Vermont Bar Association

139th Annual Meeting Seminar Materials

Act 250 & Environmental Hot Topics in

Litigation

October 13, 2017

Hilton Burlington

Burlington, VT

Speakers:

Gregory Boulbol, Esq.

Matt Chapman, Esq.

Elizabeth Filosa

Paul S. Gillies, Esq.

Jon Groveman, Esq.

Nicholas Low, Esq.

John Marshall, Esq.

David Mears, Esq.

Gerry Tarrant, Esq.

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Environmental Division Year in Review

October 13, 2017

Presented by

Vermont Superior Court, Environmental Division Law Clerks

Nicholas Low and Elizabeth Filosa

*Note: While these cases present a number of legal issues, the following summaries

focus on discrete issues that we found to be most interesting.

Atwood PUD – Jericho, No. 170-12-14 Vtec (Vt. Super. Ct. Envtl. Div. Feb. 4, 2016) (Walsh,

J.); rev’d and remanded by In re Atwood Planned Unit Dev., 2017 VT 16 (Vt. Mar. 17, 2017)

• Neighbors appealing a Planned Unit Development (“PUD”) permit filed a Statement of

Questions asking, in a single question, whether the proposed PUD satisfied the

requirements of the zoning regulations.

• The Environmental Division ordered Neighbors to amend the Statement of Questions to be

more specific. Neighbors filed three new questions asking whether the project complied

with requirements for PUDs in the regulations, whether the project qualifies for waivers,

and whether the project complies with the town plan.

• After trial, the Environmental Division affirmed the approval of the permit application. In

a merits decision, the Court explained that it would not address conditional-use review,

subdivision review, or general development standards because neighbors’ Amended

Statement of Questions did not explicitly raise those issues.

• In its reversal of the trial court, the Supreme Court noted that the Statement of Questions

asked whether the project complied with provisions of the zoning regulations controlling

PUDs, and that those provisions, in turn, require compliance with provisions on conditional

use, subdivision review, and general development standards. The Court therefore held that

the Statement of Questions raised compliance with provisions on conditional use,

subdivision review, and general development standards. Because these issues were raised

and litigated, the Environmental Division had to address them.

Laberge NOV, No. 164-12-13 Vtec (Vt. Super. Ct. Envtl. Div. Oct. 15, 2015) (Durkin, J.), aff’d

by In re LaBerge NOV, 2016 VT 99 (Sep. 2, 2016)

• Following up on a request by Neighbors, the Zoning Administrator issued an NOV that the

Laberges’ motocross riding violated zoning regulations § 5.12.1, which states:

“Unreasonable noises are not permitted. A determination of ‘unreasonable’ shall include

factors such as intensity, duration, and frequency (i.e., how often it occurs).” The ordinance

exempts “usual and customary residential activities or property maintenance.”

• Laberge appeals to DRB, which concludes that the motocross riding does not violate

§ 5.12.1.

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• Neighbors appealed to the Environmental Division, filing a statement of questions asking

(1) whether the motocross motorcycle riding violated § 5.12.1, (2) whether the riding is

unreasonable noise under the regulations, and (3) whether the riding is a usual and

customary activity.

• Before the Court, Laberge challenged the ordinance as unconstitutionally void for

vagueness. The Environmental Division analyzed this issue and held the ordinance is not

unconstitutionally vague.

• On appeal to the Supreme Court, Laberge again argued the ordinance is void for vagueness.

Neighbors responded that this question was not properly preserved for appeal, because the

constitutional issue was not presented in their own statement of questions, and Laberge did

not cross-appeal and file its own statement of questions. Therefore, neighbors argued, the

Environmental Division was without jurisdiction to consider the question.

• The Supreme Court determined that the constitutional issue is intrinsic to the question of

whether the dirt biking and/or motocross use of the LaBerges’ property violates § 5.12.1,

since that question requires the Court to consider the meaning and reach of this ordinance.

Harrison Conditional Use, No. 49-5-16 Vtec (Vt. Super. Ct. Envtil. Div. Apr. 18, 2017) (Walsh,

J.)

• Neighbor appealed a decision granting a conditional use permit for a rock and sand quarry.

• Two days before trial, neighbor filed a motion to amend the statement of questions. At

trial, after permittee provided only limited information in opposition, the Environmental

Division verbally granted the motion.

• After trial, permittee filed a motion to reconsider with more detailed information. The

Court granted the motion to reconsider, holding that the motion to amend the Statement of

Questions was brought at a late stage in the proceedings without justification for the delay,

and that granting the motion would prejudice the other parties as they were not provided

sufficient notice to prepare legal arguments or modify their application.

See also Laberge Shooting Range JO, No. 96-8-16 Vtec (Vt. Super. Ct. Envtl. Div. Jan. 4,

2017) (Walsh, J.) (explaining circumstances under which the Court will grant a motion to

amend a Statement of Questions); Korrow Real Estate, LLC Act 250 Permit Amendment

Application, No. 29-3-16 Vtec (Vt. Super. Ct. Envtl. Div. Feb. 15, 2017) (Durkin, J) (same).

Burns Two-Unit Residential Building, No. 120-8-14 Vtec, slip op. at 7 (Vt. Super. Ct. Envtl.

Div. June 23, 2015) (Walsh, J.), rev’d and remanded by In re Burns Two-Unit Residential Bldg.,

2016 VT 63 (Vt. May 27, 2016)

• In Burlington, neighbor submitted a zoning enforcement complaint alleging that property

owner was converting a single-family home into two apartments without a permit.

• A zoning specialist from the city code enforcement office responded by letter stating that

the building had been used as a duplex since before the zoning regulations were enacted,

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and therefore no permit was needed. The letter stated that it was appealable to the

development review board. No appeal was filed.

• The Environmental Division ruled on summary judgment that the letter was an appealable

decision of an administrative officer under 24 V.S.A. § 4465 because the letter made clear

that it was a legal determination subject to appeal; and because the zoning administrator

gave the zoning specialist the power to issue such letters, and had personally reviewed and

authorized the letter.

• The Supreme Court disagreed, explaining that under city ordinances and relevant statute,

the Director of Planning and Zoning is the administrative officer, and the letter was not

issued or signed by that official or by any assistant administrative officer with clearly

delegated authority.

Bold Zoning Permit Amendment, No. 130-11-15 Vtec (Vt. Super. Ct. Envtl. Div. Dec. 16, 2016)

(Durkin, J.)

• Village denies prior homeowner’s application to remove shutters.

• Afterwards, in a separate case, the Environmental Division ruled that the same zoning

regulations do not mandate that shutters remain on homes, since the regulations stated that

architectural features such as shutters “shall be considered” by the DRB, but did not

mandate that shutters must be required.

• In response to this decision, the Village amended the regulations to state that architectural

features such as shutters “shall be retained where appropriate.”

• New owner of the same home filed new application to remove shutters. The DRB rejected

the application under the successive application doctrine.

• On appeal, the Environmental Division explained that:

o The successive application doctrine bars a person from submitting a second

application after a first application concerning the same property and same request

has already been considered.

o The doctrine allows a second application, however, if it addresses the concerns that

prevented the first application from being approved, or if there has been a material

change in the applicable law or regulation.

• Homeowner argued there were two changes here: the Court’s interpretation of the

regulations in the separate case, and the subsequent amendment of the regulations.

• The Court held, however, that because the changes made it less likely that the same

application would be approved, the second application was still barred by the successive

application doctrine.

• The Court effectively announced that for a second application to be considered, that

application has to address the concerns that prevented the first application from being

approved, or there has to have been a change in the regulations that benefits the applicant

and makes it more likely that the application will be granted.

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Shatney Home Occupation Denial, No. 43-4-16 Vtec (Vt. Super. Ct. Envtl. Div. Oct. 27, 2016)

(Durkin, J.)

• Landowner filed permit application shortly after the town selectboard issued notice of

proposed changes to the zoning regulations. The selectboard then rejected the proposed

amendments. The Zoning Administrator denied the permit application without considering

whether it should have been granted pursuant to the proposed amendments.

• The landowner appealed, arguing that the application should have been considered under

the proposed amendments.

• The Environmental Division explained that under our vesting doctrine, a zoning permit

application is reviewed under the zoning regulations that are in effect at the time the

application is filed. An exception to this is set out in 24 V.S.A. § 4449(d), which requires

a Zoning Administrator, under certain circumstances, to review zoning amendments under

proposed regulations.

• The Court held that under § 4449(d), once notice of a public hearing on proposed zoning

amendments is given, a zoning administrator must review permit applications under those

proposed amendments until either 150 days pass, or the proposed amendment is rejected.

• Here, because the proposed amendment was rejected, there was no requirement to review

the application under those proposed amendments.

N.E. Materials Group LLC A250 JO #5-21, No. 143-10-12 Vtec (Vt. Super. Ct. Envtl. Div. Apr.

28, 2014) (Walsh, J.), rev’d and remanded by 2015 VT 79, 199 Vt. 577

N.E. Materials Group LLC A250 JO #5-21, No. 143-10-12 Vtec (Vt. Super. Ct. Envtl. Div. Dec.

23, 2015) (Walsh, J.), rev’d by 2016 VT 87 (Vt. Aug. 12, 2016)

• A 1,000+ acre quarry that pre-dates Act 250 (and therefore operates without a permit)

began a new rock-crushing operation. The parties disputed whether the new operation

triggers Act 250 jurisdiction.

• Act 250 jurisdiction is triggered if the new rock-crushing operation is a “substantial

change” from prior activity at the quarry. A substantial change occurs if: (1) there is a

cognizable physical change; and (2) that change has the potential for significant impact

under any of the Act 250 criteria.

• The Environmental Division held that the new operation was not a cognizable change

because there was a long history of rock-crushing at the quarry. Because the first prong of

the test was not met, the Court did not address the second prong.

• In a split 3-2 decision from the Supreme Court, the majority disagreed with the

Environmental Division’s analysis, in part because the rock crushing that had taken place

on the quarry in the past had been at different sites than the site now proposed. The

majority also called for the Environmental Division to consider impact, and the majority

and dissent disagreed about whether this would effectively reverse or combine the two

prongs of the substantial change test by taking impact into account under the first prong.

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• On remand, the parties were given the opportunity to present new evidence, but did not do

so. The Environmental Division again concluded that the rock-crushing operation would

not be a substantial change, this time noting that rock crushing operations had moved from

site to site on the overall tract in the past, and that the new operation in a new site was

consistent with this historical practice.

• With the same 3-2 split, the majority again called for consideration of impact, and the

majority and dissent again disagreed about whether doing so would comply with the two-

part test.

In re B & M Realty A250 Application, no. 103-8-13 Vtec (Vt. Super. Ct. Envtl. Div. Nov. 12,

2015) (Walsh, J.) rev’d by 2016 VT 114 (Vt. Oct. 21, 2016)

• Regional plan limited “principal retail establishments” to town centers and designated

growth areas to prevent sprawl and strip development, and maintain rural character.

• Environmental Division held that a mixed-use project encompassing 115,000 square feet,

40,000 of which was for retail space, was not a “principal retail establishment” under the

regional plan, because “principal retail establishment” suggests that retail should be the

chief, leading, or most important use.

• The Supreme Court reversed, explaining that a mixed-use development can have multiple

primary or principal uses, and that retail was one of the principal uses proposed here. The

Court further noted that the Environmental Division’s interpretation would allow unlimited

development outside of growth areas, frustrating the purpose of the regional plan to prevent

sprawl and strip development.

• In reaching this conclusion, the Supreme Court explained that it reviews the Environmental

Division’s determination of conformity with a regional plan without deference, abrogating

In re Chaves A250 Permit, 2014 VT 5, 195 Vt. 467.

• Notably, many other regional planning commissions from around the state, the Vermont

Natural Resources Council, and Preservation Trust of Vermont filed amicus briefs in the

Supreme Court, advocating for reversal.

Wagner & Guay Permit, No. 150-10-14 Vtec (Vt. Super. Ct. Envtl. Div. Apr. 2, 2015) (Walsh,

J.); aff’d by In re Wagner & Guay Permit, 2016 VT 96 (Sep. 2, 2016)

• Neighbor appealed a town decision granting single-family home permit on a previously

approved six-lot subdivision.

• Zoning bylaws § 2.4, titled the “General Purpose, Interpretation and Applicability,” states

in part that the bylaw “must not repeal, abrogate, or impair any other land use controls

(including easements, deed restrictions, covenants, or similar devices).”

• Neighbor argued in part that the permit is inconsistent with covenants and restrictions for

lots in the subdivision.

• The Environmental Division explained that this part of § 2.4 is general guidance for

interpreting the bylaws, but is not by itself grounds for denying a permit application. The

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Court went on to explain that it has no jurisdiction to adjudicate disputes over private

property rights.

• The Supreme Court affirmed, explaining that this part of § 2.4 is not a specific zoning

restriction, and that it does not mandate the town to enforce private contractual land use

restrictions through the zoning bylaws.

ANR v. McGee, No. 94-8-15 Vtec, (Vt. Super. Ct. Envtl. Div. Oct. 9, 2015) (Walsh, J.) aff’d by

2016 VT 90 (Aug. 19, 2016)

• Landowner placed dredged fill into the wetland. Landowners had farming operations on

other locations on their land, but used the area at issue only for occasional horse grazing.

ANR issued NOV for violation of the Wetland Rules.

• Landowners appeal, arguing the land was subject to the farming exemption to the wetland

regulations.

• The Environmental Division concludes that the activities of grazing and intermittent brush

clearing did not meet the farming exemption to the Wetlands Rules. Even if these did meet

the exception, there was evidence that these activities were not continuous over the years,

as required by the Wetland Rules.

• The Supreme Court affirms on the basis that the activity was not continuous, and therefore

does not reach the question of whether the activities would otherwise qualify under the

farming exemption.

In re Costco Stormwater Discharge Permit Application (Permit No. 4114-9015.2), No. 75-6-

12 Vtec (Vt. Super. Ct. Envtl. Div. Aug. 27, 2015) (Durkin, J.), aff’d by 2016 VT 86 (Aug. 5,

2016)

• Here, the Court coordinated five separate appeals of state and municipal permit

determinations for trial. Discussed below is one discreet legal issue that was before the

Court.

• Neighboring gas stations appealed permits granted to Costco for expansion of their store

and additional gas station.

• One component of the stormwater treatment system – an underground pipe and outlet

structure – was allegedly not fully disclosed to ANR or considered by ANR when ANR

approved the permit application. Neighbors argued that the issue must be remanded to

ANR for consideration.

• Environmental Division declined to remand, explaining that when a change to a permit

application is minor, and there is no evidence that the change will implicate new review

criteria or impact new neighbors, there is no need to remand.

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Gould v. Town of Monkton, No. 97-8-16 Vtec (Vt. Super. Ct. Envtl. Div. Dec. 1, 2016)

(Walsh, J.)

