### 1 STATE OF VERMONT SUPERIOR COURT — ENVIRONMENTAL DIVISION

{ In re Union Bank { Docket No. 7-1-12 Vtec (Act 250 Application #5L0468-7) { (Appeal from Dist rict 5 Envtl. Comm.) {
Decision on Cross Motions for Party Status and Summ ary Judgment
Union Bank (“Applicant”) applied for an Act 250 per mit from the District 5 Environmental Commission (“the Commission”) for the construction and operation of a bank facility in the Village of Jeffersonville, Vermont. On October 26, 2011, the Commission issued its Findings of Fact, Conclusions of Law and Order, whi ch concluded that the Project as proposed complies with all applicable Act 250 criteria, 1 except Criterion 10, which relates to the project’ s conformance with the applicable municipal and regio nal plans. Applicant appealed the Commission’s determination to this Court. Subseque ntly, Jean Jenkauskas (“Cross-Appellant”), an owner of property adjoining the Project site who participated in the Commission proceeding below, filed a cross-appeal. Cross-Appellant seeks to challenge the Commission’s determination that the Project complies with Criter ia 1(D) and 4, and also seeks to raise issues on appeal under Criteria 5, 7, and 8. Currently be fore this Court is Cross-Appellant’s motion for party status under Criteria 1(D), 5, 7, and 8, in addition to Applicant’s March 20, 2012 motion for summary judgment on Cross-Appellant’s Qu estions 1, 2, 3, and a portion of 4. In this proceeding, Applicant is represented by Cla udine C. Safar, Esq. Cross-Appellant is represented by Brice C. Simon, Esq. The other p arties that have appeared in this matter have not filed pleadings concerning the pending motions.
Factual Background In order to put the pending motions into context, t he Court recites the following facts, which it understands to be undisputed unless otherw ise noted:

1 The District Commission issued Findings of Fact a nd Conclusions of Law specifically referencing Act 250 Criteria 1(D), 4 and 10, but concluded that Fin dings and Conclusions were not required under all other criteria, since the District Commission had p reviously determined pursuant to Act 250 Rule 51(F) that the remaining criteria were not at issue in th e pending application. See Re: Union Bank, No. 5L0 468- 7, Findings of Fact, Conclusions of Law and Order, at 2 (Dist. 5 Envtl. Comm’n, Oct. 26, 2011).

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1. On March 25, 2011, Applicant filed an application f or an Act 250 permit to construct and operate a bank facility (“the Project”) on a site a t the intersection of Vermont Routes 15 and 108 in the Village of Jeffersonville, a municipal entit y within the Town of Cambridge, Vermont.
2. In response, Cross-Appellant petitioned the Commiss ion for preliminary party status in the Commission’s proceedings on Applicant’s permit application. Cross-Appellant sought to participate as an interested person pursuant to 10 V.S.A. § 6085(c)(1)(E) under Act 250 Criteria 4, 5, 7, 8, and 10.
3. Both the Project site and Cross-Appellant’s land ha ve flooded in the past. The bulk of Cross-Appellant’s concerns about the proposed Proje ct relate to its potential effect on flooding
on her land.
4. Applicant’s application was deemed administratively complete on April 18, 2011. The District Commission then gave notice on April 26, 2 011 that since the application and supporting materials sufficiently addressed all app licable Act 250 criteria, it planned to process the application on a “minor” basis and to issue an Act 250 permit without a hearing, pursuant to Act 250 Rule 51. The Commission further noted, pursuant to Act 250 Rule 51(C), that it may still conduct a hearing on the pending application if a party requested a hearing and convinced
the Commission that there were “substantive issues” on the question of whether the Project would present a significant adverse impact under an y of the applicable criteria.
5. The Commission received timely requests for hearing from Cross-Appellant and the Village of Jeffersonville Board of Trustees.
6. In a Memorandum of Decision dated June 16, 2011, th e Commission granted the requests for a hearing and concluded that the Act 2 50 criteria at issue at the hearing would be Criteria 1(D), 4, and 10. The Commission also note d that it would only consider those criteria and would only render findings of fact and conclusi ons of law in relation to those criteria, all in accordance with Act 250 Rule 51(F).
7. The District Commission also granted Cross-Appellan t preliminary party status under Criteria 4 and 10 and denied her party status reque sts under Criteria 5, 7, and 8. The Commission reaffirmed Cross-Appellant’s final party status under Criteria 4 and 10 in its October 26, 2011 Findings of Fact, Conclusions of L aw and Order.
8. Cross-Appellant did not petition the District Commi ssion for party status under Criterion 1(D), but the Commission permitted Cross- Appellant to offer evidence related to Criterion 1(D) at its hearing.

