Barefoot & Zweig Act 250 Appeal ( 2013 )


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  •                                        State of Vermont
    Superior Court—Environmental Division
    ======================================================================
    ENTRY REGARDING MOTION
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    In re Barefoot et al. Act 250 Application                               Docket No. 46-4-12 Vtec
    (Appeal of the District 5 Envtl. Commission determination)
    Title: Motion to Dismiss Questions on Cross-Appeal (Filing No. 4)
    Filed: July 2, 2012
    Filed By: Applicants Thomas Barefoot III, Joni Zweig, and True North Wilderness Program
    Response filed on 7/31/12 by Interested Person Francis Kincaid (Kinny) Perot
    Reply to Response filed on 8/22/12 by Applicant-Appellants
    Response to Reply to Response filed 9/25/12 by Interested Person Kinny Perot
    Reply to Response to Reply to Response filed 10/15/12 by Applicant-Appellants
    X Granted (in part)                 X Denied (in part)                      ___ Other
    The pending appeal concerns a project that requires both local and state land use review
    and approval. While the pending appeal only concerns the latter review, we provide a bit of
    procedural background so that we may properly address the legal issues raised in the pending
    motion.
    On December 20, 2010 the Town of Waitsfield Development Review Board (“DRB”)
    approved a permit application submitted by Applicants Tom Barefoot III, Joni Zweig, and True
    North Wilderness Programs, LLC (“Applicants”) to operate a wilderness therapy program on a
    25-acre tract owned by Mr. Barefoot and Ms. Zweig off Dana Hill Road in the Town of
    Waitsfield, Vermont. The Town of Waitsfield (“Town”) has not elected to conduct its
    development review process on the record, and no party has indicated that any record of the
    proceeding exists. The DRB’s decision is five pages long. Interested Person Francis Kincaid
    Perot (“Ms. Perot”) participated in the hearing, and did not appeal the DRB approval.
    Since the project also required approval under the state land use standards, commonly
    referred to as Act 250, Applicants subsequently went before the District 5 Environmental
    Commission (“the Commission”) with a modified version1 of the proposal. Ms. Perot
    participated in the hearing and retained final party status under Act 250 Criteria 4 and 10. The
    Commission denied the Act 250 application in a 22-page decision on December 30, 2011. One of
    the primary reasons the Commission announced for its denial of the state land use permit
    application was that Applicants lacked a wastewater permit sufficient to cover the project as
    proposed.
    1 The version of the project that Applicants presented to the Commission added a third composting toilet
    and a drilled drinking water well with associated piping and water storage tank.
    Re Barefoot Act 250 Application, No. 46-4-12 Vtec (EO on Mot. to Dismiss Questions) (4-5-13)   Pg. 2 of 8.
    On April 2, 2012, Applicants appealed the Commission’s decision, and Ms. Perot cross-
    appealed on May 4, 2012. On May 24, 2012, Ms. Perot filed a motion for party status
    simultaneously with a multifaceted statement of 27 questions seeking party status on multiple
    Act 250 criteria and, if granted party status, the appellate right to challenge the proposed
    project’s conformance to those criteria. On July 2, 2012 Applicants submitted a filing seeking to
    dismiss all of the questions in Ms. Perot’s Statement of Questions. This filing is styled both as
    an “objection to Kinny Perot’s motion for party status” and as a “motion to dismiss Kinny
    Perot’s statement of questions.” Applicants broadly reason that the doctrines of claim or issue
    preclusion obligate this Court to deny Ms. Perot party status and to dismiss all of her
    substantive claims, based upon the factual and legal determinations rendered in the previous
    municipal permit application proceeding.
    Preclusion arguments in the municipal-Act 250 permitting context often arise when an
    applicant who was denied a permit later submits a new application for the same project. In
    those cases, the well established successive application doctrine functions as a form of
    preclusion to bar applicants from presenting new applications for the same project with only
    minor revisions.2 Here, in contrast, Applicants urge us to adopt a somewhat novel preclusion
    theory that a determination by an appropriate municipal panel should preclude a determination
    by a state Act 250 district commission (and this Court, standing in its shoes as we review the
    Act 250 permit application de novo). Specifically, Applicants argue that because Ms. Perot failed
    to appeal the prior DRB determination approving their project, preclusion should bar her from
    participating in the Act 250 appeal that Applicants now bring before this Court.
