                                 STATE OF VERMONT
SUPERIOR COURT                                               ENVIRONMENTAL DIVISION
Vermont Unit                                                   Docket No. 130-9-13 Vtec

                                 Hovey Act 250 Permit

                            ENTRY REGARDING MOTION

Title:        Motion to Dismiss (Motion 1)
Filer:        Gregory Hovey
Attorney:     Deborah T. Bucknam
Filed Date:   November 12, 2013

Response filed on 12/02/2013 by Attorney Hans Huessy for Appellants Robert and Toni Flanigan

The motion is DENIED.

Title:        Motion to Amend Statement of Questions (Motion 2)
Filer:        Robert Flanigan
Attorney:     Hans Huessy
Filed Date:   December 2, 2013

The motion is GRANTED IN PART and DENIED IN PART.

       Robert and Toni Flanigan appeal the September 6, 2013 decision of the District
Environmental Commission #7 (Commission) allowing Gregory Hovey to construct and operate
a dog breeding facility in the Town of Victory, Vermont. Pending before the Court are Mr.
Hovey’s Motion to Dismiss and the Flanigans’ Motion to Amend and Clarify their Statement of
Questions. The Flanigans filed an opposition to the Motion to Dismiss on December 2, 2013.
Mr. Hovey did not respond to the Flanigans’ Motion to Amend.
        The Flanigans filed their appeal pro se on September 30, 2013; they are now
represented in these proceedings by Hans G. Huessy, Esq. (Notice of Appearance at 1, filed
Nov. 19, 2013.) Mr. Hovey is represented by Deborah T. Bucknam, Esq. solely for the purpose
of Mr. Hovey’s motion to dismiss. (Amended Notice of Appearance at 1, filed Nov. 12, 2013.)
The Vermont Natural Resources Board, represented by Melanie Kehne, entered its appearance
as a party in this matter but has not filed a response to the pending motions.

                   Motion to Amend and Clarify Statement of Questions
      In their opposition to the Motion to Dismiss and in their unopposed Motion to Amend
and Clarify Statement of Questions, the Flanigans address Mr. Hovey’s assertion that the
Hovey Act 250 Permit, No. 130-9-13 Vtec (EO on Motions to Dismiss & Amend)(3-6-14) (pg. 2 of 4)
original Statement of Questions does not raise Act 250 criteria for which the Flanigans were
granted party status by the Commission. The Flanigans assert that their original Statement of
Questions, read in the context of their Notice of Appeal, raised criteria for which they were
granted party status. They seek to amend their Statement of Questions, however, to eliminate
any confusion regarding the criteria at issue in this appeal. The Flanigans assert that at this
initial stage, no prejudice will result and judicial economy will be served by clarifying the issues
to be decided.
        “Like motions to amend a complaint under V.R.C.P. 15, motions to amend a [S]tatement
of [Q]uestions are to be liberally granted, so long as they do not prejudice the other party . . . .”
In re Ridgewood Estates Homeowners’ Ass’n, No. 57-4-10 Vtec, slip op. at 7 (Vt. Super. Ct. Envtl.
Div. Jan. 26, 2011) (Wright, J.). “Prejudice may exist, 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 [has been] 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, “[s]uch a motion is typically granted when it ‘is neither frivolous nor
made as a dilatory maneuver or in bad faith.’” Verizon Wireless Barton Act 250 Permit, No. 6-1-
09 Vtec, slip op. at 11 (Vt. Envtl. Ct. Feb. 2, 2010) (Durkin, J.) (quoting In re Guardianship of L.B.,
147 Vt. 82, 84 (1986)).
        We first note that while the original Statement of Questions demonstrates some
confusion regarding our scope of review, it appears to incorporate issues raised in the Notice of
Appeal that relate to Criteria 1, 1(A), 1(B), 8, and 9(A). Amended Questions 1, 2, 3, 5, and 6
clarify the issues to be decided in this proceeding. These clarified issues are within our
jurisdiction. Moreover, these questions relate to Criteria 1, 1(B), and 8, for which either one or
both of the Flanigans were granted party status. Mr. Hovey has not alleged any prejudice,
frivolousness, or bad faith, and we find none at this early stage in the proceedings.
        We find, however, that Amended Questions 4 and 7 are beyond the scope of this Act
250 permit appeal. Question 4 asks whether Mr. Hovey is acting in compliance with the Act 250
permit, and Question 7 asks whether Mr. Hovey constructed the facility in compliance with the
Site Plan approved by the Commission. Both questions are appropriate for an enforcement
proceeding. Our review of the present appeal considers only whether the application complies
with the Act 250 criteria at issue within the Amended Statement of Questions.
       As to Amended Questions 1, 2, 3, 5, and 6 we GRANT the Flanigans’ Motion to Amend
and Clarify Statement of Questions. As to Amended Questions 4 and 7, we DENY the Flanigans’
motion.

