Equivalents and Abandonments: August 9, 2024

By Andy Delaney

Two opinions this week. 

First up, we take a brief foray into clinical-mental-health licensing and how the Board of Allied Mental Health Practitioners deals with coursework that doesn't meet its requirements at first blush. Ms. McNamer applied for a counseling license. Because she did not have a degree from an accredited school, she needed to, among other things, show that she had three graduate-level course hours in diagnosis, assessment, and treatment. First she submitted a course she'd taken. The board issued a preliminary denial. She appealed, next arguing that the board had given someone else a license (from the same school) based on two other courses. This also didn't go very far and the board shut down her this-guy-got-a-license-and-is-similarly-situated argument, concluding that it wasn't relevant to her situation. So, Ms. McNamer appealed to an appellate officer. At the appellate-officer level, she added a lawyer to the mix and argued that the board permitted other applicants more latitude, named yet another student from the same school she went to, and noted that that student got to present a whole bunch of comparative evidence regarding other alumni who got licensed by the board. The appellate officer didn't go that route, reasoning that the board had made an evidentiary ruling on the comparative evidence and that was that.

And that, my friends, is how we end up at SCOV. While SCOV readily acknowledges that comparator evidence may be relevant in board proceedings, here, Ms. McNamer didn't establish that the other student's licensure was based on the two courses being equivalent to the three-credit requirement. In other words, in order to be relevant, Ms. McNamer would have had to establish that the board found the two courses equaled the requisite coursework, and that was not part of her proof. Similarly, more of the same—that another student was allowed to present more comparative evidence—without the tie to a board decision on adequacy or equivalence doesn't quite do the trick. And so, SCOV affirms, but appellant does have the potential path laid out for her (provided we don't end up in res judicata land). In re McNamer, 2024 VT 50.

Our second case is one I'm not sure I understand from a practical perspective. Most people, as far as I know, take issue with permits being granted not abandoned. 

Basically, the way I read it, some folks bought some property that had previously been subdivided and permitted for pretty serious development. Because the new landowners didn't intend to pursue the development, they sought to abandon the permit and were eventually able to do so pursuant to a stipulated order (there's some background procedural stuff that doesn't seem particularly important). Neighbor—who was a party to the original Act 250 permit proceeding but not the abandonment proceeding—filed a Rule 60 motion nine months later to "void" the order and reopen the abandonment proceeding. The trial court denied the motion for lack of standing and timeliness. Neighbor appeals. 

SCOV reasons that neighbor is not a party to the abandonment proceeding and that the lack of notice to her—she lives in New Jersey and doesn't get mail at her Vermont address where the notice was sent—was not intentional. Accordingly, SCOV concludes that neighbor doesn't have standing as a party or party's representative to seek Rule 60 relief. SCOV affirms the denial of neighbor's Rule 60 motion. In re Burchard Road, 2024 VT 51.