                                     STATE OF VERMONT


                                 ENVIRONMENTAL COURT




                                                         }
McLean Enterprises Quarry - Act 250 reconsideration      }      Docket No. 224-10-05 Vtec
        (Appeal of Hunter, et al.)                       }
                                                         }


    Scheduling Order and Entry Order on Motion to Stay District Commission Hearing

        In the underlying proceedings, the District 8 Environmental Commission is

considering Application #2S1147-1(Reconsideration), which is Appellee-Applicant=s Motion

to Reconsider the denial of its application for a quarry and associated buildings in the

Town of Cavendish.        The District Commission has set three days of hearings for

November 2, 3 and 9, with a site visit to be held prior to the hearing on November 2,

2005.

        The District 8 Environmental Commission held a Prehearing Conference on

September 28, 2005. A APrehearing Conference Report and Order@ issued by the District

Commission on October 7, 2005, made preliminary party status determinations, and

established the issues for hearing as Criteria 5 and 9(K), regarding traffic safety and

congestion, and impacts on adjacent public investments; Criterion 8, regarding historic sites

and aesthetic issues; and Criterion 10, regarding the project=s conformance with the local
and regional plans.

       On October 20, 2005, the Town of Cavendish wrote to the District Commission to

request a stay of the hearing, in that the Commission had not yet ruled on two motions to

dismiss the proceedings, and in that a mediation session had been scheduled for

November 14.    No party provided any ruling by the District Commission on this request.

       On October 21, 2005, twelve individual Appellants filed in Environmental Court a

Notice of Appeal of the Prehearing Conference Report and Order. The Notice of Appeal

sought to raise issues relating to party status, parcel size, the scope of the District

Commission proceedings, motions to dismiss still then pending at the District Commission,

and restoration of a hillside.   In addition, it contained a motion to stay the scheduled

District Commission hearings. As to the party status issues, it was not filed as required by

V.R.E.C.P. 5(d)(1), as a motion, together with a notice of appeal, and was not filed within

ten days of the decision of the district commission appealed from. It was sent to those

listed on the District Commission service list, but there is no indication whether it was

served on them as provided in V.R.E.C.P. 5(b) (as modified by 5(d)(1)). As to the other

issues, it did not contain a statement of the statutory or rule provisions under which

Appellants assert that this Court has jurisdiction of such an interlocutory appeal from a

District Environmental Commission Prehearing Conference Report and Order.

       Due to the very short time between the filing of the purported appeal and the
scheduled hearing, there was not enough time to allow the time provided by rule for the

other parties to enter their appearances and file their positions on the motion for stay of

the hearing.    Accordingly, on October 25, 2005, the Court scheduled a telephone

conference

for Thursday, October 27, 2005, at 3:30 p.m., to be held through a conferencing service

so that any prospective parties could call in. The notice of the conference was sent to the

entire District Commission service list, together with a copy of V.R.E.C.P. 5(d)(1)

governing appeals of interlocutory district commission party status decisions. Unfortunately,

the notice as mailed out contained an incorrect time for the conference; the staff of the

Court therefore telephoned all the Appellants and prospective parties for whom they could

find telephone numbers, to inform them of the correct time for the conference.

       In the morning of October 27, 2005, Attorneys Hans Huessy and James P.W.

Goss faxed to the Court a copy of their entry of appearance on behalf of Appellee-

Applicant. Later in the morning they faxed a copy of the District 8 Environmental

Commission=s Second Prehearing Conference Report and Order, issued on October 24,

2005, in which the District Commission denied two motions to dismiss, granted in part a

motion of the Division for Historic Preservation, and tabled objections to the preliminary

party status determinations to be considered in its final rulings on party status in its final

decision in the case.   The District Commission also declined to rule on the question of
whether five previously-approved house lots should be included with the involved land for

this project, ruling that the question must be submitted to the district coordinator for a

jurisdictional opinion. The District Commission did not mention the Town=s request to stay

the scheduled hearing.

       The following individuals participated in the telephone conference on October 27,

2005, held with Judge Wright and recorded on audio tape: Appellant William A. Hunter,

Appellant Marcia Packlick, Appellant Tim Jefferson, Mr. William G. Kerns for the Southern

Windsor County Regional Planning Commission (which has not yet entered its appearance

in this matter), Attorneys Hans Huessy and Erin Gilmore for Appellee-Applicant; and

Attorney John H. Hasen for the Natural Resources Board (which has not yet entered its

appearance in this matter).    Attorney George McNaughton, on behalf of Appellant John

Mills, attempted to call in to the conference but was unable to get through; the Court

Manager advised him afterwards of what had occurred.




Interlocutory Party Status Issues

       At the conference, the Court explained that the party status issues under

V.R.E.C.P. 5(d)(1) would be treated separately from the other issues, and set November

2, 2005 as the date by which Appellants may file any supplementary or revised motions

or notices of appeal pursuant to that rule. Also see 10 V.S.A. '8504(d)(2)(B). Although
not discussed at the conference, if Appellants or any other parties wish to make any

motions regarding the timeliness of the appeal, they should file such motions by November

2, 2005 as well.      The Court will consider any responsive memos filed on or before

November 17, 2005, and has scheduled a motion hearing by telephone for November 21,

2005.      If the Court grants the motion to accept the party status appeal, a scheduling

conference will be held as soon as possible thereafter to establish a schedule to expedite

the hearing and determination of the party status appeal as required by V.R.E.C.P.

5(d)(1).




Other Interlocutory Issues

        Also by November 2, 2005, any party may file any motions to dismiss or other

motions relating to whether or under what statutory or rule provisions the Court may have

jurisdiction of any interlocutory appeal on any issues other than the party status issues

discussed above.      The Court will consider any responsive memos filed on or before

November 17, 2005, and has scheduled a motion hearing by telephone for November 21,

2005.




Request to Stay the District Commission hearings

        At the conference, the Court denied the motion to stay the hearing, without
prejudice, and with the understanding that the District Commission could have to schedule

an additional day of its hearing if the Court should both grant the motion for interlocutory

appeal of the party status issues, and then also grant party status to any participants or on

any issues not granted by the District Commission.      The grant of a stay at this point in

the proceedings would cause much more expense and delay in the rescheduling of

witnesses and the commission members= time than it would save by postponing the

proceedings until after the Court addresses the potential interlocutory appeal issues. We

also note that the statute provides for an automatic stay of the denial of interested person

status in municipal cases, 10 V.S.A. '8504(f)(1)(B), but not in Act 250 cases.
        Accordingly, it is HEREBY ORDERED that:

        1)   On or before November 2, 2005, Appellants may file any supplementary or

revised motions or notices of appeal related to party status issues under V.R.E.C.P.

5(d)(1), and any party may file any motions regarding the timeliness of the appeal. The

Court will consider any responsive memos filed on or before November 17, 2005.

        2) On or before November 2, 2005, any party may file any motions to dismiss or

other motions relating to whether or under what statutory or rule provisions the Court may

have jurisdiction of any interlocutory appeal on any issues other than the party status

issues. The Court will consider any responsive memos filed on or before November 17,

2005.

        3) Appellants= motion for the Court to stay the scheduled hearing of the District 8

Environmental Commission is DENIED.

        4) A further telephone conference and telephone motion hearing will be scheduled

for November 21, 2005. If the Court grants the motion to accept the party status appeal,

a scheduling conference will be held as soon as possible thereafter to establish a schedule

to expedite the hearing and determination of the party status appeal as required by

V.R.E.C.P. 5(d)(1).




        Done at Berlin, Vermont, this 28th day of October, 2005.
_________________________________________________
     Merideth Wright
     Environmental Judge
