                                 STATE OF VERMONT
SUPERIOR COURT                                               ENVIRONMENTAL DIVISION
Vermont Unit                                                    Docket No. 73-5-14 Vtec


Hinesburg Hannaford Wetland
Determination
                                                        DECISION ON MOTIONS


             Decision on Motion to Dismiss and Motion for Summary Judgment
       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. This
development proposal requires multiple state and local land use permits and decisions, all of
which, it seems, have been appealed to this Court.           This appeal relates to a wetland
determination made by the Vermont Agency of Natural Resources (ANR). A group of interested
persons, 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 (Appellants), oppose the development
and have appealed the ANR wetland determination to this Court. Appellants are represented in
this appeal by attorney James A. Dumont. ANR is represented by attorney Leslie Welts.
Applicant is represented by attorney Christopher D. Roy.
                                        Factual Background
       For the sole purpose of putting the pending motions into context the Court recites the
following facts which are undisputed:
1.     Martin Foods of South Burlington, LLC seeks to construct of a new 36,000 square foot
       supermarket and pharmacy store; a new driveway, parking lot, and sidewalks; and new
       municipal water and sewer connections on Lot # 15 of the Commerce Park subdivision in
       the town of Hinesburg, Vermont (the Project).

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2.     The development includes an area of Lot # 15 that is designated as a Class II wetland. In
       order to develop the site, Applicant plans on filling in a portion of the wetland and
       implementing stormwater management systems and other mitigation.
3.     At some time on or before February 4, 2013, Applicant petitioned the Vermont Agency
       of Natural Resources Department of Environmental Conservation (DEC) to reclassify the
       wetlands from Class II to Class III wetlands.
4.     DEC deemed the petition complete on February 4, 2013.
5.     No permit would be required for filling Class III wetlands, whereas Class II wetlands
       require a DEC permit before conducting any activity therein.
6.     Appellants opposed reclassification by writing letters to DEC and participating in
       hearings before DEC through their attorney. DEC conducted several site visits with
       Applicant and its representatives but Applicant did not permit Appellants to enter the
       property for these visits.
7.     At two public meetings Appellants were allowed to present expert testimony regarding
       the values served by the wetlands that they alleged would be harmed by the
       reclassification.
8.     Appellants also submitted documents to DEC after the public hearings arguing why,
       under the Vermont Wetlands Rule, the wetlands at issue should remain designated as
       Class II wetlands.
9.     On April 2, 2014, DEC issued a written decision granting Applicant’s petition and
       reclassifying the wetland as Class III.
10.    Appellants requested that DEC reconsider this decision, arguing that DEC had relied on
       information not provided to Appellants and that Appellants wanted that information in
       order to respond to the decision.
11.    DEC denied the request to reconsider on May 7, 2014.
12.    On May 27, 2014 Appellants appealed DEC’s reclassification decision to this Court.
                                                 Analysis
       Appellants raise several questions in their Statement of Questions related this Court’s
jurisdiction to review the wetland reclassification and the constitutionality of such review. ANR


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moved to dismiss those questions for failure to state a claim upon which relief can be granted,
pursuant to Vermont Rule of Civil Procedure (V.R.C.P.) 12(b)(6). As ANR’s motion asks the court
to consider matters outside the pleadings, including a statement of facts presented with ANR’s
motion we treat the motion as one for summary judgment pursuant to V.R.C.P. 56. V.R.C.P.
12(b). Subsequently, Appellants moved for summary judgment on those same issues and
presented their own statement of material undisputed facts and memorandum of law in
support of their motion and in opposition to ANR’s motion. Applicant filed a memorandum of
law in support of ANR’s motion and in opposition to Appellants’ motion for summary judgment.

