State of Vermont 

Superior Court—Environmental Division 

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E N T R Y R E G A R D I N G M O T I O N 

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In re Barefoot et al. Act 250 Application Docket No. 46-4-12 Vtec 

(Appeal of the District 5 Envtl. Commission determination) 

 

Title: Motion to Dismiss Questions on Cross-Appeal (Filing No. 4) 

Filed: July 2, 2012 

Filed By: Applicants Thomas Barefoot III, Joni Zweig, and True North Wilderness Program 

Response filed on 7/31/12 by Interested Person Frances Kincaid (Kinny) Perot 

Reply to Response filed on 8/22/12 by Applicant-Appellants 

Response to Reply to Response filed 9/25/12 by Interested Person Kinny Perot

Reply to Response to Reply to Response filed 10/15/12 by Applicant-Appellants 

 X Granted (in part) X Denied (in part) ___ Other 

The pending appeal concerns a project that requires both local and state land use review 

and approval. While the pending appeal only concerns the latter review, we provide a bit of 

procedural background so that we may properly address the legal issues raised in the pending 

motion. 

On December 20, 2010 the Town of Waitsfield Development Review Board (“DRB”) 

approved a permit application submitted by Applicants Tom Barefoot III, Joni Zweig, and True 

North Wilderness Programs, LLC (“Applicants”) to operate a wilderness therapy program on a 

25-acre tract owned by Mr. Barefoot and Ms. Zweig off Dana Hill Road in the Town of 

Waitsfield, Vermont. The Town of Waitsfield (“Town”) has not elected to conduct its 

development review process on the record, and no party has indicated that any record of the 

proceeding exists. The DRB’s decision is five pages long. Interested Person Frances Kincaid 

Perot (“Ms. Perot”) participated in the hearing, and did not appeal the DRB approval. 

Since the project also required approval under the state land use standards, commonly 

referred to as Act 250, Applicants subsequently went before the District 5 Environmental 

Commission (“the Commission”) with a modified version1 of the proposal. Ms. Perot 

participated in the hearing and retained final party status under Act 250 Criteria 4 and 10. The 

Commission denied the Act 250 application in a 22-page decision on December 30, 2011. One of 

the primary reasons the Commission announced for its denial of the state land use permit 

application was that Applicants lacked a wastewater permit sufficient to cover the project as 

proposed. 

 

1

 The version of the project that Applicants presented to the Commission added a third composting toilet 

and a drilled drinking water well with associated piping and water storage tank. 
Re Barefoot Act 250 Application, No. 46-4-12 Vtec (EO on Mot. to Dismiss Questions) (4-8-13) Pg. 2 of 8. 

On April 2, 2012, Applicants appealed the Commission’s decision, and Ms. Perot crossappealed on May 4, 2012. On May 24, 2012, Ms. Perot filed a motion for party status 

simultaneously with a multifaceted statement of 27 questions seeking party status on multiple 

Act 250 criteria and, if granted party status, the appellate right to challenge the proposed 

project’s conformance to those criteria. On July 2, 2012 Applicants submitted a filing seeking to 

dismiss all of the questions in Ms. Perot’s Statement of Questions. This filing is styled both as 

an “objection to Kinny Perot’s motion for party status” and as a “motion to dismiss Kinny 

Perot’s statement of questions.” Applicants broadly reason that the doctrines of claim or issue 

preclusion obligate this Court to deny Ms. Perot party status and to dismiss all of her 

substantive claims, based upon the factual and legal determinations rendered in the previous 

municipal permit application proceeding. 

Preclusion arguments in the municipal-Act 250 permitting context often arise when an 

applicant who was denied a permit later submits a new application for the same project. In 

those cases, the well established successive application doctrine functions as a form of 

preclusion to bar applicants from presenting new applications for the same project with only 

minor revisions.2 Here, in contrast, Applicants urge us to adopt a somewhat novel preclusion 

theory that a determination by an appropriate municipal panel should preclude a determination 

by a state Act 250 district commission (and this Court, standing in its shoes as we review the 

Act 250 permit application de novo). Specifically, Applicants argue that because Ms. Perot failed 

to appeal the prior DRB determination approving their project, preclusion should bar her from 

participating in the Act 250 appeal that Applicants now bring before this Court. 