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9. In its final decision, the Commission found that th e Project complied with Criteria 1(D) and 4 but that it did not comply with Criterion 10, specifically as to the Village of Jeffersonville Village Plan. Thus, the Commission denied Applican t an Act 250 permit.
10. Applicant appealed the Commission’s decision to thi s Court on January 12, 2012.
11. Cross-Appellant filed a cross-appeal on January 26, 2012. On February 15, 2012, CrossAppellant filed a Statement of Questions. Question 1 asks whether Cross-Appellant is entitled to party status before this Court under Act 250 Cri teria 1(D), 5, 7, and 8.
12. Cross-Appellant did not file a separate motion for party status pursuant to V.R.E.C.P. 5(d)(2) until November 19, 2012.

Discussion Through her motion for party status, Cross-Appellan t asserts that she is entitled to party status under Act 250 Criteria 1(D) (floodways), 5 ( traffic), 7 (municipal services), and 8 (historical sites). Applicant challenges Cross-App ellant’s claim to party status under all four criteria. Applicant also asserts that the Court sh ould dismiss Cross-Appellant’s entire motion as untimely. In the alternative, Applicant argues tha t Cross-Appellant has no standing to seek party status under Criterion 1(D), and that in any case she has failed to make a sufficient showing to claim party status under Criteria 1(D), 5, 7, and 8. For the reasons detailed below, we conclude as a ma tter of law that Cross-Appellant has standing to seek party status under Criterion 1(D) pursuant to 10 V.S.A. § 8504(d)(2)(C) and under Criteria 5, 7, and 8 pursuant to 10 V.S.A. § 8504(d)(2)(B). We also find that CrossAppellant is entitled to party status before this C ourt under Criterion 1(D) but not under Criteria 5, 7, and 8. Finally, we deny as moot App licant’s motion for summary judgment.

I. Timeliness of Motion for Party Status Any person aggrieved by an act or decision of a dis trict commission in a proceeding to review an Act 250 permit application may appeal tha t act or decision to this Court. 10 V.S.A. § 8504(a). Generally, however, that person must ha ve been granted party status by the district commission, participated in the proceedings before the district commission, and retained party status at the end of the district commission procee dings in order to have standing to appeal. 10 V.S.A. § 8504(d)(1). The person may only appeal th ose issues under the Act 250 criteria for which that person was granted party status. Id.

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Notwithstanding these restrictions, a person may al so appeal a district commission decision if this Court determines that (1) there wa s a procedural defect preventing the person from obtaining party status; (2) the district commi ssion’s decision being appealed is the grant or denial of party status; or (3) manifest injustice w ould result if the appeal is not allowed. 10 V.S.A. § 8504(d)(2)(A)–(C). A party seeking to app eal a district commission’s decision under one of these three exceptions must assert his or he r claim “by motion filed not later than the deadline for filing a statement of questions on app eal.” V.R.E.C.P. 5(d)(2). “Failing to file a motion for party status in an appeal pursuant to § 8504(d)(2)(B) is cause for dismissal.” In re Verizon Wireless Barton Act 250 Permit, No. 6-1-09 Vtec, slip op. at 7 (Vt. Super. Ct. Envtl. Div. Feb. 2, 2010) (Durkin, J.) (internal citations omit ted). In this case, Cross-Appellate filed her notice of c ross-appeal on January 30, 2012. Both Cross-Appellant’s Statement of Questions and her mo tion for party status under Criteria 1(D), 5, 7, and 8 were therefore due 20 days later. See V.R.E.C.P. 5(d)(2); V.R.E.C.P. 5(f) (stating that an appellant must file a statement of questions wit hin 20 days of filing a notice of appeal). Cross-Appellant did not meet this deadline for fili ng her motion for party status, which she instead filed on November 19, 2012, over nine month s late. This oversight is grounds for this Court to deny Cross-Appellant party status under Cr iteria 1(D), 5, 7, and 8 and to dismiss her cross-appeal to the extent it raises issues under t hose criteria. See Verizon Wireless, No. 6-1-09 Vtec, slip op. at 7. However, the Vermont Supreme Court has expressed a preference for courts to “resolv[e] litigation on the merits, to the end tha t fairness and justice are served.” Desjarlais v. Gilman, 143 Vt. 154, 158–59 (1983); see also Shahi v. Ascend Fin. Servs., Inc., 2006 VT 29, ¶ 3 n.*, 179 Vt. 434 (“Because due process favors decisions on the merits, we are reluctant to overturn a trial court's decision to allow a late filing.”) (c iting Dougherty v. Surgen, 147 Vt. 365, 366 (1986))