I.     Summary Judgment Standard
       We will grant summary judgment to a movant upon showing 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.
II.    Judicial Review of DEC Class II to Class III Wetland Reclassification
       In their Statement of Questions, Appellants raise three issues: first, whether the
reclassification of wetlands from Class II to Class III is rulemaking, second, whether the
separation of powers doctrine prohibits this Court from engaging in de novo review of wetland
reclassification, and third, whether the wetland reclassification should be remanded to DEC to
create a full and fair record in accordance with the Vermont Administrative Procedures Act due
to procedural defects below.
       A.      Class II to Class III wetland reclassification.
       Appellants’ first argument is that the reclassification of wetlands is accomplished
through administrative rulemaking and should therefore follow the procedural requirement for
formal rulemaking, including the procedure for appeals, which must be brought in accordance
with the Administrative Procedures Act.
       We start with the statutory authorization for ANR’s designation of wetlands. Title 10
V.S.A. § 914 sets out this authority. That section, titled Wetlands determinations, states:



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       (a) The Secretary may, upon a petition or his or her own motion, determine
           whether any wetland is a Class II or Class III wetland. Such determinations
           shall be based on an evaluation of the functions and values set forth in
           subdivisions 905b(18)(A) of this title and the rules of the Department.
       (b) The Secretary may establish the necessary width of the buffer zone of any
           class II wetland as part of any wetland determination pursuant to the rules of
           the Department.
       (c) The Secretary shall provide by certified mail written notice of a proposed
           determination to the owner of each parcel of land within or adjacent to the
           wetland or bovver zone in question; publish notice on the Agency website;
           and provide an electronic notice to persons who have requested to be on a
           list of interested persons. Such notice shall include the date of the
           Secretary’s proposed determination and shall provide no fewer than 30 days
           from the date of the Secretary’s proposed determination within which to file
           written comments or to request that the Secretary hold a public meeting on
           the proposed determination.
       (d) The Secretary shall provide, in person, by mail, or by electronic notice, a
           written copy of a wetland determination issued under this section to the
           owner of each affected parcel of land and to the requesting petitioner.
       (e) The Secretary may recommend to the panel that a wetland be classified as a
           Class I wetland under section 915 of this title.
10 V.S.A. § 914. Section 915 provides that:
       The classification of any wetland as a Class I wetland, the reclassification of a
       Class I wetland as a Class II or III wetland, the reclassification of any Class II or
       Class III wetland as a Class I wetland, or the modification of the buffer zone of a
       Class I wetland shall be made by the department pursuant to the rulemaking
       provisions of 3 V.S.A. chapter 25.
10 V.S.A. § 915. Thus, under the statutory authorization for wetland determinations, only
designation affecting or creating Class I wetlands are made pursuant to administrative
rulemaking, whereas ANR may reclassify a Class II wetland as a Class III wetland acting on a
petition or the Secretary’s own motion.
       Despite this clear statement from the legislature, Appellants rely on several Vermont
Supreme Court cases decided prior to the adoption of these statutes to argue that all wetland
designation must be done through rulemaking. The earlier of these cases involves a challenge
to the Water Resources Board’s (WRB) grant of a petition to reclassify a wetland from Class II to
Class I. Lake Bomoseen Ass’n v. Vermont Water Res. Bd., 2005 VT 79, ¶ 6, 178 Vt. 375). In Lake
Bomoseen, however, the Court determined that the statutory framework did not provide for


