                                STATE OF VERMONT

                              ENVIRONMENTAL COURT

                                               }
Melissa Whitmore and David Whitmore,           }
      Plaintiffs,                              }
                                               }
      v.                                       }      Docket No. 18-1-09 Vtec
                                               }
Thomas Phillips, Kimberly1 Phillips,           }
 Fuller Sand and Gravel, Inc.,                 }
 Town of Wallingford, William Brooks,          }
 William Lohsen and Amy Loomis,                }
       Defendants.                             }
                                               }

                      Decision and Order on Motions to Dismiss

      Plaintiffs Melissa Whitmore and David Whitmore brought an action pursuant to

24 V.S.A. § 4470(b) and V.R.E.C.P. 3(9) against Defendants. Plaintiffs are represented by

Christopher Larson, Esq.; Defendants Thomas Phillips and Kimberly Phillips are

represented by Frank H. Langrock, Esq.; Defendant Fuller Sand and Gravel, Inc., is

represented by Rodney E. McPhee, Esq. and Michael A. Stahler, Esq.; and Defendants

Town of Wallingford, William Brooks, William Lohsen and Amy Loomis (the Municipal

Defendants) are represented by Philip C. Woodward, Esq. and Marikate E. Kelley, Esq.

(The Town is represented by John S. Liccardi, Esq. in a related matter in this Court,

Docket No. 268-11-08 Vtec.)

      The Complaint alleges three counts, entitled, respectively, “Injunctive Relief,”

“Fraudulent and Improper Representation and other Wrongful Conduct,” and “Civil


1  Due to the formatting of the complaint, which had “Thomas Phillips, Kimberly” as its
first line of the list of Defendants, the Court staff originally docketed this matter as
Whitmore v. Kimberly; the caption has been corrected.
                                           1
Conspiracy.” Defendants have moved to dismiss all counts in the complaint.

       The Vermont Environmental Court has jurisdiction specifically allocated by

statute. 4 V.S.A. § 1001. That jurisdiction has expanded over time, and includes many

types of cases initiated by a notice of appeal, see generally 10 V.S.A. Chapter 220, and a

few types of cases initiated by the filing of a complaint, see generally V.R.E.C.P. 3(1)–(8),

or by an administrative enforcement order, see generally 10 V.S.A. Chapter 201.

Injunctive relief, contempt, and other similar judicial enforcement authority is available

to the Court in cases properly within its jurisdiction. However, none of the statutes

provides for money damages to private parties, as contrasted with, e.g., 10 V.S.A.

§ 8010(b)(7) (allowing the Court to include in a penalty amount the state’s actual costs of

enforcement).

       Enforcement of the state environmental statutes and Act 250 lies solely with the

Vermont Agency of Natural Resources (ANR) on behalf of itself or the Land Use Panel

of the Vermont Natural Resources Board. 10 V.S.A. §§ 8003, 8004. There is no citizen

suit provision for individuals to bring direct enforcement of those statutes,2 although

such parties may be granted party status in an enforcement case brought by the ANR.

10 V.S.A. § 8012(d).     Petitions to revoke an Act 250 permit may be brought in

Environmental Court. Compare 10 V.S.A. § 6090(c) (repealed 2005), with 4 V.S.A.

§ 1001(b) and V.R.E.C.P. 3(1); see also In re Tahmoush, 174 Vt. 530, 531 (2002) (mem.); In

re Twin State Sand & Gravel, Inc., Permits # 3W0711, 3W0711-EB, 3W0711-2

(Revocation), Findings of Fact, Conclusions of Law, & Order, at 1, 15–16 (Vt. Envtl. Bd.

Aug. 27, 2002).

       To the extent that the Complaint alleges violations of the Town’s Act 250 permit

2
 See Section 4 of H. 259, 2007 Sess. (Vt. 2007) (introduced but not enacted) (proposing a
new Chapter 215 of Title 10, to provide a cause of action for public enforcement of
environmental laws, specifically including damages in proposed 10 V.S.A. § 8305),
available at
http://www.leg.state.vt.us/docs/legdoc.cfm?URL=/docs/2008/bills/intro/H-259.HTM
                                             2
for its adjacent property, such allegations must be pursued with the ANR or Land Use

Panel; actions to enforce Act 250 permits cannot be brought directly by a private

plaintiff under the statutes giving jurisdiction to this Court.

         Plaintiffs also seek reimbursement for their expenses incurred in opposing

Defendant Phillips’ application for an Act 250 permit before the District Commission.

This Court does not have any general supervisory authority of matters before the

District Commissions, it has only appellate jurisdiction over appeals properly taken

from District Commission decisions. Similarly, to the extent that the Complaint alleges

that Defendants Phillips made false statements in their application for a stormwater

general permit, such allegations must be pursued with the ANR; they also cannot be

brought directly by a private plaintiff under the statutes giving jurisdiction to this

Court.



         24 V.S.A. § 4470(b)

         By contrast, 24 V.S.A. § 4470(b) does allow individuals to bring direct

enforcement actions for the enforcement of decisions of municipal development review

boards (or zoning boards and planning commissions in those towns that do not have a

combined board). However, it is important to understand that 24 V.S.A. § 4470(b) does

not provide for individuals to bring direct enforcement actions for asserted violations of

zoning ordinances. Such actions must be brought by the municipality under 24 V.S.A.

§§ 4451 and 4452. Section 4470(b) is limited to bringing enforcement actions, whether

against private parties or against municipalities, to enforce decisions of a zoning board

of adjustment (ZBA), planning commission, or development review board (DRB).

