Marcelino Waste Facility JO ( 2008 )

STATE OF VERMONT
ENVIRONMENTAL COURT
}
In re: Marcelino Waste Facility } Docket No. 44-2-07 Vtec
(Appeal from Act 250 JO #4-205, 2nd Recons.) }
}
Decision on Motion to Reconsider Dismissal
This matter concerns a jurisdictional opinion issued by the District #4 Environmental
Commission Coordinator (“District Coordinator”), concerning the need for an Act 250 permit for
the A. Marcelino & Company Facility (“Marcelino Facility”), a recycling facility located in
South Burlington, Vermont. Ranger Asphalt and Concrete Processing, Inc. (“Ranger”) first
requested the jurisdictional opinion and then appealed the District Coordinator’s second
reconsideration of that jurisdictional opinion, dated January 23, 2007, in which the District
Coordinator announced his determination that the improvements to the already-existing
Marcelino Facility did not constitute development so as to trigger Act 250 jurisdiction. The
owners of the Marcelino Facility (“Marcelino”) thereafter filed with this Court a motion to
dismiss Ranger’s appeal, which this Court initially denied in a decision dated May 30, 2007.
This Court ultimately reconsidered that determination and, on November 6, 2007, announced its
determination that Ranger’s appeal should be dismissed.
On November 30, 2007, Ranger filed its request that the Court reconsider its dismissal of
Ranger’s appeal. Marcelino filed a memorandum in opposition; the parties thereafter filed
competing reply memoranda. For the reasons more specifically stated below, the Court
concludes that Ranger has as of yet failed to articulate the facts necessary to show that it has
standing to appeal the challenged jurisdictional opinion and therefore declines at this time to
vacate its Decision and Judgment Order of November 6, 2007. However, since the Court’s
November 6th Decision was premised upon its own reconsideration, sua sponte, the Court will
allow Ranger an additional period of time in which to submit an affidavit or other verified
evidence that it complies with the standing requirements contained in the statutes and prior
Vermont Environmental Board and Vermont Supreme Court decisions referenced in our
November 6th Decision. In the alternative, Ranger may forego such filing and determine if an
appeal of our November 6th Judgment Order and Decision is warranted.
Discussion
Ranger offers three arguments in support of its request that this Court reconsider and
reverse the denial of Ranger’s appeal: (1) the Court relied upon a “new standard” in dismissing
Ranger’s appeal and Ranger should therefore be allowed an opportunity to meet this new
standard; (2) a more “relaxed” standing requirement should be applied here, since the standing
Ranger asserts in this proceeding is more procedural in nature than substantive; and (3) Ranger
has met the applicable standing standards.1 We review each of Ranger’s arguments in turn.
I. The Court has not announced a new standard.
Contrary to Ranger’s assertion, the Court did not announce a new standard concerning
the eligibility to appeal a jurisdictional opinion issued by an Act 250 district coordinator. Rather,
it was the Court’s realization that it had not followed prior precedent of the former Vermont
Environmental Board and the Vermont Supreme Court that led this Court to reconsider, sua
sponte, its prior denial of Marcelino’s challenge to Ranger’s standing to appeal in this case. In
our November 6th Decision, we note the foundation spanning many years of the requirement that
one who wishes to appeal a jurisdictional opinion must have standing to maintain the appeal.
See id. at 2–3 (citing Re: Putney Paper Company, Inc., Declaratory Ruling Request #335,
Findings of Fact, Conclusions of Law, and Order at 5-6 (Vt. Envtl. Bd., May 29, 1997) (where
the party’s interests were not affected by the outcome of the district coordinator’s JO, that party
did not have standing to appeal to the E-Board); Re: Alpine Pipeline Company, Declaratory
Ruling Request #415, Memorandum of Decision at 7 (Vt. Envtl. Bd., Jan. 3, 2003) (“The
legislature clearly created a different threshold for requesting a jurisdictional opinion (‘any
person’) and appealing a jurisdictional opinion (only certain interested parties)”); and Re: Stone
Cutter's Way/Winooski East Waterfront Redevelopment Project, Declaratory Ruling Request
#391, Memorandum of Decision (Vt. Envtl. Bd., June 1, 2001) (where a party was not able to
demonstrate injury to a protected interest, that party did not have standing to appeal)).
1
Ranger offers a fourth argument for reconsideration and reversal of the November 6th Decision: that the Court was
simply incorrect in concluding that Ranger’s standing to appeal the challenged jurisdictional opinion cannot flow
from the fact that it was the requesting party. Ranger asserts that it “has a statutory right to appeal the adverse of a
JO to the Environmental Court” and relies upon its prior memoranda for support. We are not aware of the statutory
authority to which Ranger refers and believe the November 6th Decision adequately addressed the prior arguments
asserted by the parties. We therefore decline to further address or grant reconsideration on this basis.
-2-
The standard announced in the November 6, 2007 Decision by this Court has both a long
history from appropriate precedent2 and foundation in applicable state law that pre-dates this
Court’s Act 250 jurisdiction. While it is true that this Court’s authority over Act 250 appeals is
relatively new and this Court had not, prior to November 6, 2007, addressed the standing issue
discussed here, the substantive provisions of 10 V.S.A. § 6007(c) and §§ 8501–8505 pre-date the
assumption by this Court of the responsibility of hearing appeals from Act 250 jurisdictional
determinations. It is therefore inaccurate to characterize the standing requirement for appeals of
jurisdictional opinions as “new.”
