LaFrance v. Environmental Board

LaFrance v. Environmental Board  (97-016); 167 Vt. 597; 706 A.2d 957

[Filed 8-Jan-1998]

                          ENTRY ORDER

                 SUPREME COURT DOCKET NO. 97-016

                        OCTOBER TERM, 1997


Pierre LaFrance                 }     APPEALED FROM:
                                }
                                }
     v.                         }     Washington Superior Court
                                }
State of Vermont Environmental  }
Board                           }     DOCKET NO. S217-4-96Wncv


               In the above-entitled cause, the Clerk will enter:


       Plaintiff Pierre LaFrance appeals from a Washington Superior Court
  decision denying plaintiff's motion for summary judgment and granting
  summary judgment to defendant Vermont Environmental Board.  Plaintiff
  claims that the superior court erred in ruling that the Board had
  discretion to set aside its 1993 order to revoke an Act 250 permit.  We do
  not reach the merits of plaintiff's appeal because the appeal is now moot.

       In July 1992, Stokes Communications applied for an Act 250 permit
  which would grant it permission to increase the height of its radio
  transmission tower from 120 feet to 300 feet. In August 1992, the District
  3 Commission approved the construction of the tower.  Plaintiff and several
  of his neighbors appealed the District Commission's decision to the Board. 
  In January 1993, while plaintiff's appeal was pending, Stokes constructed a
  new tower.  The new tower was significantly different from the one approved
  by the District Commission.  It was wider and located in a different area,
  and Stokes added buildings and facilities that had not been approved by the
  District Commission.

       The Board affirmed the District Commissioner's decision to grant a
  permit but imposed as an additional condition that Stokes install certain
  light shields on the tower.  It also determined that Stokes had violated
  the Act 250 permit issued by the District Commission by constructing a
  project with several material changes from the approved permit.  The Board
  ruled that the permit would be revoked unless Stokes filed an amended
  application by January 26, 1994 to obtain approval for the unauthorized
  changes to the radio tower.

       Stokes appealed the Board's decision to this Court, and the January
  26, 1994 deadline was stayed during the pendency of the appeal.  We
  affirmed the Board's order in In re Stokes Communications Corp., 164 Vt.
  30, 32, 664 A.2d 712, 713 (1995), holding that the Board had jurisdiction
  over the tower project and the authority to require Stokes to install light
  shields. Shortly after the appeal decision, plaintiff sent a letter to the
  Board asking it to confirm that Stokes had until September 4, 1995 to file
  its amended application with the District Commission. Plaintiff argued that
  the Board had actually ordered Stokes to file an amended application within
  forty-four days of its decision, despite stating the deadline as a date
  certain.  Stokes objected and suggested a new deadline of October 1, 1995. 
  The Board initially ruled that it no longer had jurisdiction over the
  matter, but after plaintiff sought a new order revoking the permit, it held
  a hearing on whether Stokes was in compliance with "all lawful requirements
  for retention of its permit."

 

       After September 4, 1995, but before the new hearing, Stokes filed an
  application with the District Commission regarding the unauthorized changes
  to the radio tower.  On February 6, 1996, the District Commission issued a
  new permit approving the tower as built.  The Board then ruled that it was
  responsible for the confusion about the applicable date by which Stokes was
  to file the amended application because it did not state that the date was
  forty-four days from the Supreme Court affirmance.  It refused to revoke
  Stokes's permit which, by this time, had been superseded by the new permit
  issued by the District Commission for the actual development Stokes had
  constructed.

       Plaintiff appealed to the Washington Superior Court arguing that
  Stokes's permit was revoked by operation of law when Stokes failed to
  submit a new application within forty-four days from the Supreme Court
  decision.  The court granted summary judgment for the Board, holding that
  because the deadline had been stated as a date certain and not as a period
  of days, the Board had the power to propose a new deadline to give Stokes
  adequate notice.  Plaintiff now appeals here.

       A case becomes moot when the issues involved are no longer live or the
  parties do not have a cognizable interest in the outcome.  See Doria v.
  University of Vermont, 156 Vt. 114, 117, 589 A.2d 317, 319 (1991).  The
  mootness doctrine also requires that there be an actual controversy in
  existence at all stages of review, not merely at the time the plaintiff
  originally filed the complaint.  See id.  Moreover, even if the mootness
  argument is not raised at the trial court level, "[i]t is axiomatic that
  this Court will not adjudicate any part of an appeal that is not based on a
  live controversy."  Duffy v. Brannen, 148 Vt. 75, 81, 529 A.2d 643, 647
  (1987).

       Here, the issue of whether the Environmental Board is required to
  revoke Stokes's Act 250 permit because of Stokes's alleged failure to
  timely file an amended permit application is moot.  The District Commission
  approved Stokes's amended permit application on February 6, 1996, more than
  one month before the Board made a decision regarding revocation of Stokes's
  permit, and the permit is now final.  We find nothing in the statutes or in
  the Board's rules that precludes Stokes from submitting an amended
  application at any time.  See 10 V.S.A. § 6090(c); Agency of Natural
  Resources, Envtl. Bd. Rules §§ 38(A), 34(B), 6 Code of Vt. Rules, Rule
  120003001 at 29-31 (1996).  We hold that the District Commission's approval
  of Stokes's amended Act 250 application was valid and rendered the
  revocation issue moot.

       We recognize, as plaintiff argues, that the presence of the original
  permit affects the nature of the proceeding in the District Commission. 
  Plaintiff believes that because the original permit was revoked, Stokes was
  required to begin the application process anew in front of the Commission,
  as if no permit ever existed.  Stokes argues that the proceeding in the
  Commission should consider only the amendments to the original permit. 
  This question should have been raised in the Commission and preserved, if
  necessary, by appeal to the Board.  Plaintiff's failure to do so made the
  amended permit final and this proceeding moot.

       Plaintiff's reliance on In re Barlow, 160 Vt. 513, 518, 631 A.2d 853,
  857 (1993) is misplaced.  In Barlow, we held that although the permittee
  had been granted an Act 250 permit, the more general issue of whether Act
  250 applied to the permittee was still a live issue.  See id.  Thus, we
  ruled that the permittee's appeal of its Act 250 permit conditions was not
  moot. See id.  The situation here is distinguishable because it is
  undisputed that Stokes needed a new

 

  Act 250 permit to cover the tower as built.  Having obtained that permit
  without appeal, there was nothing left to decide.

       Appeal dismissed.


                              BY THE COURT:




                              _______________________________________
                              John A. Dooley, Associate Justice

                              _______________________________________
                              James L. Morse, Associate Justice

                              _______________________________________
                              Denise R. Johnson, Associate Justice

                              _______________________________________
                              Marilyn R. Skoglund, Associate Justice