    Before reaching these questions, however, we regret that we must again address issues
    of civil procedure. Insofar as Applicants’ filing was an objection to Ms. Perot’s motion for party
    status, we decided party status issues in a separate March 13, 2013 decision. We explained that
    preclusion is an affirmative defense, distinct from the preliminary issue of party status, and we
    determined that Ms. Perot has party status to cross appeal under Criteria 1, 1(A), 1(B), 1(E), 8,
    8(A), 4, and 10 only. Remaining before us are the portions of Applicants’ July 2, 2012 filing that
    constitute a motion to dismiss Ms. Perot’s substantive questions.3 Applicants do not identify a
    traditional ground for dismissal, such as those found in V.R.C.P. 12(b). However, while
    affirmative defenses are typically inappropriate to raise in a motion to dismiss, courts may
    grant motions to dismiss based on preclusion where “it is clear from the face of the complaint,
    and matters of which the court may take judicial notice, that the plaintiff's claims are barred as a
    matter of law.” Conopco, Inc. v. Roll Int'l, 
    231 F.3d 82
    , 86 (2d Cir. 2000). Otherwise, preclusion
    defenses must be proven either on summary judgment or at trial. See McKenna v. Wright, 
    386 F.3d 432
    , 437 (2d Cir. 2004). See also 18 C. Wright, A. Miller & E. Cooper, Federal Practice &
    Procedure §§ 4405, 1277.
    I.      Applicants’ motion to dismiss Ms. Perot’s Questions 11–14, 18, 19, and 23.
    This case presents one of the rare instances in which we need not go beyond the face of
    the pleadings to conclude that the equitable defenses of claim and issue preclusion are not
    2For a thorough discussion of the successive application doctrine, see In re Woodstock Cmty. Trust, 
    2012 VT 87
    , ¶¶ 4–7, __ Vt. __.
    3 Questions 11–14, 18, 19, 23, and 26 ask whether Applicants’ project complies with Act 250 Criteria 1,
    1(A), 1(B), 1(E), 8, 8(A), 4, and 10, respectively. Question 27 relates to the project’s scope.
    Re Barefoot Act 250 Application, No. 46-4-12 Vtec (EO on Mot. to Dismiss Questions) (4-5-13)        Pg. 3 of 8.
    sufficient to dismiss Applicants’ Questions 11–14, 18, 19, and 23. These Questions ask whether
    Applicants’ project complies with Act 250 Criteria 1, 1(A), 1(B), 1(E), 8, 8(A), and 4, respectively.
    Claim preclusion (res judicata) generally bars the litigation of a claim if there exists an
    earlier final judgment in which “the parties, subject matter[,] and causes of action are identical
    or substantially identical.” Russell v. Atkins, 
    165 Vt. 176
    , 179 (1996) (internal citations omitted).
    Claim preclusion is not applicable here, because the same causes of action are not involved. The
    DRB could not and did not adjudicate Ms. Perot’s claims that the Project violates the state
    standards set out in the Act 250 criteria. Rather, the DRB was limited by its jurisdiction to
    determining whether the proposal conformed to the applicable municipal bylaws.
    Issue preclusion (collateral estoppel) bars the subsequent relitigation of an issue
    “actually litigated[4] and decided in a prior case between the parties, so long as there was a final
    judgment on the merits and the issue was necessary to the resolution of the [prior] action.” Bull
    v. Pinkham Eng'g Assocs., 
    170 Vt. 450
    , 461 (2000). Collateral estoppel may apply in
    administrative as well as judicial proceedings if certain elements are satisfied. In re Central Vt.
