RE: Appeal of Nathan Wallace-Senft, (Bennington Bypass Project), Docket No. WQ-99-04 (DEC Permit #1-1357), Dismissal Order, (Sept. 8, 1999)

State of Vermont

WATER RESOURCES BOARD

RE: Appeal of Nathan Wallace-Senft

(Bennington Bypass Project)

Docket No. WQ-99-04 (DEC Permit #1-1357)

RE: Appeal of Nathan Wallace-Senft

(Bennington Bypass Project)

Docket No. CUD-99-05 (DEC Permit #94-558)

DISMISSAL ORDER

This Order pertains to a Motion to Dismiss ("Motion") the above-captioned appeals on the basis that the would-be appellants in this matter lack the requisite standing to pursue the appeals. The Motion was filed on August 17, 1999, by the Agency of Transportation ("AOT"). The Water Resources Board ("Board") heard oral argument with respect to the Motion on August 31, 1999 pursuant to Water Resources Board Rule of Procedure ("WBR") 24. For the reasons stated in this Order, the Board grants AOT's Motion. Accordingly, the would-be appellants lack standing to pursue either of the above-captioned appeals, the Board has no jurisdiction over these matters. As set forth below Docket No. WQ-99-04 and Docket No. CUD-99-05 are dismissed.

I. BACKGROUND

On June 2, 1999, the Board received two letters, characterized as appeals, pertaining to the construction of the western spur of AOT's project known as the Bennington Bypass ("Project"). The putative appeals were filed by Nathan Wallace-Senft and Anita Bellin⁽¹⁾ who are both residents of North Bennington. The putative appeal of the Stormwater Permit has been docketed by the Board as Docket No. WQ-99-04 and the putative appeal of the CUD has been docketed by the Board as Docket No. CUD-99-05. The Stormwater Permit describes certain conditions regarding the appropriate management of stormwater runoff associated with the Project whereas the CUD authorizes impacts to wetlands in the Project area as conditional uses, subject to conditions, off-site mitigation and ongoing monitoring of the wetlands impacted by the conditional use.

On July 29, 1999, Board Chair Gerry Gossens, pursuant to WBR 28, convened a prehearing conference relative to both of the above-captioned matters in Montpelier. It was determined that consolidation of these matters was appropriate because of the substantial overlap in the factual evidence, the parties who would present that evidence, as well as the legal issues involved. There was no objection by any party to such consolidation. The following persons participated in the prehearing conference:

Nathan Wallace-Senft, pro se

Anita Bellin, pro se

AOT by Scott Whitted, Esq.

Steve Lynch, Bennington Bypass Project Manager, AOT

ANR by Jon Groveman, Esq.

Charlotte Brodie, Project Consultant, Dubois and King, Inc.

John Benson, Project Consultant, Dubois and King, Inc.

Also entering timely appearances, but not attending, were the following:

Town of Bennington Planning Commission, by Daniel Monks, Zoning Administrator

Town of Bennington, by the Town Manager, Stuart Hurd

The following entities exercised their unqualified right to intervene in the proceeding (See WBR 25(B)):

ANR;

AOT;

Town of Bennington Planning Commission;

Town of Bennington.

On August 17, 1999, the Agency of Transportation filed a Motion to Dismiss the above-captioned appeals on the basis that the Appellants in this matter lack the requisite standing to pursue the appeals. On Tuesday, August 31, 1999 at 1:00 p.m., the Board heard oral argument in the conference room of the Board's Montpelier Office, National Life Records Center Building. The Board allocated 30 minutes of its meeting day for the presentation of argument and heard argument from the following persons:

Scott Whitted for the AOT;

Anita Bellin, pro se;

Nathan Wallace-Senft, pro se

Roger Wilder⁽²⁾

Immediately following the presentation of oral argument, the Board deliberated with respect to this matter. This matter is now ready for a decision.

II. DISCUSSION

Both of the referenced appeals are being pursued under the same statutory authority, 10 V.S.A. §1269, and with respect to both, the statutory requirements for standing are that "any person or party in interest aggrieved by an act or decision of the secretary pursuant to this subchapter may appeal to the Board within 30 days." As described by AOT's filing there are a number of prudential elements of standing. These include: the general prohibition against a litigant's purported defense of the legal rights of another; the rule against adjudication of generalized grievances; and the requirement that a plaintiff's complaint (or as here, an appellant's appeal) fall within the zone of interests protected by the law invoked. See Hinesburg Sand & Gravel Co. v. State, 166 Vt. 337, 341 (1997). The first two of the elements identified above are the focus of AOT's objection.

