                                  Environmental Court of Vermont
                                         State of Vermont

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                    E N T R Y R E G A R D I N G M O T I O N
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JLD Prop. Wal*Mart Act 250 LU Permit (Altered),    Docket No. 116-6-08 Vtec
Project:     St. Albans Wal*Mart
Applicant:   JLD Properties
(Appeal from a determination by the District #7 Environmental Commission)


Title:          Motion to Dismiss VNRC's First Question on Appeal; No. 2

Filed:        September 15, 2008

Filed By:      John H. Hasen, Attorney for NRB Land Use Panel.

Response filed on 09/25/08 by Appellant VNRC; NRB-LUP reply filed 10/7/08.


_X_ Granted                         ___ Denied                           ___ Other


       Appellant Vermont Natural Resources Council (“VNRC”) has provided
notice pursuant to V.R.C.P. 33 and 34 of its request for discovery
responses from Daniel Luneau, Chair of the District Commission that
rendered the Act 250 Findings of Fact and Land Use Permit1 that are the
subject of this de novo appeal.      VNRC asserts that the purpose of its
requested discovery is to receive information in support of its Statement
of Questions #1, which generally asserts that Mr. Luneau suffered from a
conflict of interest of such a degree “under Vermont and federal law” as
to warrant his recusal or removal from the District Commission proceedings
conducted in connection with the Act 250 application now before this
Court.    Appellants’ Statement of Questions at ¶ 1.  VNRC further asserts
that Mr. Luneau’s alleged conflict was so serious as to now warrant that
Permit #6F0583 (Altered) be voided and the pending application be remanded
back to the District Commission, so that it may begin again its review of
the pending application.2 Id.
      The Land Use Panel of the Vermont Natural Resources Board (“NRB”)
has joined Mr. Luneau’s request for a protective order, prohibiting VNRC
from demanding the requested discovery. That motion is the subject of a


1
   The Act 250 Findings and Permit (dated May 16, 2008) which are the subject of this Docket are
actually an alteration of the original Act 250 Findings and Permit, issued by the District Commission on
April 4, 2008. The original Findings and Permit are the subject of a separate appeal now pending before
this Court. See In re JLD Prop./Wal*Mart Act 250 LU Permit, Docket No. 80-4-08 Vtec.
2
  An argument could be made that Permit #6F0583 (Altered) may already be voided or vacated, at least
as to the issues preserved for our review in this appeal by Appellants’ Statement of Questions and the
Statement of Questions filed on behalf of the City of St. Albans, Cross-Appellant Vermont Agency of
Natural Resources and Cross-Appellant Commons Associates. See, Chioffi v. Winooski Zoning Bd., 151
Vt. 9, 11 (1989) (Land use appeals heard by a trial court on a de novo basis are to be conducted “‘as
though no action whatever had been [previously] held.’”), quoting In re Poole, 136 Vt. 242, 245 (1978)).
In re JLD Prop. Wal*Mart Act 250 LU Permit (Altered), Docket No. 116-6-08 Vtec            Page 2 of 3.


