                             Vermont Superior Court
                             Environmental Division


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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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Ridgewood Est. HOA & Indian Creek HOA            Docket No. 57-4-10 Vtec
Project:     Ridgewood Est. HOA & Indian Creek HOA
Applicant:   Ridgewood Est & Indian Creek HOA
                                                 ANR Storm Water Permit

Title: Motion to Dismiss for Lack of Standing, No. 1
Filed:      June 24, 2010
Filed By: Gjessing, Catherine, Attorney for: Interested Person Agency of Natural
Resources
Response filed on 07/13/10 by Appellant Daniel S. Connelly Opposition


___ Granted               ___ Denied                  ___ Other


      The subject of this appeal is a March 16, 2010 decision of the Department
of Environmental Conservation of the Vermont Agency of Natural Resources (ANR)
authorizing stormwater discharge from the Ridgewood Estates and the Indian Creek
Condominiums to Potash Brook under the authority of National Pollutant Discharge
Elimination System (NPDES) General Permit 3-9030. This stormwater General
Permit and the ANR’s related residual designation decision were issued in
November 2009 by the ANR under the authority of the state’s water pollution
control statute, 10 V.S.A. ch. 47. The state has been delegated authority for
the federal NPDES program. See generally In re NPDES Stormwater Petition, 2006
Vt. 91, 180 Vt. 261; In re Stormwater NPDES Petition, No. 14-1-07 Vtec (Vt. Env.
Ct. Aug. 28, 2008) (Durkin, J.).

      In his Notice of Appeal filed April 13, 2010, and his “Annex to Pleading”
filed June 9, 2010, Appellant asserts only a financial interest as a condominium
owner in one of the two homeowners’ associations that had applied for this
authorization. He does not assert that he has a particularized interest that is
affected or potentially affected in any way related to the environmental effects
of the stormwater discharge. That is, he does not allege an injury to a
particularized interest protected by the relevant state environmental statutes
listed in 10 V.S.A. § 8503, which is a requirement for standing under the
definition of “person aggrieved” in 10 V.S.A. § 8502(7). See 10 V.S.A.
§ 8502(7) (defining a “[p]erson aggrieved” to mean “a person who alleges an
injury to a particularized interest protected by the provisions of law listed in
[§] 8503”); see also id. § 8504(a) (“[a]ny person aggrieved by an act or
decision of the secretary . . . under the provisions of law listed in [10 V.S.A.
§] 8503 . . . may appeal to the environmental court).
Page 2

      Until his most recent filing, the interest Appellant claims to be affected
by the March 16, 2010 decision was solely the potential for his financial
liability, as a member of the Indian Creek Homeowners’ Association, for
“obligations for common expenses including permit enforcement penalties and
corrective actions” due to the fact that the Indian Creek and Ridgewood Estates
discharges were considered together in a single application. Appellant’s Notice
of Appeal (Apr. 13, 2010). In paragraph 6.2 of Appellant’s July 13, 2010
response to the ANR Motion to Dismiss for Lack of Standing, he adds the issue
that the value of his property “will be depressed by the added liability and
costs, under this permit, for treating storm water discharge activity located
solely at Ridgewood.” These potential financial interests are not within the
zone of interest protected or regulated by the state water pollution control
statute. See, e.g., In re Unified Buddhist Church, Inc., Indirect Discharge
Permit, No. 253-10-06 Vtec, slip op. at 2–4 (Vt. Envtl. Ct. Aug. 15, 2007)
(Wright, J.) (finding standing for watershed association due to potential for
effect of discharge on members’ use and enjoyment of stream, which was an
interest protected by the statute invoked). See also Hinesburg Sand & Gravel
Co., Inc., 166 Vt. 337, 341–42 (1997) (discussing zone-of-interests test).

      However, in paragraph 6.3 of his July 13, 2010 response to the ANR Motion
to Dismiss for Lack of Standing, Appellant raises for the first time the
aesthetics issue that an existing pond on Indian Creek property “may be
substantially drained to create a detention [pond] for storm water runoff
activities located solely at Ridgewood.” He claims that he and his guests
observe wildlife at Indian Creek and that the resulting “muddy, shallow pool”
will “alter[] the ecology of this pond to the detriment of the particularized
aesthetic interest previously enjoyed by [himself] and his guests.” Of the
interests claimed by Appellant, this interest alone is a potential injury in
fact capable of being redressed by this Court in a proceeding under the statute
at issue in this appeal. See In re Champlain Marina, Inc., Dock Expansion, No.
28-2-09 Vtec, slip op. at 5–8 (Vt. Envtl. Ct. July 31, 2009) (stating that in
order to have standing under 10 V.S.A. § 8502(7), “aggrieved person[s]” must
assert an interest that falls within “the ‘zone of interests’ of the statute
under which they claim standing,” and holding that neighbors had standing due to
the asserted impacts of the proposed project on their “esthetic” interests that
were to be protected under the applicable statute).
Page 3


      Accordingly, the ANR’s Motion to Dismiss this appeal for lack of
Appellant’s standing is GRANTED in Part, as to the financial interests claimed
by Appellant, and is DENIED as to Appellant’s aesthetic interests in observing
wildlife at the pond in question. However, the Motion to Dismiss Questions from
the Statement of Questions will be analyzed in the context of the limited issue
on which Appellant has standing.




___________________________________________      ______________________
              Judge                                Date
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Date copies sent to: ____________               Clerk's Initials _______
Copies sent to:
    Appellant Daniel S. Connelly
    Attorney Catherine Gjessing for Interested Person Agency of Natural
Resources
    Attorney William E. Flender for Interested Person City of South Burlington
    Co-Counsel for party 6 Cielo Marie Mendoza
    Interested Person Ridgewood Estates Homeowners Association, Inc.