         The Complaint refers to two municipal permits as having been issued, one in

2006 by the then-ZBA, and one in 2007 by the Zoning Administrator. Permit No. 06-45

was approved by the then-ZBA in 2006, allowing the Town’s gravel pit to be expanded

onto the Phillips’ property; it was not appealed to this Court, and became final.
                                              3
However, the Complaint does not seek any enforcement of it, and, in any event, that

project did not receive Act 250 approval.

       Permit No. 07-43 was issued by the Zoning Administrator on October 24, 2007,

approving the subdivision of the Phillips’ property into three lots. It was not appealed

to the ZBA or DRB, and therefore also became final, but does not constitute a decision

of the ZBA or DRB. Regardless of whether the application for it was complete or

whether the Zoning Administrator had authority to issue it, it cannot now be

challenged, either directly or indirectly. 24 V.S.A. § 4472(d); see In re Ashline, 2003 VT

30, ¶¶ 10–11, 175 Vt. 203; Levy v. Town of St. Albans Zoning Bd. of Adjustment, 152 Vt.

139, 142 (1989) (citing Graves v. Town of Waitsfield, 130 Vt. 292, 295 (1972)); In re Blood

Deck, No. 154-7-07 Vtec, slip op. at 7–8 (Vt. Envtl. Ct. July 31, 2008) (Wright, J.) (citing

Levy, 152 Vt. at 143).

       Although it cannot now be challenged, Permit No. 07-43 may be enforced

according to its terms. See Town of Bennington v. Hanson-Walbridge Funeral Home,

Inc., 139 Vt. 288, 292–93 (1981); In re White 5 Lot Subdivision, No. 265-12-05 Vtec, slip

op. at 6 (Vt. Envtl. Ct. Mar. 19, 2007) (Wright, J.). The Zoning Administrator’s decision

not to take enforcement action was properly appealed to the DRB and to this Court, and

is the subject of Docket No. 268-11-08 Vtec. If Plaintiffs’ argument is that site work

extending to removal of the knoll shown on the site plan for the subdivision was not

applied for and is therefore not authorized by Permit No. 07-43, Plaintiffs will be free to

raise it in Docket No. 268-11-08 Vtec, within the scope of Question 1 of their Statement

of Questions.

       Because the Complaint in the present case does not allege any decision of the

former ZBA or the present DRB that is sought to be enforced, there is therefore no

jurisdiction of this case under 24 V.S.A. § 4470(b).




                                             4
       V.R.E.C.P. 3(9)

       Plaintiffs also argue that this Court has jurisdiction under V.R.E.C.P. 3(9).

V.R.E.C.P. 3 provides that the listed actions within the original jurisdiction of the

Environmental Court are to be commenced and conducted as civil actions under the

Vermont Rules of Civil Procedure, so far as those rules are applicable and as modified

by V.R.E.C.P. 2(b)–(e). Under V.R.E.C.P. 3(9), “any other original action concerning a

subject matter within the jurisdiction of the Environmental Court, in which the relief

sought is not available under other provisions of” the Vermont Rules for Environmental

Court Proceedings or under subsections (1)–(8) of V.R.E.C.P. 3, may be brought by this

procedure.

       By referring to matters “within the jurisdiction of the Environmental Court,”

V.R.E.C.P. 3(9) makes clear that it simply provides the correct procedure for original

actions not otherwise listed in V.R.E.C.P. 3(1)–(8), regardless of whether such original

actions already exist but were missed when the V.R.E.C.P. were being drafted, or

whether such original actions were to be added to the Court’s jurisdiction in the future.

Nothing about V.R.E.C.P. 3(9), nor, indeed any procedural rule, can expand this Court’s

subject matter jurisdiction into areas not assigned to it by statute. See 4 V.S.A. § 1001.

V.R.E.C.P. 3(9) does not confer jurisdiction on this Court that it does not already have

under the various statutes applicable to it.



       March 20, 2009 hearing

       The hearing for injunctive relief scheduled for March 20, 2009, is therefore

unnecessary, as the underlying Complaint is being dismissed. However, given the

history of this case, we will use a portion of the reserved time to hold an in-person

conference regarding Docket No. 268-11-08 Vtec at the Rutland Superior Court, to make

sure that all of the parties have the same understanding of the scope of that appeal and

the jurisdiction of the Environmental Court in relation to that appeal, in advance of
                                               5
their proceeding with mediation already ordered in that matter. Please feel free to

bring to the conference any plans or other materials relating to the case as Judge Wright

will not have the Environmental Court file with her at that conference.          At the

conference, the parties also should be prepared to discuss whether any motions are

anticipated to be filed with respect to the amended Statement of Questions.

       The Court also proposes to transfer the attachments filed with the Complaint

from Docket No. 18-1-09 Vtec to Docket No. 268-11-08 Vtec, to avoid unnecessary

photocopying of documents in the remaining case. Please note, however, that neither

the zoning nor the subdivision regulations has yet been filed with the Court.



       Accordingly, based on the foregoing, it is hereby ORDERED and ADJUDGED

that the Motions to Dismiss are GRANTED, concluding this case and cancelling the

hearing scheduled in this case. An in-person conference in Docket No. 268-11-08 Vtec

has been scheduled to commence at 10:00 a.m. on the same date and at the same

location (see enclosed notice).



       Done at Berlin, Vermont, this 12th day of March, 2009.




                            _________________________________________________
                                  Merideth Wright
                                  Environmental Judge




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