                        Environmental Court of Vermont
                               State of Vermont
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                  E N T R Y R E G A R D I N G M O T I O N
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Champlain Marina Dock Expansion                    Docket No. 28-2-09 Vtec
Project: Expansion of water-borne docks, to accommodate 16 more large boats
Applicant: Champlain Marina, Inc.

Title:        Motion for Partial Summary Judgment, (Filing No. 8)
Filed:        February 4, 2010

Filed By: Craig Weatherly, Attorney for Applicant Champlain Marina, Inc.

Response in Opposition filed on 03/01/10 by Stephen A. Reynes & Jesse L.
      Moorman, Attorneys for Appellant Neighbors

Reply filed on 03/16/10 by Appellee/Applicant Champlain Marina, Inc.

_X_ Granted                 ___ Denied                 ___ Other


      This matter arises out of a decision by the Department of Environmental
Conservation (“DEC”) permitting Appellee/Applicant Champlain Marina, Inc.
(“Champlain Marina”) to add a 177-foot dock extension, with accompanying
finger docks, to its preexisting water-born marina docking facilities in the
Spaulding Bay area of Lake Champlain.    The project site is located in the
Town of Colchester (“Town”). Once completed, this water-borne dock extension
will provide dock space for sixteen additional large boats (i.e., forty feet
in length, or longer).
      The DEC approved the proposed Champlain Marina extension after
determining that Champlain Marina’s proposed project complied with the public
good analysis mandated under 29 V.S.A. § 405(b) and the public trust doctrine
codified in 29 V.S.A. § 401. The Appellants, a group of concerned neighbors
calling themselves “Save the Bay,” filed with this Court a timely appeal of
the DEC decision.
      Champlain Marina has now moved for summary judgment, solely as to
Question 11 of Appellants’ Revised Statement of Questions; Appellants oppose
the pending motion. The challenged Question 11 asks the Court:
         Whether, pursuant to 29 V.S.A. § 405(b), the proposed 177-foot
         dock extension to accommodate large boats with deep drafts in a
         shallow, narrow bay, immediately adjacent to one of the State’s
         largest and busiest public boat ramps, and in the same bay where
         there already exists three marinas, a recreational camp for
         water-related activities, a sea plane base, and many private
         moorings and docks is consistent with § 7.03(F)(5) of the
         Colchester Zoning Ordinance?
      Champlain Marina argues in its motion for partial summary judgment that
§ 7.03(F)(5) of the Town of Colchester Zoning Ordinance (“Ordinance”), which
purports to regulate “any facility which projects outward from the mean-water
mark” of Lake Champlain, improperly usurps the State’s authority to regulate
water-borne encroachments.    In support of its argument, Champlain Marina
claims that water-borne development seaward of the shoreland district
    Champlain Marina Dock Expansion, No. 28-2-09 Vtec (EO on partial SJ motion)
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boundary, which is defined by the mean-water mark, is solely within the
State’s authority to regulate.    Applicant therefore argues that since
Question 11 is premised upon the authority of Colchester Zoning Ordinance
§ 7.03(F)(5) to regulate water-borne activities, Appellants Question 11
should be dismissed.
      Appellants oppose the motion for partial summary judgment and argue
that the “public good” analysis prescribed in 29 V.S.A. § 405(b) requires
determining whether Champlain Marina’s dock extension is consistent with
municipal shoreland zoning ordinances such as Ordinance § 7.03(F)(5).
Appellants claim that the 177-foot dock extension will have a substantial
adverse affect on the shoreland district and therefore review of those
impacts, under 29 V.S.A. § 405(b), is appropriate, necessary, and guided by
the statutory reference to Ordinance § 7.03(F)(5).
      We begin our analysis of whether Appellants’ Question 11 should be
summarily dismissed with a review of the standards under V.R.C.P. 56.
Summary judgment may only be granted when “the pleadings, depositions,
answers to interrogatories, and admissions on file, together with the
affidavits, if any, . . . show that there is no genuine issue as to any
material fact and that [a] party is entitled to judgment as a matter of law.”
V.R.C.P. 56(c)(3).   The Court “place[s] the burden of proof on the moving
party, and give[s] the opposing party the benefit of all reasonable doubts
and inferences.” Chapman v. Sparta, 167 Vt. 157, 159 (1997). We address the
challenge to the propriety of Question 11 in this light.
      In determining whether any encroachment1 will adversely affect the
public good, DEC (and this Court on appeal) must consider the effect of the
proposed encroachment on the “public good” by reviewing several factors,
including “consistency with municipal shoreland zoning ordinances.”       29
V.S.A. § 405(b). In this regard, Appellants have specifically asked by their
Question 11, whether the proposed water-borne dock extensions are consistent
with Ordinance § 7.03(F)(5), which is a provision within Colchester’s
“Shoreland District” regulations.
      At the heart of Champlain Marina’s request for summary dismissal of
Question 11 is whether the Town has the authority to regulate, as stated in
§ 7.03(F)(5), “any facility which projects outward from the mean-water mark.”
Champlain Marina acknowledges, as it must, that DEC, as the authorized state
subdivision, has the authority to regulate water-borne encroachments.
However, it argues that DEC should only consider lawful municipal shoreland
zoning regulations, and that Ordinance § 7.03(F)(5) exceeds the Town’s legal
regulatory authority.
      Both parties cite the Court to its prior decision in a case with a
somewhat similar fact pattern: In re Svendsen Dock Extension Variance, No. 1-
1-09 Vtec, Decision on Cross-Motions for Summary Judgment (Vt. Envtl. Ct.
Oct. 14, 2009) (Durkin, J.).      In Svendsen, we described the State and
municipal roles in regulating shoreland and water-borne activities.     Under
state law, the line of demarcation between shoreland regulation by
municipalities and regulation of water-born encroachments by the state is the
mean-water mark, which is defined in 10 V.S.A. § 1422(8) as the line of

