Verizon Wireless Act 250 Permit Barton ( 2010 )

STATE OF VERMONT
ENVIRONMENTAL COURT
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Verizon Wireless Barton Act 250 Permit }
Telecommunications Facility } Docket No. 6-1-09 Vtec
(Appeal of Auger) }
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Decision on Multiple Motions
Michael Auger and his mother, Jeannette, (“Appellants”) have appealed a decision of the
District 7 Environmental Commission (“District Commission”), which granted Vermont RSA
Ltd. Partnership and Cellco Partnership, d/b/a Verizon Wireless, (collectively “Verizon” or
“Applicants”) an Act 250 land use permit to erect a wireless communications tower and related
infrastructure in Barton, Vermont. The permit authorized construction of a 107-foot monopole
tower disguised as a pine tree, as well as an equipment building and related improvements, on
land owned by David and Lucy Marvin at 497 Ingersoll Lane in Barton.
Appellants, who jointly own and operate a business known as the Sugarmill Farm on
property adjacent to the project site, insist that the proposed tower and building will adversely
affect their property and business. Specifically, Appellants contend that the project will have an
undue adverse impact on interests protected by Act 250 criterion 1 (air pollution), criterion 8
(aesthetics), and criterion 10 (local or regional plan). See 10 V.S.A. § 6086(a)(1), (8), and (10).
Verizon has filed a motion for partial summary judgment, maintaining that neither
Michael nor Jeanette Auger have standing to prosecute an appeal of Act 250 criteria 1 or 10.1
Verizon contends that it is therefore entitled to judgment as a matter of law on Questions 1 and 3
of Appellants’ Statement of Questions. Verizon further asks that Ms. Auger be summarily
dismissed as an appellant from Question 2, contending that she also lacks standing to appeal
under Act 250 criterion 8.
1
We note here that, although the parties’ filings regard the pending motion as a challenge to Appellants’ party
status, it is more appropriate to regard Verizon’s motion as a challenge to Appellants’ standing. As the former
Environmental Board noted, “party status” is a designation used when new parties seek to join an action initiated by
another, but “standing” is the proper analysis when parties wish to appeal, or their right to do so is being challenged.
In re Putney Paper Company, Inc., Declaratory Ruling Request #335, Findings of Fact, Conclusions of Law, and
Order at 5–6 (Vt. Envtl. Bd., May 29, 1997), cited in In re Marcelino Waste Facility, No. 44-2-07 Vtec, slip op. at 2
(Vt. Envtl. Ct. Nov. 6, 2007) (Durkin, J.). As discussed more fully below, party status is but one component to
standing when appealing Act 250 decisions to the Environmental Court. See 10 V.S.A. § 8504(d)(1).
1
In response, Appellants have filed a memorandum in opposition as well as a Motion to
Amend their Statement of Questions. Verizon opposes the pending Motion to Amend.
Verizon is represented by Brian Sullivan, Esq. and Pamela Moreau, Esq.; Appellants are
represented by Vincent Illuzzi, Esq. Both the Natural Resource Board and the Agency of
Natural Resources have declined to participate in the appeal, but each has informational status
through Judith L. Dillon, Esq., and John H. Hasen, Esq., respectively.
Factual Background
For the sole purpose of putting the pending motions into context, we recite the following
facts, which we understand to be undisputed unless otherwise noted:
1. On February 25, 2008, Verizon applied for an Act 250 permit from the District
Commission, seeking approval to erect a wireless telecommunications tower and related
improvements in Barton, Vermont. The proposal involved constructing a monopole tower, an
equipment shelter, and other infrastructure on land owned by David and Lucy Marvin at 497
Ingersoll Lane.
2. The 107-foot, free-standing tower would be disguised as a pine tree and situated in a field
along the edge of a wooded lot. Twelve panel antennae would be located nine feet from the peak
of the tower, painted green, and concealed by artificial tree branches. The monopole would be
painted brown to resemble a tree trunk.