• Property owner filed a complaint in the Civil Division seeking a declaratory judgment that

the town had adopted zoning regulations without following the appropriate statutory

procedures. The Civil Division dismissed the claim for lack of subject matter jurisdiction.

Gould v. Town of Monkton, No. 67-3-13 Ancv (Super. Ct. Civ. Div. Nov. 6, 2014) (Mello,

J.), aff’d 2016 VT 84 (July 29, 2016).

• While the matter was pending in the Civil Division, property owner filed a zoning permit

application with the town, which was denied. Property owner did not appeal the denial.

• Property owner filed a complaint in the Environmental Division, again seeking declaratory

judgment that the zoning regulations had been adopted in violation of statutory procedural

requirements.

• The Environmental Division explained that:

o A party can file a case in the Civil Division alleging that a zoning regulation was

adopted in violation of constitutional requirements.

o A party can appeal a municipal regulatory decision to the Environmental Division

where that decision was made pursuant to a zoning regulation that was adopted in

violation of constitutional requirements or statutory requirements.

• The decision discussed whether or how a party can file a case such as the one here, which

alleged that a zoning regulation was adopted in violation of statutory requirements without

also appealing a specific municipal regulatory decision.

Leverenz Act 250 JO, No. 123-10-15 Vtec (Vt. Super. Ct. Envtl. Div. Sep. 30, 2016) (Durkin, J.)

• Act 250 permit was issued in 1993, for a term of 10 years, for a seasonal horse exhibition,

including a parking area, riding ring, tent, barn, ticket booth, and bleachers. The permit

required all structures to be removed each fall. In 1994, the legislature amended Act 250

to extend all permits issued before 1994 indefinitely.

• The property owners discontinued the horse shows prior to 2003 and removed all remaining

structures. The only remaining improvements were a rough driveway (pre-dating the 1993

permit), power lines, two telephone poles, and a capped well.

• Property owners requested an opinion that Act 250 jurisdiction no longer attached to the

property.

• The district coordinator held that the ten-year time limit of the original permit was extended

by the legislative amendment, and Act 250 jurisdiction therefore continued to apply to the

property. The NRB affirmed.

• The Environmental Division declined to apply the statutory extension to the permit,

holding that the permit expired in 2003 and the property was no longer subject to Act 250

jurisdiction. The decision explains that jurisdiction is only extinguished in this way under

a narrowly-defined set of circumstances.

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Stanion NOV, No. 129-11-15 Vtec (Vt. Super. Ct. Envtl. Div. July 18, 2017) (Walsh, J.)

• Zoning Administrator issues a notice of violation alleging that homeowner’s front yard

fence violated zoning regulations because it was built without a permit and did not comply

with height and setback requirements or a requirement that fences have an “open type

construction.” The Development Review Board (“DRB”), on appeal, affirmed violations.

• On appeal to the Environmental Division, homeowner argued that the fence is an exempt

farm structure because it is used in support of beekeeping activities.

• The Environmental Division explained that 24 V.S.A. § 4413(d) exempts farm structures

from zoning regulation, but requires compliance with setbacks approved by the Agency of

Agriculture, Food and Markets. AAFM regulations require farm structures to either

comply with local setback requirements, or obtain a variance from AAFM. Rules of the

Agency of Agriculture, Food, and Markets, Rule 401, Code of Vt. Rules 2-3-401:9 (WL).

• In analyzing whether the fence qualified as a farm structure, the Environmental Division

focused on the use of the fence, noted that a fence may serve more than one purpose, and

held that “to be an exempt farm structure, the use of the fence in association with farming

must be one of the fence’s primary uses,” and not just incidental or de minimus. The case

was ultimately remanded to the DRB for additional fact finding.

POSTSCRIPT: SEVEN MORE YEARS OF ACT 250

This is a review of the most recent seven years of Act 250, supplementing “The Evolution

of Act 250: From Birth to Middle Age.”1 During those years, Act 250 has been tested, amended,

heralded, disdained, and reconstrued. During the 2017 session of the General Assembly, the

Legislature challenged the Vermont Natural Resources Board to define the act for its second 50

years. This comes through the work and final report of the Commission on Act 250: the Next 50

years, chaired by Rep. Amy Sheldon, given the responsibility of reviewing the goals of Act 250,

listening to Vermonters’ views of the priority of maintaining the environment, and

recommending improvements to the State’s comprehensive land use law.2

This postscript to the Evolution essay follows the same chronological order, beginning in

2010, reviewing the legislative changes over the septenary, and the leading decisions of the

Vermont Supreme Court on Act 250. A full review of how Act 250 is working requires an

understanding of how the legislative and judicial branches are affecting the law’s administration,

but it is not within the scope of this study to discuss or analyze the work of the District

Coordinators and Commissions, developers, neighbors, and the Vermont Environmental Division

(on those decisions that have not been tested on appeal), on applications that are reviewed,

granted, amended, denied, and challenged over those seven years. The focus is on legislative

and appellate decisions, where the significant changes in how land use is regulated through Act

250 are found, examined, articulated, and converted into precedent.

The use of jurisdictional opinions is increasing, and represents the best administrative

process to ensure compliance and clarity in Act 250. The VNRB still operates under the 2006

Rules of Procedure. The quasi-judicial role of the VNRB is in addition to its duty to administer

Act 250 and enact rules for itself and for Act 250. The Act 250 Rules were amended in 2013 and

2015. The statutory authority for Act 250 has been the subject of many amendments. The ten

criteria have been altered 19 times in Act 250’s 47 years. The definition of “development” has

been amended 29 times in those years. By comparison, Vermont Bill of Rights, the first chapter

of the Vermont Constitution, have rarely been changed, and are generally regarded as

untouchable.3

After nearly five decades, there are still many questions without good answers, to be

decided in the courts.

1 Paul S. Gillies, “The Evolution of Act 250: From Birth to Middle Age,” in Uncommon Law, Ancient Roads, and

Other Ruminations on Vermont Legal History (Montpelier, Vt.: Vermont Historical Society, 2013), 280-303. 2 “An act relating to the Commission on Act 250: the Next 50 Years,” No. 47 (2016, Adj. Sess.) 3 Since the Constitution of 1793, Chapter I has been altered only twice. In 1828 Article 1 was amended to require

only natural and naturalized citizens of the state to vote in the general election to elect legislative, state or

congressional officers. In 1924, Article 10th was amended to allow the accused, in prosecutions for any crime except

those punishable by death or imprisonment in the state prison, to waive a jury trial in favor of trial by a judge..

Beyond Middle Age: 2010-2017

The composting industry has grown significantly in the era of recycling. In 2010, the

General Assembly enacted a comprehensive regulatory system for composting, exempting small

operations of no more than 100 cubic yards per year, compost principally produced or used on

the farm, compost produced from manure on a farm, and compost on a farm that includes up to

2,000 cubic yards of food residuals as long as the total farm income exceeds that from

composting and uses no more than 10 acres or 10% of the parcel, whichever is less. The act

includes a curious feature authorizing the Chair of the District Commission to determine whether

the owners or operators of a composting facility are trying to circumvent the law and to punish

these attempts by vesting jurisdiction of Act 250 on these respondents, requiring a permit, as a

penalty. The “involved land” rule does not apply to compost facilities governed by Act 250.4

Neighbors of a proposed solid waste facility in Williston sued the Town claiming that its

agreement with the Chittenden County Solid Waste Management District compromised their

rights, in Gade v. Town of Williston (2009).5 The agreement promised that the Town would

cooperate with the District in obtaining its necessary permits, and the neighbors argued this

constituted an ultra vires compromise of the municipality’s role in protecting the rights of

landowners in land use decisions. Williston adopted a host town agreement (HTA) that included

a recitation that the proposed uses of the site of the landfill full complied with the ten criteria and

the town plan, leaving zoning compliance to the Town. Williston was a co-applicant for the Act

250 permit. The Supreme Court noted the statutory authority for an HTA, distinguishing this

case from Vermont Department of Public Service v. Massachusetts Municipal Wholesale Electric

Co. (1988), which dealt with illegal municipal delegation of authority. “Here, all that the Town

did was promise to support CSWD in its permit applications and give its warranty of good faith

with regard to the town plan. The HTA does not promise the success of these applications and

explicitly leaves all independent permitting procedures intact. The Town's actions do not amount

to a delegation of any legislatively derived power. Further, in contrast to the municipalities

in MMWEC who were acting outside of any legislative mandate, the Town is exercising the very

power that the Legislature explicitly intended it to exercise.”6

The Act 250 permit for a residential retirement community project in Rutland was

challenged by neighbors. In re Eastview at Middlebury, Inc., 187 Vt. 208 (2009). Middlebury

College owned a 384-acre tract, but intended to site the project on only 40 of those acres,

adjacent to the local hospital and nursing home. The District Commission decided an additional

207 acres should be subject to Act 250 jurisdiction, and the conditions on the permit, and then

inconsistently described the entire 384 acres, requiring an amendment for any material change on

the parcel. On appeal, the Environmental Court limited coverage of Act 250 to the 40-acre

portion of the lot, and the Supreme Court affirmed that decision.

4 “An act relating to the regulation of composting,” No. 141 (2009, Adj. Sess.). 5 Gade v. Chittenden Solid Waste District, 187 Vt. 7 (2009). 6 Id., 187 Vt. at 18-19.

“Involved land,” explained Justice Denise Johnson in the opinion, is a concept that relates

only to initial Act 250 jurisdiction, not on the scope of the entire project, construing In re Stokes

Communications Corp. (1996) narrowly and concluding that this question is ruled by the maxim

that all permit conditions must be reasonable and that the definition of a “permitted project” must

be “tempered by reason and reality,” quoting the 2001 Environmental Board decision in

Stonybrook Condominium Owner’s Ass’n, D.R. #385. The high court looked to the Board’s

decision in West River Acres, Inc. (2004) as authority as well, where the Board extended

jurisdiction only where there is a direct environmental impact on the extended parcel.

A former open-pit talc mine in Windham overflowed its banks, causing damage. The pit

was subject to an Act 250 permit, and its owners sought a jurisdictional opinion on whether the

pit, now closed, was still within the control of Act 250. The District Coordinator and the

Environmental Court on appeal agreed it was, and the Vermont Supreme Court affirmed the

decision. In re Hamm Mine Act 250 Jurisdiction, 186 Vt. 590 (2009). The owners claimed that

as the permit had expired, they should be free of any restrictions. But the violation arose from a

prior owner’s failure to complete a sedimentation pond that was required by the permit, and the

failure to complete the project as approved caused the overflow and justified enforcement. The

present owner claimed that as subsequent amendments had been granted for the pit, the State was

estopped from proceeding against it. The high court reiterated its policy of upholding the

Environmental Court’s legal conclusions if reasonably supported by the findings. The claim that

the State should have known that the applicant had failed to construct the containment pound

was denied by the high court. The District Commission is not required to visit the site and police

its permits.

Taxpayers appealed the State Appraiser’s decision to uphold the appraisal of two parcels

of land in St. Albans, even though the land could not be sold at that time because it needed, and

hadn’t obtained, an Act 250 permit. Zurn v. City of St. Albans, 186 Vt. 575 (2009). The

Supreme Court affirmed the decision of the State Appraiser, explaining that the mere existence

of uncertainty in the regulatory process does not bar consideration of the development potential

of land. No discount is available to such lots, as their value must be based on the highest and

best use of the property. The lots weren’t rendered useless by the need for a permit. Act 250

permits can enhance the value of properties, and the lack of permits might also play a role in

valuation, but as the taxpayers never defined what discount they thought they deserved, the

appeal was dismissed with no change from the decision below.

Act 250 had jurisdiction over an alpaca farm in Bondville, by order of the Environmental

Court in 2009, a decision affirmed by the Vermont Supreme Court. In re Eustance Act 250

Jurisdictional Opinion, 185 Vt. 447, 455 (2009). Farming is exempt from Act 250, but this farm

was on land already within Act 250’s authority. The high court ruled that there is no exemption

from subdivision jurisdiction in general, and that in this case there was an explicit condition

requiring a permit amendment for development to occur, even if that involved farming. Chief

Justice Paul Reiber dissented. In his view, the decision is a “misapplication of Act 250” and

antithetical to the legislative intent.

Neighbors of a shooting club in Shaftsbury waged a long and unsuccessful effort,

involving several appeals, to persuade the Environmental Board and Environmental Court to find

the club had enlarged its size and increased noise levels, justifying the need for an Act 250

permit. In re Hale Mountain Fish and Game Club, Inc., 185 Vt. 613 (2009). The Supreme Court

affirmed, concluding that the club did not need an Act 250 permit. While there were some

changes over time, they did not trigger the need for a permit.

The legislature amended the definition of “development” in 2009 to clarify the exemption

for telecommunication facilities that have been issued a certificate of public good (CPG) under

the newly-enacted 30 V.S.A. § 248a, also enacted this year. “The Vermont Recovery and

Reinvestment Act of 2009,” No. 54 (2009).

That session the fees for Act 250 applications were increased from $4.75 to $5.40 for

each $1,000 for the first $15 million in construction courts, from $2.25 to $2.50 for each

thousand above $15 million, and from $0.10 to $0.20 per cubic yard for extraction of earth

resources, up to a maximum of $150,000, up from $135,000. “An act relating to executive

branch fees,” No. 134, Sec. 33 (2009, Adj. Sess.).

Performance-based regulation was the subject of “An act relating to implementation of

challeges for change,” No. 146 (2009). The new law authorized a District Commission to require

any Act 250 permittee to file an affidavit or affirmation that the project is in compliance with an

assurance of discontinuance or order or rule, on penalty of revocation of a permit if not filed or if

it contains material misrepresentations. It established an Act 250 permit fund for portions of

settlements attributable to the resolution of violations.

A subdivision in Bradford required an Act 250 permit, a fact discovered when one of the

lots was set to be sold. The owner of the lot sued his attorney, claiming malpractice, saying that

it was the attorney’s duty to inquire whether the subdivision was in compliance with the state’s

land use law. The facts did not support a contractual obligation to do so, and the Supreme Court

on appeal upheld the jury’s decision finding no violation or liability. Lefebvre v. Cawley,

unreported, January 15, 2010.

Primary agricultural soils are protected by Act 250, and off-site mitigation is an allowable

offset for development that takes land out of agriculture. The developer of an affordable housing

project in Colchester and Winooski challenged the calculation of mitigation fees by the District

Commission, arguing that the fee did not properly reflect an offset for the cost of removing trees

from the land, which had been farmed years ago but had grown into a forest of mature trees. The

developer also faulted the trial court for not considering whether the land could actually be

converted into a farm. The Vermont Supreme Court reversed the Environmental Court, holding

that the process of deciding whether land containing primary agricultural soils that contained

“limitations” such as wetness, steepness, rockiness, or is excessively treed, requires two steps to

review. First, the limitations need to be established, and only then proof that the cost of

overcoming the limitations cannot be easily overcome. Because the trial court did not consider

the cost, the case was reversed and remanded. “The Legislature did not intend to protect every

parcel of land that contained the physical and chemical characteristics of primary agricultural

soil regardless of any logistical challenges to its agricultural use. Chief Justice Reiber dissented,

arguing that the majority was wrong in interpreting the legislation and that the developer had

failed in carrying its burden to present sufficient evidence of the limitation. In re Village

Associates Act 250 Land Use Permit, 188 Vt. 113 (2010).