Before reaching these questions, however, we regret that we must again address issues 

of civil procedure. Insofar as Applicants’ filing was an objection to Ms. Perot’s motion for party 

status, we decided party status issues in a separate March 13, 2013 decision. We explained that 

preclusion is an affirmative defense, distinct from the preliminary issue of party status, and we 

determined that Ms. Perot has party status to cross appeal under Criteria 1, 1(A), 1(B), 1(E), 8, 

8(A), 4, and 10 only. Remaining before us are the portions of Applicants’ July 2, 2012 filing that 

constitute a motion to dismiss Ms. Perot’s substantive questions.3 Applicants do not identify a 

traditional ground for dismissal, such as those found in V.R.C.P. 12(b). However, while 

affirmative defenses are typically inappropriate to raise in a motion to dismiss, courts may 

grant motions to dismiss based on preclusion where “it is clear from the face of the complaint, 

and matters of which the court may take judicial notice, that the plaintiff's claims are barred as a 

matter of law.” Conopco, Inc. v. Roll Int'l, 231 F.3d 82, 86 (2d Cir. 2000). Otherwise, preclusion 

defenses must be proven either on summary judgment or at trial. See McKenna v. Wright, 386 

F.3d 432, 437 (2d Cir. 2004). See also 18 C. Wright, A. Miller & E. Cooper, Federal Practice & 

Procedure §§ 4405, 1277. 

I. Applicants’ motion to dismiss Ms. Perot’s Questions 11–14, 18, 19, and 23. 

This case presents one of the rare instances in which we need not go beyond the face of 

the pleadings to conclude that the equitable defenses of claim and issue preclusion are not 

 

2

 For a thorough discussion of the successive application doctrine, see In re Woodstock Cmty. Trust, 2012 

VT 87, ¶¶ 4–7, __ Vt. __.

3

 Questions 11–14, 18, 19, 23, and 26 ask whether Applicants’ project complies with Act 250 Criteria 1, 

1(A), 1(B), 1(E), 8, 8(A), 4, and 10, respectively. Question 27 relates to the project’s scope. 
Re Barefoot Act 250 Application, No. 46-4-12 Vtec (EO on Mot. to Dismiss Questions) (4-8-13) Pg. 3 of 8. 

sufficient to dismiss Ms. Perot’s Questions 11–14, 18, 19, and 23. These Questions ask whether 

Applicants’ project complies with Act 250 Criteria 1, 1(A), 1(B), 1(E), 8, 8(A), and 4, respectively. 

Claim preclusion (res judicata) generally bars the litigation of a claim if there exists an 

earlier final judgment in which “the parties, subject matter[,] and causes of action are identical 

or substantially identical.” Russell v. Atkins, 165 Vt. 176, 179 (1996) (internal citations omitted). 

Claim preclusion is not applicable here, because the same causes of action are not involved. The 

DRB could not and did not adjudicate Ms. Perot’s claims that the Project violates the state 

standards set out in the Act 250 criteria. Rather, the DRB was limited by its jurisdiction to 

determining whether the proposal conformed to the applicable municipal bylaws. 

Issue preclusion (collateral estoppel) bars the subsequent relitigation of an issue 

“actually litigated[4] and decided in a prior case between the parties, so long as there was a final 

judgment on the merits and the issue was necessary to the resolution of the [prior] action.” Bull 

v. Pinkham Eng'g Assocs., 170 Vt. 450, 461 (2000). Collateral estoppel may apply in 

administrative as well as judicial proceedings if certain elements are satisfied. In re Central Vt. 

Pub. Serv. Corp., 172 Vt. 14, 21 (2001). However, it is less strictly enforced in the administrative 

context, with a strong focus on fairness. 2 Charles H. Koch, Jr., Admin. L. & Prac. § 5:72 (3d ed.) 