3. Appellants, Michael Auger and his mother, Jeannette, jointly own property abutting the
project site, where they operate a business known as the Sugarmill Farm. The Sugarmill Farm is
an established dairy farm that caters to the general public by selling produce and other local
products in addition to offering visitor information and areas for picnicking and hiking.
Verizon’s proposed monopole tower would not be visible from the farmhouse, but it would be
visible from the picnicking and hiking areas on the property.
4. The District Commission first classified Verizon’s application as a “minor application,”
pursuant to Act 250 Rule 51(A), after determining that there was a demonstrable likelihood that
the project would not present a significant adverse impact under the applicable Act 250 criteria.2
2
Under Rule 51, a “minor application” may be granted a permit without a hearing or the issuance of findings of fact
and conclusions of law. Act 250 Rule 51(A), (B)(3)(b). The District Commission need only convene a hearing if,
after publication of a proposed permit, a person eligible for party status raises substantive issues on an Act 250
criterion in his or her request for a hearing. Id. Rule 51(B)–(D).
2
Soon after it published notice of the proposed permit, the District Commission received two
requests from area property owners.
5. The first request was received on May 14, 2008, from Vincent Illuzzi, who was acting in
his individual capacity as a resident in the same county as the project site and owner of a
commercial property developed with a communications tower in the vicinity of Barton
Mountain.3 Mr. Illuzzi requested the opportunity to present evidence as to why Verizon’s
proposal should not be considered a minor application. He also requested party status generally,
but did not request party status under any specific criteria.
6. On May 16, 2008, Appellants jointly notified the District Commission that they
supported Mr. Illuzzi’s request for a hearing. In their May 16 letter, however, Appellants also
failed to explicitly request party status for any of the Act 250 criteria. It appears that other letters
were later sent to the District Commission, but the Court has not been provided with copies of
these correspondences.
7. After receiving these requests, the District Commission concluded that a hearing on
Verizon’s proposal was necessary; it held a site visit and hearing on August 19, 2008.
8. At the commencement of the hearing, the District Commission made preliminary party
status determinations for those in attendance seeking party status. It granted Mr. Illuzzi
preliminary party status for criterion 10 (conformance with local and regional plan), and granted
Michael Auger preliminary party status for criteria 1 (air pollution) and 8 (aesthetics). Jeannette
Auger was not considered for preliminary party status for any of the Act 250 criteria, presumably
because she was not in attendance and because she never expressly requested party status.
9. Prior to entering deliberations, the District Commission reexamined their preliminary
party-status designations. Ultimately, the District Commission denied final party status to Mr.
Illuzzi, stating that he had failed to demonstrate a particularized interest protected by
criterion 10. Instead, Mr. Illuzzi was allowed to participate as a Friend of the Commission and
allowed to present facts and legal arguments concerning criterion 10 (conformance with the local
and regional plan).
10. With regard to Michael Auger, the District Commission denied him final party status for
criterion 1 (air pollution), but granted him final party status for criterion 8 (aesthetics). He had
3
Although Mr. Illuzzi now represents Appellants in this appeal, he originally participated in the proceedings below
in his own capacity, not in his capacity as Appellants’ attorney. He is not an appellant in this appeal.
3
not provided evidence of a particularized interest with respect to air pollution but had provided
evidence that an aesthetic interest of his may be impacted—Verizon’s proposed tower would be
visible from the Sugarmill Farm property. Mr. Auger never requested and was never considered
for party status under criterion 10.
11. Furthermore, the District Commission did not consider Jeannette Auger for final party
status with respect to any Act 250 criteria. In fact, the District Commission Decision makes no
mention of Ms. Auger beyond reference to the May 16 letter—which does not request party
status. It is clear that Ms. Auger never secured party status in the proceedings below for any of
the relevant criteria (criteria 1, 8, or 10).
