                                 STATE OF VERMONT

                               ENVIRONMENTAL COURT

                                                   }
In re: Three Church Street Act 250 Land Use Permit }           Docket No. 174-7-06 Vtec
        (Appeal of Hummel)                   }


              Decision and Order on Motion to Dismiss and Motion for Stay
       Appellants Kermit and Barbara Hummel appealed from decisions of the District #3
Environmental Commission issued on May 10, 2006 and June 27, 2006, granting Land Use
Permit (Act 250 Permit) #3W0956 to The Lauren Group, LLC, and denying Appellants’
motion to alter that decision. In the present appeal Appellants represent themselves;
Appellee-Applicants The Lauren Group, LLC and its manager Jack Maiden are represented
by Thomas Hayes, Esq.; the Vermont Agency of Natural Resources is represented by
Catherine Gjessing, Esq.; and the Village of Woodstock is represented by Todd C.
Steadman, Esq.      A related municipal case, Docket No. 22-2-06 Vtec, is also pending
before the Court.


Motion to Dismiss
       Appellee-Applicants have moved to dismiss the appeal based solely on Appellants’
failure to accomplish the publication of a copy of the notice of the appeal in an area
newspaper of general circulation, as required by V.R.E.C.P. 5(b)(4)(B) and 10 V.S.A.
§8504(c)(1), within ten days of providing actual notice of the appeal to the required
recipients.
       The District Commission’s initial decision was issued on May 10, 2006 and its
decision on the motion to alter was issued on June 27, 2006. The parties do not dispute
that Appellants filed a timely notice of appeal with the Court on July 24, 2006, and that
Appellants provided timely actual notice of the appeal to Appellee-Applicants on the same
day.
       The parties also do not dispute that on July 31, 2006 Appellants submitted the notice
of appeal to and paid for its publication in the August 3, 2006 edition of The Vermont
Standard, a weekly newspaper of general circulation in Woodstock.

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       The notice was intended to be published in the August 3, 2006 edition of the
newspaper, the eighth business day1 after Appellants had provided the individual required
notice, which would have met the ten-day deadline imposed by V.R.E.C.P. 5(b)(4)(B) and
10 V.S.A. §8504(c)(1). However, the notice did not appear in the August 3, 2006 edition.
Appellee-Applicants do not contest that the failure of the newspaper to publish the notice in
that edition was not due to any fault of Appellants, as stated in a letter from the business
manager of The Vermont Standard, submitted as an attachment to Appellants’ September
6, 2006 memorandum. The letter states that failure to run the notice was due to “a
misunderstanding” in the newspaper’s “production department” and “was clearly the
mistake of The Vermont Standard.”
       Appellants telephoned the Court on Thursday, August 3, 2006 to inform the Court
staff of the newspaper’s error. Court staff explained to Appellants that, if the newspaper
were to run the notice of appeal in the following week’s edition (August 10, 2006),
Appellants could file with the Court a letter explaining the delay, to accompany their
required filing of the proof of publication.
       Appellee-Applicants argue that Appellants could have sought publication in the daily
newspapers published in White River Junction or in Rutland, upon learning that The
Vermont Standard had failed to include their notice in the August 3, 2006 edition, in time to
have it published by the following Monday, August 7, 2006 (the tenth business day after
Appellants had provided the individual required notice). However, there is no indication that
such publication would have served the purposes of the publication statute any better than
did the August 10, 2006 publication of the notice in The Vermont Standard published in
Woodstock itself. V.R.E.C.P. 5(b)(4)(B) and 10 V.S.A. §8504(c)(1).
       In any event, we need not reach that issue because the only step in the filing of an
appeal with this Court that is jurisdictional is the timely filing of the notice of appeal. As
provided in V.R.E.C.P. 5(b)(1), the “[f]ailure of an appellant to take any 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

       1
           Calculated according to V.R.C.P. 6, exclusive of weekends and holidays.



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appeal.”
       Because timely publication of a copy of the notice of appeal in the newspaper is not
jurisdictional, we must determine what action would be appropriate regarding this three-day
exceedance of the ten-day deadline for publication, without fault on the part of Appellants.
       The purpose of publication of a copy of the notice of appeal is to give notice to
persons (in the area potentially affected by the proposed project) who are not already
parties to the proceedings before the District Commission (as those who have party status
or receive informational notice at the District Commission level are required to receive
individual actual notice of the filing of the appeal). If the three-day delay in publication
actually were to result in delayed notice to a person wishing to participate in the appeal, the
Court would consider allowing such a person to intervene out of time, due to the delayed
notice. A three-day delay in the publication notice under the circumstances of this case
does not warrant dismissal of the appeal.
       Accordingly, based on the foregoing, it is hereby ORDERED and ADJUDGED that
Appellee-Applicants’ Motion to Dismiss is hereby DENIED.


Motion to Stay
       Appellants appear to be arguing that the effectiveness of the Act 250 permit should
be stayed because Appellee-Applicants may be in violation of conditions imposed in the
municipal permit applicable to this project, which is on appeal in Docket No. 22-2-06 Vtec.
Pursuant to V.R.E.C.P. 5(e) the Court is given the authority to stay the Act 250 permit that
is the subject of this appeal “and make such other orders as are necessary to preserve the
rights of the parties upon such terms and conditions as are just.”
       Appellants have failed to show that a stay of the Act 250 permit is necessary to
preserve the rights of the parties pending this appeal, or that they are suffering any specific
detriment2 due to the Act 250 permit while this appeal is pending, especially during winter

       2
         While Appellants experience the visibility of the vent system, the Act 250 permit
also required the construction of a screening curtain wall. Appellants specifically do not
request that the wall be built at this time; rather, they request that the vent system not be in
operation. However, they have not shown that the detriment to them from the visibility of
the vent system is affected by whether or not it is in operation.


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conditions. Accordingly, based on the foregoing, it is hereby ORDERED and ADJUDGED
that Appellants’ Motion to Stay is DENIED.




       From the nature of the parties’ arguments regarding the motion to stay, it appears to
the Court from the parties’ filings that this de novo appeal and the related municipal appeal
should proceed to trial as expeditiously as possible to resolve all the issues between the
parties remaining after the motion decisions issued today in each case.
       Please be prepared to discuss the scheduling of the trial for both cases in a
telephone conference scheduled in this matter for January 22, 2006 (see enclosed notice).
Based on the parties’ representations in the telephone conferences held in both cases
previously, the Court also expects to order mediation to occur during the time period
between that conference and the scheduled trial date, without any delay in the trial
schedule.




       Done at Berlin, Vermont, this 3rd day of January, 2007.




                            _________________________________________________
                                 Merideth Wright
                                 Environmental Judge




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