The denial of a minor administrative amendment of an Act 250 permit to allow the

creation of fifteen lots on a parcel of 368 acres at Killington triggered an appeal by the

developer. The Environmental Court denied the amendment, reversing the decision of the

District Commission, and on appeal the Vermont Supreme Court reversed the trial court. The

project was not a minor change, and a full review under the ten criteria was required. Chief

Justice Reiber dissented, on grounds that the issue was not raised below and so should not be

available on appeal. In re SP Land Company, LLC, 190 Vt. 418 (2011).

The permit for the Wal-Mart store in St. Albans was appealed to the Environmental Court

by neighbors opposed to this large retail project after the District Commission approved it. On

appeal to the Vermont Supreme Court, the conflict of interest of the Commission’s Chair was

confirmed, but cured by the de novo nature of the Environmental Court trial. The right to reapply

for a permit after one has been denied was clarified, and the project approved upon finding that it

was compatible with adjacent uses in that area of the Town. In re JLD Properties of St. Albans,

Inc., 190 Vt. 259 (2011).

A 180-foot telecommunications tower in Hardwick was the subject of a challenge to its

Act 250 permit in 2011, based on Criterion 8. In re Rinkers, Inc., 190 Vt. 567 (2011). It would

be visible from various points in the village and along the town highways, and “will be a more

significant but not overwhelming presence as it would be frequently screened by roadside trees”

on one highway. The Environmental Court concluded the tower had an adverse effect on the

surroundings, but not an undue impact. The Supreme Court affirmed, first reiterating the familiar

principle that it would defer to the trial court on the facts and on its legal conclusions if

reasonably supported by the findings. The tower did not violate a clear, written community

standard because the Hardwick town plan favored some telecommunications towers. To hold

that any interruption of the rural skyline was a violation of the plan and would “create an

absolute prohibition on disruptions” was unreasonable, according to the high court.

The “person-based jurisdiction” under Act 250 was challenged in 2011. In re

Shenandoah LLC, 190 Vt. 149 (2011). A developer who sought a jurisdictional opinion on

whether it had surpassed the 10 lot threshold for an Act 250 permit was disappointed by the

conclusion that beneficial interest decided jurisdiction, not the titles of the business entities (in

this case an irrevocable trust benefitting two minors, sons of the developer) on the applications.

The actions of affiliated persons are attributable to each other in deciding jurisdiction, when

there is a financial advantage involved. Justices Marilyn Skoglund and John Dooley dissented,

arguing that the case should have been remanded to the trial court for additional evidence on the

primary fact about deriving a benefit from the trust, rather than making a finding of act in an

appellate venue.

The last decision of the Environmental Board to be reviewed by the Supreme Court was

issued in 2011. The Board had been abolished in 2004, but it took seven years for the appeals to

reach the high court. The case was In re Times and Seasons, 190 Vt. 163 (2011). The subject

was a large gift shop and deli in Royalton. The issue was primary agricultural soils and Criterion

9(B), which had been amended by the Legislature during the course of the litigation. The appeal

was denied “because our vested rights doctrine prevents applicant on reconsideration from

availing itself of the definition amended during the course of litigation and relying solely on the

change to correct deficiencies causing its Act 250 denial.” While 10 V.S.A. § 6087(c) authorizes

reconsideration within six months of a denial, allowing the applicant to preserve the benefit of

affirmative findings while obtain additional review of those that led to the denial, this is not a

separate vesting event. An applicant cannot take advantage of the laws in effect when the

application was filed and those at the time of the reconsideration application, which is a

contradiction of the vested rights doctrine.

In Times and Seasons, the high court refused to recognize any precedental value to be

drawn from Eustance Act 250 Jurisdictional Opinion (2009) or In re Eastview at Middlebury,

Inc. (2009) “as we rely on our own analysis to reach this decision.”

In April of 2011, Governor Peter Shumlin appointed Ron Shems as VNRB Chair,

replacing Peter Young, who had served since 2006.

That spring the Legislature passed “An act relating to the application of Act 250 to

agricultural fairs,” amending the Act 250 exemption for agricultural fairs and exempting

buildings from jurisdiction if constructed prior to January 1, 2011 and used solely for the

purposes of the agricultural fair. The act also provides that such buildings shall not be subject to

an Act 250 enforcement action for: (1) construction or any event at the building that occurred

prior to January 1, 2011; and (2) any event or activity at the building on or after January 1, 2011

if the building is used solely for the purpose of an agricultural fair. “An act relating to the

application of Act 250 to agricultural fairs,” No. 18 (2011).

An act promoting cellular and broadband accessibility was passed by the legislature in

2011, exempting attachment of new or replacement cables or wires to existing distribution poles

from the definition of “substantial change.” “An act relating to the advancement of cellular,

broadband and other technology infrastructure in Vermont,” 2011, No. 53.

The Vermont Neighborhood Program was established in 1998 to promote high-density,

smart growth principles and reduce the scope and cost of Act 250 jurisdiction by allowing towns

to designate a “neighborhood,” exempting development from Act 250, but few towns ever did

so. In 2011, the Legislature authorized the Vermont Downtown Development Board to make the

designation, upon application of a municipality or a landowner, following a local public hearing.

“An act relating to job creation, economic development, and buy local agriculture,” No. 52

(2011).

The next year, Act No. 161 increased fees for ANR permits and for Act 250 permits for

reviews of projects involving the extraction of earth resources, exempting extracted material that

is not sold or does not enter the commercial marketplace from the fee. The fee for amendments

to Act 250 permit must be based solely on any additional volume of earth resources to be

extracted. “An act relating to department of environmental conservation fees,” No. 161 (2011,

Adj. Sess.).

Aesthetics was the focus of a challenge to a wireless communication tower in Barton in

2012, based on noise and visual impacts. In re Verizon Wireless Barton Act 250 Permit, 191 Vt.

645 (2012). The area was developed, included a “highly visible high-power electric transmission

line,” and the tower would be disguised by elements suggesting it was a tall tree. The high court

deferred to the trial court’s findings, and affirmed the decision to authorize the tower.

The issue of whether the records of the District Commission or VNRB are public was

settled in Rueger v. Natural Resources Board, 191 Vt. 429 (2012). Opponents of a gravel pit

sought disclosure of notes and other communications covering a decision to transfer the case

from one commission to another. The Superior Court denied them access and the Supreme Court

affirmed. These records were protected from disclosure as deliberations of a judicial and quasi-

judicial character.

The VNRB adopted its Environmental Citations Rule in October of 2013, establishing the

minimum, maximum, and waiver penalty amounts for each violation for ANR enforcement

actions, including Act 250 violations.7

Act No. 11 of the Laws of 2013 made a variety of changes to Act 250. It expanded the

definition of “development” to apply to support structures for communication or broadcast

purpose that extend 20 feet or more above the highest point on the building or 50 feet above the

ground. and to bottling plants, when more than 340,000 gallons of groundwater is withdrawn per

day. It eliminated the requirement that public auctions of land are per se governed by Act 250,

relying on the other triggers for jurisdiction. It also exempted transfers of land to the State of

Vermont or qualified organizations that conserve land. It set up a review by the VNRB of

jurisdictional opinions as an interim step toward an appeal before the Environmental Court. It

adopted a sunset of exemptions for the regulation of compost, and ethical standards for members

of the VNRB and district commissions. “An act relating to various amendments to Vermont’s

land use control law and related statutes,” No. 11 (2013).

The Act 250 Rules were amended by the VNRB in 2013. The amendments redefined

“principally produced” relating to exemptions for farm operations that include retail components

by allowing the calculation of 50% of the ingredients or materials contribution to a final

agricultural produce are grown or produced on the farm. A procedure for reconsideration of

jurisdictional opinions was added, implementing recent statutory changes, and the new rules

allowed for electronic submission of applications and filings. They allowed for review of

designated downtown projects, reflecting changes to 10 V.S.A. § 6086b, and simplified the way

jurisdiction attaches to formerly grandfathered projects.

The Legislature amended the law on transportation impact fees in Act 250 in 2014.

Recognizing that the “last one in” rule can leave the total cost of highway improvements to a

developer whose project triggers the need for changes, although other prior developments

contributed to congestion at an intersection or highway, the act established an equitable system

to allocate the burden. A developer might pay for all of the improvements, but subsequent

applicants would be required to contribute to that cost, reimbursing the first developer’s costs

7 http://nrb.vermont.gov/sites/nrb/files/documents/citationsrule.pdf

based on a formula to be adopted by the Transportation Agency. Money not spent on the project

within 15 years may be recovered by a developer. “An act relating to transportation impact fees,”

No. 145 (2013, Adj. Sess.)

In 2014, the Legislature exempted “priority housing projects” with less than 275 units in

a municipality of 15,000 people, and other projects in municipalities with a sliding scale based

on population, from Act 250 jurisdiction. The act encouraged development in designated centers

and existing settlements. It added “historic settlement patterns“ to Criterion 9L to protect against

strip development and ensure the efficient use of land, energy, roads, utilities, and other

infrastructure. “An act relating to encouraging growth in designated centers and protecting

natural resources,” No. 147 (2013, Adj. Sess.)

Act 159 of 2014 redefined primary agricultural soils under Act 250, amended deadlines

for forest management plans in current use, and liberalized the law on ecologically significant

treatment areas (ESTAs) in managed forest land, repealing the former restriction that limited

ESTAs to no more than 20% of conserved land. “An act relating to miscellaneous agricultural

subjects,” No. 159 (2013, Adj. Sess.).

Criterion 8 (aesthetics) was the subject of an appeal of an Act 250 permit for a woodchip

heating system on the Goddard College campus. In re Goddard College Conditional Use, 198

Vt. 85 (2014). The Vermont Supreme Court affirmed the decision of the Environmental Court,

affirming the grant of the permit. The neighbors had claimed the impact of the building

containing the woodchip plant had an undue adverse impact. Neither the college nor the

neighbors contested that the impact was adverse, but the neighbors claimed that the project failed

the second part of the Quechee test. The high court found the neighbors had not met their burden,

rejected the claims that consideration of alternative sites was material to resolving the question of

Criterion 8, and affirmed the decision from below.

A sand and gravel operation in Londonderry received an Act 250 permit which was

challenged by neighbors on several grounds. The claim that the project violated the town and

regional plans was turned down by the Vermont Supreme Court on appeal, after concluding that

neither plan created a specific, unambiguous policy prohibiting a project in the area of the pit,

and that the plan was “broad and nonregulatory,” without any legally enforceable authority. In re

Chaves Act 250 Permit Reconsider, 195 Vt. 467 (2014).

Neighbors appealed an Act 250 permit for a dog breeding facility in Victory, arguing that

the noise of 50 dogs would have an undue adverse impact. They lived in a neighborhood that

included a kennel and other homes with multiple dogs. The Environmental Court imposed a

condition that prohibited prolonged barking of longer than one hour during the daytime and 30

minutes at night, rather than applying the usual decibel limits for commercial and industrial

operations. The VNRB attempted to persuade the Court to amend the condition to establish a set

interval between barks of 90 seconds to help define “sustained barking,” but the Court denied

that request. It did amend its definition of improper noise to include howling, as well as barking.

The applicant also appealed the ruling of the trial court. In an unpublished entry order, the

Vermont Supreme Court affirmed the Environmental Court’s decision on the condition, denying

the claims of both the neighbors and the applicant, and acknowledging the trial court’s authority

to adopt a standard on noise based on the context and setting of the project, approving regulation

of barking and howling based on frequency and duration, rather than rigid decibel level. In re

Gregory Hovey Act 250 Permit, 201 Vt. 647 (2015).

The Champlain Parkway, running from South Burlington to the City of Burlington’s

business center obtained an Act 250 permit after years of planning and controversy. A permit

appeal focused on Criterion 5 (highways), and the congestion or unsafe conditions created by the

development. In re Champlain Parkway Act 250 Permit, 200 Vt. 158 (2015). The permit

challenge was denied and the permit’s conditions affirmed, after the high court concluded that

the mitigation measures compensated for the problems of congestion. A challenge to the

Environmental Court’s direction to the parties to proceed in good faith to resolve their

differences at mediation was rebuffed as within the discretionary powers of the trial court.

Neighbors challenged a jurisdictional opinion that a rock-crushing operation at a quarry

in Barre was a pre-existing use, exempt from Act 250. In re North East Materials Group LLC

Act 250 JO #5-21, 199 Vt. 577 (2015). The Environmental Court concluded it was exempt, but

on appeal the high court remanded the case to the trial court with instructions to revisit its

findings on how the present activity fit with the pre-1970 development, particularly on rock-

crushing. The high court reiterated its substantial change test, requiring that evidence must first

show a cognizable physical change to a preexisting development and then answering whether the

change has a potential for significant impact under one of the ten criteria. Justices Harold Eaton

and Marilyn Skoglund dissented, arguing that the majority mistakenly placed the burden of

persuasion on the developer, rather than the challengers and that precedents of the Environmental

Board were disrespected in reaching the answer to whether there was a substantial change.

A Dollar General store in Chester obtained an Act 250 permit that was promptly

challenged by neighbors, who argued that since the building was within the floodway of a brook,

which would narrow the brook at two points, the project violated Criterion 1(D). In re Zaremba

Group Act 250 Permit, 199 Vt. 538 (2015). The Supreme Court affirmed the Environmental

Court’s decision that mitigation measures proposed by the applicant sufficiently cured any

offense to the criterion. The neighbors had not provided experts to rebut the applicant’s and

ANR’s own expert’s opinions, and so failed to carry their burden of proof. The high court also

rejected the claim that the design of the building was inconsistent with the standards for the

historic village center after finding that the project is not within the historic district.

The hangars for the Air National Guard base at the Burlington airport were exempt from

Act 250, according to a jurisdictional opinion that was appealed and reviewed in 2015. In re

Request for Jurisdictional Opinion Re: Changes in Physical Structures and Use at Burlington

International Airport for F-35A, 198 Vt. 510 (2015). The real object of the appeal was the noise

to be created by 18 F-35A aircraft, but the project—buildings and jets—was federal in nature and

preempted Act 250 jurisdiction.

The ANR challenged operation of a gravel pit in Manchester, and the Environmental

Court issued an emergency order requiring the closure of the operation. On appeal, the Supreme

Court affirmed the order, finding that the operation of the pit had intruded into an area within the

jurisdiction of Act 250, constituting a material change to the permit and requiring a permit.

