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).