                                      STATE OF VERMONT
                     SUPERIOR COURT — ENVIRONMENTAL DIVISION


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In re Umpire Mtn., LLC WW & WS Permit                {              Docket No. 171-12-12 Vtec
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                       Decision on Cross-Motions for Summary Judgment

       Charles Chapman, Barbara Chapman, John Ferine, and Cheryl Nicholas (Appellants)
appeal the Wastewater System and Potable Water Supply Permit WW-7-3606 (the Permit) issued
by the Vermont Agency of Natural Resources, Department of Environmental Conservation (DEC)
to Umpire Mountain, LLC (Applicant) on May 21, 2012. The Permit authorizes Applicant to
create five new, on-site potable water supply and wastewater systems to serve five proposed
single-family residences on Applicant’s 10.3 acres of undeveloped land on Washburn Road in
Burke, Vermont. Currently pending before this Court are cross-motions for summary judgment
filed by Appellants and Applicant concerning whether the Permit unlawfully impacts Appellants’
use of their property. The Agency of Natural Resources joins the Stipulation of Facts, but even
though the agency’s powers and actions are challenged, the agency has not filed a response to
either motion.
       In this proceeding, Appellants are represented by Robert A. Gensburg, Esq., Applicant is
represented by Kyle C. Sipples, Esq., and the Agency of Natural Resources is represented by
Anne Whitely, Esq.

                                         Stipulated Facts
       On September 11, 2013, the parties filed a written Stipulation of Facts applicable to this
appeal, which was also signed by the Agency of Natural Resources. No party has objected to this
stipulation, and therefore we set forth the following facts verbatim:
1.   In 1979, Bruce Washburn subdivided 151.35 acres of land on Washburn Road and Joanne
     Drive in Burke into 14 lots (the “Washburn Subdivision”). Washburn Road is Burke Town
     Highway 63, and Joanne Drive is Burke Town Highway 64. Each of the original 14 lots was
     larger than 10 acres. A survey map of the Washburn Subdivision is attached as Exhibit A.




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2.   The applicant for a permit in this case is Umpire Mountain, LLC (the “LLC”), which now
     owns Lot #5 in the Washburn Subdivision.            Lot #5 contains 10.3 acres of presently
     undeveloped land.
3.   The Washburn Subdivision is subject to Land Use Permit 7C0451 and five amendments
     thereto. On November 29, 1990, District Environmental Commission issues [sic] Land Use
     Permit Amendment 7C0451-2, which authorized the subdivision of Lot #5 into two lots, the
     first a house site of 1.3 acres, and the second the remaining nine acres.
4.   On May 21, 2012, the Vermont Department of Environmental Conservation (the
     “Department”) issued Wastewater System and Potable Water Supply Permit WW-7-3606
     (the “Permit”) to the LLC. This is the permit that is the subject of this appeal. The Permit
     authorizes the LLC to subdivide the nine acre portion of Lot #5 into four more house sites,
     for a total of five house sites. Each of the five house sites will have its own on-site potable
     water supply and its own on-site wastewater disposal system.
5.   The appellants in this case are Charles and Barbara Chapman, John Ferine and Cheryl
     Nicholas.
6.   Mr. and Mrs. Chapman own Lot #6 in the Washburn Subdivision. Lot #6 contains 10.5
     acres. The southerly boundary of Lot #6 is the northerly boundary of Lot #5. Lot #6 is
     improved with a house and one outbuilding. It has its own permitted on-site potable water
     supply and wastewater disposal system. Lot #6 is Mr. and Mrs. Chapman’s principal
     residence.
7.   John Ferine owns Lot #7 in the Washburn Subdivision. Lot #7 contains 10.3 acres. Lot #7 is
     located to the west of and directly across Joanne Drive from the LLC’s property. Lot #7 is
     undeveloped.
8.   Mr. Ferine also owns Lot #8 in the Washburn Subdivision. Lot #8 contains 11.4 acres of
     land. Lot #8 is located adjacent to and northerly of Lot #7. Lot #8 is undeveloped.
9.   Cheryl Nicholas owns Lot #9A in the Washburn Subdivision, which is one of the lots into
     which Lot #9 was subdivided on November 29, 1990 pursuant to Amended Land Use
     Permit 7C0451-3. Lot #9A contains a total of 1.5 acres. It is located to the west of and
     directly across Washburn Road from the LLC’s property. Lot #9A has a small camp on it. A
     survey map of Lot #9A is attached as Exhibit B.