    Pub. Serv. Corp., 
    172 Vt. 14
    , 21 (2001). However, it is less strictly enforced in the administrative
    context, with a strong focus on fairness. 2 Charles H. Koch, Jr., Admin. L. & Prac. § 5:72 (3d ed.)
    (WL updated Mar. 2013). Issue preclusion cannot apply where unclear findings in the decision
    on the prior proceeding prevent a court from determining whether an issue was “necessary to
    the resolution of [the] claim” in the prior proceeding. State v. Carroll, 
    171 Vt. 395
    , 400–01 (2000).
    Issue preclusion may apply when: (1) it is asserted against one who was a party in the
    prior action; (2) the same issue was raised in the prior action; (3) the issue was resolved by a
    final judgment on the merits; (4) there was a full and fair opportunity to litigate the issue in the
    prior action; and (5) its application is fair. Trickett v. Ochs, 
    2003 VT 91
    , ¶ 10, 
    176 Vt. 89
    . No one
    test controls a determination of the final two criteria; the courts must look to the circumstances
    of each case. See, e.g., Trepanier v. Getting Organized, Inc., 
    155 Vt. 259
    , 265 (1990) (listing as
    appropriate factors under the final two criteria the choice of forum, the incentive to litigate, the
    foreseeability of future litigation, the legal standards and burdens employed in each action, the
    procedural opportunities available in each forum, and the existence of inconsistent
    determinations of the same issue in separate prior cases) (citing Parklane Hosiery Co. v. Shore,
    
    439 U.S. 322
    , 331-32 (1979)).
    Categorical exceptions to preclusion exist. The Restatement (Second) of Judgments
    § 28(3) (1982) provides an exception where “[a] new determination of the issue is warranted by
    differences in the quality or extensiveness of the procedures followed in the two courts or by
    factors relating to the allocation of jurisdiction between them.” Accordingly, the Vermont
    Supreme Court has been hesitant to apply issue preclusion to cases litigated in forums lacking
    in formality and procedural protections. See Cold Springs Farm Dev., Inc. v. Ball, 
    163 Vt. 466
    ,
    471 (1995) (declining to give preclusive effect to small claims adjudications, as doing so would
    be inconsistent with the simplicity and informality of small claims procedures and would chill
    the use of small claims courts).
    4 In their filings, Applicants sometimes conflate claim and issue preclusion, and they appear to argue at
    several points that issue preclusion would apply to issues that could have been raised in the first
    proceeding. This is incorrect. Claim preclusion applies to claims that were raised or could have been
    raised, but issue preclusion applies only to issues actually litigated and decided. See In re Tariff Filing of
    Central Vermont Public Service Corp., 
    172 Vt. 14
    , 19–21 (2001) (differentiating between claim and issue
    preclusion).
    Re Barefoot Act 250 Application, No. 46-4-12 Vtec (EO on Mot. to Dismiss Questions) (4-5-13)   Pg. 4 of 8.
    Perhaps most important as common law doctrines, both claim and issue preclusion must
    yield to a statutory command permitting relitigation. Preclusion principles do not require or
    even allow adherence to the first determination where a legislature has identified justifications,
    such as public policy, to permit a second litigation. See Restatement (Second) of Judgments
    § 20(1)(c) (providing that a judgment for a defendant does not bar another action by a plaintiff
    “[w]hen by statute or rule of court the judgment does not operate as a bar to another action on
    the same claim”). Even without a clear statement that preclusion does not apply, a statute may
    implicitly forbid preclusion. See Astoria Fed. Sav. and Loan Ass'n v. Solimino, 
    501 U.S. 104
    (1991) (where federal age discrimination statute required persons to pursue state discrimination
    remedies before pursuing federal remedies, the statute implied that state administrative
    findings should not receive preclusive effect).