(WL updated Mar. 2013). Issue preclusion cannot apply where unclear findings in the decision 

on the prior proceeding prevent a court from determining whether an issue was “necessary to 

the resolution of [the] claim” in the prior proceeding. State v. Carroll, 171 Vt. 395, 400–01 (2000).

Issue preclusion may apply when: (1) it is asserted against one who was a party in the 

prior action; (2) the same issue was raised in the prior action; (3) the issue was resolved by a 

final judgment on the merits; (4) there was a full and fair opportunity to litigate the issue in the 

prior action; and (5) its application is fair. Trickett v. Ochs, 2003 VT 91, ¶ 10, 176 Vt. 89. No one 

test controls a determination of the final two criteria; the courts must look to the circumstances 

of each case. See, e.g., Trepanier v. Getting Organized, Inc., 155 Vt. 259, 265 (1990) (listing as 

appropriate factors under the final two criteria the choice of forum, the incentive to litigate, the 

foreseeability of future litigation, the legal standards and burdens employed in each action, the 

procedural opportunities available in each forum, and the existence of inconsistent 

determinations of the same issue in separate prior cases) (citing Parklane Hosiery Co. v. Shore, 

439 U.S. 322, 331-32 (1979)). 

Categorical exceptions to preclusion exist. The Restatement (Second) of Judgments 

§ 28(3) (1982) provides an exception where “[a] new determination of the issue is warranted by 

differences in the quality or extensiveness of the procedures followed in the two courts or by 

factors relating to the allocation of jurisdiction between them.” Accordingly, the Vermont 

Supreme Court has been hesitant to apply issue preclusion to cases litigated in forums lacking 

in formality and procedural protections. See Cold Springs Farm Dev., Inc. v. Ball, 163 Vt. 466, 

471 (1995) (declining to give preclusive effect to small claims adjudications, as doing so would 

be inconsistent with the simplicity and informality of small claims procedures and would chill 

the use of small claims courts). 

 

4

 In their filings, Applicants sometimes conflate claim and issue preclusion, and they appear to argue at 

several points that issue preclusion would apply to issues that could have been raised in the first 

proceeding. This is incorrect. Claim preclusion applies to claims that were raised or could have been 

raised, but issue preclusion applies only to issues actually litigated and decided. See In re Tariff Filing of 

Central Vermont Public Service Corp., 172 Vt. 14, 19–21 (2001) (differentiating between claim and issue 

preclusion).
Re Barefoot Act 250 Application, No. 46-4-12 Vtec (EO on Mot. to Dismiss Questions) (4-8-13) Pg. 4 of 8. 

Perhaps most important, as common law doctrines, both claim and issue preclusion 

must yield to a statutory command permitting relitigation. Preclusion principles do not require 

or even allow adherence to the first determination where a legislature has identified 

justifications, such as public policy, to permit a second litigation. See Restatement (Second) of 

Judgments § 20(1)(c) (providing that a judgment for a defendant does not bar another action by 

a plaintiff “[w]hen by statute or rule of court the judgment does not operate as a bar to another 

action on the same claim”). Even without a clear statement that preclusion does not apply, a 

statute may implicitly forbid preclusion. See Astoria Fed. Sav. and Loan Ass'n v. Solimino, 501 

U.S. 104 (1991) (where federal age discrimination statute required persons to pursue state 

discrimination remedies before pursuing federal remedies, the statute implied that state 

administrative findings should not receive preclusive effect). 

We now turn to the unique context of the dual-track permitting system that the Vermont 

Legislature enacted in 1970 in the historic land use legislation known as Act 250, which appears 

in 10 V.S.A. Chapter 151. See 1969, No. 250 (Adj. Sess.), § 1 (establishing that the general 

purpose of Act 250 is to regulate development to ensure that it does not harm the environment 

and that it promotes the general welfare and needs of Vermonters). Act 250 addresses projects 

presenting potentially significant impacts on the environment, community, and aesthetics, and 

it enumerates ten criteria (with multiple sub-criteria) to which such projects must conform. See 

10 V.S.A. § 6081(a); see also 10 V.S.A. § 6001(3) (defining development for Act 250 purposes); 10 

V.S.A. § 6086 (setting forth environmental criteria against which project's qualification for 

permit is assessed). 

