Pleasant Valley Farms MFO Denial - Decision on Motion ( 2020 )

STATE OF VERMONT
SUPERIOR COURT ENVIRONMENTAL DIVISION
Docket No. 58-5-19 Vtec
Pleasant Valley Farms MFO Denial
ENTRY REGARDING MOTION
Appeal from Dept of Agriculture Large Farm Operations determination (58-5-19 Vtec)
Title: Motion to Clarify SOQ (Motion 1)
Filer: Agency of Agriculture
Attorney: Melanie Kehne
Filed Date: October 18, 2019
Response in Opposition filed on 10/29/2019 by Attorney Joan W. D. Donahue
for Appellant Pleasant Valley Farms, LLC
Reply filed on 11/12/2019 by Attorney Melanie Kehne for the Agency of Agriculture
The motion is GRANTED.
Pleasant Valley Farms of Berkshire, LLC (“PVF”) is the owner and operator of several dairy
farms in northwestern Vermont, including the Lumbra Farm located at 1567 Skunk Hollow Road
in Berkshire, Vermont (“Lumbra Farm”).1 In the present matter, PVF appeals the State of
Vermont Agency of Agriculture, Food, and Markets’ (“AAFM”) denial of coverage under the 2018
Medium Farm Operations General Permit (“MFO GP”) for Lumbra Farm.2 Presently before the
Court is AAFM’s motion to clarify and/or revise specific issues in PVF’s Statement of Questions
pursuant to V.R.E.C.P. 2(d)(2)(iv).
In the interest of clarity and to provide context, this Court recognizes that this case
constitutes PVF’s second appeal of AAFM’s denial for coverage under an MFO GP. Pleasant Valley
Farms Permit MFO, No. 26-3-18 Vtec slip op. at 1 (Vt. Super. Ct. Envtl. Div. June 28, 2019) (Durkin,
J.). In the first appeal (“2018 Appeal”), PVF sought coverage under the 2012 MFO GP and was
denied coverage upon a determination “that the expanded barn has been designed to house
more than the [Large Farm Operation] threshold number of animals listed in 6 V.S.A. § 4851.”
AAFM denial ltr., dated Feb. 19, 2018. While the 2018 Appeal was pending, PVF applied for, was
1
PVF owns and operates farms in the towns of Berkshire, Richford, St. Albans, and Enosburg.
2
PVF previously appealed AAFM’s denial of coverage under the 2012 MFO GP to this Court, which was
dismissed without prejudice based upon the parties’ stipulation that the appeal was moot. Pleasant Valley Farms
MFO, No. 26-3-18 Vtec slip op. at 1 (Vt. Super. Ct. Envtl. Div. Sept. 12, 2019) (Durkin, J.).
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denied, and appealed the new denial of coverage under the 2018 MFO GP. Pleasant Valley Farms
Permit MFO, No. 26-3-18 Vtec at 1 (June 28, 2019). Due to the expiration of the 2012 MFO GP
and the parallel nature of questions underpinning the 2018 Appeal and the present appeal, this
Court held a status conference and dismissed without prejudice the 2018 Appeal. Id. This Court’s
Stipulated Order dismissing the 2018 Appeal provided that issues unresolved in the 2018 Appeal
may be addressed in the new appeal under the 2018 MFO GP.
The present appeal concerns the 2018 MFO GP and reflects the same general concern as
the 2018 Appeal. See Pleasant Valley Farms MFO, No. 26-3-2-18 Vtec slip op. at 2–5 (Vt. Super.
Ct. Envtl. Div. Feb. 20, 2019) (Durkin, J.). Namely, these cases concern whether PVF’s planned
livestock barn expansion at the Lumbra Farm satisfies the statutory requirements of being
classified as a medium farm operation such that it may seek authorization to act under the
General Permit for Medium Farm Operations.
AAFM’s motion to clarify raises multiple arguments concerning Questions 1, 2, 4, and 5 of
PVF’s Statement of Questions. PVF Statement of Questions, filed May 28, 2019, at 1 (hereinafter
“PFV SoQ”). First, AAFM asserts Questions 1, 2, and 5 improperly limit the scope of de novo
review in this appeal pursuant to 10 V.S.A. § 8504(h). Second, AAFM contends Question 4
necessarily implies the resolution of a key issue in PVF’s favor. Third, AAFM requests the
correction of a rule reference error in Question 2. These arguments are addressed in order below.
