VERMONT ENVIRONMENTAL BOARD 10 V.S.A. §§ 6001-6092 RE: Okemo Mountain, Inc., Land Use Permit Applications Timothy and Diane Mueller, #2S0351-30-EB (2nd Revision) Vermont Department of Forests, #2S0351-31-EB, and Parks and Recreation, and Green #2S0351-25R-EB Mountain Railroad CHAIR’S PRELIMINARY RULING This ruling pertains to the subpoena requests filed by Mount Holly Mountain Watch (“MHMW”) and John Lysobey. As set forth herein, the Chair denies Mr. Lysobey’s request for two subpoenas and grants MHMW’s request for a subpoena. I. Procedural Summary MHMW filed this appeal concerning a Master Plan application and related land use permits for the Okemo ski area in Ludlow, Vermont. The Master Plan includes a base lodge, retail area, hotel, condominiums, train station, parking, water park, tennis center, golf course, ski trails, and ski lifts located on 400 acres of land near Route 103 in Ludlow, Vermont (“Master Plan Project”). One of the permits authorizes the construction of Phase I of the Jackson Gore development, including a condominium hotel and related parking, water and sewer facilities, fifteen ski trails, three ski lifts, and snowmaking (“Jackson Gore Phase I Project”), which is a component of the Master Plan, and the other permit authorizes the development of an 11-lot subdivision known as Solitude Village (“Solitude Village Project”), which is another component of the Master Plan. On December 29, 2000, the District 2 Environmental Commission ("Commission") issued Findings of Fact and Conclusions of Law #2S0351-30 (2nd Revision) and #2S0351-31 regarding the Master Plan Project and the Jackson Gore Phase I Project (“Master Plan/Jackson Gore Phase I Project”), which was subsequently corrected on January 5, 2001 (“Master Plan/Jackson Gore Phase I Decision”). The Commission also issued Land Use Permit #2S0351-31 ("Jackson Gore Phase I Permit") on December 29, 2000, to Okemo Mountain, Inc.; Vermont Department of Forests, Parks & Recreation and Green Mountain Railroad (collectively “Okemo”) for the Jackson Gore Phase I Project. MHMW filed a Motion to Alter on January 10, 2001. The Commission denied the Motion to Alter in a Memorandum of Decision issued on January 12, 2001, and corrected its Memorandum of Decision on January 18, 2001. On January 24, 2001, the Commission issued Land Use Permit #2S0351- 25R (“Solitude Village Permit”), and supporting Findings of Fact, Conclusions of Law, and Order #2S0351-25R (“Solitude Village Decision”) to Okemo Mountain, Re: Okemo Mountain, Inc., Timothy and Diane Mueller, Vermont Department of Forests, Parks and Recreation, and Green Mountain Railroad, Land Use Permit Applications #2S0351-30-EB (2nd Revision), #2S0351-31-EB, and #2S0351-25R-EB Chair’s Preliminary Ruling on Subpoena Requests Page 2 Inc. The Commission heard a portion of the Solitude Village Project proceedings and the Master Plan/Jackson Gore Phase I Project proceedings together. On February 8, 2001, MHMW filed an appeal from the Jackson Gore Phase I Permit, the Master Plan/Jackson Gore Phase I Decision, the Solitude Village Decision and the Solitude Village Permit with the Vermont Environmental Board ("Board"), pursuant to 10 V.S.A. § 6089(a) and Environmental Board Rules ("EBR") 6 and 40. In its appeal, MHMW alleges that the Commission erred in its conclusions concerning party status and the projects' compliance with 10 V.S.A. § 6086(a)(1), (1)(A), (1)(B), (1)(E), (4), (5), (6), (8), (9)(A), (9)(H), (9)(K), (9)(L), and (10) (“Criteria 1, 1(A), 1(B), 1(E), 4, 5, 6, 8, 9(A), 9(H), 9(K), 9(L), and 10"). On February 21, 2001, Okemo filed two cross-appeals, alleging that the Commission erred in its grant of EBR 14(B) party status to MHMW in the Master Plan/Jackson Gore Phase I Decision, on Criteria 1(A), 1(B), 1(E), 5, 6, 8, 9(A), 9(H), 9(K), 9(L), and 10; and in the Solitude Village Decision, on Criteria 1, 1(B), 1(E), 4, 5, 6, 9(A), 9(H), 9(K), 9(L), and 10. On March 12, 2001, Board Chair Marcy Harding convened a Prehearing Conference. On March 15, 2001, Chair Harding issued a Prehearing Conference Report and Order (“PHCRO”), which identified and ordered the parties to brief preliminary issues of party status and ripeness. On March 16, 2001, Okemo filed a brief on the ripeness of the Master Plan appeal. MHMW did not file a reply brief. On March 19, 2001, MHMW filed its Petition for Party Status. Okemo filed a brief in opposition to MHMW’s Petition for Party Status on March 22, 2001. On March 22, 2001, John Lysobey filed a Motion to Extend Filing Date, Objection to Time Requirements, and Memorandum Regarding the Need for Speed. The Board deliberated on preliminary issues on March 28, 2001 and April 25, 2001. Re: Okemo Mountain, Inc., Timothy and Diane Mueller, Vermont Department of Forests, Parks and Recreation, and Green Mountain Railroad, Land Use Permit Applications #2S0351-30-EB (2nd Revision), #2S0351-31-EB, and #2S0351-25R-EB Chair’s Preliminary Ruling on Subpoena Requests Page 3 On May 22, 2001, the Board issued a Memorandum of Decision on preliminary issues, granting MHMW party status on the Master Plan proceeding under Criteria 6, 9(H) and 9(L); on the Jackson Gore proceeding under Criteria 1(A), 1(B), 1(E), 5, 6, 8 (aesthetics), 9(A), 9(H), 9(K), 9(L) and 10 (Rutland Regional Plan); and on the Solitude Village proceeding, under Criteria 1(B), 1(E), 4, 6, 9(H), 9(K) and 9(L). The Chair issued a Scheduling Order on the same day, setting this matter for hearing and setting prehearing filing deadlines, among other things. On July 25, 2001, MHMW and John Lysobey filed requests for subpoenas. II. ISSUES A. Whether the Board should grant John Lysobey’s request to issue a subpoena to Agency of Natural Resources surveyor Mike Raboin. B. Whether the Board should grant John Lysobey’s request to issue a subpoena to John Bruno. C. Whether the Board should grant MHMW’s request to issue a subpoena to Rutland Regional Planning Commission senior planner Susan H. Leonard. III. DISCUSSION John Lysobey requests subpoenas for Agency of Natural Resources surveyor Mike Raboin and Okemo witness John Bruno, and MHMW requests a subpoena for Rutland Regional Planning Commission senior planner Susan H. Leonard. Subpoena requests are governed by EBR 4, which provides in relevant part that: A party not represented by a licensed attorney may submit a written request for a subpoena stating the reasons therefor and representing that reasonable efforts have been made to obtain voluntary compliance with its requests. Re: Okemo Mountain, Inc., Timothy and Diane Mueller, Vermont Department of Forests, Parks and Recreation, and Green Mountain Railroad, Land Use Permit Applications #2S0351-30-EB (2nd Revision), #2S0351-31-EB, and #2S0351-25R-EB Chair’s Preliminary Ruling on Subpoena Requests Page 4 EBR 4. EBR 4 requires that the person requesting the subpoena state the reasons therefore because “[n]o subpoena should issue to secure testimony that is not material.” Re: Lake Champagne Campground, Declaratory Ruling #377, Chair’s Preliminary Ruling at 2-3 (Aug. 20, 1999)(quoting Re: Interstate Uniform Service Corp., Declaratory Ruling 147, Memorandum of Decision at 2 (Mar. 5, 1984)(as quoted in Re: Commercial Airfield Cornwall, Vermont, Declaratory Ruling #368 (Jan. 28, 1999)). Therefore, a subpoena will be issued only where the requesting party demonstrates that the testimony sought is reasonably likely to be material. See Re: Putney Paper Company, Inc. #2W0436-7-EB, Memorandum of Decision at 6 (Apr. 26, 1995). This is also consistent with the Vermont Rules of Civil Procedure (“V.R.C.P.”), which are incorporated into EBR 4. The V.R.C.P. limit the scope of information that can be obtained by subpoena, as well as by other methods of discovery, to that "which is relevant to the subject matter involved in the pending action," and which "appears reasonably calculated to lead to the discovery of admissible evidence." V.R.C.P. 26(b)(1)(defining the scope of discovery). In addition, the civil rule governing subpoenas provides that reasonable steps must be taken to avoid imposing undue burden or expense on a person subject to the subpoena, and that a subpoena which subjects a person to an undue burden may be quashed or modified by the court. V.R.C.P. 45(c). Accordingly, the Board will only issue a subpoena to compel evidence upon a demonstration that the evidence sought is reasonably likely to be material without causing an undue burden upon the subpoenaed party. Lysobey Request to Subpoena ANR Surveyor Mike Raboin John Lysobey first requests a subpoena for Agency of Natural Resources surveyor Mike Raboin, and represents that he has been unable to obtain voluntary compliance. The purpose of Mr. Raboin’s testimony would be "to confirm maps made by previous state surveyors and himself of the location of boundary lines shown on maps" submitted by Okemo depicting the Jackson Gore Project. Mr. Lysobey argues that Okemo’s maps incorrectly depict the Ludlow-Mt. Holly town line, as well as the boundary for the Lysobeys’ property. Specifically, Mr. Lysobey claims that his property ends at the center of the Coleman Brook and that half of Okemo’s proposed Bridge #1 over the Coleman Brook will be built on his property. Mr. Lysobey argues that he should be a co-applicant on the Jackson Gore application pursuant to EBR 10(A). Mr. Lysobey attempted to raise this issue at Re: Okemo Mountain, Inc., Timothy and Diane Mueller, Vermont Department of Forests, Parks and Recreation, and Green Mountain Railroad, Land Use Permit Applications #2S0351-30-EB (2nd Revision), #2S0351-31-EB, and #2S0351-25R-EB Chair’s Preliminary Ruling on Subpoena Requests Page 5 the prehearing conference, but it was not included in the list of issues properly before the Board set forth in the PHCRO.