The Legislature could simply have required municipalities to incorporate the Act 250 

criteria into their municipal land use review processes for major projects, but it did not do so. 

Instead, the Legislature created a system that, by its very design, requires a specialized Act 250 

district commission to conduct an additional review of major impact development proposals. 

Whether the Act 250 proceeding or the municipal proceeding occurs first (and the choice is left 

to the applicant), the process as a whole necessarily involves reexamination of similar issues, 

and the potential for inconsistent determinations is inherent in—and arguably critical to—its 

role. Moreover, both the Act 250 and municipal application processes require public notice 

procedures, and both explicitly allow certain persons to formally participate in hearings and to 

appeal decisions. See 10 V.S.A. §§ 6084, 6085; 24 V.S.A. §§ 4461, 4464. Traditional litigationbased notions of offensive versus defensive collateral estoppel are not readily translatable to the 

Act 250 context, where a second proceeding must occur in any case and the players are not 

plaintiffs and defendants, but rather permit applicants and interested persons who have 

statutory standing to participate in the proceedings to protect their own particularized interests. 

Id. 

Our Legislature anticipated the effects of overlapping jurisdiction and issues, and Act 

250 addresses the question of the extent to which determinations from other decision making 

bodies, such as municipal panels or environmental permitting agencies, enter into the 

deliberations of Act 250 district commissions. See 10 V.S.A. § 6086(d); 24 V.S.A. § 4420; State of 

Vermont Natural Resources Board Land Use Panel Act 250 Rule 19(I). A positive determination 

by a municipality generally creates a “presumption that the application is not detrimental to the 

public health and welfare with respect to the specific requirement for which it is accepted,” but 

the district commission must still ensure that the specific Act 250 criteria are met. 10 V.S.A. 

§ 6086(d). 
Re Barefoot Act 250 Application, No. 46-4-12 Vtec (EO on Mot. to Dismiss Questions) (4-8-13) Pg. 5 of 8. 

Only under certain circumstances are district commissions bound to accept 

determinations issued by a municipal panel, but even then, the municipal panel must make 

findings demonstrating compliance with Act 250, and the panel’s determinations create a 

rebuttable presumption only to the extent that the impacts are limited to the municipality 

issuing the decision. See 24 V.S.A. § 4420; State of Vermont Natural Resources Board Land Use 

Panel Act 250 Rule 19(I). 

If our Legislature did not intend for Act 250 district commissions to be bound by 

determinations of municipal panels, then it follows that an interested party should not be 

precluded from arguing that proposals fail to meet Act 250 standards, regardless of the 

conclusions that a relevant municipal panel may have reached in a prior proceeding, and 

regardless of whether the interested person chose to appeal the municipal decision. 

Indeed, although collateral estoppel may apply in administrative as well as judicial 

proceedings if the elements are satisfied, Central Vt. Pub. Serv. Corp., 172 Vt. at 21, we have 

substantial concerns about the “fairness” prong of the preclusion test in light of the fact that 

municipal land use review panels typically employ relaxed procedural and evidentiary rules, 

and are often composed of laypersons with limited, if any, legal training. Municipal panel 

proceedings present many of the same concerns that the Vermont Supreme Court has expressed 

regarding small claims determinations. It is true that, unlike in the small claims context, de novo

review of municipal decisions is available before this Court. However, forcing interested 

persons who participated in a municipal panel hearing to take an appeal to the Environmental 

Division or risk having preclusion apply against them at a future Act 250 proceeding would 

directly contravene long-standing principles of encouraging public participation in state and 

local land use deliberations. 

