LaFrance v. Environmental Board (97-016); 167 Vt. 597; 706 A.2d 957
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
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
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
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.
BY THE COURT:
John A. Dooley, Associate Justice
James L. Morse, Associate Justice
Denise R. Johnson, Associate Justice
Marilyn R. Skoglund, Associate Justice