separate Entry Order that is filed simultaneously herewith. NRB has also
requested that Appellants’ Question #1 be dismissed; that motion is the
subject of this Entry Order.
      Rules 33 and 34 govern how discovery may be conducted when directed
to a party in litigation.     Mr. Luneau is not a named party in these
proceedings, nor has he sought interested person status in these
proceedings.   VNRC asserts that NRB’s party status should be inferred to
Mr. Luneau, since he is the Chair of a district commission governed by
procedural rules established by the NRB.        VNRC cites to Baisley v.
Missisquoi Cemetery Ass’n, 167 Vt. 473 (1998) and In re Illuzzi, 159 Vt.
155 (1992)3 to support its argument that an employee is a party to
litigation involving their employer. But these cases do not speak to that
issue; Baisley and Illuzzi speak to the impropriety of an attorney
speaking directly to someone after the attorney has been put on notice
that that person is represented by counsel. Baisley, 167 Vt. at 486-489;
Illuzzi, 159 Vt. at 159-60.      Illuzzi expressly rejects the notion of
limiting its holding to parties to a lawsuit.     Id. at 160. These cases
speak to a much broader definition of “party” than those individuals who
have commenced or been brought into litigation.
      VNRC would have us define all Act 250 district commissioners as
“parties” to the appeals brought before this Court.       Such an argument
gives the Court pause; we know of no authority for such a proposition.
District commissioners are volunteers, appointed by our Governor (and not
the NRB), who are encouraged to follow the procedural rules adopted by the
NRB.   We have not been made aware of any convincing authority that they
are classified as NRB “employees,” especially for the narrow purpose of
being included as a party to this de novo land use appeal.
      We therefore conclude that Mr. Luneau is neither an NRB employee,
nor a “party” to this litigation. Thus, discovery may not be served upon
him under the procedural rules governing the manner of discovery upon
parties to civil litigation. V.R.C.P. 33 and 34. We next turn to whether
VNRC’s Question #1 should be dismissed.
      Both VNRC and NRB refer the Court to this Court’s determination on a
conflict of interest claim raised in connection with the municipal land
use proceedings for this same development. See In re JLD Properties Wal –
Mart St. Albans, Docket No. 132-7-05 Vtec, Decision on Cross-Motions for
Partial Summary Judgment (Vt. Envtl. Ct. Sept. 5, 2006).    But the facts
before us in this Docket do not support the analogies that either party
here suggests. There has been no evidence presented in this proceeding of
any overt acts that rose to the level of a “due process violation.” Id.
at 7. We have not been made aware of any acts by the District Commission
Chair that exhibited a “disrespect for the integrity of the . . .
proceedings” that were noted in the municipal proceedings. Id.
      Even with the overt acts exhibited in the municipal proceedings,
which the Court concluded were flagrant and disrespectful violations of
due process, the Court declined to grant the requested relief of remand.
Id. at 9.    In the absence of such acts here, we cannot conclude that
remand here is warranted.   This Court is vested with the responsibility
and discretionary authority to address this de novo appeal in such a

3
    VNRC provided an incorrect citation in its memorandum to the In re Illuzzi case. A further
complication comes from the fact that there are several Vermont Supreme Court decisions titled “In re
Illuzzi.” Due to the issue addressed in VNRC’s memorandum, we understand that VNRC intended to
cite to the 1992 Illuzzi decision.
In re JLD Prop. Wal*Mart Act 250 LU Permit (Altered), Docket No. 116-6-08 Vtec   Page 3 of 3.


manner “as to ensure summary and expedited proceedings [to] a full and
fair determination . . ..”    V.R.E.C.P. 1.  The responsibilities bestowed
upon this Court include the discretion to determine what and how discovery
may be had – V.R.E.C.P. 2(d) – and the obligation to address all questions
of fact and law brought before it on a de novo basis. V.R.E.C.P. 5(g).
      Appellants’ Question #1 represents at least the second occasion when
some parties to the land use proceedings on this project believe that the
proceedings below were not conducted in an impartial manner. The evidence
presented in this Docket shows none of the overt prejudices evidenced in
the municipal proceedings.     Given this, and the tremendous time and
resources that have already been expended by all parties, we conclude both
that remand is not warranted here and that the Court’s and the parties’
resources are best devoted to a full and fair review of the substantive
issues preserved for our determination in a de novo hearing before this
Court. We therefore conclude as a matter of law that VNRC’s Question #1
should be dismissed.




___________________________________________      __October 10, 2008_________
      Thomas S. Durkin, Judge                            Date
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Date copies sent to: ____________               Clerk's Initials _______
Copies sent to:
    (See attached service list)
    Attorney Jon Groveman for Appellant Vt. Natural Resources Council
    Attorney Jon Groveman for Appellant NW Cit. for Responsible Growth
    Attorney Jon Groveman for Appellant Marie Frey
    Attorney Jon Groveman for Appellant Richard Hudak
    Co-Counsel for Appellant Robert M. Hartwell
    Attorney Stewart H. McConaughy for Appellee JLD Properties
    Co-Counsel for Appellee Robert F. O'Neill
    Attorney David A. Barra for Interested Person Town of St. Albans
    Attorney Brian S. Dunkiel for Cross Appellant City of St. Albans
    Attorney Jon T. Anderson for Cross Appellant Commons Associates
    Attorney John H. Hasen for Natural Resources Board Land Use Panel
    Attorney Judith L. Dillon for Cross Appellant Agency of Natural Resources
    Attorney Trevor R. Lewis for the Vt. Agency of Transportation
    Attorney Mark L. Lucas for Natural Resource Board Water Resources Panel,
    (FYI purposes only)