Natural Resources Board Land Use Panel v. Dorr, 198 Vt. 226 (2015). The pit owner claimed

that as the permit had expired, the project was exempt. But the violation had been upheld in a

2008 proceeding. The high court held that defense was barred by res judicata, as an attempt to

relitigate matters decided in prior litigation, and upheld the emergency order.

The VNRB adopted amendments to the Act 250 rules at the end of 2015. The definition

of “Rural Growth Areas” was deleted from the rules, and “cognizable change” was defined, as

“any physical change or change in use, including, where applicable, any change that may result

in a significant impact on any findings, conclusion, term or condition of the project’s permit.”

Investigations conducted by District Commissions must be conducted in accord with the

Vermont Administrative Procedure Act. The process of creating a Master Plan and of

designating downtown development districts was improved.

In January of 2015, Gov. Shumlin appointed Jon Groveman as VNRB Chair.

In 2015, in “An act relating to promoting economic development,” the Legislature

directed the VNRB to conduct a public process to revise its procedures or implementing the

settlement patterns criterion (9L), which had been added to Act 250 in 2014. “An act relating to

promoting economic development,” No. 51 (2015).

A multi-use development at Exit on I-89 in Hartford was denied an Act 250 permit on

highway design and lack of conformity with the regional plan. The Environmental Court

reversed the District Commission on the plan, finding its definition of “substantial regional

impact” inapplicable and its definition of “principal retail establishment” unenforceable as

applied to the project. On appeal, the Vermont Supreme Court reversed the trial court,

concluding the plan was definite enough to justify a conclusion of nonconformity. In re B &

M Realty, LLC, 2016 VT 114.

The North East Materials Group Act 250 returned to the Supreme Court in 2016, after

the Environmental Court concluded that a rock-crushing operation at a quarry did not require an

Act 250 permit. In re North East Materials Group LLC Act 250 JO #5-21, 2016 VT 87. The high

court reversed, criticizing the trial court’s findings about the location and volume of the

operation as too limited and that its decision was “effectively a reconsideration without new

findings of the rationale on which it had found no substantial change in the first instance.” The

Environmental Division “reaches the same result” as it did in the prior case “for the same

reason.” The quarry must have an Act 250 permit. Evidence of rock crushing at a different site is

unavailing in showing no “substantial change.” The focus must be site-specific. Justices Eaton

and Skoglund dissented, worrying that under this decision every movement of a rock-crushing

operation within a site would need an Act 250 permit.

The majority opinion in this case, authored by Justice John Dooley, has a tone of

exasperation with the Environmental Court, as if to an employee who did not follow the boss’s

orders.

The Costco store in Colchester was expanding, including a new six-pump gas station, and

applied and obtained an Act 250 permit for the changes. A rival convenience store operator

appealed. In re Costco Stormwater Discharge Permit, 2016 VT 86. The high court affirmed the

Environmental Division’s findings and conclusions granting a permit. It pointed out that with

traffic, mitigation is not necessarily alleviation of congestion, and that conditions that offset the

impact of additional vehicles are acceptable corrections. The ruling also addressed the Daubert

test for expert testimony, and rejected arguments involving wetlands, a drainage pipe, and

stormwater discharge.

Governor Peter Shumlin appointed Diane Snelling as VNRB Chair in May of 2016.

That July, the VNRB assumed a new statutory function, hearing appeals of energy

compliance determinations made by the Commissioner of the Department of Public Service.

Regional planning commissions are obliged to have the energy compliance portions of the

regional plan approved by the Department. Municipalities who have submitted a plan before July

1, 2018, have the same obligation. When the Department declines to grant its approval, the

VNRB hears the appeal. 24 V.S.A. § 4352. Approval of a plan gives the regional planning

commission or municipality a larger role in the siting of renewable energy projects.

The difference between Criterion 8 reviews in Act 250 and in decisions of the Public

Service Board under 30 V.S.A. § 248a was explained by the Vermont Supreme Court in 2016. In

re Rutland Renewable Energy, LLC, 2016 VT 50. The PSB’s “holding is a modification of

the Quechee test because the test was created for Act 250 review, and such review does not

generally supplant local zoning regulation. The Town and neighbors argue that the solar siting

standards are ‘clear written community standards’ by any definition of those terms. We might

adopt that view if we were dealing with Act 250, where state and local regulatory review coexist.

Here, we are dealing with a situation where, under existing law, municipalities have a different

role. The effect of the solar siting standards under the theory of the Town and neighbors is to

enable the Town to control solar generation siting through the Quechee test. We agree with the

Board that a modification of the Quechee test is necessary to give the Board the necessary

regulatory power.”

Act 250 Rule 34(E) has received regular attention by the courts. This rule sets standards

for amendments, requiring satisfaction of a strict test to avoid attempts to relitigate already-

resolved matters. Fifteen years after obtaining its permit, Burlington applied for an amendment

to change the timing and frequency and sound levels of events at a city park. The amendment

was granted, and affirmed by the Supreme Court. In re Waterfront Park Act 250 Amendment,

201 Vt. 596 (2016). Flexibility outweighed finality, because of the importance to the city’s

recreational and social life and its economic vitality. The neighborhood had changed, and the

park had become a “dynamic resource” to the city in the intervening years.

An Act 250 permit for a residential development at Stratton Mountain included a

provision that authorized the District Commission to impose additional conditions “as needed.”

The Supreme Court affirmed the Environmental Division’s decision to treat this condition as

invalid, as invading the proper province of the VNRB and ANR to enforce permit violations. In

re Treetop Development Company Act 250 Development, 201 Vt. 532 (2016). Not only did the

condition attempt to provide Commissions with authority not given by statute, but it prevented

any finality of a permit review process, which the Court described as “an integral part of the land

use permitting process.”

Preliminary conclusions on the last seven years

Act 250 casts a spotlight on the issues that challenge Vermont. One season the light

shines on big box retail. Then comes cell towers, ridgelines, solar arrays, where Act 250’s

criteria are interpreted by the Public Service Board. Neighbors continue to fight changes they

feel will affect their property values and peaceful enjoyment of their land. Gravel pits,

particularly those with rock-crushing as a part of their operations, invite appeals. Congestion of

highways leads to challenges to plans to mitigate the problems of stacking. There will never be

an end to appeals or challenges to development. Sustained barking is predictable.

Looking at the last septenary, Act 250 continues to be a mass of contradictions. It may

be the most frequently amended piece of legislation in Vermont. The Legislature wants to use it

to set environmental and development policies. It can’t leave the act alone, and that has led to a

growing belief that the law is at risk of becoming more political than legal. No law is helped by

too constant reform. That offends the most important value of Act 250, the finality of its

decision-making.

The tension between permitting and enforcement is keen. There is a persistent tension

between developers and regulators. The most common objection of developers is their belief that

regulators are expanding the jurisdiction of Act 250. The most common complaint against

developers is that they actually try to avoid coming under the authority of the act. The 2010 act

on regulating compost, for example, was intended to resolve questions that had not previously

been clear to parties to the regulatory process. The addition of the punitive element for those

who try to avoid jurisdiction is another expression of that tension. Much like how sentences and

penalties are increased by a lack of evidence of remorse in criminal or professional misconduct

cases, when defendants and respondents believe they are innocent, this new feature risks

demonizing the efforts of developers who have an interest in not submitting to Act 250, which is

a natural and usual ambition of entrepreneurs. The way this treats Act 250 as a punishment for

bad behavior is as suspicious as the recent laws that award exemptions from the law for favored

uses, such as housing, or places, such as downtowns.

If the law is to have any integrity, it should not used in these ways. Look at Section

6001, where “development” is defined. It was grown in size since it was first enacted in 1969,

ever more elaborating what is regulated and what isn’t. It is a living map of special interest

lobbying and righteous environmental fervor, the fear that regulation will turn away jobs and

investment, and the hope that the best part of Vermont won’t be turned into the worst part of

other places. No wonder the regulatory climate is a cloudy stew of frustration and

disappointment.

Act 250 could do with a period of quiet repose, of being left alone. Just as muscles need

time to recover, regular and significant changes in this law have left Act 250 torn and sore. A

reprieve from reform is necessary.

The Environmental Court, since 2010 called the Environmental Division of the Superior

Court, has become more efficient and more respected by the Supreme Court than in earlier years,

and while it still is reversed from time to time, with one exception the tone of the decisions of the

high court has been respectful and supportive of the harder job of deciding critical questions by

motion and trial. Lately there have been proposals to reestablish the Environmental Board and

eliminate the jurisdiction of the Environmental Court over Act 250 matters. This will undercut

the progress made in the evolution of land use law since the Court was first given the appellate

role in Act 250 permit decisions, and contribute to the politicization of the process, which can

only mean further disrespect for the rule of law. The District Commissions and the Coordinators

are the first responders of Act 250, and their role is essential to ensuring that the process of

applying for permits is fair and responsive to local concerns. An appeal from those decisions

should be to a court, not a lay panel, which brings its own prejudices and polarities into the

process. The Environmental Board leaned left, toward greater environmental sensitivity, in some

years, and right, toward greater promotion of development, in others, depending on the

constituency of the Board. By comparison, the Environmental Court has brought consistency

and a level playing field to the playing fields of land use law.

Act 250 is a powerful tool and weapon. It has earned respect. But it is also extremely

fragile, whenever the Legislature is in session. It does not need any more reform.

Paul Gillies, September 22, 2017

Overview of Agency Deference

1. Key Cases. Our panel will focus on deference and judicial review. A number of decisions will be referenced by our speakers, including:

a. Chevron b. Chioffi v. Winooski Zoning Bd. c. Lowell Mountain Wind d. Plum Creek e. Woodford Packers f. Hawk Mountain g. In re Bradford Oil CAP h. In re Hinesburg Hannaford Wetland Determination

2. Panel Topics. The panel will be focusing on the multiple facets of deference and judicial review,

including the following issues: a. Chevron and the concept of deference. For the past 40 years, the federal judiciary has

reviewed interpretations of statutes and rules by administrative agencies in accordance with the two-step analysis established by Chevron. The panel will discuss the Chevron decision and the manner by which federal courts review decisions of federal administrative agencies.

b. The evolution of deference before our agencies and the environmental division of the Superior Court, with focus on decisions made by Act 250 and ANR. The panel will focus on the law surrounding how a court applies or may apply deference to agency decisions in the context of a de novo proceeding. The panel will discuss:

i. Deference to agency interpretations of statutes it administers and its own rules; ii. Deference to agency permit decisions generally;

iii. Deference to agency technical/factual findings; and iv. Deference to ANR testimony before Act 250.

c. De Novo versus Record Review. The panel will discuss the difference between de novo review and review of decisions on the record, how this review takes place at the federal level, and the policy discussions that will likely take place surrounding on the record review of agency decisions in the future.

3. Questions for the Panelists. Our format for the panel discussion will be for our moderator to ask a series of questions to the panel members. Following the pre-planned questions, we will open the floor to allow audience questions.

Bradford Oil Property 'CAP', 2014 WL 7640787 (2014)

© 2017 Thomson Reuters. No claim to original U.S. Government Works. 1

2014 WL 7640787 (Vt.Super.) (Trial Order)Superior Court of Vermont.

Environmental DivisionCivil Division

Windsor County

BRADFORD OIL PROPERTY ‘CAP’.STATE of Vermont,

v.BRADFORD OIL COMPANY, INC.

No. 1391013.December 22, 2014.

Decision on the Merits

Thomas G. Walsh, Judge.

*1 Bradford Oil Company (Bradford) appeals the “Final Corrective Action Plan” (the CAP) issued by the Agency ofNatural Resources (ANR or the Agency) relating to environmental contamination on Bradford's property in the Townof Springfield, Vermont. The Springfield Regional Development Corporation (SRDC), the owner of property locatedacross Clinton Street from Bradford's property and affected by the CAP, also challenged the CAP in a cross-appeal.SRDC and ANR entered into a Stipulation on May 20, 2014 that provided for dismissal of SRDC's appeal.

In a related civil enforcement matter, Bradford was found liable under 10 V.S.A. § 6615 for the contamination. Statev. Bradford Oil Co., No. 307-5-06 Wncv, slip op at 6-7 (Vt. Super. Ct. Oct. 25, 2012) (Teachout, J.), available athttps://www.vermontjudiciary.org/ 20112015T̈cdecisioncvl/2012-10-26-5.pdf. The only remaining issue in that case isthe court's determination of the appropriate remedy—namely, whether the CAP should be adopted as the injunctiveremedy. The civil matter has been specially assigned to the undersigned in order to coordinate a fair and efficientresolution of both CAP appeals and the remedy determination in the civil matter.

In advance of the merits hearing, on June 3, 2014, the parties and the Court performed a site visit. Appearing at thesite visit and merits hearing were Attorneys George McNaughton for Cross-Appellant SRDC, W. Scott Fewell and N.Joseph Wonderly for Appellant Bradford Oil Company, Mark J. DiStefano and Kyle H. Landis-Marinello for the Stateof Vermont Agency of Natural Resources, and Stephen S. Ankuda for the Town of Springfield.

Based upon the evidence presented at trial, including that which was put into context by the site visit, the Court rendersthe following Findings of Fact.

Findings of Fact

1. The property at issue in the related matters is the former Springfield Manufactured Gas Plant located at 197 ClintonStreet, Springfield, Vermont (MGP Site or the Site) which is now owned by Bradford Oil Company.

2. The Site is less than 1.5 acres in size.

Bradford Oil Property 'CAP', 2014 WL 7640787 (2014)

© 2017 Thomson Reuters. No claim to original U.S. Government Works. 2

3. The Site operated from approximately 1906 to 1951 as a Manufactured Gas Plant (MGP). An MGP is an industrialfacility where gas is produced from coal, oil, and other feedstocks. Gas was produced and stored at the Site and thenpiped to the surrounding area where it was used for lighting, cooking, and heating.

4. Many Vermont towns had an MGP plant at one time.

5. Coal tar, coal oil byproducts, and other byproducts of the manufacturing process were commonly stored at MGP sites.

6. The MGP Site lies immediately to the west of Clinton Street. Across from the MGP Site and to the east of ClintonStreet lies the former Jones and Lamson (J&L) site, currently owned by SRDC.

7. The J&L site is bordered to the east by the Black River, which is approximately 500 feet east of and generally down-gradient from the MGP Site.

8. SRDC intends to redevelop the J&L site although no specific plan was presented to the Court.

9. After its use as an MGP, the Site was operated as a propane plant through the 1980s.

*2 10. None of the original MGP above-ground structures still exist at the Site.

11. Bradford purchased the Site in 1997 and in 1998 demolished all the buildings to redevelop the Site as a gasolinestation and convenience store.

12. During the Site work in 1998, Site soils were excavated and deposited off-site. An environmental enforcement officer(EEO) observed the activity and noticed the smell of coal or oil within the soils.