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judicial review of the WRB decision, concluding that “[t]he statutory language leaves little
doubt, however, that the Legislature intended the wetlands classifications process to be a
rulemaking proceeding.” Id. at ¶ 10. Discussing whether, “notwithstanding this legislative
choice, the reclassification process [was] so inherently adjudicative that due process requires
trial procedures,” the Court considered three factors: “1) whether the inquiry is of a generalized
nature, rather than having a specific, individualized focus; (2) whether the inquiry focuses on
resolving some sort of policy-type question and not merely resolution of factual disputes; and
(3) whether the result is of prospective applicability and future effect.” Id. at ¶ 11 (quotations
and internal quotation marks omitted). Applying these factors, the Court affirmed the trial
court’s conclusion that the wetland reclassification was rulemaking. Id. at ¶ 12.
       In a more recent case, Sunset Cliff Homeowners Ass’n v. Water Resources Bd., a
declaratory judgment action was brought in Washington Superior Court challenging the Water
Resources Board’s (WRB) decision denying a petition to reclassify wetlands from Class III to
Class II. 2008 VT 84, ¶¶ 12–14, 184 Vt. 584. The Court in Sunset Cliff relied on the holding from
Lake Bomoseen that “wetland reclassification was rulemaking.”            Id. at ¶ 13 (citing Lake
Bomoseen Ass’n v. Vermont Water Res. Bd., 2005 VT 79, ¶¶ 12–13, 178 Vt. 375). Again, the
Court relied on the fact that no statute provided for superior court review of a WRB wetland
classification. Id. at ¶ 15 (“The superior court simply does not have jurisdiction to grant the
relief Sunset Cliffs seeks in its complaint: a declaration that the WRB's determination not to
reclassify the wetland was erroneous . . . . ‘[T]he superior court is not a higher environmental
agency entrusted with the power to make environmental law and policy de novo or with the
power to apply the policy it develops to the facts it finds.’” (quoting Conservation Law Found.
v. Burke, 162 Vt. 115, 126 (1993))).
       In adopting 10 V.S.A. §§ 914 and 915, the Legislature codified its determination that
reclassifications other than Class I wetlands are not rulemaking. Applying the factors from Lake
Bomoseen to the reclassification of Class II and Class III wetlands, we support this conclusion:
the inquiry before the Court is not of a generalized nature, it has a specific, individualized focus
on the particular wetlands on Lot # 15, and it does not focus on the resolution of some sort of
policy type question, but on the resolution of factual disputes to which the statute and Wetland


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Rules are applied. Even though the result of this inquiry is of prospective applicability and will
affect future land uses, the effect on adjacent landowners does not require a finding that the
reclassification is rulemaking rather than adjudicative. See Lake Bomoseen, 178 Vt. at 381.
       The text of the statutes themselves support this finding. The statutory framework for an
appeal of this is the type of act or decision of the Secretary specifically provides for de novo
review of that Agency decision. 10 V.S.A. § 8504(h) (“The Environmental Division, applying the
substantive standards that were applicable before the tribunal appealed from, shall hold a de
novo hearing on those issues which have been appealed . . . .”). Additionally, the statute
provides that any act or decision made under § 914 “may be appealed in accordance with
chapter 220 of this title,” which includes § 8504. 10 V.S.A. § 917.
       This review is also made expressly clear by the Vermont Wetlands Rules, which provide
for the Secretary of ANR to determine whether a wetland is Class II or Class III, provides for a
request to reconsider such a determination, and states that “[t]he Secretary's written
reconsideration decision shall constitute a final act or decision of the Secretary, subject to
appeal pursuant to 10 V.S.A. § 8504 and Section 10 of these Rules.” Vermont Wetlands Rules,
§ 8,        Code     of       Vt.      Rules        12      004       056,      available       at
http://www.lexisnexis.com/hottopics/codeofvtrules.       Section 10 of the Vermont Wetlands
Rules states simply: “Appeals from any act or decision of the Secretary under these rules are
governed by 10 V.S.A. § 8504.” Id. Thus, in addition to the test from Lake Bomoseen, the
statute and Rules clearly establish that although wetlands determinations to or from Class I
wetlands require rule making, determinations related only to Class II and Class III wetlands do
not. The determination of the Secretary appealed to this Court was, therefore, not rulemaking
and de novo appeal is appropriate.
       B.      Constitutionality and need for remand
       Furthermore, this Court’s review of acts or decisions of the Secretary of ANR does not
violate the separation of powers doctrine. The Supreme Court has held that, in the context of
zoning decisions, as long as the decision on appeal involved a “quasi-judicial function,” defined
as “applying the law to the facts,” de novo judicial review of that decision is constitutional.
Chioffi v. Winooski Zoning Bd., 151 Vt. 9, 11–13 (1989). This Court is tasked with applying the


