In re Maple Tree Place Associates , 151 Vt. 331 ( 1989 )

Per Curiam.

Williston Citizens for Responsible Growth (CRG) and the City of Winooski appeal from an order of the Environmental Board denying their request for full participation in hearings on the application of Maple Tree Place Associates (MTPA) for an Act 250 permit to build a shopping mall at Tafts Corner in Williston. Appellants also seek a stay of Board proceedings pending appeal. We dismiss the appeal.

On October 26, 1988, the District #4 Environmental Commission issued a Revised Preliminary Hearing Report and Party Status Order reaffirming an earlier denial of both CRG’s and Winooski’s participation in the Act 250 proceeding under 10 V.S.A. § 6086(a)(10), commonly called criterion 10. Both were granted party status under Board Rule 14(B), but without the right to participate in the proceeding on criterion 10. Both parties sought, interlocutory review before the Environmental Board, and on December 22, 1988, the Board denied the motions. The present appeal followed, and shortly thereafter petitions for stays. MTPA moved to dismiss the appeal.

CRG and Winooski rely on In re Lunde Construction Co., 139 Vt. 376, 378, 428 A.2d 1140, 1141 (1981), as conferring a right of appeal in this case under the Adminstrative Procedure Act (APA), 3 V.S.A. § 815(a). That statute permits an appeal to this Court from “a final decision in any contested case” and from “a preliminary, procedural, or intermediate agency action or ruling . . . if review of the final decision would not provide an adequate remedy . ...” Id. Lunde relies on In re Preseault, 130 Vt. 343, 347, 292 A.2d 832, 834-35 (1972), for the proposition that one denied party status by the Enviromental Board has standing to appeal to this Court under the APA. 139 Vt. at 378, 428 A.2d at 1141. Preseault, however, was an appeal from a final order. 130 Vt. at 345, 292 A.2d at 834.

We view the- order here as falling into the latter category of APA appeals. Since the order is interlocutory in nature, we must decide whether a review of the final order would provide “an adequate remedy.” Our decision in State v. Lafayette, 148 Vt. 288, 290-91, 532 A.2d 560, 561-62 (1987), is instructive. A collateral order (like the one here) is appealable only if three elements are satisfied:

“the order must [1] conclusively determine the disputed question, [2] resolve an important issue competely separate frrom the merits of the action, and [3] be effectively unreviewable on appeal from a final judgment.”

Id. at 291, 532 A.2d at 561 (quoting Coopers & Lybrand v. Livesay, 437 U.S. 463, 468 (1978)). This test is not met.

First, the present order does not conclusively determine the disputed question. The order of the district commission limiting participation under criterion 10 is reviewable de novo before the Board. 10 V.S.A. § 6089(a). Appellants will have a full and unfettered opportunity to persuade the Board that their participation under criterion 10 is essential and that the district commission erred in limiting their participation. Second, at the conclusion of Board review of the application, the Board’s decision on party status may be reviewed here. See In re Great Eastern Building Co., 132 Vt. 610, 326 A.2d 152 (1974).

Moreover, we are concerned that the limited nature of our holding in Lafayette may have been misunderstood. While we set forth specific criteria without which a collateral order will not be reviewed by this Court, overriding these threshold criteria is our need to balance the possible loss of important rights “against this Court’s policy of avoiding piecemeal review.” 148 Vt. at 292, 532 A.2d at 562. Lafayette should not be read as an addendum to the Vermont Rules of Appellate Procedure, creating a virtual entitlement to review of collateral orders. Lafayette offers appellate redress in the small number of extraordinary cases where the normal appellate route will almost surely work injustice, irrespective of this Court’s final decision. Petitions like those at bar would convert the extraordinary into the ordinary and hamper not only the work of this Court, but the orderly processes of trial courts and administrative bodies as well. Lafayette announced a procedure that will be available when strong need is demonstrated. But it must not be seen as a commonplace alternative to normal appellate review under our rules.

Appeal dismissed.