Environmental Court of Vermont

State of Vermont

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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 Northeast Kingdom Community Action, Inc.
(appeal from ZBA conditional use approval) Docket No. 123-6-07 Vtec (appeal from Planning Comm. site plan approval) Docket No. 128-6-07 Vtec (appeal from ZBA denial of zoning permit appeal) Docket No. 152-7-07 Vtec

Project: NEKCA Preschool Education & Family Ser vices Center
Applicant: Northeast Kingdom Comm Action, Inc.

Title: Motion to Amend 9/23/2008 Order, No. 11

Filed: October 2, 2008

Filed By: Appellants Paul and Joan Curtis

Response filed on 10/06/08 by Appellee NE Kingdom C omm. Action, Inc. Opposition

___ Granted _X _ Denied ___ Other

In their motion to amend, Appellants request that t he Court revise its September 23, 2008 Entry Order, so as to allow Appellants to assert “Other Questions” not specifically asserted in thei r original Statements of Questions in each of the above Dockets. For the reasons stated below, the Court declines to revise its prior Entry Order.

Each of Appellants’ Statement of Questions was orig inally filed fourteen or more months ago. Our Rules require tha t an appellant file their statement of questions “within 20 days after the filing of the notice of appeal.” V.R.C.P. 5(f). The Rule furthe r provides that an “appellant may not raise any question . . . not pre sented in the statement

as filed . . ..” Id

. Appellants argue that the questions they seek to ad d to their appeals are merely clarifications of questions gene rally raised in their original Statements. Our review of the Statements of Questions in each Docket leads to a different conclusion. The origin al Questions upon which Appellants now rely state broad challenges to the m unicipal approvals now being challenged; one such example is found in Ques tion #10 in the earliest Docket: “Were significant bylaws overlook ed in the conditional use approval.” This and the other original Questio ns upon which Appellants rely provide no notice to this Court or the other parties of the specific Questions Appellants now seek to add t o these appeals, some fifteen months after these appeals were commenced a nd little more than three weeks prior to trial.

The new Questions Appellants seek to add to their a ppeals provide additional support for restricting their additions to these land use appeals. By the Questions under the new title “Oth er Questions,” Appellants seek to challenge applicant’s ability to obtain conditional use, site plan and zoning permit approval, due to N EKCA’s alleged failure to obtain state licensing for the pre-school, nurse ry school, day care andadult care facility that it has yet to construct. Appellants’ motion to

amend at p. 3. Appellants also seek to add a furth er challenge to NEKCA’s municipal land use applications by asserting non-co nformance with Act 62, the state education funding law. Id . NEKCA notes that it cannot obtain such state licensing without the opportunity for st ate licensing officials to conduct site visits at the facility.

In situations where no clear direction is afforded an applicant as to which approvals, state or local, should first be obtained, the first approval, if awarded, may contain a condition that actual operation must await the receipt of all remaining state, local and federal approvals. Absent such an option, any development could be sti fled, without ever obtaining a substantive review of its conformance t o applicable land use requirements.

To the extent that this Court has the discretionary authority to allow an expansion, at this late date, of the legal issues to be addressed in this appeal, we conclude that exercising such di scretion now would be unwise and unjust. No action that may be taken in these proceedings will exempt NEKCA from its obligation to obtain all nece ssary licenses and approvals before it commences operation of its faci lity. If the facts presented at trial justify a conclusion that NEKCA’ s proposed project conforms to the applicable provisions of the Newpor t Zoning Bylaws, occupancy and operation of the facility can be made conditional upon the receipt of all necessary licenses. So as to “ensur e summary and expedited proceedings consistent with a full and fair determi nation” 1 of the land use issues property raised in these Dockets, we will li mit our review of the pending applications to conformance to the substant ive sections of the municipal land use regulations.

___________________________________________ __ ____________________ Thomas S. Durkin, Judge Date

=================================================== ===================== Date copies sent to: ____________ Cle rk's Initials _______
Copies sent to:
Appellant Paul Curtis Appellant Joan Curtis Appellant George M. Azur II Appellant Shelly Azur Appellant Douglas Jenks Appellant Lois Jenks Appellant Francis L. Ormsbee Appellant Amelia A. Ormsbee Appellant William D. Prue Appellant Debra Prue Appellant Linda Curtis Appellant Clark W. Curtis Appellant Norman Thurston

Interested Person John K Hall

Interested Person Harriet G. Hall Attorney Charles D. Hickey for Appellee NE King dom Comm Action, Corp. Attorney William Boyd Davies for Interested Per son City of Newport

1 Vermont Rules for Environmental Court Proceedings 1.