    We now turn to the unique context of the dual-track permitting system that the Vermont
    Legislature enacted in 1970 in the historic land use legislation known as Act 250, which appears
    in 10 V.S.A. Chapter 151. See 1969, No. 250 (Adj. Sess.), § 1 (establishing that the general
    purpose of Act 250 is to regulate development to ensure that it does not harm the environment
    and that it promotes the general welfare and needs of Vermonters). Act 250 addresses projects
    presenting potentially significant impacts on the environment, community, and aesthetics, and
    it enumerates ten criteria (with multiple sub-criteria) to which such projects must conform. See
    10 V.S.A. § 6081(a); see also 10 V.S.A. § 6001(3) (defining development for Act 250 purposes); 10
    V.S.A. § 6086 (setting forth environmental criteria against which project's qualification for
    permit is assessed).
    The Legislature could simply have required municipalities to incorporate the Act 250
    criteria into their municipal land use review processes for major projects, but it did not do so.
    Instead, the Legislature created a system that, by its very design, requires a specialized Act 250
    district commission to conduct an additional review of major impact development proposals.
    Whether the Act 250 proceeding or the municipal proceeding occurs first (and the choice is left
    to the applicant), the process as a whole necessarily involves reexamination of similar issues,
    and the potential for inconsistent determinations is inherent in—and arguably critical to—its
    role. Moreover, both the Act 250 and municipal application processes require public notice
    procedures, and both explicitly allow certain persons to formally participate in hearings and to
    appeal decisions. See 10 V.S.A. §§ 6084, 6085; 24 V.S.A. §§ 4461, 4464. Traditional litigation-
    based notions of offensive versus defensive collateral estoppel are not readily translatable to the
    Act 250 context, where a second proceeding must occur in any case and the players are not
    plaintiffs and defendants, but rather permit applicants and interested persons who have
    statutory standing to participate in the proceedings to protect their own particularized interests.
    Id.
    Our Legislature anticipated the effects of overlapping jurisdiction and issues, and Act
    250 addresses the question of the extent to which determinations from other decision making
    bodies, such as municipal panels or environmental permitting agencies, enter into the
    deliberations of Act 250 district commissions. See 10 V.S.A. § 6086(d); 24 V.S.A. § 4420; State of
    Vermont Natural Resources Board Land Use Panel Act 250 Rule 19(I). A positive determination
    by a municipality generally creates a “presumption that the application is not detrimental to the
    public health and welfare with respect to the specific requirement for which it is accepted,” but
    the district commission must still ensure that the specific Act 250 criteria are met. 10 V.S.A.
    § 6086(d).
    Re Barefoot Act 250 Application, No. 46-4-12 Vtec (EO on Mot. to Dismiss Questions) (4-5-13)   Pg. 5 of 8.
    Only under certain circumstances are district commissions bound to accept
    determinations issued by a municipal panel, but even then, the municipal panel must make
    findings demonstrating compliance with Act 250, and the panel’s determinations create a
    rebuttable presumption only to the extent that the impacts are limited to the municipality
    issuing the decision. See 24 V.S.A. § 4420; State of Vermont Natural Resources Board Land Use
    Panel Act 250 Rule 19(I).
    If our Legislature did not intend for Act 250 district commissions to be bound by
    determinations of municipal panels, then it follows that an interested party should not be
    precluded from arguing that proposals fail to meet Act 250 standards, regardless of the
    conclusions that a relevant municipal panel may have reached in a prior proceeding, and
    regardless of whether the interested person chose to appeal the municipal decision.
    Indeed, although collateral estoppel may apply in administrative as well as judicial
    proceedings if the elements are satisfied, Central Vt. Pub. Serv. Corp., 172 Vt. at 21, we have
    substantial concerns about the “fairness” prong of the preclusion test in light of the fact that
    municipal land use review panels typically employ relaxed procedural and evidentiary rules,
    and are often composed of laypersons with limited, if any, legal training. Municipal panel
    proceedings present many of the same concerns that the Vermont Supreme Court has expressed
    regarding small claims determinations. It is true that, unlike in the small claims context, de novo
    review of municipal decisions is available before this Court. However, forcing interested
    persons who participated in a municipal panel hearing to take an appeal to the Environmental
    Division or risk having preclusion apply against them at a future Act 250 proceeding would
    directly contravene long-standing principles of encouraging public participation in state and
    local land use deliberations.
