In re Pelham North, Inc.

                                ENTRY ORDER
                      SUPREME COURT DOCKET NO. 89-284
                              MAY TERM, 1990


In re Pelham North, Inc.          }          APPEALED FROM:
                                  }
                                  }          Environmental Board
                                  }
                                  }          DOCKET NO. 3WO 521-EB


             In the above entitled cause the Clerk will enter:

     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);
Petition of 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 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) (vacation of Secretary's decision and remand for
reconsideration is not a final appealable order), cert. denied, 401 U.S. 979
(1971).

     The purposes for the finality and exhaustion requirements are well set
forth in McKart v. United States, 395 U.S. 185, 193-95 (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 law.  The administrative
          agency is created as a separate entity and invested with
          certain powers and duties.  The courts ordinarily should
          not interfere with an agency until it has completed its
          action, or else has clearly exceeded its jurisdiction.
          As Professor Jaffe puts it, "[t]he exhaustion doctrine
          is, therefore, an expression of executive and adminis-
          trative autonomy."  This reason is particularly perti-
          nent where the function of the agency and the particular
          decision sought to be reviewed involve exercise of dis-
          cretionary powers granted the agency by Congress, or
          require application of special expertise.

            . . .  [J]udicial review may be hindered by the
          failure of the litigant to allow the agency to make a
          factual record, or to exercise its discretion or apply
          its expertise.  In addition, other justifications for
          requiring exhaustion in cases of this sort have nothing
          to do with the dangers of interruption of the adminis-
          trative process.  Certain very practical notions of
          judicial efficiency come into play as well.  A complain-
          ing party may be successful in vindicating his rights in
          the administrative process.  If he is required to pursue
          his administrative remedies, the courts may never have
          to intervene.  And notions of administrative autonomy
          require that the agency be given a chance to discover
          and correct its own errors.  Finally, it is possible
          that frequent and deliberate flouting of administrative
          processes could weaken the effectiveness of an agency by
          encouraging people to ignore its procedures.

     The appeal is dismissed and the matter remanded to the District
Commission for further proceedings in accordance with views expressed in the
opinion of the Environmental Board.



                                   BY THE COURT:


                                   Frederic W. Allen, Chief Justice


                                   Louis P. Peck, Associate Justice


[ ]  Publish                       Ernest W. Gibson III, Associate Justice

[ ]  Do Not Publish
                                   John A. Dooley, Associate Justice


                                   James L. Morse, Associate Justice