The statutory standing requirement is the threshold inquiry to determine whether jurisdiction vests with the Board. Here, the standard is whether Mr. Wallace-Senft or Ms. Bellin is a "person aggrieved." The statutory standard allowing persons aggrieved by an agency's action to file an appeal is pervasive throughout the Vermont statutes as the test of "standing."⁽³⁾ Despite the common usage of the "persons aggrieved" standard, there has been limited guidance in Vermont on the precise definition of what it means to be aggrieved. See Trombley v. Bellows Falls Union High School District, 160 Vt. 101, 106 (1993) (Court stated that "we need not define 'aggrieved' in order to hold that plaintiffs must make some showing of injury to obtain relief"). In part, the determination of what it means to be aggrieved is the product of a case-by-case inquiry. See In re: Aquatic Nuisance Control Permit #C93-01-Morey, Docket No. WQ-93-04, Memorandum of Decision on Party Status at 4 (August 25, 1993) (Board reads person aggrieved standard broadly, obtaining guidance in making its standing determinations through an examination of the legislation enabling the secretary's decision, the Board's own implementing rules (where applicable), and the Board's procedural rules). The Board has construed this standard liberally to allow a person demonstrating some interest affected by the act or decision of the Commissioner of DEC, the Secretary of ANR, or ANR an opportunity to appeal that act or decision. See Re: Husky Injection Molding Systems, Inc., Docket No. MLP-98-06, Chair's Preliminary Ruling at p. 4 (January 13, 1999). A would-be appellant's interest may or may not be a riparian property interest or a pecuniary interest, but it must be something more than a generalized interest or a complaint about the decisionmaker's favored approach to approving an activity.

Thus, in a matter involving an appeal from an encroachment permit granted to Point Bay Marina on Lake Champlain, the Board found that the appellant was a person aggrieved and therefore had standing pursuant to 29 V.S.A. §406(a) based on his present and historical usage and enjoyment of public waters in the vicinity of the project and his allegation that such usage and enjoyment might be adversely affected if the encroachment permit were allowed to stand as issued. In re: Dean Leary, Docket No. MLP-94-08, Preliminary Order at 2 (Dec. 28, 1994). In contrast, where an organized group of would-be appellants failed to adequately demonstrate their use or enjoyment of the waters in question and could not identify how their organization suffered harm as a consequence of the ANR's issuance of an encroachment permit, they were denied initially denied standing as appellants and allowed only to intervene as "permissive parties". Re: Husky Injection Molding Systems, Inc., Docket No. MLP-98-06, Chair's Preliminary Ruling at 6 (January 13, 1999). The would-be appellants were subsequently relegated by action of the full Board to the status of amicus curiae. Re: Husky Injection Molding Systems, Inc., Docket No. MLP-98-06, Memorandum of Decision at 9-11 (February 22, 1999).

In instances where a party has challenged the standing of an appellant, the Board has generally looked to the appellant's notice of appeal to find facts demonstrating a nexus between the appellant's alleged interest, the injury asserted, and the act or decision of the Commissioner of DEC, or the Secretary of ANR. In making its standing determination, the Board has also looked at the appellant's representations, either in its notice of appeal, at a prehearing conference, or in filings supplementing the notice of appeal. See In re: Appeal of Larivee, Docket No. 92-09, Preliminary Order: Party Status at 4 (March 16, 1993) (Board confirmed standing / party status of appellant based on supplemental filings filed after the prehearing conference). Indeed, where the timely filing of a putative appeal has been met, the Board has historically been generous in granting amendment and supplementation of notices of appeal and has rejected requests to dismiss based on "hypertechnical pleading" arguments. See In re: Appeal of Cole, Docket No. WQ-92-13, Memorandum of Decision: Motion to Dismiss at 2 (May 28, 1993). In the instant case, Mr. Wallace-Senft and Ms. Bellin used at least two opportunities after the prehearing conference to supplement their description of an alleged interest in the waters and lands in

question. Specifically, a letter was filed on August 17, 1999 explaining the putative appellants' membership in an organization known as Citizens for Alternatives to the Bennington Bypass ("CABB"), and Mr. Wallace-Senft and Ms. Bellin appeared on August 31, 1999 to present oral argument, where they again explained the nature of their concerns. At each opportunity, Mr. Wallace-Senft and Ms. Bellin focused on their desire to act on behalf of the public, or to prevent unnecessary environmental degradation, and even to specifically attempt to ameliorate impacts to nesting habitat.

