Lake Bomoseen Ass'n v. VT WATER RES. BD.

• Decision Date: 15 July 2005
• Docket Number: No. 04-220.,04-220.
• Citation: 886 A.2d 355
• Court: Vermont Supreme Court
• Parties: LAKE BOMOSEEN ASSOCIATION v. VERMONT WATER RESOURCES BOARD

886 A.2d 355

LAKE BOMOSEEN ASSOCIATION v. VERMONT WATER RESOURCES BOARD

No. 04-220.

Supreme Court of Vermont.

July 15, 2005.

Motion for Reargument Denied August 19, 2005.

Jon T. Anderson of Burak Anderson & Melloni, P.L.C., Burlington, for Plaintiff-Appellant.

William H. Sorrell, Attorney General, and S. Mark Sciarrotta, Assistant Attorney General, Montpelier, for Defendant-Appellee. Kelly D.H. Lowry of Johnson, Smith, Hibbard & Wildman, Spartanburg, South Carolina, for Intervenor-Appellees Vermont Natural Resources Council and Rutland County Audubon.

Present: DOOLEY, JOHNSON, SKOGLUND and REIBER, JJ., and ALLEN, C.J. (Ret.), Specially Assigned.

¶ 1. DOOLEY, J.

Lake Bomoseen Association appeals from a superior court decision dismissing its complaint challenging a wetlands reclassification determination by the Vermont Water Resources Board. The trial court ruled that it lacked jurisdiction because: (1) the statutes governing wetlands reclassifications provide no express right to judicial review, and (2) the reclassification was a rulemaking rather than an adjudicative proceeding and therefore not reviewable by a traditional writ of certiorari. We affirm.

¶ 2. The legal and factual background to this appeal may be summarized as follows. Among its other statutory duties, the Water Resources Board (WRB) is required to "[a]dopt rules for the identification of wetlands which are so significant that they merit protection" based on certain statutorily defined functions, including contribution to the "quality of surface and groundwater through chemical action," control "the effects of erosion and runoff, filtering silt and organic matter," and use as habitat for fish, migratory birds, and wildlife. 10 V.S.A. § 905(7).¹ The WRB is also charged with the duty to "[a]ct on petitions" to designate specific wetlands as significant, and to "[a]dopt rules protecting wetlands which have been determined ... to be significant." Id. § 905(8), (9). Pursuant to this authority, the WRB has promulgated Wetland Rules creating three categories of wetlands, denominated Class One, Class Two, and Class Three. Vermont Wetland Rules § 4.1, 6 Code of Vermont Rules 12 004 056-10 (2002) [hereinafter VWR].

¶ 3. Under the rules, all wetlands shown on the National Wetlands Inventory (NWI) Maps published by the United States Fish and Wildlife Service are presumptively significant and designated as Class Two. Id. § 4.2(b); see also Sec'y, Agency of Natural Res. v. Irish, 169 Vt. 407, 413-14, 738 A.2d 571, 578 (1999) (upholding presumption that wetlands identified on NWI maps are significant). Unless otherwise provided by the WRB, a fifty-foot buffer zone is imposed around Class Two wetlands "to protect those functions that make a wetland significant." VWR § 4.3, at 12. Class One wetlands are defined as those wetlands that are "exceptional or irreplaceable in their contribution to Vermont's natural heritage and are therefore so significant that they merit the highest level of protection." Id. § 4.1(a), at 10. Unless otherwise designated by the WRB, a 100-foot buffer zone is established around Class One wetlands. Id. § 4.3, at 12. All other wetlands not determined to be significant are categorized as Class Three. Id. § 4.1(c), at 10.

¶ 4. Permitted uses within Class One and Class Two wetlands and their surrounding buffer zones are limited, and all other uses require a conditional use determination by the Agency of Natural Resources, appealable to the WRB. Id. §§ 6.2, 6.3, 8.6-8.7, at 20-22, 28-29; see also 10 V.S.A. § 905b(18) (authorizing issuance or denial of conditional use determinations).

¶ 5. The rules establish a procedure for interested persons and organizations to petition the WRB for the reclassification of any wetland to a higher or lower classification, or for modification of the buffer zone associated with a significant wetland. VWR § 7.1(a), at 23. Upon the filing of such a petition, the WRB must provide public notice, allow at least thirty days for the filing of public comments, hold a public hearing upon request, and issue an "[a]dministrative determination[]" ruling on the request for reclassification or modification. Id. § 7.4(a), at 24; Water Resources Board Rules of Procedure, Rule 15.(D), 6 Code of Vermont Rules 12 004 001-16 (2002).