12. Michael Auger insists in his affidavit that he participated in the proceedings on behalf of
his mother, Jeannette, when he explained to the District Commission that the monopole tower
would be visible from the Augers’ property. He asserts that he represented their joint interest in
the Sugarmill Farm, a joint venture with his mother. Nevertheless, the District Commission did
not grant Jeannette Auger party status in the decision.
13. After making these final party-status determinations, the District Commission considered
the merits of Verizon’s Act 250 permit application, ultimately determining that the proposal
would not have an undue adverse impact on any of the relevant Act 250 criteria. In light of all
the evidence presented, the District Commission concluded that the tower would not have an
undue adverse impact on the aesthetics of the area (criterion 8) and that the project complied
with the local and regional plans (criterion 10). On December 23, 2008, it issued Verizon Land
Use Permit #7R1276,4 authorizing the construction of the proposed monopole tower and related
improvements.
14. Appellants filed a timely appeal with this Court on January 9, 2009, asking three
questions in their Statement of Questions:
(1) Will the project have a direct impact on the Auger property, or
their property interests, therefore providing the Augers with
party status under Criterion 1?
(2) Will this project have an adverse impact on the aesthetics,
scenic beauty, historic site, or natural areas of the Augers’
property?
(3) Is this project in conformance with the local plan including the
Barton Zoning Ordinance?
4
The Commission also issued Findings of Fact and Conclusions of Law on December 23, 2008.
4
Discussion
I. Motion for Summary Judgment
In its pending motion, Verizon seeks summary judgment in its favor on Questions 1 and 3
of Appellants’ Statement of Questions. Verizon contends in support that neither Appellant
obtained party status for criterion 1 or criterion 10 in the District Commission proceeding below,
which is a prerequisite to standing in Act 250 appeals. Verizon also maintains that Jeanette
Auger should be summarily dismissed as an appellant because she did not obtain party status for
criterion 8, and therefore, she too lacks standing to appeal under that criterion.
Appellants respond in opposition to each of Verizon’s claims. To further clarify the
arguments they raise in opposition, Appellants have also filed a Motion to Amend their
Statement of Questions. Because issues of party status and standing raise questions regarding
the Court’s subject matter jurisdiction to hear an appeal, we first address Verizon’s Motion for
Summary Judgment.
Summary judgment may only be granted when “the pleadings, depositions, [and] answers
to interrogatories, . . . together with the affidavits, if any, show that there is no genuine issue as
to any material fact and that any party is entitled to judgment as a matter of law.” V.R.C.P.
56(c)(3). The Court “place[s] the burden of proof on the moving party, and give[s] the opposing
party the benefit of all reasonable doubts and inferences.” Chapman v. Sparta, 167 Vt. 157, 159
(1997). We address the challenges to Appellants’ standing in this light.
In Act 250 appeals to this Court, “persons aggrieved by an act or decision” of the district
commission have standing to appeal.5 10 V.S.A. § 8504(a). However:
No aggrieved person may appeal an act or decision that was made by a
district commission unless the person was granted party status by the district
commission pursuant to subdivision 6085(c)(1)(E) of this title,[6] participated in
the proceedings before the district commission, and retained party status at the
end of the district commission proceedings. In addition, the person may only
appeal those issues under the criteria with respect to which the person was granted
party status.
5
A person aggrieved in an Act 250 proceeding is a “person who alleges an injury to a particularized interest
protected by” any of the ten Act 250 criteria listed in 10 V.S.A. § 6086(a), attributable to the district commission,
that can be redressed by this Court. 10 V.S.A. § 8502(7).
6
This provision explains that “the following persons shall be entitled to party status: . . . . Any adjoining property
owner or other person who has a particularized interest protected by this chapter that may be affected by an act or
decision by a district commission.” 10 V.S.A. § 6085(c)(1)(E).