13. Bradford was ordered by the Department of Environmental Conservation (DEC) Waste Management Division,within the Agency of Natural Resources (ANR), to investigate on-site contamination.

14. Bradford retained Marin Environmental to perform a Site investigation, including sampling and analysis. Theinvestigation, which began in the late 1990s and continued until more recently, showed elevated contaminate levels on-site, specifically volatile organic compounds (VOCs) and polynuclear aromatic hydrocarbons (PAHs).

15. During Site investigations, subsurface structures were uncovered such as concrete walls, concrete vaults, piping, andunderground storage tanks. These features had coal tar contaminate materials in and around them.

16. It is difficult to fully remove coal tar contamination, especially when the contamination is in and around subsurfacestructures.

17. During Bradford's redevelopment of the Site, the subsurface structures were removed to the extent possible. Somestructures and piping were left in place.

18. Soil and groundwater samples from the J&L site identified coal tar and coal oil contamination that is likely to havemigrated from the MGP site.

19. In approximately 2005, Bradford informed the ANR that it was not going to undertake further investigation orenvironmental monitoring of the Site or surrounding area.

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20. ANR contracted with the Johnson Company to undertake further environmental investigation of the Site andsurrounding area.

21. The Johnson Company initiated its investigation in the fall of 2007. This investigation included soil sampling, groundwater monitoring, sample analysis, and a fate and transport analysis.

22. As part of its investigation, the Johnson Company considered possible migration pathways from the MGP Site andwhether the contamination detected on the J&L site was migrating from the MGP Site.

23. ANR paid the Johnson Company a total of $38,227 for its work in 2007 and 2008.

24. Marin underwent some corporate changes and became Environmental Compliance Services, Inc. (ECS). ECScompleted further environmental investigations of the Site for Bradford in 2006 and 2009.

25. Both the Johnson Company and ECS concluded that contamination is migrating from the MGP Site to the J&L site.

26. This contamination includes: Light Non Aqueous Phase Liquids (LNAPLs), Dense Non Aqueous Phase Liquids(DNAPLs), and dissolved volatile and semi-volatile organic compounds as well as sorbed contamination and possiblegas phase contamination in the subsurface.

27. Sometime around 2011, Bradford retained Key Environmental, Inc. to conduct additional analysis of theenvironmental data collected to date and to complete some limited site investigation.

*3 28. The purpose of Key Environmental's site work was to identify additional subsurface anomalies such as previouslyunidentified pipes or structures.

29. Based upon all the data collected to date, all parties' environmental consultants agree that there is MGPcontamination, including LNAPLs, DNAPLs, and dissolved phase contaminates, at both the MGP Site and the J&L site.Non Aqueous Phase Liquids (NAPLs) are difficult to sample and analyze because the material muddles up laboratoryequipment used to test levels of contamination. Thus, if NAPL is detected, the material is typically not analyzed forcontaminate levels, however the amount of NAPL is generally noted. These data points, indicating the location andamount of NAPL are used to determine NAPL migration.

30. The contaminates at issue in these matters, including coal tar related DNAPLs, are of a very persistent nature.

31. NAPLs do not dissolve easily in water. Over time, however, NAPLs will slowly dissolve in water creating a dissolvedphase contaminate plume. DNAPLs are unpredictable and degrade over long time periods, making it difficult to forecastwhen groundwater contaminate concentrations will comply with regulatory standards.

32. The parties' experts agree that it is likely that MGP contaminates, especially naphthalene, a volatile organiccompound, will continue to exceed the Vermont Groundwater Enforcement Standards (VGES) of 20 parts per billion(ppb) for more than 30 years.

33. Bradford and its consultants generated three (3) Corrective Action Feasibility Investigation Reports (CAFIs).

34. Several options were considered by ANR and Bradford for Site remediation, including contaminate removal byexcavation and disposal off-site, extraction and treatment of groundwater, injection of bioremediation measures, soilflushing, containment and remediation, and combinations of these procedures.

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35. The costs of these alternative remedial programs are estimated between $65,000 and $2,400,000.

36. Because the MGP Site is immediately adjacent to Clinton Street, a major roadway in Springfield, remedial effortsdisrupting traffic on Clinton Street would have a negative effect on the local economy.

37. Installation of containment devices has questionable effectiveness and may actually result in adverse effects asdisturbing the ground in the area could alter the geological conditions and cause the contamination to move.

38. The groundwater table in the area is approximately 12 feet below ground surface.

39. Groundwater in the area flows generally in an easterly direction toward the Black River. Flow is generally restricted toa geologic channel that flows in a northeasterly direction from the MGP Site across Clinton Street and in a southeasterlydirection from the J&L site toward the Black River.

40. The dissolved phase NAPL contamination flows in a plume through this channel as the channel is the preferentialpathway.

41. Because DNAPL is heavier than water, it does not always follow groundwater flow. Rather DNAPL will migratedown until it reaches a layer of earth that it cannot penetrate, such as clay or rock. It will then follow these geologicformations, displacing the groundwater therein. DNAPL therefore flows toward and into geologic depressions or sinkswhere it will accumulate and collect until it spills over the edges of the sinks.

*4 42. A dense clay geologic layer underneath the MGP Site, Clinton Street, and the J&L Site acts as a floor uponwhich DNAPL travels.

43. Some contaminates have migrated into low permeability materials, such as silts and clays, making it difficult toremediate and causing ongoing contamination for decades.

44. The J&L property has its own on-site contamination, likely from former on-site tooling activities. These contaminatesinclude petroleum, PCBs, chlorinated solvents, and metals.

45. Napthalene contamination is present on both the MGP and J&L sites.

46. Both LNAPL and DNAPL contamination are present on the MGP and J&L sites.

47. Contaminates originating from both sites may have intermingled on the downgradient J&L property.

48. Site investigation and sampling efforts to date have been fragmented and separated by large periods of time. Thislimits the ability to understand past and present subsurface contamination and migration and the ability to predict futuretrends.

49. To better monitor contamination, all monitoring wells should be sampled on the same day(s). This will provide betterdata to predict groundwater flow and contaminate movement.

50. Based upon data collected to date, it cannot be concluded that DNAPL is in dynamic equilibrium. This meansDNAPL contamination and its migration remains unpredictable.

51. MGP contaminates have migrated onto the J&L site and are present in excess of the VGES.

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52. Investigation and sampling to date has generated little information regarding environmental conditions under ClintonStreet.

53. New development, demolition and re-building, or heavy equipment driving on the sites could impact migrationof DNAPL and dissolved phase contamination. This is because the DNAPL contamination is not very deep belowthe ground surface. Thus, excavation and heavy construction or deconstruction activities can mobilize DNAPL that isotherwise not mobile.

54. Redevelopment of the MGP and J&L sites raises concerns of mobilizing contamination, altering contaminatemigration direction, and creating the need for special handling of any excavated materials.

55. Reconstruction of Clinton Street in the area of the MGP Site is likely at some future date. Servicing and replacingunderground utilities in this area is also likely at some future date.

56. DEC's Investigation and Remediation of Contaminated Properties Procedure Section 4.1 states that when it isdemonstrated that remediation is not feasible, or that it will not remediate a site any faster than natural attenuation, theWaste Management Divsion Site Management Section (SMS) may allow long term monitoring of natural attenuationinstead of active remediation, provided that public health and the environment are protected.

57. All parties agree that active remediation is not feasible.

58. The chosen remedy for the site as set forth in ANR's CAP is based upon ANR's Investigation and Remediation ofContaminated Properties Procedure (IROC).

59. ANR's CAP includes land use restrictions and long term monitoring of natural attenuation of contaminates. Theland use restrictions include reclassification of groundwater in the area affected, implementation and recording of deedrestrictions in the land records to prevent contact with contaminated media by subsurface construction or utility work,and vapor intrusion into buildings overlying the area of contamination. These actions will mitigate the risks to publichealth or the environment and allow natural attenuation to degrade the contaminant mass while the contamination ismonitored.

*5 60. The Black River is a sensitive receptor. As of the time of the last sampling in 2009, there was no indication thatMGP contamination had or was impacting the Black River. There has not been sufficient sampling and data collectionto date to predict whether MGP contamination will reach the Black River.

61. Contaminate contact with humans is also a sensitive receptor.

62. Sampling frequency under the CAP is quarterly for the first two years, semi-annually in years 3 and 4, and annuallyin year 5 and thereafter.

63. Contaminates of concern are so persistent and degrade so slowly that monitoring may be required for 25 years ormore.

64. Quarterly sampling in years 1 and 2 is necessary to generate baseline data as no sampling has occurred since 2009.

65. Groundwater samples are analyzed for the contaminants of concern. If, however, NAPL (free product) is encounteredin a well, then the thickness of the NAPL will be measured and no analysis performed.

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66. The long term monitoring plan does allow for proposals to decrease the number of wells being sampled and/ordecreasing the sampling frequency after year 4. Such proposal may be made every 5 years.

67. Sample analysis 8260 detects all volatile organic compounds, including naphthalene and chlorinated solvents. Sampleanalysis 8015 does not detect chlorinated solvents.

68. Napthalene is common to both the MGP and J&L sites, whereas chlorinated solvents are only found in J&L sitecontamination.

69. Monitoring well NW-4 is located on the eastern side of the J&L site close to the Black River. This well is intended tomonitor for any contamination migrating to the Black River. Site specific contamination from both the MGP and J&Lsites could migrate from each site toward the Black River and be detected in this well.

70. As part of the groundwater monitoring program there are three sentinel wells; MW-04-14, MW-04-16 and NW-4.These wells are clean, meaning they have yet to detect any contamination from the MGP site.

71. As set forth in ANR's CAP, the estimated cost for each groundwater monitoring well to be installed and monitoredover a 30 year period is approximately $50,000. This includes installation, sampling and analysis, and reporting.

72. Prior to the coordinated merits hearing, ANR and SRCD filed a stipulation regarding the EnvironmentalDivision appeal and the Civil Division enforcement action. This Stipulation relocated NW-04 to a nearby location toaccommodate SRDC's redevelopment interests and specifies deed restrictions for a portion of SRDC's property.

73. The deed restrictions within the CAP relate to a portion of SRDC's property, a section of Clinton Street impacted byMGP contamination, and the entire MGP Site. The restrictions do not prohibit development or construction activity,but rather prevent the installation of drinking water wells, require appropriate precautions to protect human healthduring excavation or other subsurface work, and require appropriate precautions to ensure against vapor intrusion fromthe subsurface contaminate plume into overlying buildings.

74. The CAP further requires Bradford to petition to reclassify affected groundwater from Class III to Class IV.

Conclusions of Law

The parties' environmental consultants provided opinions as to the scope of contamination at the MGP Site and thesuggested remedial measures. These opinions were all similar in concept, however, they differed as to the number andplacement of wells and the duration for sampling and monitoring. While the environmental consultants have slightlydiffering opinions as to NAPL and dissolved phase contamination sources and how the contamination is migrating,they all agree that MGP contamination has migrated to the J&L site. Furthermore, they all agree that sampling to datehas been too sporadic and the resulting data insufficient to know whether the contamination is stable and in a state ofdynamic equilibrium. Thus, additional sampling and analytical data is necessary to better understand the extent of thecontamination and to predict how the MGP contamination may migrate in the future, any natural attenuation of thecontaminate plume, and any possible effect on sensitive receptors.

*6 Based upon the evidence, we conclude that NAPL and dissolved phase contamination in groundwater on the MGPand J&L sites poses a threat to public health from contact or ingestion and that the sites will remain contaminatedfor the foreseeable future. Furthermore, NAPL fate and transport is complex and there is insufficient data to date toknow whether contaminate levels are stable and in equilibrium. Lastly, we conclude that because the Black River is asensitive receptor located groundwater downgradient from the contamination, monitoring is appropriate to ensure thecontamination does not threaten the river. While Bradford's environmental consultant opined that it is not possible for

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MGP contamination to reach or impact the Black River, we conclude that this opinion is not supported with sufficientscientific data.

Deference

We first address arguments from both ANR and Bradford regarding what degree of deference is to be afforded to ANRin determining the appropriateness of the CAP and the remedy in the Civil Enforcement matter. As a general rule, Courtsdefer to an agency's interpretation of its own regulations. In re ANR Permits in Lowell Mountain Wind Project, 2014 VT50, ¶ 17. Deference is inappropriate, however, where the proposed interpretation would result in unjust, unreasonable,or absurd consequences. In re Verburg, 159 Vt. 161, 165 (1992). Furthermore, no deference is given to agency litigationpositions that are wholly unsupported by regulations, rulings, or administrative practices. Bowen v. Georgetown Univ.Hosp., 488 U.S. 204, 212-13 (1988). These principals are equally applicable whether the matter is a de novo appeal ofagency action or a civil enforcement action.

In a de novo appeal, the ultimate decision appealed (here the CAP) is not entitled to deference per se, but the Agency'sprior regulatory interpretations may be. Lowell Mountain Wind Project, 2014 VT 50, ¶ 11 (noting that with a de novostatutory review no deference is owed to the “permit decision” on appeal but deference is given to agency interpretationof regulations and statutes it implements within its area of expertise). Thus, this Court will not defer to ANR's CAP. Wewill, however, defer to ANR's technical guidance documents. The Agency has established procedures for the remediationof contaminated properties within a document entitled “Investigation and Remediation of Contaminated PropertiesProcedure” (IROC) admitted at trial as exhibit ANR-4. The IROC is a technical guidance document which interpretsthe Agency's regulatory authority and process as it relates to the remediation of contaminated properties. The IROCis thus entitled to deference from the Court. The parties dispute whether we must give deference to the CAP itself. Asnoted above, in a de novo appeal before the Environmental Division, it would be improper to give deference to theCAP. Whether, in the context of the civil enforcement action some degree of deference is owed to the CAP as an Agencydecision made within its area of expertise is a question we need not answer because whether we defer to the CAP or notwe reach the same result based on the provisions of Title 10 Chapter 159 and the IROC.

The Corrective Action Plan

The parties and their experts generally agree on the overall remedial approach outlined within ANR's revised CAP datedSeptember 26, 2013 and last revised on May 12, 2014. We therefore conclude that the requirements of the revised CAP,Exhibit ANR-17B and as further depicted on Exhibit ANR 35, are necessary and reasonable and in accord with theIROC. (See IROC, Ex. ANR-4 at 31-32 (describing use of long-term monitoring as an acceptable site managementtechnique)). Where noted below, however, we require certain modifications to the revised CAP to reflect the agreementof the parties at trial, or the evidence presented through the parties expert witnesses.