¶ 6. The instant proceeding commenced in July 2002, when the Vermont Natural Resources Council and the Rutland County Audubon Society filed a petition with the WRB seeking reclassification of an area known as the Lake Bomoseen Wetland from Class Two to Class One, as well as an expansion of the presumptive buffer zone around the wetland from 50 to 100 feet. The WRB received over eighty written comments in response to the petition, including those of plaintiffs Lake Bomoseen Association, comprised of property owners on or near Lake Bomoseen. The WRB held a public hearing in September 2002, conducted a site visit, reopened the public comment period on the limited question of whether to vary the presumptive 100-foot buffer around Class One wetlands, and issued an administrative determination, containing extensive findings and conclusions, in February 2003. The WRB voted unanimously to reclassify the wetland from Class Two to Class One, and determined, with one member dissenting, to impose the presumptive 100-foot buffer zone in all but one small area at the southeastern portion of the wetland known as Ledgemere Point, where preexisting development reduced the wetland's significance and thus warranted retention of the 50-foot zone. The dissenting member (the WRB chair) would have retained the 50-foot zone along a larger portion of the eastern side of the wetlands.²

¶ 7. The Association then filed a complaint in the Rutland Superior Court, pursuant to Rule of Civil Procedure 75, challenging the administrative determination as arbitrary and a violation of due process. The WRB moved to dismiss the complaint, arguing that the court lacked jurisdiction under Rule 75, and that the Association lacked standing. In April 2004, the court issued a written decision, granting the motion. Under Rule 75, "[a]ny action or failure or refusal to act by an agency of the state or a political subdivision thereof ... that is not appealable under Rule 74 may be reviewed in accordance with this rule if such review is otherwise available by law." V.R.C.P. 75(a). The court noted that the statutes dealing with the identification and protection of wetlands are silent on the right to judicial review, and therefore concluded that the WRB's decision was not appealable under Rule 74, which applies only when a party "is entitled by statute" to seek review of an agency decision. V.R.C.P. 74(a).

¶ 8. As to whether judicial review was "otherwise available by law" under Rule 75, the court noted that the phrase has been interpreted to include situations where review was formerly available under the traditional prerogative writs at common law, such as certiorari, mandamus, and prohibition. See Vt. State Employees' Ass'n v. Vt. Criminal Justice Training Council, 167 Vt. 191, 195, 704 A.2d 769, 771 (1997) ("When ... legislation is silent on whether review is available, we have permitted appeal under Rule 75 so long as review would have been available under any one of the extraordinary writs, such as mandamus, scire facias, prohibition, quo warranto, and certiorari."). The court rejected mandamus and prohibition, observing that "no official is being requested to perform or restrain from performing a particular act." This left, in the court's view, certiorari—the method traditionally used to "review judicial action of inferior courts and tribunals," State v. Forte, 159 Vt. 550, 554, 624 A.2d 352, 355 (1993)—as the only relevant writ.

¶ 9. The court then proceeded to analyze whether the reclassification proceeding was adjudicative in nature, in which case the predicate for Rule 75 review would be satisfied, or quasi-legislative, in which case certiorari review, and by extension Rule 75 jurisdiction, would be precluded. The court looked to In re Stratton Corp., 157 Vt. 436, 600 A.2d 297 (1991), as the controlling decision in this area. Applying the factors identified in Stratton for assessing whether an agency action is rulemaking or adjudication, the court concluded that the WRB's administrative determination was not quasi-judicial, and therefore that an appeal in the nature of certiorari was unavailable. Accordingly, the court found that it lacked jurisdiction, and dismissed the complaint without addressing the parties' remaining claims. The Association then filed this appeal.

¶ 10. According to the Association, the trial court erred in dismissing the appeal for lack of jurisdiction based on its finding that the administrative determination reclassifying the Lake Bomoseen Wetland was a rulemaking proceeding rather than an adjudication.³ The statutory language leaves little doubt, however, that the Legislature intended the wetlands classification process to be a rulemaking proceeding. As noted, the statute directs the WRB to "[a]dopt rules for the identification of wetlands which are so significant that they merit protection," and further to "[a]dopt rules protecting wetlands which have been determined ... to be significant." 10 V.S.A. § 905(7), (9); see Stratton, 157 Vt. at 442, 600 A.2d at 300 (statutory language labeling reclassification of streamwaters as "rules" indicates legislative intent to treat proceeding as rulemaking). Moreover, although the WRB's Rules of Procedure characterize reclassifications as "administrative determinations" rather than as rulemaking per se, such determinations are specifically distinguished from "contested case proceedings." Water Resources Board Rules of Procedure, Rule 15; see Stratton, 157 Vt. at 442, 600 A.2d at 300 (considering streamwater reclassification designations as "contested cases" supported finding that they were not intended to be adjudicative proceedings). ¶ 11. Thus, the...