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10.   Cheryl Nicholas also owns Lot #9B in the Washburn Subdivision. Lot #9B, essentially the
      remainder of the south half of Lot #9, contains 3.5 acres. Lot #9B is located adjacent to and
      westerly of Lot #9A. Lot #9B is undeveloped.
11.   Section 1-807 of the Vermont Wastewater System and Potable Water Supply Rules, which
      became effective on September 29, 2007 (the “WW Rules”), prescribe isolation distances
      between wastewater systems and certain features of land that is [sic] being developed
      including wells and springs.
12.   Section 11.4 of Part 11 of Appendix A of the Vermont Water Supply Rules (the “WS Rules”)
      prescribes in greater detail the isolation distances between “water wells,” i.e. sources of
      potable water, and potential sources of contamination including wastewater systems.
13.   Under both the WS Rules and WW Rules (together, the “Rules”), the prescribed isolation
      distances that are listed therein are not absolute. Both sets of Rules authorize the Secretary
      to increase or decrease a particular isolation distance based on various site-specific
      considerations. In addition, the ability to construct a wastewater system and/or potable
      water supply on adjoining property is also dependent on the specific conditions of that
      property. For example, where a septic system can be located is first determined by an
      assessment of whether a particular location meets the minimum site conditions, as described
      in § 1-805 of the WW Rules.
14.   The isolation distance for a potable water supply is commonly referred to as a “well shield.”
      Similarly, the isolation distance for a wastewater system is commonly referred to as a
      “septic shield”. [sic] A well or septic shield may be entirely contained on the property that is
      being developed or may extend onto adjoining property not owned by person [sic]
      developing the well or septic system. See § 1-807 of the Rules, footnote (a).
15.   When an isolation distance extends onto property not owned by the applicant it is
      commonly referred to as “overshadowing” that non-owned property.
16.   As of 2010, 10 V.S.A. § 1973(j), when an applicant for a Wastewater System and Potable
      Water Supply permit proposes a potable water supply or wastewater system with isolation
      distances that extend onto non-owned property, the applicant must notify the owner of the
      non-owned property.




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17.   Isolation distances have been overshadowing adjoining properties under both sets of Rules
      since those Rules were adopted, but the notification referred to in paragraph 16 was not
      required until 2010.
18.   The Permit was approved pursuant to a site plan prepared by Foresite Engineering Services
      PLC (the “Site Plan”). Shannon Larocque is Foresite’s principal engineer. Mr. Larocque is a
      Vermont licensed civil engineer and is qualified to design on-site potable water supplies and
      wastewater systems. The Site Plan identifies the locations of the on-site potable water
      supplies and the on-site wastewater disposal systems on each of the five lots in the LLC’s
      proposed subdivision. Mr. Larocque’s design and the Site Plan comply with the Rules. The
      Site Plan is attached as Exhibit C.
19.   In the case now before the court, the isolation distances cross the LLC’s boundary lines and
      “overshadow” a portion of each appellant’s property.
20.   Because of septic shield overshadowing, the Permit creates an area on Mr. and Mrs.
      Chapman’s property within which they could potentially be prohibited from constructing a
      potable water supply on their own property. This area is shown in blue on Exhibit C.
21.   Because of well shield overshadowing, the Permit creates areas on Mr. Ferine’s property
      within which he could potentially be prohibited from constructing a wastewater system on
      his own property.
22.   Because of well shield overshadowing, the Permit creates areas on Lot #9A, Ms. Nicholas’
      [sic] property, within which she could potentially be prohibited from constructing a
      wastewater disposal system on her own property.
23.   Mr. and Mrs. Chapman’s existing potable water supply and wastewater system do not
      overshadow any adjoining property.
24.   Based on the approved plans under permit 7C0451, a portion of the septic shield for Lot #7,
      appellant John Ferine’s property, overshadows appellant Ferine’s Lot #8 of the Washburn
      Subdivision.
25.   Based on the approved plans under wastewater system and potable water supply permit
      WW-7-1017, a portion of the well shield and septic shield for Lot #9A, appellant Cheryl
      Nicholas’ [sic] property, overshadows a portion of Lot #5, the LLC’s property.




