                          Environmental Court of Vermont
                                 State of Vermont

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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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Intervale Center Inc. & Half Pint Farm (Hoop House) Docket No. 89-5-08 Vtec
Project:    Intervale Center Inc. & Half Pint Farm Hoop House

Title:        Motion to Alter or Amend Judgment, No. 4

Filed:        March 10, 2009

Filed By:     Appellants Intervale Center Inc. & Half Pint Farm

Response filed on 03/19/09 by Appellee Agency of Agriculture
Response in Support filed on 04/02/09 by Interested Person City of Burlington
Reply filed on 04/02/09 by Appellants Intervale Center Inc. & Half-Pint Farm
Sur-Reply filed on 04/10/09 by Appellee Agency of Agriculture

___ Granted                    ___ Denied                _X_ Other

      This matter arises out of an April 2008 determination by the Vermont
Agency of Agriculture, Food, and Markets (“Agency of Agriculture”) on a
petition filed by the Intervale Center, Inc., and Spencer and Mara Welton, the
operators of Half Pint Farm (collectively, “Intervale”), who wish to build a
hoop house in a mapped floodway.    On February 24, 2009, we issued a Decision
and Judgment Order (“Decision”) dismissing this case for lack of subject matter
jurisdiction, holding that all of Intervale’s Questions on appeal were either
moot (now that the hoop house at issue had already been constructed) or not yet
ripe for review.
      Intervale filed a motion to alter or amend our Decision. The Agency of
Agriculture responded in opposition, while also asking this Court to add
additional grounds for dismissal (namely, the claim that the Vermont Supreme
Court is the proper forum for this appeal—an issue that we did not need to
reach in our earlier Decision). The City of Burlington (“City”) responded in
support of Intervale’s motion and asked this Court to find that the Agency of
Agriculture is without authority to regulate structures (even farm structures)
placed in floodways, since only the City is liable to the federal government
for maintaining floodways in accord with the National Flood Insurance Program.
      In response to these post-judgment filings, the Court ordered an in-
person motion hearing, which was held at the Costello Courthouse in Burlington,
Vermont, at 2:00 p.m. on April 13, 2009.     At the hearing, Intervale and Half
Pint Farm were represented by Geoffrey H. Hand, Esq., in person, and Brian S.
Dunkiel, Esq., by telephone; the Agency of Agriculture was represented by Diane
E. Zamos, Esq.; and the City was represented by Colin K. McNeil, Esq.
      At the close of the hearing, the Court announced that it considered
Intervale’s motion to be a motion for reconsideration and that reconsideration
was GRANTED to allow the Court to determine whether to amend or alter our
earlier Decision. We make that determination today.
      Although we understand that Intervale believes that its farmers are
harmed by the April 2008 determination made by the Agency of Agriculture, and
we do not wish to belittle that harm in any way, we stand by our earlier
Decision that the issues raised in this appeal are either moot or unripe for
review and that we are therefore without jurisdiction to address them.
Intervale Center Inc. & Half Pint Farm (Hoop House), Docket No. 89-5-08 Vtec (Apr. 14, 2009 Entry Order)   Page 2

      This case clearly raises a number of important issues that will likely
need to be addressed at some time, but the procedural posture of this case
precludes this Court from being the current vehicle for addressing those
issues. See Chittenden S. Educ. Ass’n, Hinesburg Unit v. Hinesburg Sch. Dist.,
147 Vt. 286, 294 (1986) (“Although we recognize the importance of the question
posed, we decline to pass on the merits of this issue because it requires this
Court to render an advisory opinion prohibited by this State's Constitution.”
(citing In re Constitutionality of House Bill 88, 115 Vt. 524, 529 (1949)).
      If anything, the hearing on this matter served to confirm our view that
this case is not ripe for review.           When asked about the April 2008
determination that gave rise to this appeal, the Agency of Agriculture noted
that its determination was “merely advisory” and would not in itself give rise
to an enforcement action.    Further, when explicitly asked by the Court for a
statutory basis for issuing the type of conditional ruling that the Agency of
Agriculture issued here, the Agency failed to provide the Court with any
specific statutory basis.   This confirms the Court’s conclusion (based on our
own research) that there is no statutory authority for the Agency to issue the
type of conditional ruling that was issued here. As explained in detail in our
earlier Decision, agencies cannot act beyond the authority conferred on them by
statute, Martin v. State of Vermont Agency of Transportation Department of
Motor Vehicles, 2003 VT 14, ¶¶ 15–16, 175 Vt. 80, and any actions done outside
an agency’s authority are legal nullities that are void from the beginning,
see, e.g., Manhattan General Equipment Co. v. Commissioner of Internal Revenue,
297 U.S. 129, 134 (1936); Hendrick v. Cleaveland, 2 Vt. 329 (1828).      Because
the Agency’s determination is without any legal effect whatsoever, and for the
other reasons provided in our earlier Decision, this case is unripe for review.
      Our conclusion here is strengthened by the City’s confirmation at the
hearing that the City made its own, independent determination that the proposed
hoop house was an Accepted Agricultural Practice and therefore exempt from
local zoning regulations.     Unlike the determination made by the Agency of
Agriculture on this matter, the City’s determination was a municipal land use
determination that falls under 24 V.S.A. § 4472(d).    When such determinations
are not appealed, they cannot be challenged, “either directly or indirectly,”
in any subsequent proceeding. 24 V.S.A. § 4472(d); see also, e.g., City of S.
Burlington v. Dep’t of Corr., 171 Vt. 587, 588–89 (2000) (mem.).         Without
determining whether this precludes the Agency of Agriculture from bringing any
future action on its prior determination on Intervale’s petition at issue here,
we do view this as yet another basis for our prior conclusion that an Agency
enforcement action based thereon is unlikely (or futile).      See Toilet Goods
Ass’n Inc. v. Gardner, 387 U.S. 158, 165 (1967) (noting that ripeness depends
on the likelihood of enforcement).     For this and the other reasons already
articulated in our February 24, 2009 Decision, we continue to conclude that
this case is not ripe and jurisdictionally bars us from providing the advisory
opinion that Intervale seeks.
      For these reasons, after reconsideration of the issues raised in this
appeal, we DENY Intervale’s motion to alter or amend our earlier Decision.



___________________________________________                          _____April 14, 2009______
      Thomas S. Durkin, Judge                                                 Date

Date copies sent to: ____________               Clerk's Initials _______
Copies sent to:
    Attorneys Brian S. Dunkiel and Geoffrey Hand for Appellants Intervale
    Center, Inc. and Half Pint Farm
    Attorney Diane E. Zamos for Appellee Agency of Agriculture
    Attorney Colin K. McNeil for Interested Person City of Burlington
