133 A.3d 854
Vt.2015Background
- Basin Harbor Club (BHC) applied for a Certificate of Public Good (CPG) for a 25-tracker photovoltaic net‑metering project in Ferrisburgh; adjoining landowners (including Mary McGuire and Douglas Grover) received notice and were told they could comment and request a hearing.
- McGuire filed extensive written comments and a hearing request (pro se); BHC and the Public Service Board (Board) treated and responded to those comments, and the Board ordered supplemental filings addressing issues McGuire raised (e.g., glare analysis).
- The Board granted the CPG; its decision set deadlines for motions for reconsideration (10 days) and appeals (30 days). McGuire timely filed a motion for reconsideration but did not file a formal motion to intervene. Grover’s motion was untimely.
- The Board dismissed McGuire’s reconsideration motion solely because she had not obtained formal party status (intervention). McGuire then filed for intervenor status and appealed.
- The Vermont Supreme Court considered whether McGuire, despite failing to move to intervene, could be treated as a de facto party and thus had standing to file the reconsideration motion and appeal. The Court reversed and remanded, holding McGuire was a de facto party and the Board erred in dismissing her motion for reconsideration.
Issues
| Issue | Plaintiff's Argument (McGuire) | Defendant's Argument (BHC/Board) | Held |
|---|---|---|---|
| Whether a nonparty who did not move to intervene may be treated as a party for purposes of filing reconsideration and appealing | McGuire argued she was effectively a party because she received notice, submitted extensive comments, requested a hearing, the Board and BHC treated her filings as substantive, and she reasonably believed she was a "required party" | BHC argued formal party status (intervention) was required under Board rules and statutes; without it McGuire lacked standing and her reconsideration motion could not toll the appeal period | Court held McGuire was a de facto party under the equitable exception: she actively participated, was treated as a party, had a personal stake, and no prejudice to BHC; remanded for Board to decide the motion on its merits |
| Whether McGuire’s failure to move to intervene rendered her reconsideration motion ineffective to toll the appeal period | McGuire contended notice language and Board conduct led her reasonably to believe she could seek reconsideration and appeal | BHC asserted that only parties may file motions that toll appeal deadlines; procedural rules require intervention to gain party status | Court did not decide tolling across the board but held the Board erred to dismiss for lack of party status because McGuire was a de facto party; remand required for reconsideration ruling |
| Whether Grover’s appeal was timely and whether his participation conferred standing | Grover filed comments and a hearing request but his reconsideration motion was untimely and he failed to file an original as required | BHC/Board emphasized the untimeliness and filing defects | Court found Grover’s motion untimely and lacked jurisdiction to consider his appeal |
| Scope and limits of de facto party doctrine in administrative proceedings | McGuire urged application of the de facto party exception given the notice phrasing, Board’s responses, and her pro se status | BHC warned against treating all commenters as parties and urged strict adherence to intervention rules | Court applied a narrow, fact‑specific equitable test, listing factors supporting a de facto status and limiting the holding to the case’s circumstances |
Key Cases Cited
- Marino v. Ortiz, 484 U.S. 301 (appellate standing generally limited to parties)
- SEC v. Forex Asset Mgmt. LLC, 242 F.3d 325 (5th Cir.) (three‑part de facto party test: participation, equities, personal stake)
- In re Orshansky, 804 A.2d 1077 (D.C. 2002) (nonparty treated as party where court addressed her arguments and she had personal stake)
- Carhart v. Carhart-Halaska Int'l, LLC, 788 F.3d 687 (7th Cir.) (de facto party where appellant participated fully despite no formal intervention)
- In re Siler, 571 F.3d 604 (6th Cir.) (recognizing standing where court treated nonparty like intervenor)