5
10 V.S.A. § 8504(d)(1). Accordingly, just as in appeals of municipal decisions, participation and
party status are prerequisites for standing to appeal Act 250 decisions. Cf. In re Carroll, 2007
VT 19, ¶ 14, 181 Vt. 383 (identifying the standing requirements for appeals of municipal
decisions). Furthermore, it is clear that an appellant cannot prosecute an appeal of Act 250
criteria for which he or she did not obtain party status below, unless that party secures status to
do so on appeal. See, e.g., In re Rinker’s, Inc. d/b/a Rinker’s Commc’ns, No. 302-12-08 Vtec,
slip op. at 2 (Sept. 17, 2009) (Wright, J.) (citations omitted).
With these statutory standing restrictions as our guide, we examine whether Appellants
have fulfilled the prerequisites to appeal each criterion raised in this appeal.
A. Criterion 1 (air pollution)
Verizon first seeks summary judgment on Question 1 because the undisputed facts
indicate that neither Appellant retained party status for criterion 1 at the end of the District
Commission proceedings.7 Verizon asserts that Appellants have therefore failed to fulfill the
standing requirements of § 8504(d)(1).
It is not disputed that Michael Auger was ultimately denied party status for criterion 1
before the conclusion of the District Commission proceedings. The Commission ruled that he
failed to provide sufficient evidence that Verizon’s proposed project may have a direct impact on
a particularized interest protected by criterion 1. Appellants also concede that Jeannette Auger
failed to secure final party status for criterion 1 by the end of the proceedings below. The only
reference to Jeannette Auger in the District Commission decision is a brief reference to the May
16 letter. Thus, according to the undisputed facts, Appellants have failed to establish standing to
appeal criterion 1 pursuant to § 8504(d)(1).
7
Verizon also provides alternative grounds for dismissing Jeannette Auger, maintaining that her lack of
participation before the District Commission disqualifies her as an appellant. Although participation is not defined
in the provisions of Title 10 involving appeals from Act 250 decisions, we find guidance as to the meaning of
participation by looking to Title 24, which concerns appeals from municipal land use proceedings. Title 24 indicates
that “[p]articipation . . . shall consist of offering, through oral or written testimony, evidence or a statement of
concern related to the subject of the proceeding.” 24 V.S.A. § 4471(a). An individual can therefore “participate” by
submitting written documentation that expresses concern about the proposed project.
According to the undisputed facts, Ms. Auger submitted to the District Commission two such letters. A letter
signed by both Mr. Auger & Ms. Auger, insisting that Verizon’s tower proposal did not qualify as a minor Act 250
permit application, was submitted to the District Commission on May 16, 2008. A second letter signed by both
Appellants was submitted on June 22, 2009, explaining that the proposed tower would be visible from their
property. We regard these written expressions of concern as sufficient to fulfill the participation requirement and
conclude that Jeannette Auger participated in the proceedings below.
6
Appellants respond that they are not foreclosed from appealing to this Court simply for a
lack of party status, correctly noting that certain appeals can proceed notwithstanding
nonconformance with § 8504(d)(1). Under 10 V.S.A. § 8504(d)(2), a person aggrieved is
entitled to appeal in three situations:
if the environmental judge determines that:
(A) there was a procedural defect which prevented the person from
obtaining interested person status or participating in the proceeding;
(B) the decision being appealed is the grant or denial of interested person
status; or
(C) some other condition exists which would result in manifest injustice if
the person’s right to appeal was disallowed.
10 V.S.A. § 8504(d)(2). Appellants claim that they qualify to appeal under subsection (d)(2)(B),
insisting that this Court should independently review party status in this de novo proceeding.
They contend that Question 1 of their Statement of Questions expressly raises the question of
their party status to prosecute an appeal of criterion 1.
Although not artfully drafted, we agree that Question 1 raises the issue of Appellants’
party status for criterion 1. However, this imprecise declaration for party status is insufficient to
trigger jurisdiction and de novo review of party status. Vermont Rule of Environmental Court
Procedure 5(d)(2) requires an appellant to file a motion and put the parties and the Court on clear
notice of the exceptional circumstances that warrant an appeal under § 8504(d)(2). Appellants
“must assert their claim of party status by motion filed with the notice of appeal.” V.R.E.C.P.
