State of Vermont Superior Court—Environmental Division

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In re Barefoot et. al. Act 250 Application Docket No. 46-4-12 Vtec (Appeal from District 5 Env. Commission determinati on)

Title: Motion to Dismiss Certain of Applicant-Appel lants’ Questions on Appeal (Filing No. 1) Filed: April 24, 2012 Filed By: Interested Person Francis Kincaid (Kinny) Perot
Response filed on 4/27/12 by Applicant-Appellants

___ Granted 

### X Denied ___ Other

On December 30, 2011 the District 5 Environmental C ommission (“the Commission”) denied an Act 250 permit application submitted by A pplicants Tom Barefoot III, Joni Zweig, and True North Wilderness Programs, LLC (“Applicant s”) to operate a wilderness therapy program on a 25-acre tract owned by Barefoot/Zweig off Dana Hill Road in the Town of Waitsfield, Vermont. The Commission’s final decisi on in that case, dated March 2, 2012, is entitled “Memorandum of Decision, Motion to Alter.”
Applicants filed a Notice of Appeal with this Court on April 2, 2012 and a corresponding Statement of Questions on April 23, 2012. The foll owing day, Interested Person Francis Kincaid (Kinny) Perot (“Ms. Perot”) filed a motion to dismi ss all but one of Applicants’ nine questions. Ms. Perot claimed that, because Applicants’ Notice of Appeal referenced the Commission’s March 2, 2012 “Memorandum of Decision, Motion to Al ter” rather than the Commission’s original permit denial decision, the scope of Appli cants’ appeal was limited to issues addressed by the Commission in its decision on Applicants’ mo tion to alter. Ms. Perot further argued that since the Commission’s decision on Applicant’s moti on to alter pertained solely to Criterion 10, this Court is without jurisdiction and should dismi ss all of Applicants’ questions, except Question 8 (the only question pertaining to Act 250 criterion 10).
We reject the contention that the wording of Applic ants’ Notice of Appeal limits our jurisdiction to the question of conformance with Ac t 250 criterion 10. Applicants’ notice states that the appeal “concerns the denial of an Act 250 permit [application] for the operation of a wilderness therapy program on a 25-acre tract owned by Barefoot/Zweig off Dana Hill Road in the Town of Waitsfield.” Although it would have be en advisable and helpful for Applicants to include the precise title of the December 20, 2011 decision within the narrative of their Notice of Appeal, the quoted statement, taken in the context of the rest of the document, is sufficient to identify the act or decision appealed from, as requ ired under V.R.E.C.P. 5(b)(3).
The Vermont Supreme Court has instructed that “[s]t atutes giving and regulating the right of appeal are remedial in nature and should r eceive a liberal construction in furtherance of the right of appeal.” In re Preseault, 130 Vt. 343 , 346 (1972). “If a litigant files in a timely fashion a document that specifically indicates an i ntent to appeal and gives sufficient notice ofRe Barefoot Act 250 Application, No. 46-4-12 Vtec ( EO on Mot. to Dismiss Questions) (12-21-12) Pg. 2 of 2.

that intent, there is compliance with the requireme nt to file a notice of appeal.” In re Shantee Point, Inc., 174 Vt. 248, 259 (2002) (discussing V. R.A.P. 3); see also Reporter’s Notes, V.R.E.C.P. 5 (V.R.E.C.P. 5(b)(3), which governs the contents of a notice of appeal, is based on V.R.A.P. 3(d)).
Applicants’ reference to the Commission’s decision on the motion to alter was proper, as
it alerted this Court to the final decision in the Act 250 permit appeal case triggering the appeal period. Indeed, such a reference is appropriate be cause both the Vermont Rules of Appellate
Procedure and the Act 250 Rules state that the time period for filing an appeal is affected by the filing of a motion to reconsider or amend judgment, and the full time for appeal will commence upon entry of a decision on that motion. V.R.A.P. 4(b); Act 250 Rule 31(A). See also Hospitality Inns v. So. Burlington R.I., 149 Vt. 653, 656, (198 8) (“[A] final judgment is a prerequisite to appellate jurisdiction.”)
Applicants’ motion to dismiss falls under V.R.C.P. 12(b)(6), as it seeks dismissal of the contested questions for their failure to state issu es upon which the Court can grant relief. Because Applicants’ Notice of Appeal gave sufficien t notice as to the decision on appeal, our ability to grant relief is not limited to Question 8 only.

For the reasons stated above, Ms. Perot’s motion to dismiss Applicants’ Questions 1, 2, 3, 4, 5, 6, 7, and 9 is DENIED . Ms. Perot has also filed a separate motion to di smiss Applicants’ Question 9 on separate grounds. We address that mo tion in a separate Entry Order, also issued today.
There are two other motions pending in this appeal: (1) a motion for party status filed by Ms. Perot and (3) a motion to dismiss Ms. Perot’s S tatement of Questions, filed by Applicants Thomas Barefoot III, Joni Zweig, and the True North Wilderness Programs, LLC. Because of the overlapping filings pertaining to these motions, al l motions were placed under advisement on October 15, 2012. The Court is in the process of r esearching and drafting responses to the three remaining motions.

_________________________________________ December 21, 2012 Thomas S. Durkin, Judge Date

=================================================== ====================== Date copies sent: ___________ C lerk's Initials ______
Copies sent to: Atty Geoffrey H. Hand for Applicants Thomas Bar efoot III, Joni Zweig, & True North Wilderness Prog ram, LLC Attorney Rebecca Boucher, Co-Counsel for Applica nts Attorney Catherine Gjessing for the Vermont Age ncy of Natural Resources Attorney David Grayck for Cross Appellant Franc es Kincaid Perot Attorney Peter Gill for Interested Person Natur al Resources Board/LU Panel.