                                        State of Vermont
                             Superior Court—Environmental Division

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                   ENTRY REGARDING MOTIONS
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In re McCullough Crushing Inc., Amended CU                               Docket No. 179-10-10 Vtec

Title: Motion to Dismiss (Filing No. 7)
Filed: June 5, 2013
Filed By: Appellant McCullough Crushing, Inc.
Response in opposition filed on 6/18/13 by Interested Persons James R. and Rebecca A. Davin
Response in support filed on 6/19/13 by Appellee Town of Calais

In re McCullough Crushing Inc., Act 250 Expansion                        Docket No. 3-1-10 Vtec

Title: Motion to Dismiss (Filing No. 8)
Filed: June 5, 2013
Filed By: Appellant McCullough Crushing, Inc.
Response in opposition filed on 6/18/13 by Interested Persons James R. and Rebecca A. Davin


 X Granted (in part)           X Denied (in part)          ___ Other

       Currently pending before this Court are Appellant McCullough Crushing, Inc.’s (MCI)
motions to dismiss James R. and Rebecca A. Davin (the Davins) as interested persons from MCI’s
appeal of Act 250 Land Use Permit Amendment # 5W0842-3 and the associated Findings of Fact,
Conclusions of Law and Order issued by the District 5 Environmental Commission on December 8,
2009 (the Act 250 appeal) and from MCI’s appeal of the Town of Calais Development Review
Board’s decision regarding Application #2010-06 (the municipal appeal). Before addressing the
motions, we must clarify the status of these two appeals. On December 6, 2010, this Court granted
MCI’s motion to consolidate Docket Nos. 3-1-10 and 179-10-10 Vtec. Pursuant to V.R.E.C.P 2(d),
“where different violations or projects involve significant common issues of law or fact, the [C]ourt
may advance, defer, coordinate, or combine proceedings and may make other orders that will
promote expeditious and fair proceedings and avoid unnecessary costs or delay.” This rule gives
the Court a “flexible case management tool,” allowing us to coordinate the conferences and
hearings for multiple appeals concerning the same project. Reporter's Notes, V.R.E.C.P. 2.
       This Court’s past practice was to use the term “consolidate” as shorthand for the
coordination of proceedings, which we often grant upon motion by one of the parties. See, e.g., In
re Rivers Dev. Conditional Use Appeal, Nos. 7-1-05 Vtec, 68-3-07 Vtec, 183-8-07 Vtec, 248-11-07
Vtec, and 157-7-08 Vtec, slip op. at 7–11 (Vt. Envtl. Ct. Nov. 21, 2008) (Durkin, J) (granting the
appellant's motion to consolidate despite opposition by some of the other parties). This type of
consolidation, which the Court now more appropriately terms coordination, is not the same as
consolidating multiple proceedings into a single action. See Reporter's Notes, V.R.E.C.P. 2
(“[V.R.E.C.P. 2(b)] does not address full consolidation of proceedings, which by virtue of V.R.C.P.
In re McCullough Crushing, Nos. 3-1-10 & 179-10-10 Vtec (EO on Motions to Dismiss) (06-27-13)   Pg. 2 of 3.


42(a) may be ordered only with the consent of the parties.”) True “consolidation of actions
involves the substitution of a single docket number for multiple actions, concludes with a single
ruling, and requires the parties’ consent.” In re Allen Road Land Co., Nos. 62-4-11 Vtec and 63-4-
11 Vtec, slip op. at 4 (Vt. Super. Ct. Envtl. Div. July 6, 2011) (Durkin, J.); see also V.R.C.P 42(a)
(“[The court] may, with the consent of the parties, order all actions consolidated . . . .”); Mobbs v.
Central Vt. Ry., Inc., 155 Vt. 210, 215 & n.2 (1990) (discussing V.R.C.P. 42 and distinguishing a court
order to hold a joint trial from an order merging “suits in a single cause of action”).
        When this Court granted MCI’s motion to consolidate the Act 250 and municipal appeals in
this case, it in fact coordinated those matters. In other words, the matters retained distinct docket
numbers, but they were coordinated to allow for combined conferences and hearings. We make
this clarification in part to provide context for our decision below on the interested person status of
the Davins in the Act 250 appeal.
        In response to MCI’s motion to dismiss the Davins from the Act 250 appeal, the Davins
state that they “do not claim standing with respect to the Act 250 portion of this proceeding.”
(Davin[s’] Resp. to Mot. to Dismiss at 1, filed Jun. 18, 2013.) The Davins appear to view the two
pending appeals as having been truly consolidated into one appeal, however, and therefore assert
that “[t]o dismiss the Davins from the Act 250 portion of the case would be superfluous.” Id. As
we note above, these two pending appeals were never truly consolidated or combined into one
appeal, but were coordinated. Accordingly, we GRANT MCI’s motion to dismiss the Davins as
interested persons from the Act 250 appeal, Docket No. 3-1-10 Vtec, as the Davins do not claim
standing as interested persons in that appeal.
        MCI also seeks to dismiss the Davins from the municipal appeal for failing to satisfy the
requirements to be “interested persons” pursuant to 24 V.S.A. § 4465(b)(3) and 10 V.S.A.
§ 8504(n)(5). In opposition, the Davins first contend that MCI failed to timely raise the issue of the
Davins’ standing in the municipal appeal. The Davins argue that because no party has challenged
the Davins’ standing to participate as interested persons in this case before, particularly in the
proceedings below, they cannot do so now. This argument is incorrect. “Because standing is a
necessary component of the court's subject-matter jurisdiction, it cannot be waived, and its absence
can be raised at any time.” Bischoff v. Bletz, 2008 VT 16, ¶ 15, 189 Vt. 235 (internal citations
omitted). Accordingly, we will consider MCI’s motions to dismiss the Davins from the municipal
appeal.
        24 V.S.A. § 4465 allows appeals of decisions by municipal administrative officers to
municipal panels by interested persons, including those “owning or occupying property in the
immediate neighborhood of a property that is the subject of any decision or act taken under this
chapter, who can demonstrate a physical or environmental impact on the person's interest under
the criteria reviewed, and who allege[] that the decision or act, if confirmed, will not be in accord
with the policies, purposes, or terms of the plan or bylaw of that municipality.” Id. § 4465(b)(3). 10
V.S.A. § 8504(n)(5) allows the same interested persons to intervene in pending appeals of such
decisions to this Court. In arguing that the Davins cannot intervene in this pending municipal
appeal under 10 V.S.A. § 8504(n)(5), MCI claims that the Davins fail to show that (i) they own or
occupy property in the “immediate neighborhood” of the project site, and (ii) that the project, if
permitted, would have a physical or environmental impact on their interests under the criteria
reviewed. See 24 V.S.A. § 4465(b)(3).
       The first and second criteria for standing under 24 V.S.A. § 4465(b)(3) are related, and this
Court, when reviewing a challenge to interested person status, often considers the distance
between an interested person’s property and a project site in its review of that person’s alleged
In re McCullough Crushing, Nos. 3-1-10 & 179-10-10 Vtec (EO on Motions to Dismiss) (06-27-13)          Pg. 3 of 3.