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substantive standards applicable before ANR, here 10 V.S.A. §§ 914, 905b and the Vermont
Wetlands Rules, to the facts. This requires the Court to find facts regarding the specific wetland
at issue and apply the law to those facts. As noted above, the decision to reclassify a wetland
from Class II to Class III or vice versa is not rulemaking but is an act or decision of ANR subject to
this Court’s de novo review. This does not violate any separation of powers and is therefore
constitutional.
       C.         Procedural defects below
       Finally, regarding Appellants’ objections to the process before ANR, those procedural
defects are cured by de novo review in this Court. We note that although Appellants object to
not receiving some of the information Applicant provided to ANR, Appellants were provided
with ample opportunity to present their evidence and opinions to ANR prior to ANR’s
determination. None of the alleged procedural defects are the type of fundamental structural
errors that cannot be cured by de novo review. See In re JLD Props. of St. Albans, LLC, 2011 VT
87, ¶¶ 10–13, 190 Vt. 259 (holding that all but the most “structural” procedural errors are
cured by subsequent de novo review). We therefore deny Appellants’ request to remand for
development of a further record for review by this Court. See Chioffi, 151 Vt. at 11 (1989) (“A
de novo trial ‘is one where the case is heard as though no action whatever has been held prior
thereto.’” (quoting In re Poole, 136 Vt. 242, 245 (1978))).
III.   ANR’s Motion to Clarify Appellants’ Question 2
       ANR also moves to require Appellants to clarify Question 2 of their Statement of
Questions. Question 2 asks: “Under any form of judicial review of this reclassification of a
wetland from Class 2 to Class 3, can applicant satisfy its burden of proof and is the
reclassification lawful under: a. Vermont’s wetland statutes; b. Vermont’s wetlands regulations;
and c. the public trust doctrine?” The Statement of Questions performs a similar function to a
civil complaint and requires only 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 Rivers Development,
LLC, Nos. 7-1-05 Vtec, 68-3-07 Vtec, slip op. at 14 (Vt. Envtl. Ct. Jan. 8, 2008) (Durkin, J.). A
Statement of Questions must not, however, be overly vague and must put the other parties on
notice of the specific reasons for the challenge. See id.; In re Unified Buddhist Church, Inc.,


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Indirect Discharge Permit, No. 253-10-06 Vtec, slip op. at 5 (Vt. Envtl. Ct., May 11, 2007)
(Wright, J.). This enables the parties and the Court to focus on the issues in controversy rather
than any and all statutes or regulations that might apply.
       Appellants’ Question 2(a) and 2(b) do not satisfy this requirement. We note that
Appellants’ Question 3 addresses many specific provisions of the statutes and regulations
referenced in Questions 2(a) and 2(b). If there are additional specific statutory or regulatory
provisions that Appellants desire the Court to address in this wetland reclassification beyond
those listed in Question 3 Appellants must state them. ANR’s motion to clarify Appellants’
Question 2 is GRANTED. If Appellants’ fail to file an amended Question 2(a) and (b) within 15
days of this decision those parts of Question 2 will be dismissed.
                                            Conclusion
       ANR’s wetland determinations presently on appeal to this Court are not rulemaking but
are acts or decisions of the Secretary of ANR and are thus properly subject to de novo review by
this Court.    Such review does not violate the separation of powers doctrine and is
constitutional. Finally, the alleged procedural defects in the proceedings before ANR are cured
by de novo review in this Court, and therefore, no remand is necessary. For these reasons we
GRANT ANR’s motion for summary judgment regarding Appellants’ Questions 1.A, 1.B, 1.C, and
1.D, and 1.E. We also GRANT ANR’s motion to clarify Appellants’ Question 2 and require
Appellants to amend Questions 2(a) and 2(b) to add specificity. Failure to do so within 15 days
of this decision will result in dismissal of those parts of Appellants’ Question 2.


Electronically signed on March 04, 2015 at 04:06 PM pursuant to V.R.E.F. 7(d).




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




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