                                   STATE OF VERMONT
SUPERIOR COURT                                              ENVIRONMENTAL DIVISION
Vermont Unit                                                  Docket No. 114-8-14 Vtec


Hinesburg Hannaford Water Quality
Certification                                             DECISION ON MOTIONS




    Decision on Motion to Dismiss Questions and Motions for Judgment on the Pleadings
       The pending appeal relates to development proposed by Martin’s Foods of South
Burlington, LLC (Applicant) on Lot 15 of the Commercial Park subdivision in the Town of
Hinesburg, Vermont (the Town).        Applicant proposes to construct a 36,000 square foot
Hannaford grocery store and pharmacy with associated parking and site improvements.
Multiple state and local land use permits and decisions related to the Project are presently on
appeal to this Court. This appeal relates to a water quality certification required by § 401 of the
Federal Clean Water Act and issued by the Vermont Agency of Natural Resources (ANR or
Agency). Section 401 of the Clean Water Act requires that prior to the issuance of any Federal
license or permit to conduct any activity that may result in a discharge into navigable waters,
the State in which the discharge may occur must certify that the discharge will comply with the
applicable water quality standards. 33 U.S.C. § 1341; see 10 V.S.A. § 1004 (“The agency of
natural resources shall be the certifying agency of the state for purposes of Section 401 of the
federal Clean Water Act and the secretary's determinations on these certifications shall be final
action by the secretary appealable to the environmental court.”). A group of interested
persons including Catherine Goldsmith, James Goldsmith, Jean Kiedaisch, John Kiedaisch, Chuck
Reiss, Sally Reiss, Lindsay Hay, Brian Bock, Natacha Liuzzi, Mary Beth Bowman, Wendelin
Patterson, Bethany Ladimer, Kate Schubart, Michael Sorce, Dark Star Properties, LLC, and
Responsible Growth Hinesburg, an association of Hinesburg residents, (collectively Appellants)
oppose the development and have appealed the ANR water quality certification to this Court.
Appellants are represented by James A. Dumont, Esq. ANR is represented by Leslie Welts, Esq.
Applicant is represented by Christopher D. Roy, Esq.
       ANR moves to dismiss Questions 10 and 13 raised in Appellants’ Statement of
Questions. In response to the motion, Appellants voluntarily withdrew Question 13, which
sought a ruling from the Court that water quality certifications should be conducted through
rulemaking. Question 13 is therefore dismissed. Question 10 asks whether de novo review of
the water quality certification is constitutional. Appellants move for judgment on the pleadings
in their favor. ANR has also moved for judgment on the pleadings regarding Question 10 as an
alternative to dismissal.
I.     Standard of Review
       In considering either a motion to dismiss under Vermont Rule of Civil Procedure 12(b)(6)
or a motion for judgment on the pleadings pursuant to Rule 12(c), we accept as true any factual
allegations made in the complaint or other pleadings and all reasonable inferences that can be
drawn from those allegations, and determine whether the movant is entitled to judgment as a
matter of law. Sorge v. State, 171 Vt. 171, 174 (2000); Rheaume v. Pallito, 2011 VT 72, ¶ 2, 190
Vt. 245 (mem.). Appellants’ Question 10 raises a purely legal issue and is therefore appropriate
for resolution on the pleadings.
II.    Constitutionality of De Novo Review of Water Quality Certification
       Appellants argue that this Court’s de novo review of the Agency’s water quality
certification decisions violates Chapter II § 5 of the Vermont Constitution, which provides that
“[t]he Legislative, Executive, and Judiciary departments, shall be separate and distinct, so that
neither exercise the powers properly belonging to the others.” Title 10 Section 8504(h) makes
clear that in appeals by aggrieved parties of acts or decisions of ANR, the Environmental
Division “shall hold a de novo hearing on those issues which have been appealed. . . .”
Appellants argue that this statute is unconstitutional as it relates to water quality certifications
because it requires the judicial branch to perform an administrative power belonging to the
Agency. The Vermont Supreme Court has adopted the prevailing theory, which “allows trial de
novo of an administrative agency action if the agency operated in a quasi-judicial capacity in
reaching its decision.” Chioffi v. Winooski Zoning Bd., 151 Vt. 9, 12 (1989). In that case the
Supreme Court outlined the constitutional jurisdiction of the superior court in an appeal of
agency action as follows:


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       If the power exercised by an agency is essentially administrative, the superior
       court, on appeal provided by statute, is limited to a consideration of whether the
       agency acted arbitrarily, capriciously, or contrary to law. If the administrative
       agency performs an essentially judicial function, the superior court, on appeal
       from a decision of the board, has, if there is a statute so permitting, the
       constitutional power to allow a trial de novo.
Id. (quoting Francisco v. Bd. of Dirs., 85 Wash.2d 575, 578–79 (1975)). The Supreme Court
upheld de novo review of appeals of zoning decisions, finding that the zoning board was
performing a quasi-judicial function by “applying the law to the facts.” Chioffi, 151 Vt. at 13.
Thus, because the statute permits de novo review of water quality certifications that review is
constitutional so long as the Agency is acting in a quasi-judicial capacity.
       The Vermont Supreme Court has recognized that a § 401 certification is “a document in
the nature of a permit.” In re Vermont Marble Co., 162 Vt. 355, 363 (1994). The decision of
whether or not to deny, grant, or grant with conditions a § 401 water quality certification is a
case-specific determination that requires applying the law, the substantive water quality
standards, to the facts of a particular proposed activity and its potential impacts. See In re
Clyde River Hydroelectric Project, 2006 VT 11, ¶¶ 3–4, 179 Vt. 606 (describing regulatory
procedure for § 401 certification in context of de novo appeal of a particular certification to the
Water Resources Board). In issuing § 401 certifications, ANR therefore acts in a quasi-judicial
capacity.   As noted by Appellants, neither the Rules of Evidence nor the procedural
requirements of the Vermont Administrative Procedures Act apply to § 401 certification
decisions. This does not, however, alter the underlying nature of the certification decision. If
anything, the laxity in ANR’s procedural requirements in making certification decisions supports
the need for a complete judicial review of the certification, if appealed, through a de novo
hearing. Because the act or decision of ANR to deny, grant, or grant with conditions a § 401
water quality certification involves ANR performing a quasi-judicial function, de novo review of
that decision is constitutional.
                                            Conclusion
       The constitutional authority of the superior court to review the acts or decisions of an
administrative agency includes the authority to conduct a de novo review of agency action that
is quasi-judicial in nature. The certification required by § 401 of the Federal Clean Water Act,

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issued by the Agency of Natural Resources, involves the exercise of a quasi-judicial function and
therefore de novo review, required by 10 V.S.A. § 8504, by the Superior Court, Environmental
Division, of those certifications is Constitutional. We therefore GRANT the Agency of Natural
Resources’ motion for judgment on the pleadings as to Question 10 of Appellants’ Statement of
Questions.
       Appellants Questions 1-9, 11, 12, and 14 -16 remain at issue for trial.


Electronically signed on August 11, 2015 at 10:25 AM pursuant to V.R.E.F. 7(d).




_________________________________________
Thomas G. Walsh, Judge
Superior Court, Environmental Division




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