*7 As noted above, the CAP includes two main elements: land use restrictions and long-term monitoring. First, the landuse restrictions and Bradford's obligation to pursue reclassification of groundwater as described and set forth in ExhibitANR-17B, Section 4.2.1 are reasonable and necessary based on the evidence presented at trial and the procedures in theIROC. (See IROC, Ex. ANR-4 at 34-36). Bradford shall provide ANR with separate proposed deed restrictions within60 days of this Order for the entire Site and the impacted portion of Clinton Street. The Town shall cooperate in goodfaith with Bradford in developing the deed restriction for Clinton Street. SRDC has agreed to the deed restrictions forthe J&L property. (See ANR and SRDC Stipulation). Furthermore, within 60 days of this Order, Bradford shall provideANR with a draft petition to reclassify groundwater from Class III to Class IV as required by the CAP.

With respect to the CAP's long term monitoring program, Bradford asserts that fewer wells are required and challengeswhether monitoring must continue until contamination levels fall below enforcement standards. SRDC does not

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challenge the number of wells required under the revised CAP, however, SRDC asserts that increased sampling frequencyand a few years of sampling and data collection are necessary to determine whether the MGP contamination is in asteady state or migrating. According to the IROC the purposes of the long term monitoring program are:To identify time variant trends in environmental conditions and/or in the operation of remedial systems.

To understand environmental conditions and tracking the fate and transport and/or attenuation of contamination.

To determine if and when action must be taken to further control the release, reduce risks to receptors, improve remedialsystem performance, conduct further site investigation, or discontinue corrective actions.

To determine when site management activity completed status is appropriate.

(IROC, Ex. ANR-4 at 32). Thus, each proposed monitoring well will be included in the program so long as it is infurtherance of these purposes. For the majority of the monitoring wells ANR, Bradford, and SRDC are in agreementthat the inclusion of the wells in the monitoring program is necessary to meet the purposes described in the IROC.

Bradford, however, objects to specific monitoring wells as follows. Bradford asserts that monitoring well JL-101, thenortherly most well on the J&L property, should be relocated to a nearby southeasterly location as shown by pinkhighlight on Exhibit ANR-35. Bradford offers that this relocated position would be a better location to monitor forcontamination migrating toward the Black River and that if placed in this location, JL-101 would obviate the need forwell NW-4. Bradford is opposed to NW-4 because of its concern that if contamination is detected within this well, it maynot be possible to determine its source as originating from the MGP Site or J&L site.

Bradford also objects to NW-04-14, a sentinel well 1 , arguing it is too far removed from MGP contamination and willnot act as an early warning well. Furthermore, Bradford is concerned about the possibility of residual contaminationfrom a 70,000 gallon UST tank formerly on the J&L site located by the chip shed, which at one time contained petroleumproducts. Thus, Bradford argues that if contamination is shown in the well, it will be difficult to know whether it is fromthe MGP Site, for which it is responsible, or the J&L site, which it arguably is not. Lastly, NW-04-14 would be expensiveto install and sample and therefore does not meet CAP guidelines. As for sentinel well NW-04-16, Bradford advancesthe same concerns but argues that well NW-04-16 is located even closer to the location of the former chip shed, whichwould create a greater probability of residual contamination interfering with contamination readings.

*8 As we conclude above, there is insufficient data collected to date to confidently predict the migration of MGPcontamination on or across Bradford's Site, Clinton Street, or the J&L property. No party argues that JL-101, NW-4,MW-04-14, or MW-04-16 will be unsuccessful in detecting contaminate migration to the north or toward the BlackRiver, should that occur. Bradford's concerns go more to the possibility of non-MGP contamination being detected ina well. Based upon the expert's testimony, this concern can be addressed through additional sampling and expandedanalyses of the samples. Absent a compelling reason to alter proposed monitoring well locations, we will honor SRDC'sunderstanding and agreement with ANR on the placement of monitoring wells on its property, which apparently willminimize adverse impacts on SRDC's plans to redevelop its property. Based upon the evidence before the Court at thistime, we find no compelling reason to alter monitoring well locations JL-101, NW-4, MW-04-14, or MW-04-16.

With respect to NW1 and NW2, expert testimony debated the need for both wells or whether a single well in this areawould be sufficient. While ANR asserts that it prefers both wells, ANR also acknowledged that a single well at the NW1location would be an acceptable alternative. The compelling testimony of both SRDC's and Bradford's experts affirmedthat having two wells so near each other in this location was not necessary to further the purposes of the IROC, and thata single monitoring well would suffice. Thus, we will eliminate NW2.

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When pressed at trial, ANR's expert witness agreed with the expert witnesses of Bradford and SRDC that the goals of theIROC and the CAP are met without inclusion of monitoring well NW-3. That well is therefore also eliminated from themonitoring program. As for MW-14, Bradford argues that it is outside the preferred pathway and useless, as opposed toANR and SRDC's suggestion that it is a good location to identify the southern end of the contamination plume. Thus,we conclude that it is necessary and reasonable to keep MW-14.

Required Groundwater Monitoring Wells

The Court therefore concludes that ANR's well array consisting of the wells listed on pages 18 and 19 of the Revised CAP,Exhibit ANR-17B, and as depicted on Exhibit ANR 35, are necessary and reasonable with the following modifications:1. Wells GMW-2, GMW-4, MW-10S, JL-103, JL-4, MW-12, MW-13, MW-14, MW-6, MW-9S, JL-101, MW-04-14,MW-04-16 remain as shown and described.

2. Wells NW-2 and NW-3 are eliminated.

3. NW-4 (NW-4S/4D) - Pursuant to the Stipulation between ANR and SRDC, this well is to be relocated to facilitate thepotential redevelopment of the SRDC property. The new location is shown on Exhibit ANR-35. This well will consistof a nested shallow well (NW-4S) and a deep well (NW-4D). There is some concern that if contamination is detectedwithin this well, it may not be possible to know whether its source is MGP or J&L site contamination. Both Bradford andSRDC are free to present evidence of the source of any such contamination in response to the sample analysis results.The most important determination, however, will be whether the potential exists that MGP contamination is migratingtowards the Black River, and if it does, whether further steps are needed to protect that sensitive receptor.

Monitoring Frequency

The revised CAP sets forth an initial 5 year period for groundwater sampling and analysis. Specifically, quarterlysampling is required in the first two years to gather baseline data and to account for any seasonal fluctuations. Semi-annual sampling and analysis is required for the next two years followed by annual sampling in year 5. After year 5,the CAP requires annual sampling for the next 25 years. The CAP allows for Bradford to periodically request, basedupon collected data, less frequent sampling and the elimination of wells from the sampling program. ANR selected the30 year monitoring period because it is likely that MGP contaminates, especially naphthalene, will continue to exceedthe VGES of 20 ppb for more than 30 years.

*9 Bradford argues that because the MGP ceased operations in 1951, any release occurred long ago and even thoughenvironmental contamination is apparent, based upon sampling and data generated to date, the contamination plumeis stable. Thus, Bradford argues that a 2 year quarterly monitoring program is sufficient to understand seasonal impactsand that statistical analysis can be used to predict long term stability. If this approach does not support contaminatestability, then Bradford agrees that longer term monitoring is appropriate.

SRDC agrees that without seasonal groundwater fluctuations, 2 years of quarterly sampling will likely be sufficient. If,however, there is seasonal fluctuation, SRDC argues that 8 years of quarterly monitoring may be required to understandcontamination conditions.

As part of ANR's rebuttal, ANR agreed that quarterly sampling and analysis for the first 2 years would provide enoughdata for Bradford to make a formal request to modify the CAP (Section 4.2.2.6) to reduce the number of wells to besampled in the future. According to ANR, Bradford would be required to continue semi-annual sampling, analysis, andreporting with sampling occurring in the late fall and late spring while ANR considers Bradford's request to modify the

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CAP. The parties propose that once Bradford files a request to modify the CAP, ANR must respond in writing within30 days, and thereafter, Bradford would then have 30 days to reply to ANR's response.

We conclude that it is reasonable to require Bradford to perform quarterly sampling, analysis and reporting for the first2 years and that based upon this data Bradford could then make a formal request to modify the CAP to reduce thenumber of wells to be sampled in the future. Bradford will be required to continue semi-annual sampling, analysis, andreporting, with sampling occurring in the late fall and late spring, while ANR considers Bradford's request to modify theCAP. Once Bradford files a request to modify the CAP, ANR must respond in writing within 30 days, and thereafter,Bradford will then have 30 days to reply to ANR's response. ANR must then issue a written decision on Bradford'srequest within 45 days; this decision will be appealable to this Court. The CAP is otherwise unmodified with respect to

sampling frequency, reporting and requests for modification of the CAP. 2

The CAP's long term groundwater monitoring program is based upon the hypothesis that the LNAPL, DNAPL, anddissolved phase contaminate plumes are in a state of dynamic equilibrium, meaning that NAPL accumulations areessentially stable. The data upon which this hypothesis is based are several years old, from different monitoring pointsand times, and thus insufficient. It is therefore necessary to collect more data on an ongoing basis to further analyzethis hypothesis.

Bradford requests an order that it may cease groundwater monitoring in the event there is sufficient data to demonstratethat contaminate levels are stable or declining. This request is, at this time, based upon hypothetical facts. We will notissue an advisory opinion based upon hypothetical facts. In re All Metals Recycling, Inc., No. 171-11-11 Vtec, slip op. at8 n.5 (Vt. Super. Ct. Envtl. Div. Apr. 23, 2012) (Walsh, J.). While the monitoring program can be reviewed and adjustedover time, at this time it cannot be eliminated at some specific future date. Similarly, we leave ANR's assertion thatmonitoring must continue until enforcement standards are satisfied for future consideration once there is sufficient datato reliably predict the status and nature of contamination.

*10 The IROC states that “long term monitoring is a sufficient method of managing a site until it established that thenatural processes of dilution, dispersion, degradation, or other mechanism(s) will reduce contaminant concentrations tolevels that no longer exceed applicable standards, and no longer are an unacceptable risk to sensitive receptors.” (IROC,Ex. ANR-4 at 31). The use of land use controls, including the groundwater reclassification, is intended to eliminateany unacceptable risk to humans as sensitive receptors. Thus, with those controls in place and use of the groundwaterprohibited, it is not clear that the VGES would still be “applicable.” We conclude, however, that at this time Bradford'sand ANR's disagreement over the future end date is not appropriate for judicial determination as the Court has nofacts to base its decision on. See Parker v. Town of Milton, 169 Vt. 74, 77 (1998) (recognizing that the judicial authorityis limited to actual cases or controversies and not “mere speculat[ion] about impact of some generalized grievance”).Bradford's suggestion that under the revised CAP it may be required to continue monitoring in excess of the time requiredunder the statutes, regulations, and the IROC is mere speculation and hypothesis.

Analytical Methodologies

The revised CAP requires analytical EPA Method 8021b and EPA Method 8270. ANR selected these methods becausethey are the least costly methods capable of generating the required data. Bradford proposes using EPA Method 8270d,a method with achieves a lower detection limit, in place of EPA Method 8270, and EPA Method 8260b in place ofEPA Method 8021b. ANR does not object to these substitutes. We conclude that Bradford may, at its election and in ascientifically uniform manner, substitute EPA Method 8270d for Method 8270 and substitute EPA Method 8260b forMethod 8021b.

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ANR'sCost Recovery

ANR seeks to recover its costs paid to The Johnson Company for site investigation and analysis. ANR requested thatBradford perform additional site investigation work and Bradford failed to timely do so. As a result, ANR retainedThe Johnson Company to do the additional work. ANR offers that The Johnson Company's work was necessary tounderstanding the Site and contamination and to evaluate the potential impacts to public health and the environment.See 10 V.S.A. § 6615(a)(4)(B). ANR paid $38,227.96 to The Johnson Company and Bradford does not dispute thisamount or its reasonableness. ANR additionally request that prejudgment interest of 12% per annum be added to thiscost. Prejudgment interest is typically awarded as of right when damages are liquidated or reasonably certain. BirchwoodLand Co., Inc. v. Ormond Bushey & Sons, Inc., 2013 VT 60, ¶ 23, 194 Vt. 478; See V.R.C.P. 54(a) (“In an action wheremonetary relief is awarded, the amount of the judgment shall include the principal amount found to be due [and] allinterest accrued on that amount up to and including the date of entry of judgment....”). ANR payments to The JohnsonCompany are summarized in Exhibit ANR-19. Attached as Appendix 1 of ANR's Proposed Finding of Fact and Post-Trial Memorandum is ANR's calculation of Prejudgment interest through July 31, 2-14.

Bradford does not oppose ANR's request for cost recovery or request for prejudgment interest. We therefore concludethat ANR's costs paid to The Johnson Company are reasonable and Bradford shall reimburse ANR the $38,227.96 plusprejudgment interest of 12% per annum. Within 7 days of this Decision, ANR shall file an updated prejudgment interestcalculation showing accrued interest to the date of this decision. Within 30 days of ANR filing the updated Prejudgmentinterest calculation, Bradford shall pay to ANR the $38,227.96 plus the full prejudgment interest up to the date of thisdecision.

Conclusion

We conclude that the deed restrictions and Bradford's obligation to pursue reclassification of groundwater as describedand set forth in Exhibit ANR-17B, Section 4.2.1 are reasonable and necessary. Bradford shall provide ANR with separateproposed deed restrictions within 60 days of this Order for the entire Site and the impacted portion of Clinton Street.The Town shall cooperate in good faith with Bradford in developing the deed restriction for Clinton Street. SRDC hasagreed to the deed restrictions for the J&L property. Within 60 days of this Order, Bradford shall provide ANR with adraft petition to reclassify groundwater as required by the CAP.

*11 The Court also concludes that ANR's well array consisting of the wells listed on pages 18 and 19 of the Revised CAP,Exhibit ANR-17B, and as depicted on Exhibit ANR 35, are necessary and reasonable with the following modifications:1. Wells GMW-2, GMW-4, MW-10S, JL-103, JL-4, MW-12, MW-13, MW-14, MW-6, MW-9S, JL-101, MW-04-14,MW-04-16 remain as shown and described.

2. Wells NW-2 and NW-3 are eliminated.

3. NW-4 (NW-4S/4D) - Pursuant to the Stipulation between ANR and SRDC, this well is to be relocated to facilitatethe potential redevelopment of the SRDC property. The new location is show on Exhibit ANR-35. This well will consistof a shallow well (NW-4S) and a deep well (NW-4D).

We require Bradford to perform quarterly sampling, analysis, and reporting for the first 2 years and, based upon thisdata, Bradford may then make a formal request to modify the CAP to reduce the number of wells to be sampled in thefuture. While ANR considers Bradford's request to modify the CAP, Bradford will be required to continue semi-annualsampling, analysis, and reporting with sampling occurring in the late fall and late spring. Once Bradford files a requestto modify the CAP, ANR must respond in writing within 30 days, and thereafter, Bradford will have 30 days to reply to

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ANR's response. ANR must then issue a written decision on Bradford's request within 45 days; this decision would beappealable to this Court. The CAP is otherwise unmodified with respect to sampling frequency, reporting, and requestsfor modification of the CAP.