harm. See, e.g., DiSimone and Moisis Family Trust, No. 247-12-09 Vtec, slip op. at 8 (Vt. Envtl. Ct.
Apr. 27, 2010) (Wright, J.). However, “[t]he determination of whether an individual is in the
‘immediate neighborhood’ of a proposed project is not strictly based on distance, but instead
depends on ‘whether the [party] potentially could be affected by any of the aspects of the project
which have been preserved for review on appeal.’” Id. (citing In re Vanishing Brook Subdivision,
No. 223-10-07 Vtec, slip op. at 6 (Vt. Envtl. Ct. Jan. 16, 2008) (Wright, J.)). To survive MCI’s motion
to dismiss for lack of standing, the Davins must only demonstrate a reasonable possibility that the
Project will have a physical or environmental impact on one of their protected interests, in light of
the distance between the Davins’ property and the project site and the nature of the alleged
impacts. See In re Asia Minor Hotel/Resort/Spa, No. 124-9-12 Vtec, slip op. at 4 (Vt. Super. Ct.
Envtl. Div. June 4, 2013) (Durkin, J.) (citing In re Goddard College Conditional Use, No. 175-12-11
Vtec, slip op. at 2–3 (Vt. Super. Ct. Envtl. Div. Jul. 5, 2012) (Walsh, J.)
        Both MCI and the Davins agree that the Davins’ property, according to internet mapping
services, is roughly one mile from the project site, although the Davins point out that “[t]he
straight-line distance between the Davin barn and the northernmost edge of the existing
excavation is 2970 feet,” or roughly .56 miles. (Davin[s’] Resp. to Mot. to Dismiss at 3, filed June
18, 2013.) In this case, in light of the potentially far-reaching nature of the effects of the gravel and
sand extraction process, we conclude that the Davins’ property is within the “immediate
neighborhood” of the project site. We also conclude that, at this stage of the proceeding, the
Davins have asserted a reasonable possibility that noise from the expansion of MCI’s existing sand
and gravel operation may have a physical or environmental impact on the Davins’ interest under
the criteria reviewed.1 Accordingly, we find that the Davins have standing to remain interested
persons in the pending municipal appeal. We DENY MCI’s motion to dismiss the Davins as
interested persons from Docket No. 179-10-10.



_________________________________________                                            June 27, 2013
       Thomas G. Walsh, Judge                                                            Date
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Date copies sent to: ____________                                           Clerk's Initials _______
Copies sent to:
  Christopher D. Roy, Attorney for Appellant McCullough Crushing, Inc.
  Joseph S. McLean, Attorney for Appellee Town of Calais
  David Grayck, Attorney for Cross-Appellants
  Brian Amones, Attorney for Interested Persons James R. and Rebecca A. Davin
  Interested Person Scott Gregory Grzankowski
  Jon Groveman and Elizabeth Lord, Attorneys for Agency of Natural Resources
  Melanie Kehne, Attorney for Natural Resources Board/LU Panel
  Kevin Wells, For Informational Purposes Only




1 Although the Davins do not specifically mention the provision or provisions of the Town of Calais Land

Use & Development Regulations that regulates noise for the proposed project, MCI and the Town, in its
response in support of MCI’s motion, appear to concede that noise is one of the criteria for which the
proposed project is reviewed under the Regulations.