Finally, even if a municipal panel proceeding could have preclusive effect, it would not 

apply here. First, the DRB decision examined the propriety of Applicants’ proposed two tents, a 

yome,5 and a composting toilet, while the District Commission considered the project’s original 

components in addition to a third composting toilet and a drinking water well with associated 

piping and a water storage tank, without wastewater permits corresponding to the revised 

project description. Thus, even a prior DRB determination about the originally proposed 

project would not preclude Ms. Perot from raising her concerns about the modified project as 

presented to the District Commission. Second, there is no record from the DRB proceeding 

presented to us in this appeal, and the board’s five page decision (only two pages of which are 

devoted to findings of fact and conclusions of law) does not provide sufficient information to 

reveal whether issues specific to the Act 250 criteria were decided, much less whether they were 

necessarily decided. 

This reasoning applies generally to all of Applicants’ challenges to Ms. Perot’s right to 

request review under the specified criteria. However, for purposes of illustration, we offer the 

following example using Act 250 Criterion 1 to show how the DRB decision does not provide 

enough detail to satisfy this Court that the DRB reached conclusions about the specific elements 

of Act 250, nor whether any such conclusions were necessary to its decision to approve the 

project. Criterion 1 requires the District Commission to find that the proposed development 

 

5

 The Court understands that a yome is a yurt-like structure, sometimes made of cloth and shaped in 

part like a geodesic dome. Applicants describe a yome as a “round tent structure” in Question 1 of their 

Statement of Questions, filed April 23, 2012.
Re Barefoot Act 250 Application, No. 46-4-12 Vtec (EO on Mot. to Dismiss Questions) (4-8-13) Pg. 6 of 8. 

“[w]ill not result in undue water or air pollution.” 10 V.S.A. § 6086(a)(1). To determine 

compliance with Criterion 1, a reviewing body must at least consider: 

the elevation of land above sea level; and in relation to the flood plains, the 

nature of soils and subsoils and their ability to adequately support waste 

disposal; the slope of the land and its effect on effluents; the availability of 

streams for disposal of effluents; and the applicable health and environmental 

conservation department regulations. 

10 V.S.A. § 6086(a)(1). Although the DRB decision contains one finding of fact as to the parcel’s 

elevation above sea level, it is not clear from the decision that the DRB made particular 

determinations as to the other factors or that any determination reached regarding those factors 

was necessary to its decision to approve the project under municipal standards. 

In conclusion, we see little case law6 in the over forty years since the enactment of Act

250 to persuade us that it would be appropriate to apply preclusion principles to generally tie 

the hands of the state district commissions (or this Court standing in their shoes) based on prior 

determinations of municipal panels, or that persons qualifying as interested parties before a 

district commission may not raise arguments that they had made in the less formal setting of a 

municipal permit hearing, even where they chose not to appeal the municipal determination. 

Furthermore, it is clear from the face of the DRB and District Commission decisions that 

preclusion would not apply here in any case, both because of the changes in project description 

between the DRB and the Act 250 proceedings and because the record of the DRB decision is 

insufficient to satisfy this Court that issues relevant to Act 250 Criteria 1, 1(A), 1(B), 1(E), 8, 8(A) 

and 4 were decided in the first proceeding, much less necessarily so. Thus, we DENY

Applicants’ motion to dismiss Ms. Perot’s substantive Questions 11–14, 18, 19, and 23, as we 

find that neither claim nor issue preclusion applies in the current appeal. 

II. Applicants’ motion to dismiss Ms. Perot’s Question 26. 

Ms. Perot’s Question 26 asks whether the Project complies with Act 250 Criterion 10, and 

Applicants argue that claim or issue preclusion bars this question as well, particularly in light of 

In re Hartland Group, 2008 VT 92, 184 Vt. 606. In Hartland, the Vermont Supreme Court 

affirmed a 2006 decision by Judge Merideth Wright, who, in a brief section of a lengthy and 

complex decision, accepted one party’s argument that a district commission decision 

determining that a project was “in conformance” with a town plan could fairly preclude the 

argument that the project was not “in substantial conformance” with the town plan, as required 

by municipal bylaws. In re Hartland Group, No. 120-6-05 Vtec, slip op. at 26 (Vt. Envtl. Ct. Dec. 

