Sunset Cliff Homeowners Assoc. v. Vermont Water Resources Board, No.
551-9-04 Wncv (Katz, J., May 25, 2005)

[The text of this Vermont trial court opinion is unofficial. It has been
reformatted from the original. The accuracy of the text and the
accompanying data included in the Vermont trial court opinion database is
not guaranteed.]

STATE OF VERMONT                                     SUPERIOR COURT
Washington County, ss.:                         Docket No. 551-9-04 Wncv


SUNSET CLIFF HOMEOWNERS
ASSOCIATION

v.

VERMONT WATER RESOURCES BOARD


                                  ENTRY


        Plaintiff challenges, pursuant to 3 V.S.A. § 807, the validity of the
Water Resources Board’s treatment of its petition to reclassify from Class
III to Class II (a more protective designation in the Vermont Wetland
Rules) a wetland in or near the neighborhood of Plaintiff’s members. The
Board eventually issued a decision declining to reclassify the wetland.
Plaintiff initially challenged the Board’s decision in Chittenden Superior
Court. There, as here, Plaintiff claimed, “the Board’s refusal to reclassify
the property as a higher and more protected class violates the Board’s Rules
concerning wetlands and misapprehends the relevant facts.” Sunset Cliff v.
Vermont Water Resources Board, No. S187-04CnC (Vt. Super. Ct.
05/17/04), Entry, at 1. By decision of the undersigned, the Chittenden
County case was dismissed; Plaintiff did not appeal. The Board now seeks
dismissal of this case arguing that any review of its reclassification decision
here is precluded by the Chittenden County decision, and, in any event,
there is no “rule” for Plaintiff to challenge under 3 V.S.A. § 807
(declaratory judgment on validity or applicability of rules).

        In the Chittenden County case, the Board sought Rule 12 dismissal
for lack of any available (Rule 74 or 75) “avenue of appeal”; the complaint
cited Rule 74. The court evaluated and rejected the applicability of Rule
74, Wetland Rules § 9 (appeals), 10 V.S.A. § 1270 (water pollution control
appeals), and Rule 75. The opinion reflects Plaintiff’s objection that if
none of these rules apply, and the agency action it seeks to challenge is
“rulemaking” in nature, then Plaintiff ought to be able to proceed under 3
V.S.A. § 807. To this, it was noted that venue under 3 V.S.A. § 807 resides
in Washington County, not Chittenden County. It was also noted that
Plaintiff’s complaint – which, as noted, envisioned review via Rule 74 – did
not allege any interference with the legal rights or privileges of Plaintiff or
its members, a requirement for a 3 V.S.A. § 807 declaratory action. Absent
a § 807 action, it was noted, Plaintiff had resort only to the political
process, not the courts. Any amendment to correct the 3 V.S.A. § 807
pleading deficiency obviously could not correct what would remain an
improper choice of venue. The case, therefore, was dismissed.

        Subsequently, Plaintiff filed this case specifically seeking a 3 V.S.A.
§ 807 declaratory judgment. We disagree with the Board’s argument that
the holdings of the Chittenden case preclude this case, at least insofar as
this case may be considered pursuant to 3 V.S.A. § 807. Plaintiff did not
seek a 3 V.S.A. § 807 declaratory judgment in the Chittenden case and did
not craft the complaint prospectively to support such an action. To the
extent § 807 was addressed at all, only improper venue and lack of
adequate pleading were mentioned. While Plaintiff could have appealed
the Chittenden decision in continued pursuit of one of the different avenues
of review, filing a complaint pleaded well for 3 V.S.A. § 807 purposes in
the court with venue was not a wholly unreasonable reaction. Issue
preclusion “bars the subsequent relitigation of an issue that was actually
litigated and decided in a prior case where that issue was necessary to the




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resolution of the dispute.” Alpine Haven Property Owners Assoc. v.
Deptula, 2003 VT 51, ¶ 13 (mem.) (emphasis added), citing Trepanier v.
Getting Organized, Inc., 155 Vt. 259, 265 (1990) (setting out elements of
collateral estoppel). The Chittenden decision, particularly considering its
procedural posture, neither alludes nor implies that Plaintiff’s action in this
case might be precluded because 3 V.S.A. § 807 is not available to
Plaintiff. To hold otherwise would inflate the role of that issue in the
Chittenden litigation unreasonably and unfairly to Plaintiff. See Trepanier,
155 Vt. at 265 (fairness of applying issue preclusion a central inquiry
depending on circumstances of case). An improper choice of venue need
not have resulted in dismissal, anyway; improper venue could have been
cured by transferring the case to the right court directly. See, e.g., Host
Marriot Tollroads, Inc. v. Petrol Enterprises, Inc., 810 So.2d 1086, 1089
(Fla. App. 2002); Lake County Riverboat L.P. ex rel. FRGP, L.P. v. Illinois
Gaming Bd., 730 N.E. 2d 524, 530 (Ill. App. 2000).

       We must examine, therefore, whether Plaintiff’s action properly falls
under 3 V.S.A. § 807. Section 807 of the Vermont Administrative
Procedures Act provides, in part:

               The validity or applicability of a rule may be
       determined in an action for declaratory judgment in the
       Washington Superior court if it is alleged that the rule, or its
       threatened application, interferes with or impairs, or threatens
       to interfere with or impair, the legal rights or privileges of the
       plaintiff.

A “rule” is defined in the Act as an “agency statement of general
applicability which implements, interprets, or prescribes law or policy and
which has been adopted in the manner provided by sections 836-844 of this
title.” 3 V.S.A. § 801(9).

