In re White

Decision Date01 June 2001
Docket Number No. 98-391., No. 98-390
Citation779 A.2d 1264
PartiesIn re Lawrence WHITE.
CourtVermont Supreme Court

John D. Hansen and Mary C. Ashcroft (On the Brief), Rutland, for Appellant.

William H. Sorrell, Attorney General, and Eve Jacobs-Carnahan and Ron Shems, Assistant Attorneys General, Montpelier, for Amicus Curiae State of Vermont.

Stephanie J. Kaplan, Plainfield, for Amicus Curiae Danby Protective Association.



Applicant Lawrence White appeals two decisions of the Environmental Board regarding permits governing activities on a piece of property owned by White in the Town of Danby. The first decision revoked five Act 250 permits accumulated by White over a period of years, and the second decision granted White a corrective permit to replace the revoked permits, but imposed additional conditions on White's operations. White argues on appeal that (1) the Board improperly revoked the permits in place based on his failure to properly notice an adjoining landowner, (2) in the final revocation hearing before the Board, he was deprived of due process of law, (3) the Board improperly excluded evidence in the hearing on his corrective permit application, and (4) certain conditions imposed in the corrective permit were unreasonable. We affirm the decision of the Board revoking White's original permits, but reverse the Board's decision regarding White's corrective permit.

I. Factual and Procedural History

White is the owner of a fifty-eight-acre parcel of property located at the junction of Route 7 and Town Road 19 in the Town of Danby. A town dump had previously existed at the site. Starting in 1980, White applied for and was granted a series of Act 250 permits regarding the operation of a business located on the property. The permitted activities included operation of a saw mill; construction and conversion of certain buildings; storage and processing of stone and gravel, including the operation of a portable stone crusher; and construction and operation of a radio tower. One permit also allowed White to extend his hours of operation. White operated under these permits through 1995, at which time an adjoining landowner, Harris Peel, filed a petition to revoke a number of White's permits based on White's failure to provide notice to Peel in the course of applying for the permits in question.

Peel was granted party status by the Environmental Board, and, following a hearing, the Board revoked five of White's permits based on its determination that he had failed to notice Peel, despite the fact that White had not done so willfully or with gross negligence. In so doing, the Board relied on our decision in In re Conway, 152 Vt. 526, 567 A.2d 1145 (1989), and subsequent Board decisions. In this September 17, 1996 order, however, the Board provided White an opportunity to correct the violation, indicating that White should apply for a new permit encompassing the activity governed by the revoked permits. It also stated that White would be able to continue to operate under the revoked permits pending the resolution of his application for the new permit and any appeal to the Board regarding the new permit application.

White did not appeal from this order, but instead followed the Board's recommendation for corrective action and applied to the District Environmental Commission for a new permit. The Commission held a hearing on the application in which White's neighbors and a neighborhood group, the Danby Protective Association (DPA), participated, having been granted party status, after which it granted White's application. The new permit, however, imposed more restrictive conditions on White's operation, including prohibiting White from operating his portable stone crusher on the premises and imposing greater restrictions on his hours of operation. White appealed to the Board.

The DPA, of which it appears Peel is a member, filed a motion seeking to dismiss the appeal as well as to enforce the terms of the new permit and prevent White from continuing to operate under the revoked permits. Following a prehearing conference, White's neighbors, George and Alice Araskiewicz, Celia Hayward, Harris and Susanne Peel, and Kenneth and Christine Rush, along with the DPA and a nearby landowner, William Buckman, were all granted party status in the appeal to the Board.

After a hearing, the Board denied the motion to dismiss White's appeal and declined to enforce the new permit, noting that its order in the revocation proceedings allowed White to continue to operate under the old permits until his appeal of the new permit was resolved by the Board, and also noting that the new permit was not yet final. With respect to the DPA's efforts to seek enforcement of the Board's order in the revocation case, or alternately stay the decision to the degree that it permitted White to continue operating under the old permits, the Board also denied relief, noting that the appeal of the new permit was not the proper context in which to seek relief. The Board indicated, however, that it would entertain the DPA's request if filed in the revocation proceedings.

