Pelham North, Inc., In re
| Citation | 154 Vt. 651,578 A.2d 124 |
| Decision Date | 27 June 1990 |
| Docket Number | No. 89-284,89-284 |
| Parties | In re PELHAM NORTH, INC. |
| Court | United States State Supreme Court of Vermont |
Before ALLEN, C.J., and PECK, GIBSON, DOOLEY and MORSE, JJ.
Plaintiff appeals from an order of the Environmental Board voiding a land use permit granted to plaintiff by the District Commission.
The appeal is premature. The Board, in compliance with the mandates of its Rule 38(A)(3), granted plaintiff a reasonable opportunity to correct the violation which it found and remanded the matter to the District Commission for a further hearing on the amended plans.
The requirements of finality and the exhaustion of administrative remedies preclude our review of the Board's action at this stage. With limited exceptions, we have declined to judge a case piecemeal and have held to the requirement that the order appealed from be final. See Hospitality Inns v. South Burlington R.I., 149 Vt. 653, 656, 547 A.2d 1355, 1358 (1988); In re D.A. Associates, 150 Vt. 18, 20, 547 A.2d 1325, 1326 (1988). The test for finality is whether the order makes a final disposition of the subject matter. In re Estate of Webster, 117 Vt. 550, 552, 96 A.2d 816, 817 (1953). The Board's order allowing correction of the violation and remanding the matter to the District Commission for further proceedings is not a final order from which an appeal may be taken. See Dalto v. Richardson, 434 F.2d 1018, 1019 (2d Cir.1970) (), cert. denied, 401 U.S. 979, 91 S.Ct. 1211, 28 L.Ed.2d 330 (1971).
The purposes for the finality and exhaustion requirements are well set forth in McKart v. United States, 395 U.S. 185, 193-95, 89 S.Ct. 1657, 1662-63, 23 L.Ed.2d 194 (1969):
A primary purpose is, of course, the avoidance of premature interruption of the administrative process. The agency, like a trial court, is created for the purpose of applying a statute in the first instance. Accordingly, it is normally desirable to let the agency develop the necessary factual background upon which decisions should be based. And since agency decisions are frequently of a discretionary nature or frequently require expertise, the agency should be given the first chance to exercise that discretion or to apply that expertise. And of course it is generally more efficient for the administrative process to go forward without interruption than it is to permit the parties to seek aid from the courts at various intermediate stages....
Closely related to the above reasons is a notion peculiar to administrative...
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...it is our practice to decline to judge a case piecemeal and to require that the order appealed from be final. In re Pelham North, Inc., 154 Vt. 651, 652, 578 A.2d 124, 124 (1990); see 2 Koch, supra, § 10.31, at 194 (judicial review available only after agency has spoken decisively on issue ......
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...the government regulations to plaintiff's property. Williamson, 473 U.S. at 186, 105 S.Ct. at 3116; see also In re Pelham North, Inc., 154 Vt. 651, 652, 578 A.2d 124, 124 (1990) (mem.) (Environmental Board's decision voiding land use permit is not ripe until Board finally disposes of subjec......
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...A.2d 649, 652 (1993), and no one contends the District Commission's second notice was a final order. See also In re Pelham N., Inc., 154 Vt. 651, 652, 578 A.2d 124, 124 (1990) (mem.) (noting that executive agencies are vested with authority to exercise discretion and expertise, and therefor......
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In re Mathez Act 250 Lu Permit (Sung-Hee Chung, 2017-225
...A.2d 649, 652 (1993), and no one contends the District Commission's second notice was a final order. See also In re Pelham N., Inc., 154 Vt. 651, 652, 578 A.2d 124, 124 (1990) (mem.) (noting that executive agencies are vested with authority to exercise discretion and expertise, and therefor......