. In the context of a failure to file a timely motion for party status, the Supreme Court has stated
that it is within this Court’s discretion to consid er a late-filed motion, although we are not obligated to do so. See In re Verizon Wireless Bar ton Permit, 2010 VT 62, ¶ 21, 188 Vt. 262. Dismissing Cross-Appellant’s claims under Criteria 1(D), 5, 7, and 8 would severely restrict her appeal. To do so on procedural ground s before reviewing Cross-Appellant’s motion for party status would, in this case, not allow for the “full and fair determination” of CrossAppellant’s case. See V.R.E.C.P. 1. In contrast, accepting Cross-Appellant’s untimely motion for party status does not unduly prejudice Applican t, who has had notice of Cross-Appellant’s

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intent to seek party status under Criteria 1(D), 5, 7, and 8 since Cross-Appellant timely filed her Statement of Questions in February of 2012. 2 Accordingly, in our discretion, we will accept and review Cross-Appellant’s late-filed motion for party status.
II. Standing to Request Party Status Under Criterion 1( D) Cross-Appellant claims that she is entitled to part y status in this appeal under Act 250 Criterion 1(D) 3 despite the fact that she failed to formally reque st party status from the Commission below. Cross-Appellant asserts that den ying her party status would be a manifest injustice. Thus, it appears that Cross-Appellant s eeks party status under 10 V.S.A. § 8504(d)(2)(C), which allows a party who has not r equested party status below to seek party status in an appeal before this Court if a “conditi on exists which would result in manifest injustice if that person’s right to appeal was disa llowed.” Applicant contends that CrossAppellant fails to raise any conditions that would rise to the level of manifest injustice. Little case law addresses the statutory standard of “manifest injustice” under 10 V.S.A. § 8504(b)(2)(C), but this Court has recognized the st andard as rigorous. See In re Feeley Construction Permits, Nos. 4-1-10 Vtec and 5-1-10 V tec, slip op. at 18 (Vt. Super. Ct. Envtl. Div. Jan. 3, 2011) (Wright, J.). In this case, Cross-Ap pellant claims that a denial of her party status under Criterion 1(D) would represent a manifest inj ustice because: (1) she participated before the Commission pro se; (2) she did not understand t he scope of Criterion 1 during the Commission proceedings and assumed her concerns wer e fully addressed under Criterion 4; (3) she was unaware that merely presenting testimony re garding flooding before the Commission would not preserve her right to appeal the Commissi on’s decision under Criterion 1(D); and (4) such a denial would prevent this Court from conside ring the impact of the Project’s alleged diversion of flood waters onto Cross-Appellant’s pr operty. (Cross-Appellant’s Aff. in Support of Mot. for Party Status at 4–5, filed Nov. 20, 201 2.)

2 Cross-Appellant’s Question 1 asks, “Should Cross- Appellant Jenkauskas be granted party status as to Act 250 [C]riteria 1(D), 5, 7, and 8?” (Cross-Appe llant’s Statement of Questions, filed Feb. 15, 2012 .)

3 Act 250 Criterion 1(D) allows a permit to be gran ted when the applicant shows that: “(i) the development or subdivision of lands within a floodw ay will not restrict or divert the flow of flood wa ters, and endanger the health, safety[,] and welfare of t he public or of riparian owners during flooding; an d (ii) the development or subdivision of lands within a fl oodway fringe will not significantly increase the p eak discharge of the river or stream within or downstre am from the area of development and endanger the health, safety, or welfare of the public or riparia n owners during flooding.” 10 V.S.A. § 6086(a)(1)( D).