        The underlying events of this case were initiated by Plaintiff when it
filed a 10 V.S.A. § 905(8) petition requesting that the Board reclassify the
wetland at issue. The Board has adopted the Vermont Wetland Rules as an




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expression of its rulemaking authority at 10 V.S.A. § 905(7)-(9). Section
905(7) directs the Board to adopt “rules for the identification of wetlands
which are so significant that they merit protection,” while § 905(8) requires
action on petitions to designate the classification of “specific” wetlands.
Section 905(9) directs it to adopt rules protecting so identified wetlands.
The legislature could have cast such decisions in stone by writing them into
the statute. Instead, resolution of these policy issues was delegated to the
Board. This is “rulemaking” authority; neither party suggests it is
adjudicative. See Appeal of Stratton Corp., 157 Vt. 436, 445 (1991)
(arriving at the same conclusion with regard to the Board’s analogous
reclassification authority in 10 V.S.A. § 1253). Moreover, this authority is
truly “legislative” in nature (as opposed to nonlegislative): it is an extension
of the legislative process. See 3 Charles H. Koch, Jr., Administrative Law
and Practice (2d ed.), § 11.21[1] at 102. That is, the legislature “explicitly
left a gap for the agency to fill, there is an express delegation of authority to
the agency to elucidate a specific provision of the statute.” Id., § 11.21[1]
at 103 (quoting Chevron, U.S.A., Inc. v. Natural Resources Defense
Council, Inc., 467 U.S. 837, 843-44 (1984)).

        As noted above, the authority to make wetland classification
decisions is rulemaking authority. This conclusion is literally consistent
with the references to “rules” in 10 V.S.A. § 905(7)-(9). The Board’s
procedural rules relating to § 905(8) petitions also are generally consistent
with this conclusion. See generally Wetland Rules § 7. Upon receipt of a
petition, notice is published and a period during which written comments
are received ensues. One or more public hearings may follow, and
eventually the Board issues a notice of decision which provides a written
explanation of the basis for the decision. These are the ordinary incidents
of a rulemaking process. We have no doubt, then, that when the Board
receives a sufficient petition, as it evidently did in this case, and embarks
on this process, it is engaging in a rulemaking process.

       Similarly, we have no doubt that when the Board issues a decision
reclassifying a wetland that the reclassification determination is a “rule” for
VAPA purposes. That is the plain lesson of Stratton. The validity of a rule




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is, of course, challenged under 3 V.S.A. § 807. Consequently, we
understand the Board’s claim that there is no “rule” in this case sufficient to
trigger the applicability of 3 V.S.A. § 807 to mean that a decision to not
reclassify, even one following a rulemaking process, is not a rule,
ostensibly distinguishing this case from Stratton. A decision against
reclassification, the Board might say, is a decision against adopting a rule; a
decision to reclassify is a decision to adopt a rule. Section 807, the Board
argues, only applies to challenge a rule; where one is not adopted, 3 V.S.A.
§ 807 is not available.

        The Board’s decision to not reclassify the wetland at issue in this
case amounts to a decision to retain the wetland’s pre-petition
classification. Such a decision – particularly one issued on petition after
comment and the creation of a record, and consideration of attendant policy
issues – is an “agency statement of general applicability” every bit as much
as the initial classification decision. It is no less a legislative statement
“which implements, interprets, or prescribes law or policy.” We also
believe it is one “which has been adopted in the manner provided by
sections 836-844 of this title.” To be sure, it was not adopted according to
all of the details of §§ 836-44. Particularly, the petition did not mature into
a final proposal reviewed by the legislative committee on administrative
rules. See 3 V.S.A. §§ 841-42. That is so, however, only because the
Board’s policy choice stopped short the rulemaking process. Nevertheless,
the Board did arrive at (“adopt”) its decision “in the manner” of the §§ 836-
44. Those sections merely set out VAPA’s rulemaking process. The Board
engaged in the rulemaking process and through it arrived at a decision of a
uniquely legislative nature, a rule, literally fitting the definitional
requirements of 3 V.S.A. § 801(9) and sufficient for purposes of 3 V.S.A. §
807.

       Federal courts generally consider an agency decision not to take
action to be unreviewable. See 3 Koch, supra, § 12.51[1], at 297
(discussing repercussions of Heckler v. Chaney, 470 U.S. 821) (1985)).
State courts tend to avoid review of agency inaction as well. Id., §




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12.51[4]. This seems to be the Board’s position with regards to Plaintiff’s
effects to challenge its reclassification decision. However,

              The decision to abandon a rule after some proceedings
      is not the same as an initial refusal to begin rulemaking.
      Thus, where the alternative form of rule chosen is non-
      adoption, a court may review that “rule” in the same way it
      reviews a rule actually promulgated. The nonrule is the result
      of the same discretionary decision as other rules: there is a
      record and hopefully reasoning upon which review can take
      place.

1 Koch, supra, § 4.31[4], at 395 (footnotes omitted). See also Williams
Natural Gas Co. v. Federal Energy Regulatory Commission, 872 F.2d 438,
443 (D.C. Cir. 1989); Natural Resources Defense Council v. Securities and
Exchange Commission, 606 F.2d 1031, 1047 (D.C. Cir. 1979).

       We therefore conclude that the Chittenden case does not foreclose
this case, which may be considered pursuant to 3 V.S.A. § 807.


       Defendant’s motion to dismiss is denied. Defendant’s motion for
sanctions, which is premised on the preclusive effect of the Chittenden
case, also is denied.




    Dated at Montpelier, Vermont, __________________________, 20___.




                                            __________________________
                                                                 Judge




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