14, 2006). Judge Wright rejected the argument that preclusion applied to the other Act 250 

criteria at issue in that case. Id. On appeal to the Vermont Supreme Court, the Hartland 

appellants did not raise the fourth or fifth prongs of the collateral estoppel test; the only issue 

on appeal was whether “the requirements for conformance with the city’s municipal plan under 

Act 250 and the zoning ordinance present[ed] the same issue.” In re Hartland Group, 2008 VT 

 

6

 Indeed, one case on point, In re Rinker’s Inc., No. 303-1-8 Vtec (Vt. Envtl. Ct. 2009) (Wright, J.), 

demonstrates how applying preclusion principles across municipal and Act 250 standards could 

significantly complicate and slow the land use review process. Additionally, and in light of our analysis 

here, we disagree with Judge Wright’s statement, in dicta, that specific factual findings by municipal

panels are precluded from being litigated before the district commissions. Doing so would contravene 

Act 250’s purpose of providing state review of projects in addition to local review of proposed projects. 
Re Barefoot Act 250 Application, No. 46-4-12 Vtec (EO on Mot. to Dismiss Questions) (4-8-13) Pg. 7 of 8. 

92 at ¶ 7. The Court reasoned that because a project could not simultaneously be “in 

conformance” with the municipal plan but not “in substantial conformance” with it, Judge 

Wright’s application of preclusion was not clearly erroneous, arbitrary, or capricious. Id. at ¶ 8. 

We begin by observing that Hartland addressed the narrow issue of whether an Act 250 

district commission decision on Criterion 10 could preclude a municipal panel decision under 

similar standards; this is the opposite of the situation presented by the application now before 

us in this appeal. As explained above, we have significant policy-based concerns about 

applying the common law equity doctrine of preclusion to give a DRB decision preclusive effect 

over parties in an Act 250 permit proceeding. Nonetheless, because of the precedent from 

Hartland, which we read narrowly to encompass only the issue of Criterion 10 conformity with 

a municipal plan, we distinguish Ms. Perot’s Question 26 from her other questions. We cannot, 

however, answer Applicants’ motion to dismiss Question 26 on the grounds of the affirmative 

defense of issue preclusion, because it is not clear from the face of the parties’ respective 

Statements of Question in conjunction with matters of which this Court may take judicial notice 

whether preclusion applies. If it is to be argued, the preclusion defense must be proven either 

on summary judgment or at trial. See McKenna v. Wright, 386 F.3d at 432; 18 C. Wright, A. 

Miller & E. Cooper, Federal Practice & Procedure §§ 4405, 1277. 

This Court has already issued three entry orders on preliminary matters raised under 

both sides’ complicated approach to principles of civil procedure. Cognizant of our mandate to 

construe this Court’s rules “to ensure summary and expedited proceedings consistent with a 

full and fair determination in every matter coming before the court” (V.R.E.C.P. 1), we believe 

that, rather than denying the motion, a more expeditious process would be to provide 

Applicants with an opportunity to petition this Court to convert the pending motion to one for 

summary judgment, as is authorized when a party arguing for dismissal under V.R.C.P. 12(b)(6) 

presents matters beyond the pleadings.7 We decline to convert the motion sua sponte, as 

Applicants may prefer under the circumstances simply to argue the matter at the merits hearing 

or may decline to pursue the argument further. If Applicants petition to convert the motion to 

dismiss Question 26 to a motion for summary judgment on Question 26, VRCP 12(b) provides 

that “all parties shall be given reasonable opportunity to present all material made pertinent to 

such a motion by Rule 56.” Since the issues have been extensively briefed,8 we believe that 20 

days should be sufficient for all parties to present additional materials made relevant by the 

conversion from a motion to dismiss to a motion for summary judgment. 