    Finally, even if a municipal panel proceeding could have preclusive effect, it would not
    apply here. First, the DRB decision examined the propriety of Applicants’ proposed two tents, a
    yome,5 and a composting toilet, while the District Commission considered the project’s original
    components in addition to a third composting toilet and a drinking water well with associated
    piping and a water storage tank, without wastewater permits corresponding to the revised
    project description. Thus, even a prior DRB determination about the originally proposed
    project would not preclude Ms. Perot from raising her concerns about the modified project as
    presented to the District Commission. Second, there is no record from the DRB proceeding
    presented to us in this appeal, and the board’s five page decision (only two pages of which are
    devoted to findings of fact and conclusions of law) does not provide sufficient information to
    reveal whether issues specific to the Act 250 criteria were decided, much less whether they were
    necessarily decided.
    This reasoning applies generally to all of Applicants’ challenges to Appellant’s right to
    request review under the specified criteria. However, for purposes of illustration, we offer the
    following example using Act 250 Criterion 1 to show how the DRB decision does not provide
    enough detail to satisfy this Court that the DRB reached conclusions about the specific elements
    of Act 250, nor whether and such conclusions were necessary to its decision to approve the
    project. Criterion 1 requires the District Commission to find that the proposed development
    5
    The Court understands that a yome is a yurt-like structure, sometimes made of cloth and shaped in
    part like a geodesic dome. Applicants describe a yome as a “round tent structure” in Question 1 of their
    Statement of Questions, filed April 23, 2012.
    Re Barefoot Act 250 Application, No. 46-4-12 Vtec (EO on Mot. to Dismiss Questions) (4-5-13)   Pg. 6 of 8.
    “[w]ill not result in undue water or air pollution.” 10 V.S.A. § 6086(a)(1). To determine
    compliance with Criterion 1, a reviewing body must at least consider:
    the elevation of land above sea level; and in relation to the flood plains, the
    nature of soils and subsoils and their ability to adequately support waste
    disposal; the slope of the land and its effect on effluents; the availability of
    streams for disposal of effluents; and the applicable health and environmental
    conservation department regulations.
    10 V.S.A. § 6086(a)(1). Although the DRB decision contains one finding of fact as to the parcel’s
    elevation above sea level, it is not clear from the decision that the DRB made particular
    determinations as to the other factors or that any determination reached regarding those factors
    was necessary to its decision to approve the project under municipal standards.
    In conclusion, we see little case law6 in the over forty years since the enactment of Act
    250 to persuade us that it would be appropriate to apply preclusion principles to generally tie
    the hands of the state district commissions (or this Court standing in their shoes) based on prior
    determinations of municipal panels, or that persons qualifying as interested parties before a
    district commission may not raise arguments that they had made in the less formal setting of a
    municipal permit hearing, even where they chose not to appeal the municipal determination.
    Furthermore, it is clear from the face of the DRB and District Commission decisions that
    preclusion would not apply here in any case, both because of the changes in project description
    between the DRB and the Act 250 proceedings and because the record of the DRB decision is
    insufficient to satisfy this Court that issues relevant to Act 250 Criteria 1, 1(A), 1(B), 1(E), 8, 8(A)
    and 4 were decided in the first proceeding, much less necessarily so. Thus, we DENY
    Applicants’ motion to dismiss Ms. Perot’s substantive Questions 11–14, 18, 19, and 23, as we
    find that neither claim nor issue preclusion applies in the current appeal.
    II.     Applicants’ motion to dismiss Ms. Perot’s Question 26.
    Ms. Perot’s Question 26 asks whether the Project complies with Act 250 Criterion 10, and
    Applicants argue that claim or issue preclusion bars this question as well, particularly in light of
    In re Hartland Group, 
    2008 VT 92
    , 
    184 Vt. 606
    . In Hartland, the Vermont Supreme Court
    affirmed a 2006 decision by Judge Merideth Wright, who, in a brief section of a lengthy and
    complex decision, accepted one party’s argument that a district commission decision
    determining that a project was “in conformance” with a town plan could fairly preclude the
    argument that the project was not “in substantial conformance” with the town plan, as required
    by municipal bylaws. In re Hartland Group, No. 120-6-05 Vtec, slip op. at 26 (Vt. Envtl. Ct. Dec.