1
  Section 402 provides definitions of the terms used in Title 29, Chapter 11, including 29 V.S.A. § 405. Included
therein is the definition for “encroach,” from which we derive a meaning for “encroachment,” as used in § 405(b), as
“any bridge, dock, boathouse, cable, pipeline or similar structure [placed or to be placed] beyond the shoreline as
established by the mean-water level of any lakes or ponds which are public waters under the jurisdiction of the
[natural resources] board.” 29 V.S.A. § 402.
 Champlain Marina Dock Expansion, No. 28-2-09 Vtec (EO on partial SJ motion)
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distinction between lands of the shore and water bodies held for the public’s
use and enjoyment. Id. at 4–5. In particular, we concluded that:
     Nowhere in Title 24, chapter 117, nor in any provision of Title
     10, chapter 49, [related to shoreland districts and cited by the
     Appellants,] does the State specifically authorize municipalities
     to regulate beyond the mean-water mark of public waters, and into
     the navigable waters of the state.
Id. at 4.   While Svendsen and the case at bar both involve the question of
water-borne dock expansions, the cases are different in one important way:
Svendsen challenged the propriety of regulating dock expansions under
municipal regulations, but the case at bar presents a challenge to the manner
in which a dock expansion is regulated under state law.
      Thus, the challenge in Svendsen is not present here; the case at bar
concerns state regulation of water-borne encroachments, not the municipal
regulation that was the premise for dismissal in Svendsen. Champlain Marina
argues, however, that when the state regulation of water-borne encroachments
is premised upon consistency with a municipal regulation, as is the case in
29 V.S.A. § 405(b), that the validity of the municipal regulation remains at
issue. To resolve this issue, we must look to the provisions of the statute
and municipal regulation.
      As noted above, one stated criterion for determining whether a water-
borne encroachment “will adversely affect the public good . . . [is to]
consider the effect of the proposed encroachment as well as the potential
cumulative effect of existing encroachments . . . [and their] consistency
with municipal shoreland ordinances.” 29 V.S.A. § 405(b). Champlain Marina
contends, correctly we conclude, that an evaluation of consistency should be
limited to only those provisions in the municipal shorelands zoning ordinance
that are within the enabling authority we addressed in Svendsen.
      Ordinance § 7.03(F)(5), on its face, appears premised upon the
authority the Town enjoys to regulate use of lands at or above the mean-water
mark.    In fact, it specifically limits its review to “any proposed
construction of shore-based facilities or any facility which projects outward
from the mean water mark.”       Ordinance § 7.03(F)(5).    We question the
applicability of § 7.03(F)(5) to the dock extension here, however, since the
entire project is well past the mean-water mark and located entirely within
the navigable waters of Shelburne Bay. In fact, it appears from the record
before us that both the parties and the Town have determined that the
proposed dock extension does not require a municipal permit under Ordinance
§ 7.03(F)(5).
      In relation to the proposed dock expansion, it appears that some of the
provisions from Ordinance § 7.03(F)(5) may exceed the enabling authority of
shoreland zoning regulations, and some may not.   For example, the first two
provisions require that a proposed project “(a) will not create a hazard to
navigation [and] (b) will not adversely affect water quality or be a source
of nuisance by reason of noise or fumes.”      Ordinance § 7.03(F)(5)(a)–(b).
Such review, at least in relation to the proposed water-borne dock
extensions, appears to exceed the Town’s regulatory authority.       To allow
consideration of such municipal regulations would recognize a regulatory
power not specifically conveyed to the Town. Svendsen, No. 1-1-09 Vtec, slip
op. at 4–5.
      As we concluded in Svendsen, the “State has expressly reserved the
right to manage Vermont lakes and ponds for the public good—i.e., for the
  Champlain Marina Dock Expansion, No. 28-2-09 Vtec (EO on partial SJ motion)
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greatest benefit of the people of Vermont—and vested management authority
with the Water Resources Panel . . . and the Department of Environmental
Conservation.” Id. at 5 (citations omitted). Thus, it would be improper to
allow consideration of portions of a municipal regulation that appear to
exceed the Town’s regulatory authority.
      There are other provisions of the Colchester Ordinance, however, that
appear appropriate for municipal regulation, and would therefore be
appropriate to consider in a state waters encroachment proceeding.      For
example,   the  remaining   provisions  of Ordinance  § 7.03(F)(5)  require
determinations that the proposed project:
   (c) Will not interfere with or prevent use of adjacent shoreland
        property or its access to and from the water.
   (d) Will be compatible with adjacent land uses.
   (e) That necessary and adequate sanitary public utilities and
       parking facilities are available or will be made available.
   (f) Will not create an adverse vehicle traffic condition.

