1 The citation convention for laws passed by the legislature is to use the initial year

of each biennial session (in this case, 2003), followed by the abbreviation of “Adjourned

Session” to indicate the second year of the session.

1 STATE OF VERMONT

ENVIRONMENTAL COURT

}

In re: Unified Buddhist Church, Inc. } Docket No. 191

‐ 9

‐ 05 Vtec

(Appeal of Lull’s Brook Watershed Ass’n, et al. }

}

Decision and Order on Question 8 of Applicant’s Statement of Questions

Appellants Lull’s Brook Watershed Association, John and Amy Zelig, Sterling R. and

Marion Monk, Catherine Bacon, Peter Gordon, and Elaine Brousseau appealed from a

decision of the District Environmental Commission #3 granting Cross

‐ Appellant

‐ Applicant

(Applicant) Unified Buddhist Church, Inc.’s application for a land use permit for the

Buddhist Dharma Center on a 148

‐ acre parcel of property in the Town of Hartland.

Appellants are represented by David Grayck, Esq.; Applicant is represented by James P.

W. Goss, Esq.; and the Natural Resources Board is represented by John H. Hasen, Esq. The

Agency of Natural Resources appeared as an Interested Person through Catherine Gjessing,

Esq. but did not participate in the briefing of the present issue. Appellants, Applicant, and

the Natural Resources Board all filed memoranda requesting the Court’s resolution of

Question 8 of Applicant’s Statement of Questions as a preliminary question of law.

The so

‐ called permit reform bill, 2003, No. 115 (Adj. Sess.) 1 (also referred to in this

decision as “Act 115”), was passed in the spring 2004 legislative session. Among other

things, it substantially amended the appeals process from permit decisions made by2 In addition, §119(a) refers to 24 V.S.A. §4481, which provides a schedule under

which certain of the statutory sections, pertaining to municipal zoning and planning,

control over inconsistent municipal ordinances. Section 119 must also be read together

with 2003, No. 122 (Adj. Sess.), §296, adopted later in the same legislative session,

providing corrections to Section 119.

2 District Commissions under Act 250 (10 V.S.A. Ch. 151). Under §119 2 of Act 115, certain

of the sections of the new law took effect on July 1, 2004, and other sections (including the

appointment of a second environmental judge) took effect on January 31, 2005.

Under §119(a) of Act 115, section 54 of Act 115 (amending 10 V.S.A. §6084, and

transferring the topics formerly contained in §6085(a) and (b) to amended §6084(c), (d) and

(e)) took effect on July 1, 2004. It dealt with the question of who has to receive notice of the

filing of an Act 250 application at the district commission level and provided for major and

minor applications “in accordance with board rules.” It added a requirement that the

applicant furnish the district commission with names of adjoining property owners, and

added a requirement that the district commission provide notice of hearings and notice of

the commencement of review for minor applications to be sent to adjoining landowners “as

deemed appropriate by the district commission pursuant to the rules of the board.” 10

V.S.A. §6084(a), (b).

Under §119(a) of Act 115, section 55 of Act 115 (amending the party status

provisions of 10 V.S.A. §6085) and section 75 of Act 115 (adding 10 V.S.A. Ch. 220 (10 V.S.A.

§8501, et seq. ) providing for consolidated environmental appeals), took effect on January

31, 2005. Under §121(a) of Act 115, commencing on January 31, 2005, all new appeals

within the scope of the new 10 V.S.A. Chapter 220 were to be filed with the Environmental

Court.

Thus, as of July 1, 2004, all potential applicants for Act 250 permits were put on

notice that the route of appeal for decisions of the district coordinators and district

commissions would change from the state Environmental Board to the judicial branch3 Section 121(b) of Act 115 allowed the former environmental board to continue to

exist to complete its consideration of any action pending before it as of January 31, 2005,

except that appeals received before that date for which the board had “not yet initiated

proceedings” were required to be transferred to the Environmental Court.

4 Section 8504(d)(2) allows the environmental judge to allow an “aggrieved person”

to appeal to the environmental court, notwithstanding a lack of party status at the district

commission, if there was a procedural defect which prevented the person from obtaining

party status or participating in the district commission proceeding, or if some other

condition exists which would result in “manifest injustice” if the person were not allowed

to appeal. In addition, §8504(d)(2) provides for appeals to the Court from the grant or

denial of party status.

