In re: Town of Milton, (Appeal of DEC Permit 97-14, Arrowhead Mountain Lake, Milton, Vermont), Dismissal Order, Docket No., MLP-97-02 (Jul. 30, 1997)

State of Vermont

WATER RESOURCES BOARD

RE: Town of Milton

Docket No. MLP-97-02

(Appeal of DEC Permit 97-14, Arrowhead Mountain Lake, Milton, Vermont)

DISMISSAL ORDER

The referenced matter pertains to an appeal filed by the Iron Workers District Council of New England ("Iron Workers") and Wilbur Parker (collectively referred to as "Appellants") from the Department of Environmental Conservation's ("DEC") issuance of Management of Lakes and Ponds (Encroachment) Permit, DEC No. 97-14 to the Town of Milton ("Permit").

I. BACKGROUND

On June 6, 1997, the DEC, a department of the Vermont Agency of Natural Resources ("ANR"), issued the Permit under appeal to the Town of Milton pursuant to the provisions of 29 V.S.A. §§ 401 - 409. The Permit authorized Milton to construct a new bridge over Arrowhead Mountain Lake and to build a lakeshore launching facility for small portable watercraft for use by the general public ("Project"). The Project is located in Milton.

On June 19, 1997 the Appellants filed an appeal of DEC's issuance of the Permit pursuant to 29 V.S.A. §406(a). On June 20, 1997, Water Resources Board ("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 on the basis that it was not timely filed. The language of the ruling ordering dismissal follows:

1. The Appellants' appeal of MLP-97-02 is dismissed with prejudice, unless a timely objection to this Order, in whole or in part, supported by legal memorandum is filed . . . on or before 4:30, Monday June 30.

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 entities:

The Agency of Natural Resources;

The Appellants;

The Chittenden County Regional Planning Commission;

The Vermont Agency of Commerce and Community Development; and

The Vermont Agency of Transportation.

On June 30, 1997, the Appellants filed an objection to the Chair's Preliminary Ruling arguing in their attached memorandum of law that the Chair erred in determining that the appeal was untimely. The filing of the objection triggered the Board's obligation to review the Chair's ruling to dismiss. Also on June 30, the Town of Milton filed a Motion to Dismiss the Appeal of DEC Permit 97-14 ("Milton's Motion to Dismiss") arguing the following three points: (1) the Chair's Preliminary Ruling with respect to timeliness is correct; (2) Appellants lack standing to bring the appeal; and (3) the Appellants fail to state a legal basis for an appeal. Responsive memoranda to the June 30th filings were due on or before July 10, 1997.

By a memorandum to parties dated July 3, 1997, Board counsel informed the parties that Board member Jane Potvin had recused herself from participation in the Board's consideration of Appellants' appeal. Accompanying the memorandum was an Order of Appointment of Acting Board Member, Elaine Little. Parties were instructed that if there were an objection to the appointment of Member Little, any party would be required to file such an objection not later than July 10, 1997. No party filed an objection.

On July 9, 1997, Appellants filed a Memorandum in Opposition to the Town of Milton's Motion to Dismiss ("Appellants' Memorandum"). Appellants' Memorandum raised several arguments in opposition to Milton's Motion to Dismiss that can be characterized roughly as follows:

I. Appellants claim to have standing to bring appeal;

A. Appellants claim that Milton lacks standing to appropriate any portion of Arrowhead Mountain Lake;

B. Appellants' maintain that their standing is premised on the Appellants' being owners or beneficiaries of the Public Trust to whom the State as trustee has a fiduciary duty;

II. The Appellants raise issues purportedly essential to the Public Trust Doctrine, and to interpreting the meaning of "Public Good" under 29 V.S.A. §402.

III. The Appellants claim that they should be able to proceed with their appeal irrespective of whether there are other means of participation available to them; and

IV. The Appellants re-state their contention that the appeal was timely.

On July 10, 1997, Milton filed a Supplemental Motion to Dismiss that renewed the request to dismiss the Appellants' appeal which they filed on June 30, 1997. Also on July 10, the ANR filed its Objections to Appeal and a brief memorandum in support of those objections.

On Friday, July 18, 1997, a quorum of the full Board convened at the Board's regularly scheduled meeting. The Board was prepared to hear argument on the issue of timeliness - as well as certain other preliminary issues, such as standing, that were raised by the parties. At the outset of the hearing, Chair Davies communicated to the parties the manner in which the Board would dispose of the issues. In essence, the hearing was bifurcated. Chair Davies noted that because the question of timeliness is a jurisdictional issue, the Board's consideration of other issues raised by the parties would be contingent upon the Board finding that it did have jurisdiction as a result of a timely appeal being filed. No party objected to this approach. Because the timeliness issue was determined to be dispositive with respect to the question of whether the Board has jurisdiction over this matter, it was taken up first.