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Under the specific facts of this case, we find that denying Cross-Appellant the opportunity to seek party status under Criterion 1( D) would be a manifest injustice. We place particular weight on the facts that (1) Cross-Appel lant appeared before the Commission pro se; (2) the Commission considered the Project under Cri terion 1(D) on its own motion and permitted Cross-Appellant to participate and offer evidence under Criterion 1(D) in the proceeding below; and (3) Cross-Appellant’s concern s with the Project revolve almost exclusively around its effect on flooding on her pr operty, a protected concern under Criterion 1(D). Accordingly, we find that Cross-Appellant has stand ing to seek party status for Criterion 1(D) under 10 V.S.A. § 8504(d)(2)(C).

III. Party Status Under Criteria 1(D), 5, 7, and 8 The District Commission denied Cross-Appellant fina l party status under Criteria 5, 7, and 8. Thus, Cross-Appellant has standing to seek party status for these criteria pursuant to 10 V.S.A. § 8504(d)(2)(B) (“the district commission’s decision being appealed is the grant or denial of party status”), in addition to her standing to s eek party status for Criterion 1(D) under 10 V.S.A. § 8504(d)(2)(C). With respect to these crit eria, Cross-Appellant seeks party status pursuant to 10 V.S.A. § 6085(c)(1)(E), available to “[a]ny adjoining property owner or other person who has a particularized interest protected by [Act 250] that may be affected by an act or decision by a district commission.” Cross-Appellan t may qualify for party status under this subsection if she shows (1) that she has a particul arized interest; (2) that her interest is protected by the Act 250 criteria for which she is seeking pa rty status; and (3) that her interest may be affected by the issuance of the land use permit cur rently under appeal. In re Granville Mfg. Co., No. 2-1-11 Vtec, slip op. at 6 (Vt. Super. Ct. Envt l. Div. July 1, 2011) (Durkin, J.). CrossAppellant must demonstrate that her particularized interests are not general policy concerns shared with the general public. In re Pion Sand & Gravel Pit, No. 245-12-09 Vtec, slip op. at 7 (July 2, 2010) (Durkin, J.); see also Lujan v. Defe nders of Wildlife, 504 U.S. 555, 560 (1992) (in federal cases, a plaintiff must allege a “concrete and particularized” injury to have standing); Parker v. Town of Milton, 169 Vt. 74, 77–78 (1998) (adopting the federal standing requirements). Finally, Cross-Appellant must show a causal connect ion between a decision to approve the permit and any potential impacts to her particu larized interests. Pion, No. 245-12-09 Vtec, slip op. at 7; see also Granville, No. 2-1-11 Vtec, slip op. at 6. In demonstrating this causal connection, Cross-Appellant need only provide a min imal showing that the Project may affect

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her interests. See In re RCC Atlantic, Inc.
, No. 163-7-08 Vtec, slip op. at 8 (Vt. Envtl. Ct. M ay 8, 2009) (Durkin, J.) An adequate threshold showing must describe the evi dence or testimony to be introduced at the merits hearing and must be suffic iently concrete for the Court to understand the materiality of the evidence or testimony. Id. at 8–9 (internal quotation omitted). It must be more than mere speculation or theory, and cannot so lely consist of “unsupported assertions that vaguely defined interests” may be affected by the P roject. Pion, No. 245-12-09 Vtec, slip op. at 7 (quoting Re: Vill. of Ludlow, No. 2S0839-2-EB, Mem. of Decision, at 4 (Vt. Envtl. Bd. May 28, 2003); see also Lujan, 504 U.S. at 560 (plaintiff m ust allege an “actual or imminent, not conjectural or hypothetical” injury to have standin g and show a “causal connection between the injury and the conduct complaint of” (citations omi tted)). Thus, for this Court to grant CrossAppellant party status under a particular Act 250 c riterion, she must make a showing “that there is a reasonable possibility” that her particu larized interests may be affected by a decision on the Project. In re Bennington Wal-Mart, No. 158 -10-11 Vtec, slip op. at 9–10 (Vt. Super. Ct. Envtl. Div. Apr. 24, 2012) (Walsh, J.). In light of these requirements, we analyze the pote ntial impacts that granting an Act 250 permit will have on Cross-Appellant’s particularize d interests under Act 250 Criteria 1(D), 5, 7,
and 8.