III. Ms. Perot’s Question 27. 

Question 27 asks whether the Project “consists of ‛3 composting toilets, 2 tent platforms, 

and 1 yome (round tent structure) for use by small backpacking groups of 6 students and 2 field 

guides,’ as defined in the applicants/appellants’ April 23, 2012 statement of questions.” (Ms. 

Perot’s Statement of Questions at 4, filed May 24, 2012.) We first note that it is the project 

 

7

 Here, both parties in their filings ask this Court to consider matters beyond the pleadings in deciding 

whether preclusion applies to the issue of conformance with the town plan. 

8

 In this case, the parties collectively have already submitted over fifty pages of filings devoted, in large 

part, to the preclusion question, and they have also supplemented those filings with additional evidence 

for this Court’s consideration. 
Re Barefoot Act 250 Application, No. 46-4-12 Vtec (EO on Mot. to Dismiss Questions) (4-8-13) Pg. 8 of 8. 

application under appeal that defines the scope of a project,9 not an appellant’s Statement of 

Questions. Ms. Perot’s Question 27 appears to merely repeat some of the project descriptions 

presented, not in Applicants’ application, but rather, in their Statement of Questions. Thus, 

Question 27 does not appear to raise any legal issue for this Court to address and therefore 

presents no factual or legal issues for our determination. We therefore GRANT Applicants’ 

motion to dismiss Question 27. 

IV. Conclusions. 

For the reasons explained above, we DENY Applicants’ motion to dismiss Questions 11–

14, 18, 19, and 23, and we GRANT Applicants’ motion to dismiss Question 27. As to Question 

26, we direct Applicants to notify this Court, no later than Tuesday, April 23, 2013, of whether 

they intend to proceed on the merits or whether they wish to petition this Court to convert their 

current motion to one for summary judgment. If Applicants choose the latter course, we direct 

that Applicants file any additional memoranda and affidavits in support of their summary 

judgment request no later than April 23rd, and will thereafter afford all other parties 20 days of 

additional time (i.e., by no later than May 13, 2013) to present pertinent materials pursuant to 

V.R.C.P. 12(b) and 56. 

Finally, we note that the Court placed on inactive status a related appeal concerning an 

approval by the Vermont Agency of Natural Resources (“ANR”) for a wastewater and water 

supply permit for an earlier version of Applicants’ project (In re Barefoot & Zweig WW Permit 

Application Appeal, No. 36-3-11 Vtec), pending the outcome of decisions on the motions 

pending in this appeal. Since we have now addressed all motions pending in this Docket (No. 

46-4-12 Vtec), Docket No. 36-3-11 Vtec is hereby REACTIVATED. We direct that Applicants 

advise the Court, again by no later than April 23rd, as to whether they intend to pursue 

approval of this permit application in that de novo appeal, or whether they intend to submit a 

revised application to ANR for wastewater and water supply approval of their project as now 

composed, thereby rendering Docket No. 36-3-11 Vtec ripe for voluntary dismissal. 

_________________________________________ April 8, 2013 

 Thomas S. Durkin, Judge Date 

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Date copies sent: ___________ Clerk's Initials ______ 

Copies sent to: 

 Attorney Geoffrey H. Hand for Applicants Thomas Barefoot III, Joni Zweig, and True North Wilderness Program 

 Attorney Rebecca Boucher, Co-Counsel for Applicants 

 Attorney Catherine Gjessing for Interested Person Agency of Natural Resources 

 Attorney David Grayck for Cross-Appellant Frances Kincaid Perot 

 Attorney Peter Gill for Interested Person Natural Resources Board/LU Panel 

 

9

 Here, the project application under appeal is Applicants’ Act 250 Land Use Permit Application, dated

May 9, 2011. This application seeks a permit for two as-built tent platforms to be relocated, two as-built 

composting toilets, an as-built 20’ diameter yome, a third composting toilet to be constructed, and a new 

well for drinking water, along with associated piping and a storage tank.