Bradford may, at its election and in a scientifically uniform manner, substitute EPA Method 8270d for Method 8270and substitute EPA Method 8260b for Method 8021b.

Bradford's request that the Court order that it may cease groundwater monitoring if there is sufficient data todemonstrate that contaminate levels are stable or declining is denied at this time.

Bradford shall reimburse ANR the $38,227.96 paid to The Johnson Company plus prejudgment interest of 12% perannum. Within 7 days of this Decision, ANR shall file an updated prejudgment interest calculation showing accruedinterest to the date of this decision. Within 30 days of ANR filing the updated Prejudgment interest calculation, Bradfordshall pay to ANR the $38,227.96 plus the full prejudgment interest up to the date of this decision.

This concludes the matter before the Court. A Judgment Order accompanies this Merits Decision.

Electronically signed on December 22, 2014 at 04:00 PM pursuant to V.R.E.F. 7(d).

<<signature>>

Thomas G. Walsh, Judge

Superior Court, Environmental Division

Footnotes1 A sentinel well is a groundwater monitoring well situated between a sensitive receptor downgradient and the source of a

contaminant plume upgradient. Contamination should be first detected in the sentinel well which serves as a warning thatcontamination may be moving closer to the receptor.

2 Bradford summarily challenged the CAP's 'three-tiered Approach” to the long term monitoring. Based upon the evidencebefore the Court, although this approach has not been previously utilized by ANR, it is consistent with the IROC and wehave no specific evidence to support modification or elimination of this approach from the CAP.

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Chioffi v. Winooski Zoning Bd., 151 Vt. 9 (1989)

556 A.2d 103

© 2017 Thomson Reuters. No claim to original U.S. Government Works. 1

151 Vt. 9Supreme Court of Vermont.

Gregory CHIOFFIv.

WINOOSKI ZONING BOARD.

No. 87-100.|

Jan. 13, 1989.

Property owner appealed denial of dimensional varianceand conditional use approval by local zoning board. TheSuperior Court, Chittenden County, Arthur J. O'Dea, J.,declared that property owner was not entitled to de novotrial, and appeal followed. The Supreme Court, Gibson,J., held that statute providing that party appealing fromdecision of local zoning board be entitled to de novo trialwas constitutional.

Reversed and remanded.

West Headnotes (1)

[1] Zoning and PlanningValidity of statutes

Statute providing for trial de novo in superiorcourt on appeal from decision of local zoningboard was constitutional; as in renderingdecision on landowner's dimensional varianceand conditional use permit, local zoningboard was performing quasi-judicial function.24 V.S.A. § 4472(a); Const. C. 2, § 5.

16 Cases that cite this headnote

Attorneys and Law Firms

**104 *9 Jarvis & Kaplan, Burlington, for plaintiff-appellant.

William E. Wargo, City Atty., Winooski, for defendant-appellee.

Jeffrey L. Amestoy, Atty. Gen. and Marilyn SigneSkoglund, Asst. Atty. Gen., Montpelier, for amicus curiaeState.

Before ALLEN, C.J., PECK, GIBSON and DOOLEY,JJ., and KEYSER, J. (Ret.), Specially Assigned.

Opinion

GIBSON, Justice.

Plaintiff appeals from a decision by the ChittendenSuperior Court holding unconstitutional the de novo trialprovision of 24 V.S.A. § 4472. We reverse.

*10 I.

The facts are not in dispute. Plaintiff sought adimensional variance and conditional use approval priorto reconstructing a substantially fire-damaged structurein the City of Winooski. After a hearing, the WinooskiZoning Board (Board) denied plaintiff's request becauseplaintiff had not shown compliance with the conditionaluse criteria, and because, due to the lapse of more thantwelve months following the fire, reconstruction rightsunder the city's zoning ordinance had expired. Under thesecircumstances, the minimum lot size provisions of theordinance prohibited the proposed reconstruction.

Plaintiff appealed this decision to the Chittenden SuperiorCourt pursuant to 24 V.S.A. § 4471. 24 V.S.A. § 4472(a)provides that such appeals shall be by trial de novo.After several cross motions for summary judgment hadbeen denied, the Board sought a declaratory judgmentfrom the court, asserting that the trial de novo provisionof 24 V.S.A. § 4472(a) violated Chapter II, Section5 of the Vermont Constitution. The court held thatplaintiff was entitled to judicial review of the Board'sdecision, but not a de novo trial, and that the statuteviolated the constitutional principle of separation ofpowers. At the suggestion of the trial court, plaintiffreturned to the Board to seek reconsideration of itsdecision in light of the court's ruling that a trial denovo would be unconstitutional. The Board refused toreconsider the matter, however, determining that for itspurposes the matter was closed. Following the Board'sdecision, the trial court issued its opinion, and plaintiffappealed, alleging that the trial court erred in holding

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unconstitutional the de novo trial provision of 24 V.S.A.

§ 4472. 1

*11 II.

Appeals from decisions of local zoning boards aregoverned by 24 V.S.A. § 4472(a), which provides thata party **105 “shall be entitled to a de novo trial in

the superior court.” 2 A de novo trial “is one where thecase is heard as though no action whatever had beenheld prior thereto.” In re Poole, 136 Vt. 242, 245, 388A.2d 422, 424 (1978). Thus, while the record of theBoard hearing may be admitted as evidence, the superiorcourt is not restricted to that record, nor is the courtrequired to give deference to the Board's decision. TheBoard contends that this treatment of a Board decisionunconstitutionally provides for the judiciary to exercisea legislative or executive function. We conclude that, inrendering its decision, the Board was performing a quasi-judicial function, see Thompson v. Smith, 119 Vt. 488, 508,129 A.2d 638, 651 (1957) (zoning boards are quasi-judicialbodies having quasi-judicial functions and duties), andhold that, when a board of adjustment so acts, a trial denovo in the superior court is constitutionally permissibleif the decision is appealed. See McCammon v. Boyer, 285Ark. 288, 293, 686 S.W.2d 421, 424 (1985) (de novo trial onappeal is not unconstitutional when appeal is from actiontaken by administrative board exercising adjudicatory orquasi-judicial function); Francisco v. Board of Directors,85 Wash.2d 575, 578-79, 537 P.2d 789, 791 (1975) (same).

It is a fundamental principle of our form ofgovernment that the “Legislative, Executive, andJudiciary departments, shall be separate and distinct, sothat neither exercise the powers properly belonging to theothers.” Vt. Const. ch. II, § 5. This constitutional provisiondoes not require an absolute separation of powers amongthe various departments or branches of government,because, of necessity, there is a certain amount ofoverlap of the powers exercised by the different branches.Trybulski v. Bellows Falls Hydro-Electric Corp., 112 Vt. 1,6, 20 A.2d 117, 119-20 (1941). When there is an overlap,with one branch exercising powers inherent to anotherbranch, “these powers must be such as are incidentalto the discharge of the functions of the departmentexercising them....” *12 In re Constitutionality of HouseBill 88, 115 Vt. 524, 529, 64 A.2d 169, 172 (1949). TheBoard, in the instant case, asserts that a de novo trial

unconstitutionally delegates the legislative function of

determining zoning variances to the superior courts. 3 Cf.Kennedy v. Chittenden, 142 Vt. 397, 399, 457 A.2d 626,627 (1983) (statute purporting to confer jurisdiction onsuperior court to hear and determine matters relatingto elections to the Vermont House of Representatives isimproper delegation of legislative powers to the judicialbranch).

A number of courts have examined this issue. Theprevailing theory allows trial de novo of an administrativeagency action if the agency operated in a quasi-judicialcapacity in reaching its decision.

In reviewing the law on judicialreview of administrative action,the constitutional jurisdiction ofthe superior court on appealfrom agency action is as follows:If the power exercised by anagency is essentially administrative,the superior court, upon appealprovided by statute, is limited to aconsideration of whether the agencyacted arbitrarily, capriciously, orcontrary to law. If the administrativeagency performs an essentiallyjudicial function, the superior court,on appeal from a decision of theboard, has, if there is a statute sopermitting, the constitutional powerto allow a trial de novo.

Francisco, 85 Wash.2d at 578-79, 537 P.2d at 791(emphasis added; citations omitted). **106 A trial denovo is not presumed; it is only allowed where it hasbeen specifically provided by statute. See State of VermontDepartment of Taxes v. Tri-State Industrial Laundries,Inc., 138 Vt. 292, 296, 415 A.2d 216, 219 (1980).

This Court has previously held that zoning boards,in ruling on applications for special exceptions to azoning ordinance, perform quasi-judicial functions. *13Thompson v. Smith, 119 Vt. at 508, 129 A.2d at 651.While there is a division of opinion over the issue, mostjurisdictions have determined that administrative agenciesadjudicating zoning variance issues are acting in a quasi-judicial manner. See, e.g., Fasano v. Board of CountyCommissioners, 264 Or. 574, 580, 507 P.2d 23, 26 (1973).But see, e.g., Quinn v. Town of Dodgeville, 122 Wis.2d

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570, 583-85, 364 N.W.2d 149, 157 (1985). In distinguishinglegislative from judicial powers, “it is the nature of the actperformed, rather than the name of the officer, board oragency which performs it, that determines its character.”Gawith v. Gage's Plumbing & Heating Co., 206 Kan.169, 179, 476 P.2d 966, 973 (1970); see also Ward v.Village of Skokie, 26 Ill.2d 415, 424, 186 N.E.2d 529,533 (1962) (Klingbiel, J., concurring) (“It is not a partof the legislative function to grant permits, make specialexceptions, or decide particular cases.”).

In the instant case, the Board was performing a quasi-judicial function in determining the applicability of a validcity zoning ordinance to the facts of the case, i.e., inapplying the law to the facts. See Sorg v. North HeroZoning Bd., 135 Vt. 423, 427-28, 378 A.2d 98, 102 (1977).In an appeal to superior court, the court is required by24 V.S.A. § 4468(a) to apply certain specified criteria tothe facts before it. These criteria are exactly the sameas those the Board is required to apply. Thus, the courtis restricted to its traditional judicial role of finding thefacts and applying the law to the facts before it. TheLegislature decided to authorize a trial de novo when there

is an appeal to the superior court, 4 and although thisprocedure arguably results in an unnecessary duplicationof time and resources, it is not unconstitutional.

We caution the trial courts, however, that their functionin conducting de novo trials under 24 V.S.A. § 4472(a) is

not to set policy for the municipalities. Although a courtmay be called upon to find such facts as “the appropriateuse or development of adjacent property” and whethera variance would be “detrimental to the public welfare,”24 V.S.A. § 4468(a)(4), the court must resist the impulseto view itself as a super planning commission. These aredeterminations that verge on being legislative functions.See In re Guerra, 94 Vt. 1, 8, 110 A. 224, 227 (1920)(subject to constitutional limitations, the Legislature, inexercising its police *14 power, may pass measures forthe general welfare of the state, “and is itself the judgeof the necessity or expediency of the means adopted”);Comment, Judicial Control Over Zoning Boards of Appeal:Suggestions for Reform, 12 UCLA L.Rev. 937, 939-40(1965) (duties of planning commissions are analogous tothose of Legislature; “special competence of the courts issaid to lie not in law making, but rather in interpretingthe law and requiring that it conform to statutory orconstitutional provisions.”).

We remand the cause to the superior court for a de novotrial.

Reversed and remanded.

All Citations

151 Vt. 9, 556 A.2d 103

Footnotes1 We note that no final order was ever issued by the superior court on the merits of the appeal taken to it. Technically,

therefore, there is no final judgment, and the only proper avenue for this case to arrive at our doorstep is V.R.A.P. 5;however, there is no order from the trial court under V.R.A.P. 5 authorizing an interlocutory appeal. None of the partieshave raised this issue. Nevertheless, because a remand of this case to the trial court would result in a useless act by thetrial court if it were to pursue the course outlined in its decision by holding something less than a de novo trial, and inthe interest of expediting a decision herein, we shall, on our own motion, suspend the provisions of V.R.A.P. 5 and allowthe appeal of this matter to go forward at this time. V.R.A.P. 2.

2 We note that “de novo review,” a procedure that might not require a retrial or extensive judicial record making, is notthe standard required by the statute. For a discussion of “de novo review,” see 2 C. Koch, Jr., Administrative Law andPractice § 9.3 (1985).

3 Prior to the most recent amendment to 24 V.S.A. § 4472(a), this Court stated that a trial court may “ ‘not interfere withzoning or administrative action concerning special uses, variances, exceptions or non-conforming uses unless clearlyunreasonable, irrational, arbitrary or discriminatory.’ ” Clouatre v. Town of St. Johnsbury Board of Zoning Adjustment,130 Vt. 189, 193, 289 A.2d 673, 676 (1972) (quoting DeWitt v. Town of Brattleboro Zoning Board of Adjustment, 128 Vt.313, 319, 262 A.2d 472, 476 (1970)). In 1974, the provision authorizing a de novo trial in superior court was added tothe statute. 1973, No. 255 (Adj.Sess.), § 3.

4 The statute states that parties “shall be entitled to a de novo trial.” 24 V.S.A. § 4472(a) (emphasis added). Conceivably,the injured party could request a lesser degree of scrutiny.

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Hinesburg Hannaford Wetland Determination, 2015 WL 1265086 (2015)

© 2017 Thomson Reuters. No claim to original U.S. Government Works. 1

2015 WL 1265086 (Vt.Super.) (Trial Order)Superior Court of Vermont.

Environmental DivisionChittenden County

HINESBURG HANNAFORD WETLAND DETERMINATION.

No. 73514.March 4, 2015.

Decision on Motion to Dismiss and Motion for Summary Judgment

Thomas G. Walsh, Judge.

DECISION ON MOTIONS

*1 The pending appeal relates to development proposed by Martin's Foods of South Burlington, LLC (Applicant) onLot 15 of the Commercial Park subdivision in the Town of Hinesburg, Vermont (the Town). Applicant proposes toconstruct a 36,000 square foot Hannaford grocery store and pharmacy with associated parking and site improvements.This development proposal requires multiple state and local land use permits and decisions, all of which, it seems,have been appealed to this Court. This appeal relates to a wetland determination made by the Vermont Agency ofNatural Resources (ANR). A group of interested persons, Catherine Goldsmith, James Goldsmith, Jean Kiedaisch,John Kiedaisch, Chuck Reiss, Sally Reiss, Lindsay Hay, Brian Bock, Natacha Liuzzi, Mary Beth Bowman, WendelinPatterson, Bethany Ladimer, Kate Schubart, Michael Sorce, Dark Star Properties, LLC, and Responsible GrowthHinesburg, an association of Hinesburg residents (Appellants), oppose the development and have appealed the ANRwetland determination to this Court. Appellants are represented in this appeal by attorney James A. Dumont. ANR isrepresented by attorney Leslie Welts. Applicant is represented by attorney Christopher D. Roy.