a. Criterion 1(D) Act 250 Criterion 1(D) allows a permit to be grante d when the applicant shows that: (i) the development or subdivision of lands within a floodway will not restrict or divert the flow of flood waters, and endanger the h ealth, safety[,] and welfare of the public or of riparian owners during flooding; a nd (ii) the development or subdivision of lands within a floodway fringe will not significantly increase the peak discharge of the ri ver or stream within or downstream from the area of development and endange r the health, safety, or welfare of the public or riparian owners during flo oding. 10 V.S.A. § 6086(a)(1)(D). Cross-Appellant acknowledges that her property has historically flooded when the Brewster River overflows its banks. However, Cross -Appellant alleges that the Project site has, in the past, mitigated flooding on Cross-Appellant’ s property by holding significant amounts of water that would otherwise flow to Cross-Appellant’ s land. Consequently, Cross-Appellant alleges that construction of the Project, including the addition of “significant amounts of fill” to

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the Project site, will exacerbate flooding on Cross -Appellant’s land and damage her property. Based upon these factual representations, we conclu de that Cross-Appellant has a sufficiently particularized interest under Criterion 1(D). Cros s-Appellant owns property adjoining the Project site and her interest in preventing additio nal flooding on her property is particular to
her. In support of her request for party status, Cross-A ppellant offers her own sworn testimony; two aerial photographs showing flooding on the Project site and Cross-Appellant’s property; and a diagram purporting to show the chan ge in floodwater flow after construction of the Property. This constitutes a sufficiently spec ific and concrete offer of proof to demonstrate that construction of the Project may affect Cross-A ppellant’s interest. The parties appear to agree that the proposed Proje ct is located in a floodway fringe, not a floodway, but Cross-Appellant nonetheless has con cerns that the Project could cause an increase in the peak discharge of the river or stre am within and downstream from the Project, thereby endangering her property and the health, sa fety, and welfare of riparian owners downstream from the Project. Applicant disputes th ese charges and therefore lays the foundation for a disputed material fact that may on ly be resolved through trial. We will not weigh conflicting evidence while in the process of reviewing a motion for party status. Rather, we simply review the movant’ s claim to determine if she has made a showing of a “reasonable possibility” that her prot ected, particularized interest may be affected by a decision on the Project. See Bennington Wal-M art, No. 158-10-11 Vtec, slip op. at 9–10. Our task at this juncture is not to assess the meri ts of the parties’ competing claims, but rather simply to determine whether Cross-Appellant has mad e a sufficient showing that an interest of hers that may be protected under the applicable cri teria could be subject to some adverse impact from the proposed Project. In this case, Cross-Appellant has sufficiently alle ged a reasonable possibility of injury from the proposed Project to her particularized int erests protected under Criterion 1(D). Accordingly, we GRANT Cross-Appellant party status under Criterion 1(D).

b. Criterion 5 Act 250 Criterion 5 requires that a project “[w]ill not cause unreasonable congestion or unsafe conditions with respect to use of the highwa ys, waterways, railways, airports and airways, and other means of transportation existing or proposed.” 10 V.S.A. § 6086(a)(5). Cross-Appellant claims that she has a particularize d interest under Criterion 5 that would be

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affected by the proposed Project. Specifically, Cr oss-Appellant alleges that construction of the proposed Project will exacerbate flooding that occa sionally occurs on roadways proximate to Cross-Appellant’s property. She contends that when increased traffic, resulting from the construction of the Project, occurs on such roads, the traffic will direct waves of water toward Cross-Appellant’s “first floor, outbuildings, fenci ng[,] and cord wood.” (Cross-Appellant’s Aff. in Support of Mot. for Party Status at 5, filed Nov . 20, 2012.) We conclude that Cross-Appellant has failed to alle ge a particularized interest that is protected by Criterion 5. Cross-Appellant attempts to cast her flood-related concerns as trafficrelated concerns protected under Criterion 5. Howe ver, Criterion 5 requires an examination of whether a project will cause “unreasonable congesti on or unsafe conditions with respect to use of . . . highways.” 10 V.S.A. § 6086(a)(5). Cross -Appellant’s allegation that increased traffic caused by the Project will, in times of flood, push waves of water toward her property is not a concern over either congestion or unsafe road condi tions, but rather over the effects the Project will have in directing flood water toward Cross-App ellant’s property. The concerns CrossAppellant expresses under Criterion 5 are more appr opriately addressed under Criterion 1(D), which is a criterion for which we have granted Cros s-Appellant party status. We will address her concerns in relation to flooding, but do not be lieve it appropriate to also address those concerns in relation to highway congestion or unsaf e conditions. Accordingly, we DENY Cross-Appellant party status under Criterion 5.

