Thursday, October 29, 2015

Everybody Stand and Party: Understanding Standing and Party Status

In re Application of Beach Properties, Inc.2015 VT 130


By Thomas M. Kester

Everyone and everything enjoys fun in the sun—raisins, our bodies’ Vitamin D production, and solar panels. But to concerned lakefront owners, the sun can be the enemy—especially when it is being reflected from a photovoltaic net-metering system.

But this case doesn’t involve just sunshine and happiness; it involves party status and standing. You may be thinking of “party status” like asking your college roommate what is happening tonight at the local fraternity house or “standing” as in “am I going to be standing after taking all these Jell-O shots?” but you would be wrong (side note: the “bar examination” doesn’t involve knowing how to concoct alcoholic drinks either, in case you were wondering). Before getting to the issues, let’s recount the facts.

In August 2014, the Basin Harbor Club (BHC) applied for a certificate of public good (CPG) for installation of a solar metering system in Ferrisburgh, Vermont (I have always wondered if there is an opposite “certificate of public bad” you can apply for). The proposal was for twenty-five solar panels, about twenty-feet tall, and situated on one-and-a-half acres of a property bordered by the private Mile Point Road. 

The CPG application allowed public comment and numerous people, including Mile Point Road owners McGuire and Grover, submitted comment and requested a hearing. Along with commenting on the CPG statutory review criteria, McGuire and Grover argued that “the project would hurt the local economy by decreasing property values of lakefront homes; posed health and safety risks by emitting high electronic and magnetic field (EMF) levels and ocular glare that could temporarily blind pilots at a nearby private airport; and would have an unduly adverse aesthetic impact on the area’s 'vacation oriented lakeside homes and advertised scenic tourist routes.'” 

You know what really causes “ocular glare” along the coastline in my opinion? Certain male body types wearing Speedos who really shouldn’t. In summation of the appellant’s arguments, basically these are big, shiny, microwave emitting, aeronautical death traps. 

The Public Service Board (PSB) ordered that BHC respond to these comments and BHC submitted a thorough response addressing each concern. In November 2014, the PSB granted the CPG. The PSB found that those concerned folks had not shown enough evidence of the harms that they alleged. Further, as to aesthetics, the PSB found that “project would have an adverse effect as a result of being 'out of context' with its surroundings, but that the impact was not 'undue.'” There were also steps that could be taken to “minimize its visibility and adverse impact” and “that it would not be shocking to the average person.”

The PSB decision “stated that any appeal must be filed within thirty days from the date of decision, and that any motion for reconsideration must be filed within ten days of the date of the decision.” Glover filed an untimely motion for reconsideration and failed to send an original copy to the Board per the rules. McGuire’s motion for reconsideration was timely filed. Here comes the issue: the PSB dismissed McGuire’s motion, “finding that she had not moved to intervene for party status and therefore 'lack[ed] the requisite legal standing to file a motion for reconsideration.'” McGuire then filed for intervenor status and, thereafter, a notice of appeal.

The SCOV tackles the issues individually. First, because of Glover’s late filing, they didn’t consider his appeal. Secondly, there are the issues of whether “McGuire failed to obtain party status before the Board, and therefore lacked standing to bring her appeal” and whether “McGuire’s lack of party status disqualified her from filing a motion for reconsideration.”

So let’s talk about “parrttttyyyyy” status. While it may be a party over there, it may not be a party over here where you are, may be on the west side, or in the USA, party status can allow something called standing. “Standing” is “the legal right of a person or group to challenge in a judicial forum the conduct of another” and to have standing you need to be a party. But first—let's party. “Parties,” under the CPG statute, include, among others, “any other person found by the Board to have a substantial interest in the matter.” The Court views the COG statue as “contemplat[ing] two distinct types of participants in Board proceedings: 'persons' and 'parties.'”

Next, the rules for “intervention” to obtain party status are two-fold: “intervention as of right” and “permissive intervention.” The former is authorized if the “person demonstrates a 'substantial interest' which may be adversely affected, the proceeding provides the 'exclusive means' of protecting that interest, and the interest 'is not adequately represented by existing parties.'” “Permissive intervention,” like the Beastie Boys’ lyrics, makes you fight for your right to party, and is “authorized in similar circumstance where the person also shows that intervention 'will not unduly delay the proceeding or prejudice the interests of existing parties or the public.'” The issue is further boiled down to the application that McGuire filled out and the “application form states that those receiving a copy of the application shall 'have the opportunity to comment on the project and request a hearing' within a specified timeframe, but makes no specific reference to the opportunity to intervene,” and McGuire states that “she should be afforded party status because she was not specifically informed of the need to intervene, because she was effectively treated as a party, and because she was reasonably led to believe that she was a party.”

The Court looks to something called the “de facto” party exception. Think of it like the movie Wedding Crashers—Vince Vaughn's and Owen Wilson’s characters are not invited but they show up, blend in, and are treated as wedding guests based on their actions, despite their lack of familial or chummy relations. The Court then looks at all the actions taken by the PSB and BHC in regards to the question and concerns raised by McGuire. After looking at them, the Court sees that “McGuire’s claim to de facto-party status is persuasive” and “eminently reasonable” under these circumstances. Finding McGuire did indeed achieve “de facto” party status, the Court concluded that “she actively participated in the proceeding . . . [and] she had a strong, personal stake in the outcome.”

While party goers may rejoice, the SCOV qualifies that its holding is: “limited to the specific set of facts in the record before us. We do not hold that any and all participants in such proceedings may attain party status without the need to formally move to intervene.” The factors that weighted in her favor were:
(1) McGuire is an adjoining landowner who was entitled to, and did, receive notice of BHC’s application;

(2) McGuire was not represented by counsel;

(3) the notice referred to those who had received it as “required parties,” and McGuire was on the list of “notified parties;”

(4) the notice laid out specific steps and timelines for McGuire to comment on the application, but did not reference her right to intervene and did not explain the distinction between “commenting” and actually “intervening” as a party, and did not describe the process and timelines for intervention;

(5) the Board responded to McGuire’s motions as if she were a party; and

(6) McGuire raised substantial issues that were central to the Board’s analysis.
Because the PSB erred in dismissing her motion for reconsideration solely because she lacked party status, the Court reverses and remands the issue back to the PSB.

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