5(d)(2). As we have previously explained, this mandatory directive requires strict compliance.
In re Verizon Wireless Barton Permit, No. 133-6-08 Vtec, slip op. at 8 (Vt. Envtl. Ct. May 20,
2009) (Durkin, J.). Failing to file a motion for party status in an appeal pursuant to
§ 8504(d)(2)(B) is cause for dismissal. See, e.g., id.
Appellants have neglected their responsibility to file a motion for party status for
criterion 1 pursuant to V.R.E.C.P. 5(d)(2); they have therefore failed to preserve their right to
appeal pursuant to § 8504(d)(2). For that reason, we conclude that Appellants are foreclosed
from appealing criterion 1 and therefore GRANT Verizon summary judgment with regard to
Question 1 in the Statement of Questions.
7
B. Criterion 10 (conformance with local and regional plan)
Verizon has also moved for summary judgment on Question 3, maintaining that
Appellants lack standing to prosecute an appeal of criterion 10 for the same reason that they were
disqualified from criterion 1: neither Appellant fulfilled the party-status requirement of
§ 8504(d)(1), and appeal pursuant to § 8504(d)(2) is unavailable without a motion for party
status accompanying their Notice of Appeal, as directed by V.R.E.C.P. 5(d)(2).
Appellants concede that they failed to obtain party status for criterion 10 and have not
filed the required motion. They claim instead that adjoining property owners are excepted from
the prerequisites in § 8504(d)(1), suggesting that they have standing to appeal whether or not
they obtained party status for criterion 10. According to Appellants, adjoining landowners are
entitled to appeal all of the Act 250 criteria examined by the District Commission below
(including criterion 10 in this instance because Mr. Illuzzi presented evidence on the project’s
conformance with the local and regional plan). The applicable law and procedural rules direct
otherwise.
This argument lacks merit because it overlooks the clear standing requirements contained
in § 8504(d)(1), which says that “[n]o aggrieved person may appeal” unless the person secures
party status in the proceedings below. 10 V.S.A. § 8504(d)(1). More importantly, it disregards
the express limitation that “the person may only appeal those issues under the criteria with
respect to which the person was granted party status.” Id. According to the plain language of the
statute, party status for criterion 10 is a prerequisite to appeal criterion 10. The exceptions to this
general rule, contained in 10 V.S.A. § 8504(d)(2)(A), (B), and (C), are not applicable here.
It is undisputed that Appellants neither sought nor obtained party status below with
regard to criterion 10. They are therefore foreclosed from appealing pursuant to § 8504(d)(1).
Appellants are similarly unable to avail themselves of § 8504(d)(2). Not only have they failed to
demonstrate the existence of one of the three circumstances outlined in subsection (d)(2)(A)–(C),
but they have not filed a motion for party status as required by V.R.E.C.P. 5(d)(2). For these
reasons, we must GRANT Verizon’s request for summary judgment on Question 3.
C. Criterion 8 (aesthetics)
Verizon finally seeks the dismissal of Jeannette Auger as an Appellant, contending that
she lacks standing to appeal under criterion 8. Verizon contends that Ms. Auger did not retain
party status for criterion 8 at the conclusion of the District Commission proceedings and thus
8
failed to satisfy 10 V.S.A. § 8504(d)(1). Appellants respond by maintaining that Michael Auger
acted on behalf of Jeannette at the proceedings below,8 representing their joint interests in the
Sugarmill Farm. Essentially, Appellants’ argument is that Michael Auger’s standing to appeal
criterion 8 should be imputed on his mother because they are engaged in a joint venture on
property adjacent to the project site.
We first note that Verizon has not challenged Michael Auger’s right to appeal criterion 8.
