726 A.2d 477 (Vt. 1998), 97-422, Parker v. Town of Milton

Docket Nº:97-422.
Citation:726 A.2d 477, 169 Vt. 74
Opinion Judge:Johnson, J.
Party Name:Wilbur PARKER, et al. v. TOWN OF MILTON, et al.
Attorney:John L. Franco, Jr., Burlington, for Plaintiffs-Appellants. William H. Sorrell, Attorney General, Ron Shems, Assistant Attorney General, and David Groff, Law Clerk (On the Brief), Montpelier, for Defendants-Appellees.
Case Date:December 18, 1998
Court:Supreme Court of Vermont

Page 477

726 A.2d 477 (Vt. 1998)

169 Vt. 74

Wilbur PARKER, et al.



No. 97-422.

Supreme Court of Vermont.

December 18, 1998

Motion for Reargument Denied Feb. 16, 1999.

Page 478

[169 Vt. 75] John L. Franco, Jr., Burlington, for plaintiffs-appellants.

William H. Sorrell, Attorney General, Ron Shems, Assistant Attorney General, and David Groff, Law Clerk (On the Brief), Montpelier, for defendants-appellees.

Present AMESTOY, C.J., and MORSE, JOHNSON and SKOGLUND, JJ., and KATZ, Superior Judge, Specially Assigned.


Plaintiffs, six individual Vermont residents and two labor unions, appeal a superior court order dismissing their complaint. Plaintiffs

Page 479

opposed the construction of a bridge in the Town of Milton and alleged violations of the public trust doctrine, their constitutional rights to due process and equal protection of the laws, and the Vermont Administrative Procedure Act. The superior court dismissed their complaint for lack of standing with respect to their declaratory judgment action, and failure to state a claim with respect to their constitutional and statutory causes of action. We affirm.

The Town of Milton (Town) applied for a required encroachment permit 1 to build a bridge across Arrowhead Mountain Lake that would connect Route 7 with a town highway and an industrial site owned by Husky Injection Moldings. The Department of Environmental Conservation (DEC) held a public information meeting concerning the Town's permit application after a petition was presented pursuant to 29 V.S.A. § 405(a). The DEC subsequently issued an encroachment permit to the Town of Milton on June 6, 1997, which allowed construction of the proposed bridge. 2

On July 25, 1997, plaintiffs filed an action in superior court arguing that because the public trust doctrine 3 prevents the Legislature from granting rights in the public trust [169 Vt. 76] property for private use, see State v. Central Vt. Ry., 153 Vt. 337, 344, 571 A.2d 1128, 1131 (1989), the Legislature therefore has a nondelegable duty to determine whether the bridge at issue in this case in fact serves a public use. Specifically, plaintiffs sought a declaratory judgment stating that, in addition to obtaining an encroachment permit, the Town of Milton is required to obtain (1) a legislative grant of airspace over the lake and (2) a legislative determination that the bridge is a "public use" within the meaning of the public trust doctrine. 4

Plaintiffs also claim they were denied their right under the United States Constitution to procedural due process and equal protection because their representative was not allowed to present their interests at the public hearing. Plaintiffs allege that others in attendance at the hearing shouted to prevent their representative from speaking and the DEC officer conducting the hearing ruled their representative out of order. Finally, plaintiffs allege that the encroachment permit violated the Vermont Administrative Procedure Act, 3 V.S.A. §§ 801-849 (VAPA), because it was issued without a "contested case" hearing, which plaintiffs allege is required by 3 V.S.A. § 801(b)(2).

The superior court dismissed plaintiffs' challenge to the encroachment permit, finding that plaintiffs did not have standing to mount such a challenge because they merely asserted the legal conclusion that the public trust was being derogated and did not describe any actual injury, only generalized grievances. The trial court further found that plaintiffs had not alleged elements sufficient to sustain an equal protection claim and were not "aggrieved persons" within the meaning of the VAPA, and therefore dismissed the constitutional and VAPA-based causes of action for failure to state a claim.

  1. The Standing Requirement

    We first address whether plaintiffs have standing to request a declaratory judgment with respect to the encroachment permit. A plaintiff must allege facts sufficient to confer standing "[o]n the face of the complaint." Town of Cavendish v. Vermont Pub. Power Supply Auth., 141 Vt. 144, 147-48, 446 A.2d 792, 794 (1982).

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    The standing requirement originates in Article III of the United States Constitution, which states that federal courts have jurisdiction [169 Vt. 77] only over actual cases or controversies. See U.S. Const. art. III. This requirement has been adopted in Vermont. "The judicial power, as conferred by the Constitution of this State upon this Court, is the same as that given to the Federal Supreme Court by the United States Constitution; that is, the right to determine actual controversies arising between adverse litigants, duly instituted in courts of proper jurisdiction." In re Constitutionality of House Bill 88, 115 Vt. 524, 529, 64 A.2d 169, 172 (1949) (internal quotations omitted).

    An element of the case or controversy requirement is that plaintiffs must have standing, that is, they must have suffered a particular injury that is attributable to the defendant and that can be redressed by a court of law. The existence of an actual controversy "turns on whether the plaintiff is...

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