Factual Background

For the sole purpose of putting the pending motions into context the Court recites the following facts which areundisputed:

1. Martin Foods of South Burlington, LLC seeks to construct of a new 36,000 square foot supermarket and pharmacystore; a new driveway, parking lot, and sidewalks; and new municipal water and sewer connections on Lot #15 of theCommerce Park subdivision in the town of Hinesburg, Vermont (the Project).

2. The development includes an area of Lot # 15 that is designated as a Class II wetland. In order to develop the site,Applicant plans on filling in a portion of the wetland and implementing stormwater management systems and othermitigation.

3. At some time on or before February 4, 2013, Applicant petitioned the Vermont Agency of Natural ResourcesDepartment of Environmental Conservation (DEC) to reclassify the wetlands from Class II to Class III wetlands.

4. DEC deemed the petition complete on February 4, 2013.

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5. No permit would be required for filling Class III wetlands, whereas Class II wetlands require a DEC permit beforeconducting any activity therein.

6. Appellants opposed reclassification by writing letters to DEC and participating in hearings before DEC throughtheir attorney. DEC conducted several site visits with Applicant and its representatives but Applicant did not permitAppellants to enter the property for these visits.

7. At two public meetings Appellants were allowed to present expert testimony regarding the values served by thewetlands that they alleged would be harmed by the reclassification.

8. Appellants also submitted documents to DEC after the public hearings arguing why, under the Vermont WetlandsRule, the wetlands at issue should remain designated as Class II wetlands.

9. On April 2, 2014, DEC issued a written decision granting Applicant's petition and reclassifying the wetland as Class III.

*2 10. Appellants requested that DEC reconsider this decision, arguing that DEC had relied on information notprovided to Appellants and that Appellants wanted that information in order to respond to the decision.

11. DEC denied the request to reconsider on May 7, 2014.

12. On May 27, 2014 Appellants appealed DEC's reclassification decision to this Court.

Analysis

Appellants raise several questions in their Statement of Questions related this Court's jurisdiction to review the wetlandreclassification and the constitutionality of such review. ANR moved to dismiss those questions for failure to state a claimupon which relief can be granted, pursuant to Vermont Rule of Civil Procedure (V.R.C.P.) 12(b)(6). As ANR's motionasks the court to consider matters outside the pleadings, including a statement of facts presented with ANR's motionwe treat the motion as one for summary judgment pursuant to V.R.C.P. 56. V.R.C.P. 12(b). Subsequently, Appellantsmoved for summary judgment on those same issues and presented their own statement of material undisputed facts andmemorandum of law in support of their motion and in opposition to ANR's motion. Applicant filed a memorandum oflaw in support of ANR's motion and in opposition to Appellants' motion for summary judgment.

I. Summary Judgment Standard

We will grant summary judgment to a movant upon showing that “there is no genuine dispute as to any material fact andthe movant is entitled to judgment as a matter of law.” V.R.C.P. 56(a). When considering cross-motions for summaryjudgment, the Court considers each motion individually and gives the opposing party the benefit of all reasonable doubtsand inferences. City of Burlington v. Fairpoint Commc'ns, Inc., 2009 VT 59, ¶ 5, 186 Vt. 332.

II. Judicial Review of DEC Class II to Class III Wetland Reclassification

In their Statement of Questions, Appellants raise three issues: first, whether the reclassification of wetlands from ClassII to Class III is rulemaking, second, whether the separation of powers doctrine prohibits this Court from engaging inde novo review of wetland reclassification, and third, whether the wetland reclassification should be remanded to DECto create a full and fair record in accordance with the Vermont Administrative Procedures Act due to procedural defectsbelow.

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A. Class II to Class III wetland reclassification.

Appellants' first argument is that the reclassification of wetlands is accomplished through administrative rulemaking andshould therefore follow the procedural requirement for formal rulemaking, including the procedure for appeals, whichmust be brought in accordance with the Administrative Procedures Act.

We start with the statutory authorization for ANR's designation of wetlands. Title 10 V.S.A. § 914 sets out this authority.That section, titled Wetlands determinations, states:(a) The Secretary may, upon a petition or his or her own motion, determine whether any wetland is a Class II or ClassIII wetland. Such determinations shall be based on an evaluation of the functions and values set forth in subdivisions905b(18)(A) of this title and the rules of the Department.

(b) The Secretary may establish the necessary width of the buffer zone of any class II wetland as part of any wetlanddetermination pursuant to the rules of the Department.

*3 (c) The Secretary shall provide by certified mail written notice of a proposed determination to the owner of eachparcel of land within or adjacent to the wetland or bovver zone in question; publish notice on the Agency website;and provide an electronic notice to persons who have requested to be on a list of interested persons. Such notice shallinclude the date of the Secretary's proposed determination and shall provide no fewer than 30 days from the date of theSecretary's proposed determination within which to file written comments or to request that the Secretary hold a publicmeeting on the proposed determination.

(d) The Secretary shall provide, in person, by mail, or by electronic notice, a written copy of a wetland determinationissued under this section to the owner of each affected parcel of land and to the requesting petitioner.

(e) The Secretary may recommend to the panel that a wetland be classified as a Class I wetland under section 915 ofthis title.

10 V.S.A. § 914. Section 915 provides that:

The classification of any wetland as a Class I wetland, the reclassification of a Class I wetland as aClass II or III wetland, the reclassification of any Class II or Class III wetland as a Class I wetland,or the modification of the buffer zone of a Class I wetland shall be made by the department pursuantto the rulemaking provisions of 3 V.S.A. chapter 25.

10 V.S.A. § 915. Thus, under the statutory authorization for wetland determinations, only designation affecting orcreating Class I wetlands are made pursuant to administrative rulemaking, whereas ANR may reclassify a Class IIwetland as a Class III wetland acting on a petition or the Secretary's own motion.

Despite this clear statement from the legislature, Appellants rely on several Vermont Supreme Court cases decidedprior to the adoption of these statutes to argue that all wetland designation must be done through rulemaking. Theearlier of these cases involves a challenge to the Water Resources Board's (WRB) grant of a petition to reclassify awetland from Class II to Class I. Lake Bomoseen Ass'n v. Vermont Water Res. Bd., 2005 VT 79, ¶ 6, 178 Vt. 375). InLake Bomoseen, however, the Court determined that the statutory framework did not provide for judicial review of theWRB decision, concluding that “[t]he statutory language leaves little doubt, however, that the Legislature intended thewetlands classifications process to be a rulemaking proceeding.” Id. at ¶ 10. Discussing whether, “notwithstanding thislegislative choice, the reclassification process [was] so inherently adjudicative that due process requires trial procedures,”

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the Court considered three factors: “1) whether the inquiry is of a generalized nature, rather than having a specific,individualized focus; (2) whether the inquiry focuses on resolving some sort of policy-type question and not merelyresolution of factual disputes; and (3) whether the result is of prospective applicability and future effect.” Id. at ¶ 11(quotations and internal quotation marks omitted). Applying these factors, the Court affirmed the trial court's conclusionthat the wetland reclassification was rulemaking. Id. at ¶ 12.

In a more recent case, Sunset Cliff Homeowners Ass'n v. Water Resources Bd., a declaratory judgment action was broughtin Washington Superior Court challenging the Water Resources Board's (WRB) decision denying a petition to reclassifywetlands from Class III to Class II. 2008 VT 84, ¶¶ 12-14,184 Vt. 584. The Court in Sunset Cliff relied on the holdingfrom Lake Bomoseen that “wetland reclassification was rulemaking.” Id. at ¶ 13 (citing Lake Bomoseen Ass'n v. VermontWater Res. Bd., 2005 VT 79, ¶¶ 12-13, 178 Vt. 375). Again, the Court relied on the fact that no statute provided forsuperior court review of a WRB wetland classification. Id. at ¶ 15 (“The superior court simply does not have jurisdictionto grant the relief Sunset Cliffs seeks in its complaint: a declaration that the WRB's determination not to reclassify thewetland was erroneous .... '[T]he superior court is not a higher environmental agency entrusted with the power to makeenvironmental law and policy de novo or with the power to apply the policy it develops to the facts it finds.”' (quotingConservation Law Found. v. Burke, 162 Vt. 115, 126 (1993))).

*4 In adopting 10 V.S.A. §§ 914 and 915, the Legislature codified its determination that reclassifications other thanClass I wetlands are not rulemaking. Applying the factors from Lake Bomoseen to the reclassification of Class II andClass III wetlands, we support this conclusion: the inquiry before the Court is not of a generalized nature, it has a specific,individualized focus on the particular wetlands on Lot # 15, and it does not focus on the resolution of some sort of policytype question, but on the resolution of factual disputes to which the statute and Wetland Rules are applied. Even thoughthe result of this inquiry is of prospective applicability and will affect future land uses, the effect on adjacent landownersdoes not require a finding that the reclassification is rulemaking rather than adjudicative. See Lake Bomoseen, 178 Vt.at 381.

The text of the statutes themselves support this finding. The statutory framework for an appeal of this is the type ofact or decision of the Secretary specifically provides for de novo review of that Agency decision. 10 V.S.A. § 8504(h)(“The Environmental Division, applying the substantive standards that were applicable before the tribunal appealedfrom, shall hold a de novo hearing on those issues which have been appealed ....”). Additionally, the statute providesthat any act or decision made under § 914 “may be appealed in accordance with chapter 220 of this title,” which includes§ 8504. 10 V.S.A. § 917.

This review is also made expressly clear by the Vermont Wetlands Rules, which provide for the Secretary of ANR todetermine whether a wetland is Class II or Class III, provides for a request to reconsider such a determination, and statesthat “[t]he Secretary's written reconsideration decision shall constitute a final act or decision of the Secretary, subject toappeal pursuant to 10 V.S.A. § 8504 and Section 10 of these Rules.” Vermont Wetlands Rules, § 8, Code of Vt. Rules12 004 056, available at http:// www.lexisnexis.com/hottopics/codeofvtrules. Section 10 of the Vermont Wetlands Rulesstates simply: “Appeals from any act or decision of the Secretary under these rules are governed by 10 V.S.A. § 8504.”Id. Thus, in addition to the test from Lake Bomoseen, the statute and Rules clearly establish that although wetlandsdeterminations to or from Class I wetlands require rule making, determinations related only to Class II and Class IIIwetlands do not. The determination of the Secretary appealed to this Court was, therefore, not rulemaking and de novoappeal is appropriate.

B. Constitutionality and need for remand

Furthermore, this Court's review of acts or decisions of the Secretary of ANR does not violate the separation of powersdoctrine. The Supreme Court has held that, in the context of zoning decisions, as long as the decision on appealinvolved a “quasi-judicial function,” defined as “applying the law to the facts,” de novo judicial review of that decision is

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constitutional. Chioffi v. Winooski Zoning Bd., 151 Vt. 9, 11-13 (1989). This Court is tasked with applying the substantivestandards applicable before ANR, here 10 V.S.A. §§ 914, 905b and the Vermont Wetlands Rules, to the facts. Thisrequires the Court to find facts regarding the specific wetland at issue and apply the law to those facts. As noted above, thedecision to reclassify a wetland from Class II to Class III or vice versa is not rulemaking but is an act or decision of ANRsubject to this Court's de novo review. This does not violate any separation of powers and is therefore constitutional.

C. Procedural defects below

Finally, regarding Appellants' objections to the process before ANR, those procedural defects are cured by de novoreview in this Court. We note that although Appellants object to not receiving some of the information Applicantprovided to ANR, Appellants were provided with ample opportunity to present their evidence and opinions to ANRprior to ANR's determination. None of the alleged procedural defects are the type of fundamental structural errorsthat cannot be cured by de novo review. See In re JLD Props, of St. Albans, LLC, 2011 VT 87, ¶¶ 10-13, 190 Vt. 259(holding that all but the most “structural” procedural errors are cured by subsequent de novo review). We therefore denyAppellants' request to remand for development of a further record for review by this Court. See Chioffi, 151 Vt. at 11(1989) (“A de novo trial is one where the case is heard as though no action whatever has been held prior thereto.”' (quotingIn re Poole, 136 Vt. 242, 245 (1978))).

III. ANR's Motion to Clarify Appellants' Question 2

*5 ANR also moves to require Appellants to clarify Question 2 of their Statement of Questions. Question 2 asks: “Underany form of judicial review of this reclassification of a wetland from Class 2 to Class 3, can applicant satisfy its burden ofproof and is the reclassification lawful under: a. Vermont's wetland statutes; b. Vermont's wetlands regulations; and c.the public trust doctrine?” The Statement of Questions performs a similar function to a civil complaint and requires onlya “short, concise and plain statement that will establish the scope of the appeal, and ultimately, the scope of the issues fortrial.” In re Rivers Development, LLC, Nos. 7-1-05 Vtec, 68-3-07 Vtec, slip op. at 14 (Vt. Envtl. Ct. Jan. 8, 2008) (Durkin,J.). A Statement of Questions must not, however, be overly vague and must put the other parties on notice of the specificreasons for the challenge. See id.; In re Unified Buddhist Church, Inc., Indirect Discharge Permit, No. 253-10-06 Vtec,slip op. at 5 (Vt. Envtl. Ct., May 11, 2007) (Wright, J.). This enables the parties and the Court to focus on the issues incontroversy rather than any and all statutes or regulations that might apply.

Appellants' Question 2(a) and 2(b) do not satisfy this requirement. We note that Appellants' Question 3 addresses manyspecific provisions of the statutes and regulations referenced in Questions 2(a) and 2(b). If there are additional specificstatutory or regulatory provisions that Appellants desire the Court to address in this wetland reclassification beyondthose listed in Question 3 Appellants must state them. ANR's motion to clarify Appellants' Question 2 is GRANTED.If Appellants' fail to file an amended Question 2(a) and (b) within 15 days of this decision those parts of Question 2will be dismissed.

Conclusion

ANR's wetland determinations presently on appeal to this Court are not rulemaking but are acts or decisions of theSecretary of ANR and are thus properly subject to de novo review by this Court. Such review does not violate theseparation of powers doctrine and is constitutional. Finally, the alleged procedural defects in the proceedings beforeANR are cured by de novo review in this Court, and therefore, no remand is necessary. For these reasons we GRANTANR's motion for summary judgment regarding Appellants' Questions 1.A, 1.B, 1.C, and 1.D, and 1.E. We also GRANTANR's motion to clarify Appellants' Question 2 and require Appellants to amend Questions 2(a) and 2(b) to addspecificity. Failure to do so within 15 days of this decision will result in dismissal of those parts of Appellants' Question 2.

Hinesburg Hannaford Wetland Determination, 2015 WL 1265086 (2015)

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Electronically signed on March 04, 2015 at 04:06 PM pursuant to V.R.E.F. 7(d).

<<signature>>

Thomas G. Walsh, Judge

Superior Court, Environmental Division

End of Document © 2017 Thomson Reuters. No claim to original U.S. Government Works.