While it is settled that the injury needed to confer standing may be noneconomic in nature, there must be some showing of harm to a legally protected interest. Sierra Club v. Morton, 405 U.S. 727 (1972). Here, the question can be distilled to an inquiry concerning whether the specific actions of the Secretary relative to AOT's project have either threatened injury to or caused an actual injury to Mr. Wallace-Senft's and Ms. Bellin's protected legal interests. As AOT points out in their memorandum, this need not be a "substantial" interest, but it must be some tangible interest in the specific waters and lands in question that is more specific than the general public's use and enjoyment of these resources. While Mr. Wallace-Senft and Ms. Bellin have on at least two occasions, and also at oral argument, expressed their objections to the manner in which AOT plans to develop the project, they have failed to specifically identify the legally-protected interests which they seek to protect.

One commentator has emphasized the importance of presenting documentation in support of claims of party standing as follows:

Standing must be the first thing [a practitioner] think[s] of in case preparation, not the last. It should be evaluated critically as part of the decision to bring a particular case.

* * *

Affidavits from members of client groups who are injured by the potential defendant's action must describe, in a concrete and particularized way, the interests of the affiants and how the proposed action affects those interests. The affidavits should be as specific as possible about the land areas used, the frequency of use, plans for continued and future use, and the precise nature of the harm done. The affidavits must also describe an injury that is distinct from the injury suffered by the general public. Violation of the law alone, is not a sufficient harm.

Sheldon, Karin P., Lujan v. Defenders of Wildlife: The Supreme Court's Slash and Burn Approach to Environmental Standing, 23 Environmental Law Reporter 10031, January 1993. The above stated considerations are not absolute, binding requirements upon appellants or intervenors in Water Resources Board proceedings. Nevertheless, affidavits or information such as that which is suggested in the excerpt above would provide a reasonable basis upon which to find legally protected interests in the area affected by the Project.

There is little doubt as to whether the putative appellants have valuable suggested alternatives to the AOT's Project, or whether they are legitimately concerned about "citizens of the area", or even whether they live in the immediate area⁽⁴⁾. However, in raising their concerns with respect to each of the referenced matters, Mr. Wallace-Senft and Ms. Bellin have provided the Board with no averred facts supporting a protected interest distinct from that of the public's and as a consequence are unable to demonstrate any threatened injury to a protected interest.

III. ORDER

1. For the reasons stated herein, the Board grants AOT's Motion.

2. Nathan Wallace-Senft lacks standing to pursue either of the above-captioned appeals and Anita Bellin lacks standing to pursue the appeal of the CUD. Accordingly, the Board has no jurisdiction over these matters.

3. Docket No. WQ-99-04 and Docket No. CUD-99-05 are hereby dismissed.

4. Discharge Permit No. 1-1357 and Conditional Use Determination Number 94-558 are binding and in full effect and jurisdiction remains with the Agency of Natural Resources.

Dated at Montpelier, Vermont this 8th day of September, 1999.

VERMONT WATER RESOURCES BOARD

/s/ Gerry F. Gossens

Gerry F. Gossens

Chair

Concurring:

Ruth Einstein

David J. Blythe

John D. E. Roberts

1. Mr. Wallace-Senft objected to both ANR's issuance of Stormwater Discharge Permit Number 1-1357 which was issued on May 3, 1999, addressing stormwater runoff impacts from the Project ("Stormwater Permit") and ANR's issuance of Conditional Use Determination Number 94-558 ("CUD") which was also issued on May 3, 1999. Ms. Bellin has formally only pursued the appeal of the CUD.

2. Mr. Wilder, a resident of Bennington, was not previously involved in the proceeding and was not acting as a representative for Mr. Wallace-Senft and Ms. Bellin. Nonetheless, Mr. Wilder was allowed 5 minutes of the time allocated to those opposing the Motion to Dismiss with the consent of Mr. Wallace-Senft and Ms. Bellin..

3. 10 V.S.A. §1269 authorizing appeals to the Board from Discharge Permits, Conditional Use Determinations (CUDs), as well as challenges related to the application of 29 V.S.A. §406(a) use the "person aggrieved" standard for determining standing to file an appeal, as does the Vermont Administrative Procedure Act.

4. It was noted at oral argument, and also in the context of an Environmental Board ruling relating to the same Project and involving Mr. Wallace-Senft, that the putative appellants live at least 2 miles from the Project sites.