1 STATE OF VERMONT

ENVIRONMENTAL COURT

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In re: Kenfield Brook Properties LLC, }

Stagecoach Rd. Proposed Subdivision } Docket No. 238

‐ 11

‐ 05 Vtec

(Appeal of Wickart) }

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Decision and Order on Appellee

‐ Applicant’s Motion to Dismiss for Lack of Standing

Appellant Debra Wickart timely filed a notice of appeal with the Court on

November 8, 2005, seeking to appeal from a decision issued by the Development Review

Board (DRB) of the Town of Morristown on October 24, 2005. By its terms it was filed only

on her own behalf. Accompanying the notice of appeal, but not mentioned in it, was a

piece of paper solely headed with the two words: “Concerned Neighbors” and signed by

five individuals: Nina D. Williams, Christine Luce, Eric C. Sanders, Janet A. Sanders, and

one illegible signature.

Later, in response to the Court’s notification to her that her filing lacked some of the

elements required by V.R.E.C.P. 5(b)(3), on November 28, 2005, Appellant Wickart

supplied additional information to the Court. In this filing, made after the expiration of the

appeal period, she stated that the appealing party was both herself and her husband Stan

Biasini, and that she was also appealing under 24 V.S.A. §4465(b)(4) as the designated

representative of a group of ten or more persons. Attached to the November 28, 2005 filing

was a piece of paper headed “Voters and Property owners that oppose the decision of the

Development Review Board concerning the Kenfield Brook Development in the Town of

Morristown,” and containing eleven signatures, including that of Debra Wickart. Of the

five signatures that accompanied the original notice of appeal, only that of Christine Luce

was also on this second group of signatures. There was no indication that the group

comprising this second group of signatures had filed the petition with the DRB required2 by 24 V.S.A. §4465(b)(4), and therefore they do not appear to have standing as an appellant

group, even if their notice of appeal had contained the required information and had been

timely filed.

Appellee

‐ Applicant has moved to dismiss Ms. Wickart as a party

‐ appellant, and

therefore to dismiss the appeal, due to her lack of participation at the DRB hearings.

Appellant Wickart represents herself, except that she and Mr. Biasini are represented by

Kathleen B. O’Neill, Esq. for the limited purpose of the present motion; Appellee

‐ Applicant

Kenfield Brook Properties, LLC is represented by Elaine Kilburn Nichols, Esq. and Ellen

M. O’Toole, Esq.; and the Town of Morristown is represented by Will S. Baker, Esq.

For the original notice of appeal to have been effective as a notice of appeal on behalf

of Mr. Biasini, or on behalf of any of the five individual “concerned neighbors” whose

signatures were on the page accompanying the original notice of appeal, those persons

would have had to have signed a notice of appeal stating that those additional people were

also party

‐ appellants filing the appeal. The additional information filed on November 28,

2005, was not effective to add Mr. Biasini as a party

‐ appellant without an accompanying

motion filed by him for permission to file his notice of appeal late, prior to the expiration

of an additional thirty days after the expiration of the appeal period. V.R.E.C.P. 5(b)(1) and

V.R.A.P. 4. He did not do so.

Even though local proceedings are relatively informal, we must apply the same rules

of procedure to all potential parties, whether they are represented or not, and whether they

receive accurate information from municipal officials or not. Because the above

‐ described

actions were not taken, Ms. Wickart is the only Appellant.

If the others wish to move to intervene and to enter their appearance as interested

parties, they may file such motions. In considering those motions the Court will determine

whether those delayed entries of appearance would prejudice any party. However, it is

important to recognize that this is an on

‐ the

‐ record appeal. We therefore will not be taking

any evidence or considering the merits de novo

. Rather, we will be scheduling the filing1 He did so indirectly, by describing on the record his and his wife’s relationship to

Jean Wickart, Appellant’s mother, who herself had made statements earlier in the record

of that hearing.

3 of legal memoranda on whether the decision meets the minimum requirements for an on

‐

the

‐ record decision, and whether it is supported by substantial evidence in the record as

a whole.

Appellant Wickart’s co

‐ ownership of property in the immediate neighborhood of

the proposed development is sufficient for her to have standing to appeal, if the

presentations made orally at the hearings by Mr. Biasini qualifies as Ms. Wickart’s

participation under the statute, as they did not file additional materials in writing.

Unlike the situation in In re Appeal of Carroll

, Docket No. 3

‐ 1

‐ 05 Vtec (Vt. Envtl. Ct.,

Aug. 26, 2005), the present appeal is on the record rather than de novo

. Therefore, we have

an electronic audio record of all three hearings, in addition to the minutes of the

proceedings. From the record of the September 8, 2005 hearing, we can determine that Mr.

Biasini introduced himself as Ms. Wickart’s husband, 1 and used both the singular and the

plural to refer to both his and his wife’s interests in and concerns about the proposed

development. It is apparent from listening to the record that in this case, Mr. Biasini was

presenting his testimony and statements of concern on behalf of his wife, Appellant

Wickart, as well as on his own behalf. It is also evident from the record and the relatively

informal nature of the proceedings that the DRB members and the participants at the

hearing knew the relationships between the participants, even when they were being

referred to by their first names. Based on the record of this particular on

‐ the

‐ record

proceeding, Mr. Biasini’s participation as agent for Ms. Wickart is sufficient to satisfy the

participation requirement of 24 V.S.A. §4471 for the purposes of her standing as an

appellant. Accordingly, Appellee

‐ Applicant’s Motion to Dismiss Ms. Wickart for lack of

standing is DENIED.4 As discussed at the pretrial conference, this on

‐ the

‐ record appeal would normally

next be scheduled for briefs on the merits. However, also as discussed at the conference,

and as raised in Appellant’s motion memorandum (at Facts, ¶¶13 and 14), it appears that

the decision may be sufficiently deficient under the standards articulated in Appeal of

Leikert

, Docket No. 2004

‐ 213 (Vt Sup. Ct., Nov. 10, 2004) (three

‐justice panel) to require a

remand.

To avoid unnecessary memoranda on the part of the parties, we will give the Town

an opportunity determine whether it wishes to take a voluntary remand to write more

adequate findings and conclusions based on the evidence already taken. V.R.E.C.P. 5(i).

We will also establish a schedule to receive legal memoranda on the Leikert issue to allow

the Court to rule on that issue in advance of any briefing on the merits of the application,

as follows:

The Town may determine whether it wishes to take a voluntary remand

under V.R.E.C.P. 5(i), and shall file any such request in writing so that it is

communicated to the Court and the other parties on or before March 10, 2006.

On or before March 24, 2006, any party may file any motions to dismiss,

remand, or otherwise resolve this appeal on the basis of the adequacy of the

decision under the standards articulated in Appeal of Leikert (copy enclosed).

On or before April 3, 2006, any responsive memoranda may be filed.

Shortly after the decision on those motions, the Court will hold a telephone

conference to establish a schedule for the filing of briefs on the merits of this on

‐ the

‐ record

appeal.

Done at Berlin, Vermont, this 24 th day of February, 2006.

_________________________________________________ Merideth Wright

Environmental Judge