II. The November 6th Decision applies the correct standing standard.
Ranger is correct in its assertion that the starting point in a discussion of standing in
Vermont is often Hinesburg Sand & Gravel Co., Inc., v. State of Vermont, 166 Vt. 337 (1997).
We have not found the detailed discussion in Hinesburg that Ranger asserts was adopted by our
Supreme Court from Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992). We note that Lujan is
referenced twice in Hinesburg without detail, as a case that was cited by other authority relied
upon by the Hinesburg Court.
As discussed in our November 6th Decision at 5, Hinesburg is the source for the
procedural directive that a civil court must limit its docket to actual cases or controversies. The
injury alleged cannot be a “generalized grievance.” Hinesburg, 166 Vt. at 341.
The Hinesburg case provides particular illumination for the procedural issue we discuss
here, as it concerned the question of whether a gravel supplier may maintain a suit against the
State of Vermont and its officials when the gravel supplier was not alleging a specific injury, but
rather the generalized fear of a possible future injury (i.e., potential loss of future contracts)
because the State had adopted a policy of not allowing crushed gravel to be used on road projects
in areas where stone was available. The Supreme Court affirmed the Superior Court’s dismissal
of the gravel supplier’s suit for lack of standing. Id. at 341–343. In the case now before us,
Ranger has a commercial facility not wholly unlike the Marcelino Facility; Ranger fears that
Marcelino will obtain an unfair advantage by not being compelled to obtain an Act 250 permit
for alleged development activities that should trigger Act 250 jurisdiction. The District
Coordinator here ultimately determined that the complained-of activities were not attributable to
2
See 10 V.S.A. § 8504(m) (directing us to afford “the same weight and consideration” to prior decisions of the
former Environmental Board as we afford to our own decisions).
-3-
Marcelino and that any Marcelino activities on its already existing Facility did not rise to the
level of Act 250 jurisdictional triggers.
The rights protected by Act 250 are substantive rights. See 10 V.S.A. § 6086(a)(1)–(10).
To have standing to appeal an adverse determination in an Act 250 proceeding, including a
jurisdictional proceeding, a party must specify (1) an injury; (2) to a particularized (i.e., not
generalized) interest protected by Act 250; (3) that is impacted by the proceedings appealed
from; and (4) that this Court can redress. 10 V.S.A. § 8502(7). We have found no authority in
the long history of Act 250 for “any person” to appeal an adverse jurisdictional opinion,
especially those who lack standing. Compare 10 V.S.A. § 6007(c) with §§ 8502(7) and 8504(a)
(§ 6007(c) allows “any person” to request a JO; §8504(a) limits proper appellants of JOs to
“persons aggrieved”, as defined in § 8502(7)). Our November 6th Decision was based upon this
legal distinction. We have not received notice of adequate authority to contradict that long
procedural history and therefore decline to now ignore it.
III. Ranger has failed as of yet to meet the applicable standing standards.
With its request for reconsideration, Ranger submitted an affidavit from its owner, Robert
Mazza. Within this six-page, thirty-one paragraph affidavit, Mr. Mazza explains the rigorous
permitting process he endured for Ranger and the basis for his pride in Ranger’s conformance
with the Chittenden County Regional Plan and the Chittenden Solid Waste District Solid Waste
Management Plan, in which the Regional Plan is referenced. He complains that Marcelino owns
a similar facility in a separate Chittenden County municipality and that he is “flabbergast[ed]” at
the condition and lack of oversight of the Marcelino Facility, including its apparent degradation
of the Regional Plan and Waste Management Plan goals.
We take these allegations as true, for purposes of determining whether our dismissal of
Ranger’s appeal here should stand. See Lodge at Bolton Valley Condominium Ass’n v.
Hamilton, 2006 VT 41, ¶4, 180 Vt. 497, 498 (“A motion to dismiss…should not be granted
unless it appears beyond doubt that there exist no facts or circumstances that would entitle
plaintiff to relief”) (citations and internal quotations omitted). However, Mr. Mazza’s affidavit is
devoid of factual representations upon which this Court could rely in determining that he has
suffered (1) a specific injury; (2) to a particularized interest; (3) over which Act 250 jurisdiction
could be asserted; and (4) that this Court could redress in these proceedings. Thus, we must
-4-
conclude that Ranger has failed to offer a basis upon which this Court could conclude that
Ranger had standing to file this appeal.
Given that this Court dismissed Ranger’s appeal on the Court’s own motion, we believe it
appropriate to afford Ranger one final opportunity to show that it has standing as a “person
aggrieved,” as that term is defined by 10 V.S.A. § 8502(7). In its attempt to do so, we expect
that Ranger will consider the explanation of that term articulated in this Decision and the
Decision of November 6, 2007.
Conclusion
For the reasons stated above, this Court declines to vacate its Decision and Judgment
Order of November 6, 2007. However, we will afford Ranger additional time, until Wednesday,
February 13, 2007, in which to submit an affidavit or other verified evidence upon which this
Court may rely in concluding that Ranger has met the standing requirements of 10 V.S.A.
§ 8502(7). In all other respects, Ranger’s motion for reconsideration is DENIED.
Done at Newfane, Vermont this 28th day of January, 2008.
___________________________________
Thomas S. Durkin, Environmental Judge
-5-