Ordinance § 7.03(F)(5)(c)–(f).
      These provisions appear premised upon uses or impacts specifically
located on land, above the mean-water mark, and thus within the enabling
authority of the Town to regulate. Svendsen, No. 1-1-09 Vtec, slip op. at 4
(citing 24 V.S.A. §§ 4411(a), 4424(1)).     But the question remains whether
Appellants have presented some factual basis for their assertion that
considerations under Ordinance § 7.03(F)(5)(c)–(f) are at issue in this
appeal.    We have found no such factual representation in Appellants’
responses, and therefore conclude that Champlain Marina is entitled to
summary judgment as to Appellants’ Question 11.
       A party faced with responding to a summary judgment motion is not
specifically obligated to file an affidavit or other documentary evidence in
reply.    See V.R.C.P. 56(c)(1) (“The adverse party may serve opposing
affidavits and a memorandum in opposition . . . .” (emphasis added)). While
the trial court is obligated to view all material facts in a light most
favorable to the non-moving party, Chapman, 167 Vt. at 159, we must base our
legal ruling upon actual facts presented, not upon mere speculation,
unsubstantiated pleadings, or general denials from the opposing party. Gore
v. Green Mountain Lakes, 140 Vt. 262, 266 (1981) (“Allegations alone cannot
create triable issues of fact.”).
      In the record before us, we find no specific factual allegations to
support Appellants’ general assertions that the proposed water-borne dock
extensions, which will allow Champlain Marina to accommodate sixteen more
large boats, will have some impact upon shoreland developments. Speculation
allows us to theorize what impacts might possibly occur due to these
additional docks and boats, but we have not been provided with factual
representations to support such speculation.    Thus, we are left only with
Champlain Marina’s factual allegations: that the proposed dock expansion will
occur entirely within the navigable waters of Spaulding Bay.          Without
specific factual allegations concerning the shoreland impacts of the proposed
expansion, we are left without a foundation for considering consistency with
Ordinance § 7.03(F)(5)(c)–(f).
      Thus, the general question remains whether the proposed dock expansion
will adversely affect the public good, a legal question we are required to
  Champlain Marina Dock Expansion, No. 28-2-09 Vtec (EO on partial SJ motion)
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address under 29 V.S.A. § 405(b).   Most of the remaining Questions from
Appellants’ Statement of Questions are premised upon § 405(b).       See
Appellants’ Revised Statement of Questions, filed May 9, 2009.   We will
address at trial all of Appellants’ remaining Questions, as well as the
Questions posed in Champlain Marina’s Statement of Questions filed in
connection with its cross-appeal.  But for the reasons more particularly
stated above, we hereby GRANT Champlain Marina summary judgment as to
Appellants’ Question 11.




___________________________________________      ____May 19, 2010_____
      Thomas S. Durkin, Judge                            Date
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Date copies sent to: ____________               Clerk's Initials _______
Copies sent to:
    Stephen A. Reynes, Attorney for Appellants
    Craig Weatherly, Attorney for Cross Appellant Champlain Marina, Inc.
    Cielo Marie Mendoza, Attorney for the Vermont Agency of Natural Resources
    David K. Mears, Attorney for Petitioner to Intervene, VNRC
    Jon Groveman, Esq., co-counsel for VNRC
    John H. Hasen, Atty for Vt. Natural Resources Board (FYI purposes only)