                                         Motion to Dismiss
       Mr. Hovey makes three arguments in support of his motion to dismiss. First, Mr. Hovey
argues that there was insufficient service of process because the Flanigans did not serve him
with notice of their appeal in person or by certified mail. (Motion to Dismiss at 2, filed Nov. 12,
2013.) Second, Mr. Hovey argues that other than signing the appeal, the Flanigans failed to
comply with any of the requirements for the contents of the notice of the appeal pursuant to
Vermont Rule for Environmental Court Proceedings 5(b)(3). Id. at 2–3. Finally, Mr. Hovey
Hovey Act 250 Permit, No. 130-9-13 Vtec (EO on Motions to Dismiss & Amend)(3-6-14) (pg. 3 of 4)
alleges that the entirety of the Flanigans’ original Statement of Questions relates to issues
outside the Act 250 criteria for which they were granted party status. Id. at 3–4.
        In an appeal of a Commission decision, the appellant must serve a copy of the notice of
appeal upon the Commission, all Friends of the Commission, any party by right as defined in 10
V.S.A. § 8502(5), any party who had party status as of the end of the Commission proceeding,
and the Natural Resources Board. V.R.E.C.P. 5(b)(4)(B); 10 V.S.A. § 8504(c)(1). The appellant
must also publish notice not more than 10 days later “in a newspaper of general circulation in
the area of the project which is the subject of the decision.” Id. Parties by right include the
applicant, the landowner (if the applicant is not the landowner), the municipality in which the
project is located, the municipal and regional planning commissions for that municipality, and
any state agency affected by the proposed project. 10 V.S.A. § 8502(5).
        In their opposition to Mr. Hovey’s motion, the Flanigans allege that they misunderstood
the notice rules regarding their appeal. Although they eventually realized they were
responsible for providing notice to “interested parties,” the Flanigans allege that they
mistakenly believed that the group of interested parties in this appeal was limited to the
interested persons before the Commission and did not include Mr. Hovey. (Appellants’
Opposition to Applicant’s Motion to Dismiss at 2, filed Dec. 2, 2013.); (Affidavit of Robert
Flanigan at 2, filed Dec. 2, 2013.) The Flanigans further state that on October 23, 2013, they
sent “Form 900” notices of their appeal and copies of their Statement of Questions to those
whom they understood were interested parties. Id. The Flanigans argue that they should be
allowed to cure any defects in the service of their notice of appeal because of their initial pro se
status, their misunderstanding of the rule, and because Mr. Hovey will not be prejudiced.
        “Our Rules note that ‘[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.’” Choquette Zoning Permit Amendment, No. 199-
9-08 Vtec, slip op. at 2 (Vt. Envtl. Ct. Jan. 7, 2009) (Durkin, J.) (quoting V.R.E.C.P. 5(b)(1)). While
such action “may include dismissal of the appeal” under V.R.E.C.P. 5(b)(1), in light of the
Flanigans’ alleged confusion, we conclude that denying the opportunity to cure would be
inappropriate here, particularly since Mr. Hovey received actual notice of the Flanigans’ appeal
of the Commission’s decision. See Id. (finding dismissal inappropriate where service was
untimely due to appellant’s mistake but recipient had actual notice).
        Nevertheless, we find the service of notice in this appeal deficient.1 Thus, if the
Flanigans wish to proceed with this appeal, they must send a new notice to all parties following
all applicable statutes and our Rules, within twenty days of this Entry Order and file with the
Court a certificate of service evidencing compliance with the notice requirements. Failure to
meet these directives may be grounds for renewal of Mr. Hovey's motion for dismissal of the
pending appeal, with prejudice.


1
  To date, the Flanigans have filed with the Court a copy of the notice block that appeared in the
Caledonia Record on October 22, 2013 and one copy of a “Form 900 Notice to Interested Parties in
Municipal Appeals,” which seems to mischaracterize this matter as a municipal appeal and fails to
identify any recipients.
Hovey Act 250 Permit, No. 130-9-13 Vtec (EO on Motions to Dismiss & Amend)(3-6-14) (pg. 4 of 4)
         Under our Rules, “a notice of appeal is a relatively simple document, and ‘informality of
form or title of the notice of appeal’ will not result in dismissal.” In re Jim Sheldon Excavating,
Inc., No. 54-4-09 Vtec, slip op. at 6 (Vt. Envtl. Ct. June 8, 2009) (Wright, J.) (quoting V.R.E.C.P.
5(b)(3)). While the Flanigans’ Notice of Appeal filed September 30, 2013 is less than exemplary
in its clarity, it specifically identifies the permit number at issue and states that the Flanigans
are “appealing this case” for the reasons stated. Thus, we find that the contents of the timely
filed Notice of Appeal do not create grounds for dismissal.
        Finally, because we granted the Flanigans’ Motion to Amend and Clarify, we consider
the Amended Statement of Questions in addressing Mr. Hovey’s concerns regarding the Act 250
criteria raised by the Statement of Questions. As discussed above, although the original
Statement of Questions may have been unclear in this regard, we find that Amended Questions
1, 2, 3, 5, and 6 clearly relate to Criteria 1, 1(B), and 8, for which either one or both of the
Flanigans were granted party status. Thus, the Statement of Questions is not grounds for
dismissal.
       For the reasons stated above, Mr. Hovey’s Motion to Dismiss is DENIED.




___________________________________________                                    March 6, 2014
Thomas G. Walsh, Judge                                                 Date




Notifications:
Hans Huessy (ERN 1813), Attorney for Appellant Robert Flanigan
Hans Huessy (ERN 1813), Attorney for Appellant Toni Flanigan
Melanie Kehne (ERN 2561), Attorney for Interested Person Natural Resources Board
Deborah T. Bucknam (ERN 1391), Attorney for Appellee Gregory Hovey