c. Criterion 7 Act 250 Criterion 7 requires an examination of whet her a project will “place an unreasonable burden on the ability of the local gov ernments to provide municipal or governmental services.” 10 V.S.A. § 6086(a)(7). C ross-Appellant raises two primary concerns in support for her party status under Criterion 7. Fi rst, Cross-Appellant states that the proposed project will increase flooding on her property, the reby increasing her need for municipal services. Second, Cross-Appellant argues that, “wi th a commercial bank and numerous customers to protect next door” to Cross-Appellant’ s home, municipal service providers will, in times of emergency such as flooding, direct service s first to the bank that would otherwise be devoted to Cross-Appellant. (Cross-Appellant’s Aff . in Support of Mot. for Party Status at 7, filed Nov. 20, 2012.) In her affidavit filed in support of her motion for party status, Cross-Appellant fails to state concerns for which this Court may grant her p arty status under Criterion 7. Cross-

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Appellant’s first claim—that increased flooding cau sed by the Project will increase CrossAppellant’s need for municipal services—does not al lege that the Project will create an unreasonable burden on the ability of the local gov ernment to provide services to CrossAppellant. Cross-Appellant’s second concern—that m unicipal services will take longer to reach Cross-Appellant in times of emergency if the Projec t is constructed—conceivably alleges that the Project will place an unreasonable burden on th e local government to provide services. Cross-Appellant’s concerns appear to be based upon mere speculation; she provides no specific foundation for her assertion that municipal service s for her will be lacking because of the construction of this project. Cross-Appellant mus t make some threshold showing in support of her allegation that rises above “mere speculation a nd theory.” Pion, No. 245-12-09 Vtec, slip op.
at 7. She has failed to do so here. Cross-Appellant has provided no detail as to how th e proposed Project will pose an unreasonable burden on the ability of local governm ent to provide municipal services. Accordingly, we DENY Cross-Appellant party status under Criterion 7.

d. Criterion 8 Act 250 Criterion 8 requires an examination of whet her a project will “have an undue adverse effect on the scenic or natural beauty of t he area, aesthetics, historic sites or rare and irreplaceable natural areas.” 10 V.S.A. § 6086(a)( 8). Under Act 250, a “historic site” is defined as “any site, structure, district, or archeological la ndmark which has been officially included in the National Register of Historic Places and/or the sta te register of historic places or which is established by testimony of the Vermont Advisory Co uncil on Historic Preservation as being historically significant.” 10 V.S.A. § 6001(9). C ross-Appellant argues she is entitled to party status under Criterion 8, because the proposed Proj ect will increase flooding on her property, thereby damaging her home, which she characterizes as historic. Once again, the root of Cross-Appellant’s concern i s her allegation that the proposed Project will increase flooding on her property. As a riparian property owner during major flooding events, Cross-Appellant is entitled to cha llenge the proposed Project under Criterion 1(D). Even if Cross-Appellant had provided some ev idence, other than her own statement, 4 that her home is an historic site, the possibility of da mage caused to the home by increased flooding

4 We do not understand that a statement, unsupporte d by any documentation or other facts, that CrossAppellant’s home is historic, satisfies the Criteri on 8 standard for official recognition of a propert y as an “historic site.”

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attributable to the Proposed Project is best addres sed under Criterion 1(D). Accordingly, we
DENY Cross

- Appellant party status under Criterion 8.