Legal Standard
We regard a Statement of Questions filed by an appellant in an Environmental Division
proceeding as being similar to a complaint in a civil case. In re Rivers Development, LLC, No. Nos.
7-1-05 Vtec, 68-3-07 Vtec, slip op. at 15 (Vt. Envtl. Ct. Jan. 8, 2008) (Durkin, J.). As such, “the
statement of questions should be a short, concise and plain statement that will establish the
scope of the appeal, and ultimately, the scope of the issues for trial.” In re Champlain Marina,
Inc., No. 28-2-09 Vtec, slip op. at 1–2 (Vt. Envtl. Ct. July 31, 2009) (quoting Appeal of Rivers Dev.,
LLC, Nos. 7-1-05 Vtec & 68-3-07 Vtec, slip op. at 14 (Corrected) (Vt. Envtl. Ct. Jan. 18, 2008)
(Durkin, J.)); accord Pleasant Valley Farms Permit MFO, No. 26-3-18 Vtec, slip op. at 2–3 (Vt.
Super. Ct. Envtl. Div. July 09, 2018). The questions must be sufficiently clear to give the Court
and the other parties notice of the grounds on which the appellant’s claims rest. Reporter’s
Notes, V.R.C.P. 8(a) (citing Conley v. Gibson, 355 U.S. 41, 47 (1957)); 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.) (holding that parties are entitled to a statement of questions that “is not vague
or ambiguous, but is sufficiently definite so that they are able to know what issues to prepare for
trial”).
I. Questions 1, 2, and 5
In Questions 1 and 2, PVF includes a timeframe limitation that restricts review of whether
PVF satisfies the definition of a Medium Farm “at the time of filing the [NOIC].” PVF SoQ at 1.
Question 5 limits review to manure spreading practices “prior to December 22, 2017.” Id. AAFM
argues that Questions 1, 2, and 5 should be revised to exclude this language because inclusion of
the delineated timeframes would limit this Court’s review in a manner inconsistent with the de
novo standard of appeal. AAFM contends that de novo review allows this Court to review facts
to date relevant to the ultimate issue on appeal. PVF asserts that the Court, in “standing in the
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place of the decision maker below,” should consider only the facts that were presented at the
time of the application. PVF’s Reply in Opposition to Appellee’s Motion to Clarify Statement of
Questions, filed on Oct. 28, 2019, at 3 (quoting Stowe Highlands PRD, No. 184-8-06 Vtec, slip op.
at 2 (Vt. Envtl. Ct. Nov. 2, 2006).
As this appeal is taken de novo, pursuant to 6 V.S.A. § 4855, this Court is tasked with
conducting our own review of the evidence presented and rendering our decision on the
appealed application “as though no action whatever has been held prior thereto.” In re Poole,
136 Vt. 242, 245 (1978); see also Chioffi v. Winooski Zoning Bd., 151 Vt. 9, 11 (1989); V.R.E.C.P.
5(g) (stating that appeals under Rule 5 “shall be trial de novo”); In re Preseault, 130 Vt. 343, 348
(1972). A de novo proceeding is one in which “all the evidence is heard anew[] and the probative
effect thereof determined” as though no decision had been previously rendered. In re Preseault,
130 Vt. at 348–349 (1972) (citing In re Automobile Liability Insurance Rates, 128 Vt. 73, 77 (1969)
(stating that the appellate body must consider “the fact-finding significance of a de novo
proceeding”); see also In re Poole, 136 Vt. at 245. This process involves taking in new evidence. 3
Devonwood Investors, LLC 75 Cherry Street, No. 39-5-17 Vtec, slip op. at 2 (Vt. Super. Ct. Envtl.
Div. May 22, 2017) (Walsh, J.) (citing In re Highlands Development Co., LLC and JAM Golf, LLC, No.
194-10-03 Vtec, slip op. at 11 n.10 (Vt. Super. Ct. Envtl. Div. Sep. 21, 2010) (Wright, J.).