5 See footnote 3, above.

3 Environmental Court, on or about 3 January 31, 2005, and that obtaining and retaining party

status at the district commission level would be required to have standing to bring an

appeal to the Environmental Court. 4 10 V.S.A. §8504(d).

Applicant Unified Buddhist Church, Inc., owns a 148

‐ acre parcel of property in the

Town of Hartland between Town Farm Hill Road and the Brownsville

‐ Hartland Road.

Access to the main portion of the property to the north of Lull’s Brook is via Town Farm

Hill Road. Access to the portion of the property located southerly of Lull’s Brook is via the

Brownsville

‐ Hartland Road. Applicant applied for an Act 250 land use permit to build new

buildings and renovate existing buildings, including the proposed installation of a new

septic disposal leach field on the portion of the property located southerly of Lull’s Brook.

The application was filed with the District Commission on December 27, 2004,

approximately seven months after the passage of the legislation changing the appeals route

for Act 250 appeals, and about 5 a month before the January 31, 2005 effective date of the

new 10 V.S.A. Chapter 220 and the amended 10 V.S.A. §6085.

The District Commission held its first hearing and site visit, and issued its6 As of January 31, 2005, district commissions were required to revisit the question

of party status and make a final determination at the close of the district commission

hearing, as, under the new party status and appeal regime, a determination of party status

has wider

‐ ranging implications than it did before the statutory amendments. 10 V.S.A.

§§8504(d)(1) and 6085(c)(6). In the present case, the District Commission undertook this

review at the close of its hearing, as reflected in its August 17, 2005 decision, well after the

effective date of the changed appeals regime for Act 250.

4 preliminary party status determinations on January 25, 2005; held a second day of hearing

on February 1, 2005, held a third day of hearing on February 15, 2005 (including ruling on

a party status request made that date); held a fourth day of hearing on April 19, 2005; and

adjourned the hearing on June 27, 2005, after its review of the record and completion of

deliberations. The District Commission issued its decision on the merits of the application

on June 28, 2005, received three timely motions to alter, and issued its final Findings of

Fact, Conclusions of Law, and Order, and associated Land Use Permit (#3W0929(Altered))

on August 17, 2005. The final decision included the District Commission’s final

determinations of party status made under 10 V.S.A. §6085(c)(6) (as amended by Act 115) 6

,

referring to its preliminary determinations of party status as having been made under 10

V.S.A. §6085(c)(2) and Environmental Board Rule 14(F).

Appellants filed their appeal of this decision on September 14, 2005, with the

Environmental Court. Applicant filed a cross

‐ appeal on September 21, 2005, challenging

the District Commission’s determinations of party status, and requesting in Question 8 of

its Statement of Questions that party status be determined under former Environmental

Board Rule 14 and the statutes that were in effect on the date of its initial application to the

District Commission at the end of 2004. The Environmental Court provided for the

determination of Question 8 of Applicant’s Statement of Questions in advance of other

pretrial motions, including any motions to dismiss any parties for lack of party status, as

provided in V.R.E.C.P. 5(d)(2). The trial on the merits of this application is scheduled for5 June 20

‐ 23 and June 26, 2006.

First, it is important to avoid conflating the question of the various Appellants’ party

status in this Environmental Court appeal with the question of which version of the statute

should apply in the event of an appeal to the Supreme Court from a future decision by the

Environmental Court on the merits of this application. Under 10 V.S.A. §§6085(c)(1) and

6089(b) as they existed in December of 2004, even if adjoining property owners or other

non

‐ statutory parties were granted party status in district commission or Environmental

Board proceedings, they were not entitled to bring an appeal to the Vermont Supreme

Court. That limitation was repealed by the amendments contained in Act 115, which

provided in 10 V.S.A. §8505 for standing to bring appeals to the Supreme Court from

decisions of the Environmental Court under Act 250 and the other programs covered by

the consolidated appeals provisions of 10 V.S.A. Chapter 220.