The DPA then requested a hearing in the revocation proceedings, seeking final revocation of White's previous permits. The Board thereafter reopened the revocation proceedings and granted the DPA a hearing to be held the same day as the hearing on White's appeal in the new permit proceedings.1 The Board indicated that the issue to be determined was White's compliance with the Board's original order in the revocation proceedings, which required that he comply with the terms of the revoked permits in order to continue operating under them.

White and the DPA each prefiled testimony, exhibits and objections prior to the hearing date in both the revocation proceedings and the new permit proceedings. Following the hearing, the Board issued two separate orders. The Board amended five of the conditions imposed in the new permit, but otherwise incorporated the conditions imposed by the Commission. The Board also permanently revoked the previous permits under which White had been operating. The Board based its "final revocation" both on its conclusion that White had failed to comply with the terms of its previous September 1996 decision by violating certain conditions in the prior permits while his application for a new permit was resolved and on its conclusion that the terms of the "interim" revocation order (the September 1996 order) had been satisfied because White had taken the required corrective action, i.e., securing a new permit.

Following the Board's issuance of the two orders, White filed motions to alter or amend the decisions, or, in the alternative, motions for rehearing in both proceedings. The Board denied White's motions. White appealed in both cases, and we have considered the appeals together.

II. Discussion
A. The Revocation Case

The Board determined that by omitting Peel from the list of parties to be noticed, White had violated Environmental Board Rule 10(F)2 and, therefore, revoked his permits under Board Rule 38(A)(2)(b), which provides "[t]he board may after hearing revoke a permit if it finds that:... (b) the applicant or successor in interest has violated the terms of the permit or any permit condition, the approved terms of the application, or the rules of the board." White argues on appeal, however, that his failure to list Peel was not a violation of a Board rule and therefore should be analyzed instead under Board Rule 38(A)(2)(a) (providing that the Board may revoke a permit if it determines an applicant willfully or with gross negligence submitted "inaccurate, erroneous, or materially incomplete information in connection with [a] permit application"). More specifically, he argues that he complied with Board rules by providing a list of parties to be noticed, but that it was "inaccurate and incomplete" because of the omission of Peel. Therefore, the Board should not have revoked the permits given its finding that White had not done so willfully or with gross negligence.

The State, like the Board, relies on our decision in In re Conway, 152 Vt. 526, 567 A.2d 1145 (1989), for the proposition that failure to list an adjoining landowner on a permit application voids a permit, no matter how long the permit has stood.3 The Board has taken a similar position in other cases. See, e.g., In re Mt. Mansfield Co. d/b/a Stowe Mountain Resort, # 5L0646-3-EB (Revocation) (Apr. 26, 1994) (denying a motion to dismiss a petition for revocation and concluding that allegation that permittee had violated a rule of the Board by failing to provide notice to an adjoining landowner was sufficient despite lack of allegation of willfulness or gross negligence), dismissed, In re Mt. Mansfield Co. d/b/a Stowe Mountain Resort, # 5L0646-3-EB (Revocation) (June 22, 1994) (dismissing matter following adjoining landowner's motion to withdraw his petition for revocation); In re Bickford, # 5W1093-EB (Revocation) (Apr. 22, 1993) (dismissing petition for revocation as moot based on determination that permit was void ab initio for lack of notice to adjoining landowner). This represents an over-extension and misapplication of our holding in In re Conway, however, and is an application of the decision to fact patterns In re Conway was not intended to reach or address.

In In re Conway, we affirmed a decision of the Board that "voided" a permit issued by the district commission and remanded for a new hearing following the appeal of the decision to issue the permit by an adjoining landowner who had not been listed on the permit application and had therefore not received notice in time to participate in the district commission proceedings. 152 Vt. at 527-28, 567 A.2d at 1145-46. In effect, the Board was vacating the decision of the commission to issue the permit and remanding for a new...

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