Here, PVF is appealing an AAFM determination, which allows de novo review by the
Environmental Division and is statutorily limited in its scope to “whether the medium farm
complies with the terms and conditions of the general permit.” 6 V.S.A. § 4861. In addition,
appeals from AAFM decisions require a trial de novo such that “all questions of law or fact as to
which review is available shall be tried to the Court . . . .” V.R.E.C.P. 5(g). Therefore, AAFM is
correct in noting that this Court may consider all facts to date when assessing whether the
Lumbra Farm NOIC is in compliance with the 2018 MFO GP. In further consideration of the
purpose of a de novo trial, this Court is generally tasked with the interpretation of a party’s future
course of operations based upon their respective representations prior to development. In this
particular case, PVF’s already-completed actions in expansion and operation of the farm lend
perspective on this very issue. For these reasons, we GRANT AAFM’s motion to clarify with
respect to the timeframe limitations in Questions 1, 2 and 5.4
II. Question 4
Question 4 concerns whether Lumbra Farm requires a permit “even though it does not
have a barn that is designed to house more than 699 mature dairy animals, 300-999 cattle or
3
In conducting trial de novo, this Court has noted that it applies the “substantive standards that were
applicable before the tribunal appealed from” to “reach[] an independent decision on the merits” as raised by the
Statement of Questions. In re Highlands Development Co., LLC and JAM Golf, LLC, No. 194-10-03 Vtec, slip op. at 11
n.10 (Vt. Super. Ct. Envtl. Div. Sep. 21, 2010) (Wright, J.); see V.R.E.C.P. 5(g); see State v. Madison, 163 Vt. 360, 370
(1995) (citing Asevedo v. Anchorage School Dist., 843 P.2d 1209, 1209 (Alaska 1992) (stating that the most common
meaning of the term “de novo trial” contemplates new evidentiary hearing and original fact-finding). As V.R.E.C.P.
5(g) requires trial de novo in contrast to review de novo, this Court must undergo an evidentiary hearing that
contemplates the production of new evidence. State v. Madison, 163 Vt. 360, 369 (1995) (citing Chioffi v. Winooski
Zoning Board, 151 Vt. 9, 11 n. 2 (1989)).
4
This decision serves to strike the timeframe limitation language from Questions 1, 2, and 5. As a result,
the phrases “prior to December 22, 20178” in Question 5 and “at the time of filing the Notice of Intent to Comply”
in Questions 1 and 2 in PVF’s Statement of Questions are to be omitted.
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cow/calf pairs pursuant to 6 V.S.A. § 4851.” PVF SoQ at 1. AAFM argues that PVF’s statement
that it “does not have a barn designed to house” such numbers of animals is an issue on appeal
and therefore, the faming of this Question necessarily implies this issue in PVF’s favor. AAFM
suggests modification of the Question to “if it does not have a barn designed to house” in an
effort to clarify that the interpretation of “designed to house” remains unresolved.
Generally, an appellant’s statement of questions serves the dual purposes of establishing
the scope of an appeal and providing notice to the other parties, and this Court, of what issues
are to be addressed during the litigation. See Reporter’s Notes, V.R.E.C.P. 5(f); In re Joyce, 2018
VT 90, ¶ 15, 208 Vt. 226; In re Musty Permit, No. 174-10-10 Vtec, slip op. at 2 (Vt. Envtl. Ct. July
28, 2011) (Durkin, J.); Appeal of Town of Fairfax, No. 45-3-03 Vtec, slip op. at 4 (Vt. Envtl. Ct. June
13, 2005) (Wright, J.). A statement of questions may provide additional legal argument. 5 In re
Musty Permit, No. 174-10-10 Vtec slip op. at 2 (Vt. Envtl. Ct. Mar. 9, 2011) (Durkin, J.). In addition,
the Vermont Supreme Court has noted that a statement of questions has a “limited function”
and “serves to focus, but cannot limit, the issues for the court.”6 In re Estates of Allen, 2011 VT
95, ¶ 8, 190 Vt. 301, 30 A.3d 662 (quotation omitted).
This Court dismissed without prejudice issues from the 2018 Appeal, allowing them to be
addressed in the present appeal. See Rheaume v. Maguire, No. 2012-040, 2012 WL 5974998, at
*2 (Vt. Sept. 26, 2012) (holding that a dismissal without prejudice does not constitute an
adjudication on the merits); Littlefield v. Town of Colchester, 150 Vt. 249, 251 (1988). In the 2018
Appeal, this Court recognized the interpretation of the term “designed to house” as appropriate
for a de novo proceeding and noted that the issue remained unresolved. 7 Pleasant Valley Farms
MFO, No. 26-3-2-18 Vtec slip op. at 2–5 (Vt. Super. Ct. Envtl. Div. Feb. 20, 2019) (Durkin, J.).
