Lunde Const. Co., In re, 99-79
| Decision Date | 27 February 1981 |
| Docket Number | No. 99-79,99-79 |
| Citation | 139 Vt. 376,428 A.2d 1140 |
| Parties | In re LUNDE CONSTRUCTION COMPANY. |
| Court | Vermont Supreme Court |
Joseph C. Palmisano, Barre, for appellant.
M. Jerome Diamond, Atty. Gen., Benson D. Scotch and Meredith Wright, Asst. Attys. Gen., and Richard H. Cowart, Sp. Asst. Atty. Gen., Montpelier, for Environmental Board.
Before BARNEY, C. J., and DALEY, LARROW, BILLINGS and HILL, JJ.
Lunde Construction Company sought an Act 250 permit for a real estate development in Barre Town. Barre City, a separate municipal corporation, sought party status under 10 V.S.A. § 6084(b) and 6085(c), and under Environmental Board Rule 12(C), to protect its interests at the hearing before the District Environmental Commission, but was turned down. The request was also denied by the Environmental Board. The City is appealing, claiming (i) that it was entitled to receive individual notice of the application under 10 V.S.A. § 6084(b) and thus party status under 10 V.S.A. § 6085(c), and (ii) that the District Environmental Commission and the Environmental Board abused their discretion in denying the City's request for party status under Environmental Board Rule 12(C).
The application of Lunde indicates that the development will use municipal water and sewer service. Barre Town, the site of the proposed development, has no water or sewage system of its own. Instead, it receives those services from its neighbor, Barre City, under contract. That contract limits the amount of sewer and water service the Town may get from the City. The City wants to present data on the state of its water and sewer systems, as well as to give evidence as to the effect of the proposed development on its water and sewer operations.
The City has brought this appeal under 3 V.S.A. § 815. We have held that one denied party status by the Environmental Board has standing to appeal the decision to this Court under that statute. In re Preseault, 130 Vt. 343, 347, 292 A.2d 832, 834-35 (1972).
The litigants agree that Barre City is not entitled to party status as of right under 10 V.S.A. § 6084(a). Section 6084(a) gives party status to the municipality in which the proposed development is to be located, and to adjacent municipalities if the development is on a boundary. In this case Barre City does not come within either provision.
The statute also provides for discretionary power in the District Commission, or the Board, to decide which additional municipalities should receive notice, if any. 10 V.S.A. § 6084(b). Section 6084(b) provides:
The district commission shall forward notice and a copy of the application to the board and any state agency directly affected, and any other municipality or state agency, or person the district commission deems appropriate. Notice shall also be published in a local newspaper generally circulating in the area where the land is located not more than 7 days after receipt of the application.
The City, in essence, contends that it was an abuse of discretion for the District Commission to refuse to send the City notice, conferring party status on the City. The Board, when the issue was brought before it, sustained the District Commission's ruling on the grounds that expert testimony presented through the regional planning commission or state agencies would sufficiently protect the interests of the City.
In the law, discretionary rulings are always subject to the limitations that such discretion not be withheld or abused. Abuse is defined as the purported exercise of discretion on grounds or for reasons clearly untenable, or to an extent clearly unreasonable. John v. Fernandez, 124 Vt. 346, 348-49, 205 A.2d 552, 555 (1964). In determining the application of these limits, the statutory objectives are of first consideration. Since the use of the discretionary power is limited by those statutory objectives, a review of the exercise of discretionary power must reach the question of whether they were sufficiently taken into account.
The effects of a proposed development on water and sewer services are a principal concern of environmental proceedings such as this one, and are among the exact criteria that the District Commission must examine under 10 V.S.A. § 6086(a), which provides in relevant part:
Before granting a permit, the board or district commission shall find that the subdivision or development:
(1) Will not result in undue water or air pollution....
(2) Does have sufficient water available for the reasonably foreseeable needs of the subdivision or development.
(3) Will not cause an unreasonable burden on an existing water supply, if one is to be utilized.
....
(7)...
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Bevins v. King
...and its action thereon is not reviewable, unless it appears that the court withheld or abused its discretion. In re Lunde Construction Co., 139 Vt. 376, 428 A.2d 1140 (1981); John v. Fernandez, 124 Vt. 346, 205 A.2d 552 (1964). When there is no prejudice to the objecting party, and when the......
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...and shortly thereafter petitions for stays. MTPA moved to dismiss the appeal. CRG and Winooski rely on In re Lunde Construction Co., 139 Vt. 376, 378, 428 A.2d 1140, 1141 (1981), as conferring a right of appeal in this case under the Administrative Procedure Act (APA), 3 V.S.A. § 815(a). Th......
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In re Halnon, 01-199.
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