IV. Applicant’s Motion for Summary Judgment In addition to Cross-Appellant’s motion for party s tatus, Applicant’s March 20, 2012 motion for summary judgment is still pending. Befo re addressing the motion for summary judgment, we first clarify our November 8, 2012 Ent ry Order. In the November Order, we stated that when “a litigant’s request for party st atus is challenged by a motion for summary judgment, we apply summary judgment evidentiary sta ndards in determining whether the litigant is entitled to party status.” In re Union Bank, No. 7-1-12 Vtec, slip op. at 2 (Vt. Super. Ct. Envtl. Div. Nov. 8, 2012) (Durkin, J.) (citing In re Big Spruce Rd. Act 250 Subdivision, No. 95- 5-09 Vtec, slip op. at 5 (Vt. Super. Ct. Envtl. Div . Apr. 21, 2010) (Durkin, J.)). However, we also noted that “[p]arty status in an appeal of a decisi on by a district commission is an issue of standing that is properly decided by this Court bef ore we address the merits of the appeal.” Id. at 3, n.3 (citing In re Pion Sand & Gravel Pit, No. 245-12-09 Vtec, slip op. at 6 (Vt. Super. Ct. Envtl. Div. July 2, 2012) (Durkin, J.)). As an issue of standing, party status is not proper ly granted or denied through summary judgment. Instead, we review a litigant’s party status using well-established standards. See, e.g., In re Champlain Parkway Act 250 Permit, No. 68-5-12 Vtec, slip op. at 6–7 (Vt. Super. Ct. Envtl. Div. Oct. 12, 2012) (Walsh, J.) (laying out review standards for party status motions). The proper filing in response to a motio n for party status is a memorandum in opposition. If, instead, a litigant files a motion for summary judgment in opposition to a motion for party status, our party status review standards do not change. Thus, when a litigant’s request for party status is challenged by a motion for summary judgment, we will not apply summary judgment evidentiary standards in determini ng whether the litigant is entitled to party status. Rather, we will utilize our well-est ablished party status review standards without any adjustment or changes. See id. This case presents a unique set of circumstances, b ecause Cross-Appellant initially requested party status in certain Questions in her Statement of Questions, rather than in a proper motion for party status. Applicant’s motion for summary judgment on those questions was therefore appropriate in the absence of a motio n for party status. When, however, this Court granted Cross-Appellant leave to file a late motion for party status in our November Order, we effectively rendered Cross-Appellant’s mo tion for summary judgment moot in the

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event that Cross-Appellant filed a motion for party status in compliance with the Order. 5 Cross-Appellant did so. Accordingly, we now DENY Applicant’s motion for summary judgment, filed on March 20, 2012 and make the asse ssments of Cross-Appellant’s right to party
status as noted above.

Conclusion For the reasons detailed above, we GRANT in part and DENY in part Cross-Appellant’s motion for party status, concluding that Cross-Appe llant is entitled to party status under Act 250 Criterion 1(D), but that she is not entitled to party status under Criteria 5, 7, or 8. Because she retained final party status under Criteria 4 an d 10 in the Commission’s proceeding below, Cross-Appellant also holds party status in this app eal under Criteria 4 and 10. See V.R.E.C.P. 5(d)(2). In response to Applicant’s request that this Court dismiss those Questions from CrossAppellant’s Statement of Questions that refer to Ac t 250 criteria under which Cross-Appellant does not have party status, we DISMISS Cross-Appellant’s Questions 2 and 3 6 as well as her Question 1 to the extent that it raises issues unde r Criteria 5, 7, and 8. These Questions are beyond the scope of our jurisdiction, as Cross-Appe llant does not have standing to raise issues under Criteria 5, 7, and 8. Finally, in light of our above conclusions, we DENY as moot Applicant’s March 20, 2012 motion for summary judgment on Cross-Appellant’s Qu estions 1, 2, 3, and a portion of 4.

Done at Berlin, Vermont, this 1st day of April 2013

.

___________________________________________ Thomas S. Durkin, Environmental Judge

5 However, we fully considered Applicant’s motion f or summary judgment and supplemental filings to the extent they raised arguments challenging Cross- Appellant’s claim for party status.

6 Cross-Appellant’s Question 2 asks, “Should Act 25 0 Criteria 5, 7, and 8 be reviewed and analyzed bas ed upon the evidence?” (Cross-Appellant’s Statement o f Questions, filed Feb. 15, 2012.) Cross-Appellant ’s Question 3 asks, “Does the proposed project meet th e requirements of Criteria 5, 7, and 8?” Id.