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26.   No Appellant’s title to his or her property is burdened by any easement with respect to
      which the LLC’s property is the dominant estate, nor by any license, nor by any restrictive
      covenant or other land use restriction in favor of the LLC’s property.
27.   No compensation has been paid by any person or governmental authority to any appellant
      by reason of the well shields and septic shields that overshadow from the LLC’s property
      onto their respective properties.
28.   In addition, no compensation has been paid either to the LLC or the owner of Lot #8 by
      reason of the well shields and septic shields that overshadow from the appellants’
      properties.
29.   The Appellants agree that ¶¶ 23, 24 and 28 are not disputed, but believe they are not
      material. They consent to their inclusion so that the parties could file a single statement of
      undisputed material facts for their and the court’s convenience.

                                            Discussion
       In their motion for summary judgment, Appellants argue that the Permit is invalid
because it takes an interest in real property from each Appellant for Applicant’s private use.
Specifically, Appellants argue that where Applicant’s permitted well shield or septic shield
crosses their respective property lines, the State “has taken a negative easement from the neighbor
without paying compensation for the interest taken and given it to the developer for the
developer’s private benefit.” (Appellants’ Motion for Summary Judgment at 2, filed Sept. 11,
2013.) Thus, Appellants argue, the Permit is invalid under Chapter 1, Article 2 of the Vermont
Constitution and the Fifth Amendment of the U.S. Constitution because it takes Appellants’
property for the benefit of a private party and not for a public use. Appellants further argue that
if the Permit constitutes a valid taking, then Appellants must be justly compensated.
       Applicant argues that the Permit fails to create an easement because the parties have not
demonstrated the necessary intent to establish an easement and because the permit process did
not create an easement by prescription or an easement by necessity. Applicant further argues that
Appellants have failed to demonstrate that the Permit amounts to a regulatory taking because
they allege only “a potential restriction on the placement of a well and/or septic system,” which
is insufficient to establish a taking under either Penn Cent. Transp. Co. v. New York City, 438 U.S.
104, 124 (1978) or Lucas v. S.C. Coastal Council, 505 U.S. 1003, 1015–16 (1992). (Defendant




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Umpire Mountain’s Motion for Summary Judgment and Objection to Plaintiffs’ Motion for
Summary Judgment at 4–8, filed Oct. 10, 2013.)

I.       Summary Judgment Standard
         We will grant summary judgment if a moving party demonstrates that “there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a matter of
law.”     V.R.C.P. 56(a).   When considering cross-motions for summary judgment, the court
considers each motion individually and gives the opposing party the benefit of all reasonable
doubts and inferences. City of Burlington v. Fairpoint Commc’ns, Inc., 2009 VT 59, ¶ 5, 186 Vt.
332. As set out verbatim above, the parties have submitted a Stipulation of Facts which they
agree “contains the material and undisputed facts applicable in this appeal.”

II.      Statement of Questions
         In the Environmental Division, an appellant’s Statement of Questions “functions as a cross
between a complaint filed before the Civil Division and a statement of issues filed before the
Vermont Supreme Court.” In re Conlon CU Permit, No. 2-1-12 Vtec, slip op. at 1 (Vt. Super. Ct.
Envtl. Div. Aug. 30, 2012) (Durkin, J.). That is, it provides notice to other parties of the issues to
be determined within the case, while also limiting the scope of the appeal. Id. Appellants’
Statement of Questions presents the following three questions for this Court’s review:

      1. Does the State or Umpire Mountain, LLC have the right or power by way of this
         permit to prohibit Appellant Cheryl Nicholas from installing septic system leach
         fields at certain locations on her property?
      2. Does the State or Umpire Mountain, LLC have the right or power by way of this
         permit to prohibit Appellant John Ferine from installing septic system leach fields
         at certain locations on his property?
      3. Does the State or Umpire Mountain, LLC have the right or power by way of this
         permit to prohibit Appellants Charles Chapman and Barbara Chapman from
         installing septic system leach fields and drilled wells at certain locations on their
         property?