    14, 2006). Judge Wright rejected the argument that preclusion applied to the other Act 250
    criteria at issue in that case. 
    Id.
     On appeal to the Vermont Supreme Court, the Hartland
    appellants did not raise the fourth or fifth prongs of the collateral estoppel test; the only issue
    on appeal was whether “the requirements for conformance with the city’s municipal plan under
    Act 250 and the zoning ordinance present[ed] the same issue.” In re Hartland Group, 
    2008 VT 6
      Indeed, one case on point, In re Rinker’s Inc., No. 303-1-8 Vtec (Vt. Envtl. Ct. 2009) (Wright, J.),
    demonstrates how applying preclusion principles across municipal and Act 250 standards could
    significantly complicate and slow the land use review process. Additionally, and in light of our analysis
    here, we disagree with Judge Wright’s statement, in dicta, that specific factual findings by municipal
    panels are precluded from being litigated before the district commissions. Doing so would contravene
    Act 250’s purpose of providing state review of projects in addition to local review of proposed projects.
    Re Barefoot Act 250 Application, No. 46-4-12 Vtec (EO on Mot. to Dismiss Questions) (4-5-13)        Pg. 7 of 8.
    92 at ¶ 7. The Court reasoned that because a project could not simultaneously be “in
    conformance” with the municipal plan but not “in substantial conformance” with it, Judge
    Wright’s application of preclusion was not clearly erroneous, arbitrary, or capricious. Id. at ¶ 8.
    We begin by observing that Hartland addressed the narrow issue of whether an Act 250
    district commission decision on Criterion 10 could preclude a municipal panel decision under
    similar standards; this is the opposite of the situation presented by the application now before
    us in this appeal. As explained above, we have significant policy-based concerns about
    applying the common law equity doctrine of preclusion to give a DRB decision preclusive effect
    over parties in an Act 250 permit proceeding. Nonetheless, because of the precedent from
    Hartland, which we read narrowly to encompass only the issue of Criterion 10 conformity with
    a municipal plan, we distinguish Ms. Perot’s Question 26 from her other questions. We cannot,
    however, answer Applicants’ motion to dismiss Question 26 on the grounds of the affirmative
    defense of issue preclusion, because it is not clear from the face of the parties’ respective
    Statements of Question in conjunction with matters of which this Court may take judicial notice
    whether preclusion applies. If it is to be argued, the preclusion defense must be proven either
    on summary judgment or at trial. See McKenna v. Wright, 
    386 F.3d at 432
    ; 18 C. Wright, A.
    Miller & E. Cooper, Federal Practice & Procedure §§ 4405, 1277.
    This Court has already issued three entry orders on preliminary matters raised under
    both sides’ complicated approach to principles of civil procedure. Cognizant of our mandate to
    construe this Court’s rules “to ensure summary and expedited proceedings consistent with a
    full and fair determination in every matter coming before the court” (V.R.E.C.P. 1), we believe
    that, rather than denying the motion, a more expeditious process would be to provide
    Applicants with an opportunity to petition this Court to convert the pending motion to one for
    summary judgment, as is authorized when a party arguing for dismissal under V.R.C.P. 12(b)(6)
    presents matters beyond the pleadings.7 We decline to convert the motion sua sponte, as
    Applicants may prefer under the circumstances simply to argue the matter at the merits hearing
    or may decline to pursue the argument further. If Applicants petition to convert the motion to
    dismiss Question 26 to a motion for summary judgment on Question 26, VRCP 12(b) provides
    that “all parties shall be given reasonable opportunity to present all material made pertinent to
    such a motion by Rule 56.” Since the issues have been extensively briefed,8 we believe that 20
    days should be sufficient for all parties to present additional materials made relevant by the
    conversion from a motion to dismiss to a motion for summary judgment.