It is not disputed that Mr. Auger participated before the District Commission and retained final
party status for criterion 8 at the conclusion of the proceedings. He has standing pursuant to
§ 8504(d)(1). There is also no doubt that Jeannette Auger did not attend the proceedings below
and did not secure party status for criterion 8, thereby failing to satisfy § 8504(d)(1). It finally
appears undisputed that Michael and Jeannette Auger, mother and son, are engaged in a joint
venture on property adjoining the project site. Therefore, the only issue is whether Michael
Auger’s party status and standing to appeal criterion 8 can be imputed upon his mother by virtue
of their involvement in a joint business venture on property abutting the project site. For the
following reasons, we answer this question in the negative.
Conferring the right to appeal upon Jeannette Auger by virtue of her relationship with
Michael would ignore the statutory standing limitations described in 10 V.S.A. § 8504(d)(1). As
we repeatedly explained above, a person must secure party status and participate in the
proceedings below before they are entitled to appeal. 10 V.S.A. § 8504(d)(1). We must “strictly
adhere” to these statutory standing requirements. Cf. In re Albert, 2008 VT 30, ¶ 8, 183 Vt. 637(examining statutory standing requirements in appeals of municipal zoning decisions). We have
no authority to allow a person to appeal without fulfilling these prerequisites; to conclude
otherwise would contradict the plain language of the statute and encourage a flood of
unauthorized appellants.
Appellants respond by noting that a “joint venture” qualifies as a “person” in the statute
governing appeals to this Court. See 10 V.S.A. § 8502(6) (defining “person” to include joint
ventures and other commercial entities). Because Michael Auger referenced the Sugarmill Farm
during the proceedings below, and because Jeannette Auger is a business partner in this joint
venture, Appellants contend that Ms. Auger is entitled to appeal. In making this argument,
8
While Mr. Auger asserts that his representations before the District Commission were made on behalf of his
mother as well, we find no reference or evidence of this in the record presented to the Court.
9
Appellants appear to be suggesting that the person prosecuting this appeal is the Sugarmill Farm.
However, the record does not support such a conclusion.
Although it appears that the District Commission granted Michael Auger final party
status for criterion 8 because of his ownership interest in the Auger family farm, the District
Commission conferred party status to Michael Auger, not the Sugarmill Farm. In fact, the
District Commission Decision does not reference the Sugarmill Farm by name. Nothing in the
record suggests that the Sugarmill Farm participated in the proceedings below and obtained party
status for criterion 8. The only indication is a brief reference to Michael Auger’s ownership
interest in the Auger family farm.
In addition, Sugarmill Farm is not identified as an appellant in the Notice of Appeal and
it has not filed a motion for party status. Even though a joint venture constitutes a person that
may be entitled to appeal, there is simply no evidence in the record that Sugarmill Farm has
either secured the right or attempted to appeal in this matter. Jeannette Auger cannot therefore
rely on her ownership interest in the Sugarmill Farm to establish a right to appeal.
We acknowledge that our decision here excludes as an appellant an abutting property
owner with legitimate concerns about the project, but we are not concerned that our decision
does any injustice to Jeannette Auger. We are confident that Ms. Auger’s interests will be
adequately represented in this appeal because her son and business partner remains. Michael
Auger has consistently maintained that he and his mother share a common interest in this appeal:
avoiding the potential adverse aesthetic impact Verizon’s proposed monopole tower will have on
the Sugarmill Farm. He has also previously demonstrated a willingness to protect those interests.
Accordingly, we GRANT Verizon’s request to summarily dismiss Jeannette Auger as an
appellant in Question 2.9
For the reasons explained above, we GRANT Verizon summary judgment on Questions
1 and 3 in the Statement of Questions, and GRANT Verizon’s request to dismiss Jeannette
Auger as an Appellant in Question 2. This now brings us to Appellants’ Motion to Amend.