         In order to provide clarity regarding the scope of this appeal and to identify the question
or questions properly before us, we paraphrase and interpret Appellants’ questions as follows:

      1. In considering an application for a Wastewater System and Potable Water Supply Permit,
         does the DEC have the power to impose isolation distances that cross onto the property of
         Appellant Cheryl Nicholas and thereby prevent Ms. Nicholas from obtaining a permit to
         install septic system leach fields at that location on her property?


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       2. In considering an application for a Wastewater System and Potable Water Supply Permit,
          does the DEC have the power to impose isolation distances that cross onto the property of
          Appellant John Ferine and thereby prevent Mr. Ferine from obtaining a permit to install
          septic system leach fields at that location on his property?
       3. In considering an application for a Wastewater System and Potable Water Supply Permit,
          does the DEC have the power to impose isolation distances that cross onto the property of
          Appellants Charles Chapman and Barbara Chapman and thereby prevent the Chapmans
          from obtaining a permit to install septic system leach fields and drilled wells at that
          location on their property?



III.      Wastewater and Water Supply Rules and Permits
          Because we read Appellants’ questions to ask about DEC’s power in the Wastewater
System and Potable Water Supply permit process, we first consider the source of authority for
imposing the isolation distances at issue. The relevant provisions of the Wastewater System and
Potable Water Supply Rules and the Water Supply Rules were adopted pursuant to 10 V.S.A.
Chapter 64, regarding “Potable Water Supply and Wastewater System Permit.” 16-3 Vt. Code R.
§ 300:1-103 (2007); 16-3 Vt. Code R. § 500:1.1 (noting that the Water Supply Rules were adopted
pursuant to 10 V.S.A. Chapter 61, Water Supply and Wastewater Permit, which was repealed in
2001 and replaced by 10 V.S.A. Chapter 64). A primary purpose of Chapter 64 and the resulting
rules is “to protect human health and the environment, including potable water supplies, surface
water and groundwater . . . .” 10 V.S.A. § 1971(1). Protecting public health is a proper exercise of
the police power. See City of Montpelier v. Barnett, 2012 VT 32, ¶ 25, 191 Vt. 441.
          Section 1978 of Title 10 provides that the Secretary “shall adopt rules . . . necessary for the
administration of this chapter . . . [which] shall include, but are not limited to . . . design
requirements, including isolation distances.” 10 V.S.A. § 1978(a)(3) (emphasis added). Rule 1-807
of the Wastewater System and Potable Water Supply Rules sets forth specific isolation distances
between protected items and any leachfield, septic tank, or sewer. 16-3 Vt. Code R. § 300:1-807
(2007). Footnote (a) provides that the distances “apply regardless of property line location and
ownership.” Id. Part 11.4 of Appendix A of the Water Supply Rules sets forth isolation distances
“between wells and potential sources of contamination . . . .” 16-3 Vt. Code R. § 500:A11.4 (2010).
Thus, in imposing the isolation distances at issue, DEC implemented Rule 1-807 of the
Wastewater System and Potable Water Supply Rules and Part 11.4 of Appendix A of the Water
Supply Rules (together, the Rules), in order to protect human health and the environment and
pursuant to the requirements of the statute.       We conclude that pursuant to Chapter 64 and the

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Rules, DEC has the power to impose the isolation distances at issue in considering a Wastewater
System and Potable Water Supply Permit application.

