In re: Dean Leary (Point Bay Marina, Inc.), Docket No. MLP-96-04, Findings of Fact, Conclusions of Law and Order (Aug. 1, 1997)



STATE OF VERMONT

WATER RESOURCES BOARD

29 V.S.A 401-409In re: Dean Leary (Point Bay Marina, Inc.)

Docket No. MLP-96-04

FINDINGS OF FACT, CONCLUSIONS OF LAW, AND ORDER

This decision pertains to an appeal of a management of lakes and ponds permit. As explained below, the Water Resources Board orders the issuance of an amended permit, thereby modifying the action of the Department of Environmental Conservation.

I. BACKGROUND

On September 17, 1996, the Department of Environmental Conservation ("DEC"), Agency of Natural Resources ("ANR"), issued Management of Lakes and Ponds Permit 96-11 ("Permit 96-11") to Point Bay Marina, Inc. ("Point Bay") pursuant to 29 V.S.A. 401-409. Permit 96-11 allows Point Bay to relocate the service and swim docks in the public waters of Lake Champlain, Charlotte, Vermont ("Project").

On September 25, 1996, Dean W. Leary ("Leary") filed an appeal from Permit 96-11 pursuant to 29 V.S.A. 406. Leary contends that the DEC erred in issuing Permit 96-11 with respect to the Project's compliance with 29 V.S.A. 405(b) and the public trust as guaranteed by Vermont's constitution.

On September 27, 1996, the Board, by its Executive Officer, docketed the appeal as MLP-96-04 ("MLP-96-04").

On November 15, 1996, the Conservation Law Foundation ("CLF") filed a motion ("Motion") pertaining to the scope of the Board's public trust review.

On November 22, 1996, Board designee David L. Grayck, Esq., Associate General Counsel, convened a prehearing conference and, on December 11, 1996, issued a proposed Prehearing Conference Report and Order.

On January 29, 1997, the Board convened an oral argument regarding the Motion.

On March 18, 1997, the Board issued a memorandum of decision relative to the Motion, and the Board's Chair issued a Prehearing Conference Report and Order.

On April 14, 1997, CLF filed a Motion for Reconsideration regarding the Board's March 18, 1997 Memorandum of Decision.

On April 14, 1997, the Board's Chair issued a memorandum to the parties which provided that CLF's Motion for Reconsideration would be ruled upon in the Board's decision on the merits of this appeal.

The parties filed prefiled direct testimony and exhibits, and lists of rebuttal witnesses and exhibits during April, 1997.

On April 30, 1997, the Board convened an evidentiary hearing in this matter with the following parties participating:

Dean Leary, Pro se

Point Bay Marina, Inc. by Donald R. Powers, Esq. and Peter Allen Martin

Agency of Natural Resources by Andrew Raubvogel, Esq.

Conservation Law Foundation by Stephen L. Saltonstall, Esq.

At the hearing's conclusion, the Board recessed this proceeding pending receipt of proposed findings of fact and conclusions of law, deliberation and issuance of this decision.

On May 8, 1997, CLF filed proposed findings of fact and conclusions of law.

On May 22, 1997, the remaining parties filed proposed findings of fact and conclusions of law.

On June 4 and 20, and July 18, 1997, the Board deliberated regarding this appeal. On July 18, 1997, the Board declared the record complete and adjourned the hearing. This matter is now ready for decision. To the extent any proposed findings of fact and conclusions of law are included below, they are granted; otherwise, they have been considered and are denied. See Petition of Village of Hardwick Electric Department, 143 Vt. 437, 445 (1983).

II. ISSUES

The issues in this appeal are as follows:

1. Whether, pursuant to 29 V.S.A. 401-409, the Project's encroachment adversely affects the public good with regard to the effect of the proposed encroachment as well as the potential cumulative effect of existing encroachments on water quality, fish and wildlife habitat, aquatic and shoreline vegetation, navigation and other recreational and public uses, including fishing and swimming, consistency with the natural surroundings, and consistency with municipal shore land zoning ordinances or any applicable state plans.

2. Whether the Project, after giving due consideration to the cumulative effect of the Project upon the waters of the State of Vermont, will have a detrimental effect on public trust uses.

III. FINDINGS OF FACT