In re: Stephen Dana (MDG Properties c/o Trueman Bryer - Applicant), Docket No. CUD-97-01 (Appeal of DEC Permit #CUD94-148), Dismissal Order (Aug. 28, 1997)



State of Vermont

WATER RESOURCES BOARDRE: Stephen Dana (MDG Properties c/o Trueman Bryer - Applicant)

Docket No. CUD-97-01

(Appeal of DEC Permit #CUD 94-148)

DISMISSAL ORDER

The referenced matter pertains to an appeal filed by Stephen Dana from the Department of Environmental Conservation's ("DEC") granting of a Conditional Use Determination (CUD) No. 94-148 ("Permit") to MDG Properties c/o Trueman Bryer.

I. BACKGROUND

On March 21, 1997, the DEC, a department of the Vermont Agency of Natural Resources ("ANR"), issued the Permit under appeal to MDG Properties pursuant to 10 V.S.A. 905(7)-(9); and Vermont Wetland Rule ("VWR") 6.2. The Permit authorized the filling of 2500 square feet of a Class Two wetland buffer zone for the construction of a road on the east side of Shantee Point, St. Albans ("Project").

On April 21, 1997, the Appellant, Stephen H. Dana, filed an appeal of DEC's issuance of the Permit pursuant to 10 V.S.A. 1269 and VWR 9.

On April 22, 1997, the Water Resources Board's ("Board") Executive Officer issued a letter to Appellant acknowledging receipt of the appeal.

On May 19, 1997, the Applicant, MDG Properties filed a letter that sought to have the Appellant's appeal dismissed. Along with the letter, Applicant enclosed a copy of a letter dated April 24, 1997, in which Applicant challenged the timeliness of Appellant's appeal.

On June 17, 1997, Board Chairman, William Boyd Davies exercised his authority, pursuant to Board Rule of Procedure ("WBR") 21, to make a preliminary ruling on a procedural matter concerning the timeliness of the Appellants' appeal. Accordingly, Chair Davies issued a Chair's Preliminary Ruling to dismiss the appeal with prejudice on the basis that it was not timely filed. The Chair's Preliminary Ruling is incorporated herein by reference.

In addition to authorizing preliminary rulings, WBR 21 provides for full Board review of a preliminary ruling. Specifically, WBR 21 states that ". . . any such ruling may be objected to by any party, in which case the ruling shall be reviewed by the Board." Moreover, the Board Rules provide that any determination to dismiss an appeal shall be preceded by an opportunity for the parties affected by such a dismissal to present oral argument. WBR 21. Accordingly, at the time the Preliminary Ruling was made, the Board also issued a Notice of Hearing for July 18, 1997, contingent upon the filing of a timely objection.

Timely Notices of Appearance were filed on behalf of the following persons:

The Agency of Natural Resources by Andrew Raubvogel;

The Appellant by Brian Hehir, Esq.;

The Applicant by Trueman Bryer.

On June 26, 1997, along with an entry of appearance, the Appellant filed an objection to the Chair's Preliminary Ruling. Appellant did not allege in his written objection that the Chair erred in determining that the appeal was untimely.(1) The filing of the objection did, however, trigger the Board's obligation to review the Chair's ruling to dismiss. The Board, therefore, heard argument on the timeliness issue that was ruled upon by the Chair's preliminary ruling.

The following persons presented oral arguments to the Board:

Brian P. Hehir, Esq. on behalf of Appellant, Stephen H. Dana;

Trueman Bryer, on behalf of MDG Properties.

Immediately after hearing legal argument, the Board went into deliberative session to consider the arguments. Shortly thereafter, the Board rendered a decision to affirm the Chair's Preliminary Ruling. This matter is now ready for issuance of a final decision.(2) To the extent any proposed findings of fact and conclusions of law are included below, they are granted; otherwise, they have been considered and are denied. See Petition of Village of Hardwick Electric Department, 143 Vt. 437, 445 (1983).

II. DISCUSSION

The sole issue before the full Board is whether the Appellant's appeal was timely filed. As stated in the Preliminary Ruling, filing deadlines established by the legislature are jurisdictional, and cannot be waived by the Board. See Allen v. Vermont Employment Security Board, 133 Vt. 166 (1975).

The statutory provision which authorizes the appeal of a CUD, codified at 10 V.S.A. 1269, provides that an appeal of a CUD permit issued by DEC may be filed with the Water Resources Board within 30 days. Emphasis added. 9 of the VWR also states that any act or decision of the Secretary of ANR "may be appealed within 30 days to the Board pursuant to 10 V.S.A. 1269." Emphasis added.

The Board Rules of Procedure effective April 25, 1988 govern this proceeding. WBR 19(b) states that a document shall be deemed to have been filed on the date of actual receipt at the office of the Executive Officer. When the Board calculates days for compliance with a statutory appeal period it does so without regard to the intermediate Saturdays, Sundays, and State, federal or legal holidays. Cf. VRCP 6(a).

The DEC action was taken on March 21, 1997. Chair Davies in his Preliminary Ruling determined that the filing was not timely and he therefore ordered the dismissal of this matter. The Board likewise concludes that in order for this appeal to have been filed in a timely manner, it must have been received in office of the Executive Officer, not later than 4:30 p.m. on Friday, April 18, 1997. The Appellant filed his appeal on April 21, 1997. The appeal is untimely.

III. ORDER

(1) The Board affirms the Chair's Preliminary Ruling dated June 17, 1997.

(2) The Board is without jurisdiction to reach the merits of the Appellant's objections to the Permit.

(3) Docket Number CUD-97-01 is hereby DISMISSED WITH PREJUDICE.

Dated at Montpelier, Vermont this 28th day of August, 1997.

Water Resources Board

/s/ William Boyd Davies

____________________

William Boyd Davies

Concurring:

Gail Osherenko

Gerry Gossens

Jane Potvin

1. Rather, the Appellant's filing raised four issues concerning the validity of the Permit. Specifically, these related to (1) the implications of the CUD and its conditions upon Appellant's property; (2) the statutory requirements for abandonment of a Class Four town road; (3) the means of access to the new road; and (4) alleged non-conformance with construction plans and alleged unauthorized filling. As noted in the Discussion section, the Board will not address these issues because it concludes that the appeal was untimely.

2. Although the decision was orally communicated to the parties and other persons present at the hearing, the appeal period for this decision runs from the date indicated on the signature page of the Board's order.