The following persons presented oral arguments to the Board:

John L. Franco Jr., Esq. and Mickey Long, Esq. on behalf of Appellants, the Iron

Workers District Council of New England and Wilbur Parker;

Andy Raubvogel, Esq. on behalf of the Vermont ANR, the Vermont

Agency of Commerce and Community Development, and the Vermont

Agency of Transportation; and

Gregg H. Wilson, Esq. on behalf of the Town of Milton.

Immediately after hearing legal argument, the Board went into deliberative session to considered 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.⁽¹⁾ 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 threshold issue before the full Board is the sole question of whether the Appellants' appeal was timely filed. The Board Rules of Procedure effective April 25, 1988 govern this proceeding.⁽²⁾ The present appeal was taken pursuant to the Management of Lakes and Ponds statute, codified at 29 V.S.A. §401-409 (Chapter 11). The statute at §406(a) provides that an appeal of a permit issued by DEC may be filed with the Water Resources Board within 10 days of the date of notice of the action. (emphasis added). The Board concludes that the phrase "notice of action" as it occurs in 29 V.S.A. §406(a) means the DEC's issuance of findings of fact and permit decision. Thus, the date of permit issuance commences the running of the statutory appeal period.

The last sentence of 29 V.S.A. §406(c) supports the Board's interpretation of the appeal period established by statute. Section 406(c) concludes with the sentence: "The action of approving or denying an application shall not be effective until 10 days after the department's notice of action." The Board's interpretation is supported further by the language of 29 V.S.A. §406(a) which specifies that the filing of an appeal shall stay the action of the department. Therefore, when a timely appeal is filed the action is stayed, whereas, if no appeal is filed within 10 days of the date of the department's notice of action, the department's decision becomes final.

Appellants rely upon the case of Glabach v. Sardelli, 132 Vt. 490 (1974) for the proposition that the period of time for taking an appeal of an administrative land use decision runs from the time the notice of the decision is received. They also cite a rule of construction favoring liberal construction of appellate statutes because, Appellants contend, they are remedial in nature. Appellants combine these two points in asserting that:

This rule of construction requires that the running of the time for the taking of an appeal under 29 V.S.A. §406 be read as commencing when notice was actually given to appellants, not when it was sent by the Department.

Appellants' Memorandum at p. 16.

The Board finds the Appellants' reasoning unpersuasive. The Glabach case dealt with a particular scenario in which the Legislature inserted a notice provision into the statute governing judgments by a zoning board of adjustment that, if not complied with, could effect a deemed approval in favor of an appellant. Moreover, Glabach was specifically overruled by the Supreme Court in Leo's Motors, Inc., et al. v. Town of Manchester and its companion case, James E. Hand, et al. v. Town of Manchester, 158 Vt. 561, 563-565 (1992) on the very point for which Appellants cite it.

The Board further concludes that where the Legislature intended an actual receipt standard to trigger a statutory time frame for appeal, it has stated as much in explicit detail. Thus, in 10 V.S.A. 6610a relating to solid waste management emergency orders, for example, "the emergency order shall be effective upon actual notice to the person against whom the order is issued." The Management of Lakes and Ponds statute contains no language supporting a claim that the Legislature intended either actual or constructive notice. Rather, the Board concludes that the date of the notice of action means the date the findings of fact and permit decision are mailed. Any appeal of DEC's decision must be received by the Board within 10 days from the date of mailing.

In this instance, the DEC's notice of action occurred on June 6, 1997 when it issued its findings of fact and encroachment permit 97-14 to the Town of Milton. The Appellants filed their appeal on June 19, 1997. 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). A timely appeal was required by statute to have been received at the Board's office on or before Monday, June 16, 1997. 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).

III. ORDER

(1) The Board affirms the Chair's Preliminary Ruling dated June 20, 1997.

(2) The Board is without jurisdiction to reach the merits of the parties additional legal arguments.

(3) Docket Number MLP-97-02 is hereby DISMISSED WITH PREJUDICE.

Dated at Montpelier, Vermont this 29th day of July, 1997.

Water Resources Board

/s/ William Boyd Davies

____________________

William Boyd Davies

Concurring:

William Boyd Davies

Gail Osherenko

Gerry Gossens

Elaine Little

1. Although the decision was orally communicated to the parties and other persons present at the hearing, Chair Davies specifically reminded those present that no final action of the Board would be effected until the written decision was signed and issued. Therefore, the appeal period for this decision runs from the date indicated on the signature page of the Board's order. This discussion underscores the distinction between a Board or Agency "action," and its "notice of action."

2. The Appellants' contended at oral argument that the Vermont Rules of Civil Procedure ("VRCP") ought to apply to this proceeding. However, the Board Rules do not incorporate the VRCP, and VRCP 1, "Scope of Rules," specifically states the proceedings in which they do govern. The purview of the VRCP includes neither administrative proceedings in general, nor Water Resources Board appeals, in particular. See for example, Condosta v. Department of Social Welfare 154 Vt. 465 (1990) citing International Ass'n of Firefighters Local #2287 v. City of Montpelier, 133 Vt. 175 (1975).