It will be for the Vermont Supreme Court and not this Court to determine, if

necessary, whether 10 V.S.A. §8505 applies in any appeal that may be brought to it in the

future from a decision of this Court in this case. It would be an impermissible advisory

opinion, as well as premature, for this Court to suggest which version of the enabling

statute should apply in an appeal to the Supreme Court. Accordingly, this Decision and

Order will limit the remaining discussion to the question of which party status provisions

govern this Court’s determinations of party status in this de novo appeal, and the

procedural mechanism for raising those issues to this Court.

This Court only has jurisdiction of Act 250 appeals from district commissions as

provided under the statutory amendments. Under Act 115, this Court has jurisdiction over

any appeal filed after January 31, 2005, such as the present appeal. Under §8504(d), this

Court has jurisdiction of appeals of party status determinations, whether interlocutory or

embedded in a final decision, as here.6 No litigation of the present case was pending in any court as of the passage of Act

115 in July of 2004, nor as of the January 31, 2005 effective date of some of its sections.

Therefore, the present case does not even fall within the general doctrine that new statutes

do not generally apply to cases that are pending at the time of their effective date, as all that

was pending then was the filing of the initial application with the District Commission, not

this Court. 1 V.S.A. §§213, 214. Moreover, even if it had been the appeal to this Court

rather than merely the initial application that was filed in late December of 2004, the party

status provisions for participation in Environmental Court would need to be analyzed in

relation to the 1 V.S.A. §213 exception for “acts regulating practice in court.” Ulm v. Ford

Motor Co.

, 170 Vt. 281, 287 (2000).

Further, 1 V.S.A. §214(b) does not prohibit the application of amended party status

requirements to the proceedings in this Court, because the amendment of 10 V.S.A. §6085

and the adoption of 10 V.S.A. §8504 only affect procedure: that is, which parties may

appear before the Court in this de novo Act 250 appeal. These changes to these sections do

not affect Applicant’s substantive rights to have its application considered under the Act

250 substantive criteria found in 10 V.S.A. §6086. While “Vermont statutory law and case

law normally prohibit retrospective application of new and amended statutes,” Agency of

Natural Resources v. Godnick

, 162 Vt. 588, 594 (1994), party status determinations are

procedural decisions, as opposed to substantive. “Statutory changes that are procedural

in nature, as opposed to those that affect preexisting rights and obligations, may be applied

retrospectively.” Id

. (citing Myott v. Myott

, 149 Vt. 573, 575

‐ 76 (1988)).

Under V.R.E.C.P. 5(d)(2), which took effect as an emergency rule on January 31,

2005, and as an ordinary rule of the Supreme Court on February 21, 2005, a party with

party status at the district commission has party status in the proceeding in this Court, until

or unless a motion to dismiss that person as a party is filed and granted. Accordingly, the

Court will rule on the party status of any of the Appellants if and when a motion to dismiss7 them is filed. Otherwise, as the issue of party status was raised by Applicant in its cross

‐

appeal, we will take those issues up with the other issues on the merits of the appeal.

Accordingly, based on the foregoing, it is hereby ORDERED and ADJUDGED that

Question 8 of Applicant’s Statement of Questions is resolved as a matter of law as follows:

The statutory changes made by the legislature in Act 115, including the new appeals

provisions of 10 V.S.A. §8504, as well as the amendments to the party status provisions of

Act 250 (10 V.S.A. §6085(c)), apply to this appeal. The provisions of the Vermont Rules for

Environmental Court Proceedings apply to this and any other appeal in Environmental

Court. The issue of which statutory provisions may apply, should any decision of the

Environmental Court in this appeal be appealed further to the Vermont Supreme Court,

will be for the Vermont Supreme Court to determine.

This appeal will proceed as provided in the Stipulated Scheduling Order. If

Applicant wishes the party status issues to be determined in advance of the hearing on the

merits, it may file the motions to dismiss any of the parties as contemplated in ¶2 of the

December 6, 2005 Stipulated Scheduling Order. Otherwise, the party status issues raised

in Applicant’s cross

‐ appeal will be considered and decided together with the merits of the

appeals. As a telephone conference is scheduled for this afternoon, copies of this Decision

and Order are being provided to the parties by fax this morning. Please be prepared to

discuss whether the parties wish to engage in an additional mediation session in light of

this Decision and Order.

Done at Berlin, Vermont, this 20 th day of March, 2006.

_________________________________________________ Merideth Wright

Environmental Judge