Indeed, Question 3 of PVF’s Statement of Questions addresses this very issue. PVF SoQ at 1. As
such, both parties and the Court have received sufficient notice that the interpretation of the
term “designed to house” remains unresolved. Given the unresolved nature of this issue, PVF’s
phrasing of Question 4 is unclear. While it does not necessarily foreclose discussion concerning
the interpretation of the term “designed to house,” it assumes Lumbra Farm “does not have a
barn that is designed to house.” However, if this particular phrase is slightly adjusted as AAFM
suggests to “if it does not have,” the inconsistency with Question 3 is remedied. We therefore
5
AAFM asserts that appellants may not “advance” legal arguments within their Statement of Questions.
To clarify this Court’s holding in In re Musty Permit, while a statement of questions’ primary purpose is not to
advance legal argument, an appellant may accompany their statement of questions with legal argument, pursuant
to V.R.E.C.P. 5(h). See also In re Musty Permit, No. 174-10-10 Vtec slip op. at 2 (Vt. Envtl. Ct. Mar. 9, 2011) (Durkin, J.).
6
Indeed, the Court may consider issues “that constitute ‘a logical corollary’ to the issues presented in the
statement of questions even if those issues are not explicitly stated in the statement of questions.” In re Joyce, 2018
VT 90, ¶ 16 (citing In re Estates of Allen, 2011 VT 95, ¶9–11 (affirming trial court decision requiring a party to prove
an underlying claim where the claim was “clearly relevant to the case” even though claim was not raised in statement
of questions); see also In re Doran, 2010 VT 13, ¶ 13, 187 Vt. 349.
7
In the 2018 Appeal, PVF’s Statement of Questions addressed the interpretation of the term “designed to
house.” This Court modified and approved PVF’s Questions 8 and 9 concerning whether “designed to house” (1)
may be interpreted to depict overall size or number of animals housed, and (2) may be interpreted to consider the
layout, design, intent, use, and number of animals housed in the structure “and if the layout, design, intended, and
actual use of the structure, and intended and actual number of animals housed at the Lumbra Farm fall within the
Medium Farm definition pursuant to 6 V.S.A § 4857(2) [if] the Lumbra Farm [may] be considered a Medium Farm.”
Pleasant Valley Farms MFO, No. 58-5-19 Vtec (EO on Motion to Clarify SOQ) (01-31-2020) Page 5 of 5
direct PVF accept the modification to Question 4. We GRANT AAFM’s motion to clarify with
respect to Question 4.
III. Question 2
Question 2 of PVF’s Statement of Questions addresses whether PVF “satisfied the
definition of Medium Farm Pleasant Valley pursuant to Subchapter I of the Rules.” PVF SoQ at 1.
AAFM contends this is a rule reference error that should read “pursuant to Subchapter III of the
Rules.” AAFM’s Motion to Clarify Statement of Questions, filed Oct. 18, 2019, at 3. PVF made no
argument contesting this correction in their reply to the AAFM’s motion for clarification. The
Court recognizes the rule reference error and the minor typographical error restating “Pleasant
Valley” within Question 2. As such, we direct that PVF accept the following re-wording of its
Question:
2. Whether Pleasant Valley satisfied the definition of a Medium farm pursuant to
Subchapter III of the Rules.
In its pending motion, AAFM does not specifically challenge Question 3 in PVF’s SoQ. This
Question appears to be phrased in a manner to present legal issues that may be presented in a
de novo appeal and is therefore properly before the Court.
For all these reasons, AAFM’s motion to clarify PVF’s Statement of Questions is GRANTED.
The Questions remaining for our review at trial shall include the Questions 1, 2, 4 and 5 as
modified above and Question 3.
The Court Operations Manager shall set this matter for a pre-trial status conference, so
that the matter may be set for trial.
So Ordered.
Electronically signed on January 31, 2020 at Newfane, VT pursuant to V.R.E.F. 7(d).
________________________________
Thomas S. Durkin, Superior Judge
Environmental Division
Notifications:
Joan W. D. Donahue (ERN 4857), Attorney for Appellant Pleasant Valley Farms, LLC
Ebenezer Punderson (ERN 3701), Co-Counsel for Pleasant Valley Farms, LLC
Claudine C. Safar (ERN 3985), Co-Counsel for Pleasant Valley Farms, LLC
Melanie Kehne (ERN 2561), Attorney for the Vermont Agency of Agriculture
Thea J. Schwartz (ERN 3342), Co-Counsel for the Vermont Agency of Agriculture
Christian S. Chorba (ERN 9179), Co-Counsel for Pleasant Valley Farms, LLC
Ryan P. Kane (ERN 6705), Co-Counsel for the Vermont Agency of Agriculture
svalcour
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