IV.    Jurisdiction
       To the extent that Appellants ask whether DEC has affected the real property rights of the
parties in applying the isolation distances, they ask us to make a determination of property rights
which is beyond our jurisdiction. See In re Britting Wastewater/Water Supply Permit, No. 259-
11-07 Vtec, slip op. at 4 (Vt. Envtl. Ct. Apr. 7, 2008) (Wright, J.). Thus, we are unable to determine
whether DEC’s issuance of the Permit created any “negative easement” and whether, as a result, a
per se “taking” of an easement on Appellants’ property has occurred. We recognize that parties
are increasingly asking this Court to decide issues involving property rights.            Without a
legislative change to the scope of our jurisdiction, however, we may do so only upon special
assignment pursuant to V.R.C.P. Rule 16.1 by the Chief Administrative Judge of the Trial Courts
following the initiation of a matter within the civil division.
       Moreover, to the extent that Appellants’ questions challenge the constitutionality of the
Rules on their face, we are also without jurisdiction to answer them. Id. at 5; 3 V.S.A. § 807 (the
validity of a rule may be challenged in the Washington superior court). Beyond an adjudication
of property rights or the constitutionality of the Rules on their face, we do have jurisdiction to
determine whether the Rules, as applied to Appellants by way of the Permit, amount to a taking
due to the State’s placement of potential development limitations on their properties.            See
Britting, No. 259-11-07 Vtec, slip op. at 5 (noting Court’s subject matter jurisdiction to consider
matters arising under 10 V.S.A. Chapter 220).

V.     Takings Claim within this Court’s Jurisdiction
       In considering whether the isolation distances effect a regulatory taking we first note that
Appellants neither allege nor demonstrate that DEC has deprived them of all “economically
viable use” of their land. See Lucas v. S.C. Coastal Council, 505 U.S. 1003, 1015–16 (1992) (holding
that a “total taking” occurs “where regulation denies all economically beneficial or productive use
of land”). To determine whether a landowner has suffered deprivation of all economically viable
use, we must consider not only the portion of property affected by the regulation but “the parcel
as a whole.” Tahoe-Sierra Pres. Council v. Tahoe Reg’l Planning Agency, 535 U.S. 302, 327 (2002)
(citing Penn Cent. Transp. Co. v. New York City, 438 U.S. 104, 130–31 (1978)). Thus, we find that



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DEC’s action does not amount to a “total taking” of Appellants’ property. See Lucas, 505 U.S. at
1030.
        Appellants likewise fail to allege facts sufficient to find a “partial taking.” In order to
make a determination as to a partial taking, we must weigh (1) the economic impact of the Rules
on Appellants; (2) the interference with Appellants’ “distinct investment-backed expectations”;
and (3) the character of DEC’s action. See Penn Cent. Transp. Co., 438 U.S. at 124. Merely
alleging that a landowner’s property use has been limited is insufficient to establish a taking. See
Chioffi v. City of Winooski, 165 Vt. 37, 43 (1996) (noting that an inability to develop property for
its most profitable beneficial use is not a taking). Indeed, it is unclear in the first instance whether
Appellants have been limited in any way in the development of their property. Although the
DEC decision on appeal is final as to the design and permitting of Applicant’s wastewater and
water supply systems, we are unable to conclude whether Applicant’s permit restricts
development on Appellants’ properties. Appellants fail to allege that the Permit will affect any
existing development plans. They state only that they “could potentially be prohibited” from
creating a wastewater or water supply system within the isolation zones. Appellants also fail to
allege any particular economic impact resulting from the Permit. Without such information, it is
impossible to determine how DEC has limited Appellants in the use of their property.
        Appellants do allege, however, that the Permit’s isolation distances cross onto their
property. Because Appellants may be prohibited from developing portions of their properties,
we cannot conclude as a matter of law that no regulatory taking has occurred under the Penn
Cent. Transp. Co. factors. We do note, however, that based on the stipulation of facts, Appellants
have not established a regulatory taking. As such, we find that neither Appellants nor Applicant
are entitled to judgment as a matter of law at this stage, and we must therefore DENY both
motions for summary judgment.

                                             Conclusion
        For the reasons set forth above, we conclude that we are without jurisdiction to answer
Appellants’ questions asking whether the Permit created an easement of any kind, or whether the
Wastewater System and Potable Water Supply Rules and the Water Supply Rules are
unconstitutional on their face. To the extent that Appellants ask whether a taking has otherwise
occurred due to limitations on how they might use their property, we do have jurisdiction. We
do not have sufficient facts before us at this time, however, to determine whether a regulatory


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taking has occurred. Therefore, Appellants’ and Applicant’s motions for summary judgment are
both DENIED.


      Done at ____________ this ___ day of February 2014.




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                                                  Thomas G. Walsh, Environmental Judge




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