    III.    Ms. Perot’s Question 27.
    Question 27 asks whether the Project “consists of ‛3 composting toilets, 2 tent platforms,
    and 1 yome (round tent structure) for use by small backpacking groups of 6 students and 2 field
    guides,’ as defined in the applicants/appellants’ April 23, 2012 statement of questions.” (Ms.
    Perot’s Statement of Questions at 4, filed May 24, 2012.) We first note that it is the project
    7
    Here, both parties in their filings ask this Court to consider matters beyond the pleadings in deciding
    whether preclusion applies to the issue of conformance with the town plan.
    8
    In this case, the parties collectively have already submitted over fifty pages of filings devoted, in large
    part, to the preclusion question, and they have also supplemented those filings with additional evidence
    for this Court’s consideration.
    Re Barefoot Act 250 Application, No. 46-4-12 Vtec (EO on Mot. to Dismiss Questions) (4-5-13)            Pg. 8 of 8.
    application under appeal that defines the scope of a project,9 not an applicant’s Statement of
    Questions. Ms. Perot’s Question 27 appears to merely repeat some of the project descriptions
    presented, not in Applicants’ application, but rather, in their Statement of Questions. Thus,
    Question 27 does not appear to raise any legal issue for this Court to address and therefore
    presents no factual or legal issues for our determination. We therefore GRANT Applicants’
    motion to dismiss Question 27.
    IV.       Conclusions.
    For the reasons explained above, we DENY Applicants’ motion to dismiss Questions 11–
    14, 18, 19, and 23, and we GRANT Applicant’s motion to dismiss Question 27. As to Question
    26, we direct Applicants to notify this Court, no later than Thursday, April 18, 2013, of whether
    they intend to proceed on the merits or whether they wish to petition this Court to convert their
    current motion to one for summary judgment. If Applicants choose the latter course, we direct
    that Applicants file any additional memoranda and affidavits in support of their summary
    judgment request no later than April 18th, and will thereafter afford all other parties 20 days of
    additional time (i.e., by no later than May 8, 2013) to present pertinent materials pursuant to
    V.R.C.P. 12(b) and 56.
    Finally, we note that the Court placed on inactive status a related appeal concerning an
    approval by the Vermont Agency of Natural Resources (“ANR”) for a wastewater and water
    supply permit for an earlier version of Applicants’ project (In re Barefoot & Zweig WW Permit
    Application Appeal, No. 36-3-11 Vtec), pending the outcome of decisions on the motions
    pending in this appeal. Since we have now addressed all motions pending in this Docket (No.
    46-4-12 Vtec), Docket No. 36-3-11 Vtec is hereby REACTIVATED. We direct that Applicants
    advise the Court, again by no later than April 18th, as to whether they intend to pursue approval
    of this permit application in that de novo appeal, or whether they intend to submit a revised
    application to ANR for wastewater and water supply approval of their project as now
    composed, thereby rendering Docket No. 36-3-11 Vtec ripe for voluntary dismissal.
    _________________________________________            April 5, 2013
    Thomas S. Durkin, Judge                            Date
    =========================================================================
    Date copies sent: ___________                                                 Clerk's Initials ______
    Copies sent to:
    Attorney Geoffrey H. Hand for Applicants Thomas Barefoot III, Joni Zweig, and True North Wilderness Program
    Attorney Rebecca Boucher, Co-Counsel for Applicants
    Attorney Catherine Gjessing for Interested Person Agency of Natural Resources
    Attorney David Grayck for Cross Appellant Frances Kincaid Perot
    Attorney Peter Gill for Interested Person Natural Resources Board/LU Panel
    9  Here, the project application under appeal is Applicants’ Act 250 Land Use Permit Application, dated
    May 9, 2011. This application seeks a permit for two as-built tent platforms to be relocated, two as-built
    composting toilets, an as-built 20’ diameter yome, a third composting toilet to be constructed, and a new
    well for drinking water, along with associated piping and a storage tank.