II. Motion to Amend the Statement of Questions
It appears that Appellants moved to amend their Statement of Questions in large part to
clarify the arguments made in opposition to Verizon’s pending Motion for Summary Judgment.
9
The legal question of whether Jeannette Auger may participate as an interested person has not been presented to
us, and we therefore do not offer an analysis on that topic.
10
Specifically, Appellants have rephrased and divided the questions to remove any doubt that
Appellants are in fact appealing their party-status determination under criterion 1. The amended
questions also spell out Appellants’ argument that they have a right to appeal criterion 10
because adjoining property owners are entitled to appeal any Act 250 criterion examined below,
notwithstanding a lack of party status for that criterion. Finally, the reorganized questions
illuminate the argument that Jeannette Auger should be granted standing as an appellant in this
appeal by virtue of her joint venture in the Sugarmill Farm with her son, Michael.
Generally speaking, motions to amend a Statement of Questions should “be liberally
granted, . . . when they do not prejudice the other parties.” In re Fairfax, No. 45-3-03 Vtec, slip
op. at 5 (Vt. Envtl. Ct. June 13, 2005) (Wright, J.). Such a motion is typically granted when it “is
neither frivolous nor made as a dilatory maneuver or in bad faith.” In re Guardianship of L.B.,
147 Vt. 82, 84 (1984). The Court does not see how granting Appellants’ motion would prejudice
Verizon, and there is no evidence of any bad faith or delay on Appellants’ part. However, we
believe that granting a motion to amend should further the purpose of the Statement of
Questions, which is to give notice to the other parties and the Court regarding the issues to be
decided on appeal. Fairfax, No. 45-3-03 Vtec, slip op at 4. We fail to see how granting
Appellants’ Motion to Amend serves that function, especially in light of our decision above.
In our decision today, we recognized and responded to the arguments made in opposition
to Verizon’s Motion for Summary Judgment and reinforced in the Motion to Amend. For
example, we agreed that Appellants had raised an issue of party status for criterion 1 in their
original Statement of Questions, but dismissed their appeal for not filing a motion under
V.R.E.C.P 5(d)(2); we examined whether adjoining property owners could appeal Act 250
criteria for which they were not granted party status below and concluded that, under 10 V.S.A.
§ 8504(d)(1), appellants may not appeal Act 250 criteria for which they did not secure party
status; and we considered and rejected the argument that Michael Auger’s standing should be
imputed upon his mother, Jeannette, by virtue of their joint business venture on property adjacent
to the project site. Because the issues raised in Appellants’ Motion to Amend were fully
discussed today in our decision on summary judgment, the need to clarify the Statement of
Questions has dissipated. For these reasons, we DENY Appellants’ Motion to Amend the
Statement of Questions.
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Conclusion
For all the reasons more fully discussed above, we conclude that neither Appellant has
fulfilled the statutory standing requirements necessary to prosecute this appeal of Act 250
criterion 1 or criterion 10. We therefore GRANT Verizon summary judgment on Questions 1
and 3 in Appellants’ Statement of Questions. We also conclude that Jeannette Auger has failed
to establish standing as an appellant under criterion 8. We therefore GRANT Verizon’s motion
to dismiss Ms. Auger as an appellant in Question 2 of the Statement of Questions. Her son and
co-owner of the Sugarmill Farm property retains standing to prosecute this appeal under Act 250
criterion 8.
Finally, we DENY Appellants’ Motion to Amend the Statement of Questions because the
issues raised in their motion were fully addressed by our decision today. Accordingly, the sole
remaining question in this appeal is: “Will this project have an adverse impact on the aesthetics,
scenic beauty, historic site or natural areas of the Augers’ property?”
This matter will next be scheduled for a conference with the Case Manager during which
the parties should be prepared to discuss the scheduling of discovery, mediation, and other items
necessary to prepare this matter for trial.
Done at Berlin, Vermont, this 2nd day of February 2010.
___________________________________
Thomas S. Durkin, Environmental Judge
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