other Act 250 criteria_l(air),
l(B), 1(D), l(F), 4, 8, and 9(E)_during the proceeding below; we are left to wonder why
he did not also request party status as to 9(B) at that time.5 Appellant explains that
he did not do so because he felt criterion 9(B) raised a statutory issue that the Agency
of Natural Resources would address and would, in doing so, “act appropriately to
protect [his] rights.” (See Mot. to lntroduce Supplemental Information for Question 3
p. 2, filed Mar. 21, 2011). He states that he now feels the Agency failed to do so.

Appellant’s explanation for his failure to request party status below does not
weigh in his favor. The former Environmental Board previously concluded that even
self-represented litigants are required to know that they cannot rely on other parties to
represent their interests See Re Conservation Designs, Inc., No. 5W1418-EB [#847],
Mem. of Decision on Party Status, at 7 (Vt. Envtl. Bd. June 3, 2004)6 (citing §
Bradford B. Moore, No. 5Ll423-EB, Mem. of Decision on Party Status, at 3-4 (Vt.
Envtl. Bd. Apr. 27 , 2004) (unpublished)). The Environmental Board decision quoted
for this principal, M, presents procedural facts quite similar to the case at bar: two
self-represented litigants pleaded with the Environmental Board to allow party status
on appeal under criterion 10, even though they never sought party status below,
thinking that their town would speak to their interests under that criterion. No.

5L1423-EB, Mem. of Decision on Party Status, at 3. The Board denied their party

 

4 The Act 250 Rules provide that a district commission will make “preliminary” and “iinal” party status
determinations during their proceedings Act 250 Rule l4(E)(l)-(3). We are unaware of any Rule provision that
forecloses a party’s right to request party status during any stage of the district commission proceedings

5 The record before us shows no effort by Appellant to request party status under Act 250 criterion 9(B) at any stage
of the District Commission proceeding While this omission does not foreclose Appellant from being able to ask the
Court to apply the exception in 10 V.S.A. § 8504(d)(2)(C) to him, as explained earlier in this Decision, we do take
into account Appellant’s actions during the proceedings below when determining whether manifest injustice exists

6 Available at http://www.nrb.state.vt.us/lup/decisions/2004/5wl4l SDSmod.Ddf.

12

status request, concluding that the parties’ lack of understanding of the legal
ramifications of not seeking party status below “may be unfortunate but [did] not rise
to the level of substantial injustice or inequity.” E. at 3-4.

Appellant here offers no further explanation for why he should be permitted to
maintain an appeal under criterion 9(B) pursuant to the “manifest injustice”
provisions of 10 V.S.A. § 8504(d)(2). He provides no discussion of factual
circumstances or citations to legal authority allowing us to reach such a conclusion,
and our independent research has also uncovered none.

What we do know is that Appellant participated in the District Commission
proceeding and was granted party status on a number of other Act 250 criteria. Thus,
the record evidences that Appellant, though self-represented, understood how to
request party status on certain criteria and how to participate in the Commission’s
discussion of those criteria.

The District Commission undertook a detailed review of the project’s impacts
under criterion 9(B), but Appellant chose not to seek status to participate as a party in
that discussion, thereby depriving the District Commission of his input. The mere fact
that the District Commission conducted a review of criterion 9(B) without Appellant’s
input (apparently at his choice) does not create injustice to Appellant if we prohibit
him from addressing 9(B) for the first time on appeal,

Further, Appellant has made no showing that he is like the appellants in
Conservation Designs who the former Environmental Board concluded could raise
issues on appeal under select criteria for which they had not been formally granted
party status, since they had been “in effect allowed to participate as parties” by the
district commission. No. 5Wl418-EB [#847], Mem. of Decision on Party Status, at 7~
9, 13 (finding that appellants who could show they were entitled to party status under
select Act 250 criteria could raise issues on appeal under those criteria on which they
had both requested and been permitted to offer “comments” before the district
commission). Here, Appellant has made no showing that he requested, or was
permitted, to participate as a party in the District Commission’s discussions under Act
250 criterion 9(B) despite his lack of formal party status

For all of these reasons, we conclude that Appellant has not shown that he will
face manifest injustice by not being able to raise issues under criterion 9(B) in this

appeal,

13

Conclusion
For all of the reasons more fully discussed above, we conclude that, in regards
to Act 250 criterion 5, Appellant has failed to show that he is entitled to party status,
and in regards to criterion 9(B), he has failed to show that “manifest injustice” will
result if we disallow him from raising issues in this appeal under criterion 9(E). We
therefore DENY Appellant’s motion for party status under Act 250 criteria 5 and 9(Bl,
and direct that he is disallowed from raising issues concerning these criteria in this

appeal.
Done at Newfane, Vermont, this lst day of July 2011.

1 <\2\.,, gm

Thorrias S. Durkin, Judge

14

