In re DJK, LLC, 21-ENV-00046

Citation21-ENV-00046
Case DateOctober 03, 2022
CourtSuperior Court of Vermont

DJK, LLC WW & WS Permit

No. 21-ENV-00046

Superior Court of Vermont

October 3, 2022


Title: Motion for Summary Judgment; Motion for Summary Judgment Motion for Summary Judgment & Motion to Dismiss as to Appellants' 3rd Amended Statement of Questions; Crowley's Motion for Summary Judgment (Motion: 4; 6)

Filer: Jeremy S. Grant; Nathan Stearns

Filed Date: January 10, 2022; February 10, 2022

DJK, LLC's Statement of Undisputed Material Facts in Support of Motion for Summary Judgment, filed on January 10, 2022, by Nathan Stearns, attorney for the Applicant

Appellants' Opposition to DJS, LLC's Motion for Summary Judgement, filed on February 9, 2022, by Jeremy S. Grant, Attorney for the Appellants

Appellants' Statement of Disputed Facts and/or Response to DJK's Statement of Undisputed Material Facts, filed on February 9, 2022, by Jeremy S. Grant, Attorney for the Appellants

ANR Reply to Appellants' Opposition to Motion for Summary Judgment, Filed on February 23, 2022, by Kane Smart, Attorney for the Agency of Natural Resources

DJK, LLC's Reply to Appellants' Opposition to DJK, LLC's Motion for Summary Judgment, filed on March 23, 2022, by Nathan Stearns, Attorney for the Applicant

DJK, LLC's Opposition to Appellants' Motion for Summary Judgment, filed on March 28, 2022, by Nathan Stearns, Attorney for the Applicant

DJK, LLC's Response to Appellants' Statement of Undisputed Material Facts, filed on March 28, 2022, by Nathan Stearns, Attorney for the Applicant

DJK, LLC's Statement of Additional Material Facts, filed on March 28, 2022, by Nathan Stearns, Attorney for the Applicant

ANR Response in Opposition to Motion for Summary Judgment, Filed on March 28, 2022, by Kane Smart, Attorney for the Agency of Natural Resources

Crowley's Reply to DJK, LLC and ANR's Opposition to Crowley's Motion for Summary Judgment, filed on May 9, 2022, by Jeremy S. Grant, Attorney for the Appellants

DECISION ON CROSS-MOTIONS FOR SUMMARY JUDGMENT

Thomas G. Walsh, Judge Superior Court

Applicant's Motion is GRANTED; Appellants' Motion is DENIED.

1

Ralph and Joanne Cowley (Appellants) appeal the Wastewater System and Potable Water Supply Permit #WW-8-2087 (the Permit) issued by the Vermont Agency of Natural Resources, Department of Environmental Conservation (DEC) to DJK, LLC (Applicant) on May 24, 2021. The Permit authorizes Applicant's new, on-site mound-type wastewater system with existing on-site potable water supply well to support improvements to developed land at 303 West Union Street in Manchester, VT. Currently pending before this Court are cross-motions for summary judgement filed by Appellants and Applicant concerning whether the Permit unlawfully impacts Appellants' use of their property. The Agency of Natural Resources (ANR) has filed responses to both motions.

In this proceeding, Appellants are represented by Attorneys Jon T. Anderson, Gary L. Franklin, and Jeremy S. Grant, Applicant is represented by Nathan Stearns, Esq., and ANR is represented by Kane Smart, Esq.

UNDISPUTED FACTS

On January 10, 2022, Applicant filed a Statement of Undisputed Material Facts (Applicant's SUMF) in support of their Motion. Appellants responded with their Statement of Disputed Facts (Appellants' SDMF) on February 9, 2022. On February 10, 2022, Appellants filed their Statement on Undisputed Material Facts (Appellants' Cross-SUMF), contained in their Motion for Summary Judgment. See Appellants' Mot. for Summ. J. at 3-10. On March 28, 2022, Applicant filed a response to Appellants' Cross-SUMF (Applicant's Cross-SDMF), accompanied by additional material facts (Applicant's Add'l SUMF).

The material facts are largely undisputed, with either parties' disputes flowing from legal conclusions rather than material facts. Both parties assert that the undisputed material facts entitle them to judgment as a matter of law on all four questions. The Court consolidates the parties' statements of undisputed material facts for use in both motions. The Court sets out the following facts for the sole purpose of deciding the pending motions. The facts are limited to those material to the Court's decision and excludes the undisputed material facts relevant to the issues not addressed by the Court here. What follows is not a list of the Court's factual findings. See Fritzeen v. Trudell Consulting Eng'rs, Inc., 170 Vt. 632, 633 (2000) ("It is not the function of the trial court to find facts on a motion for summary judgment").

1. DJK owns property at 303 West Union Street, Manchester Vermont. Applicant's SUMF ¶ 1 (citing Ex. 1, ¶ 2)
2. On March 31, 2021, DJK filed an application seeking a Wastewater System and Potable Water Supply Permit for the construction of a wastewater system (the "Wastewater System") to serve an additional bedroom in the existing residence and a single bedroom in a detached accessory unit at DJK's property. Id. ¶ 2 (citing Ex. 2) see also Appellants Cross-SUMF ¶ 5 (citing Ex. B).
3. The DEC issued the Permit to DJK on April 27, 2021. Applicant's SUMF ¶ 3 (citing Ex. 3). The Permit authorizes construction of the Wastewater System per the plans submitted in the application. Id. (citing Ex. 2); Ex. 3; see Appellants Cross-SUMF ¶ 6 (citing Ex. C).
4. Paragraph 2.3 of the Permit imposes the following condition of DJK's property:
2
No buildings, roads, water pipes, sewer services, earthwork, regrading, excavation, or other construction that might interfere with the operation of a wastewater system or a potable water supply are allowed on or near the site-specific wastewater system, wastewater replacement area, or potable water supply depicted on the stamped plans. Adherence to all isolation distances that are set forth in the Wastewater and Potable Water Supply Rules is required.

Applicant's SUMF ¶ 6 (citing Ex. 3 ¶ 2.3); Appellants' Cross-SUMF ¶ 9 (Ex. C).

5. To qualify for a wastewater permit, an applicant must demonstrate, among other things, that the proposed location of its wastewater system does not contain any potable water supplies within its associated isolation zone. Applicant's SUMF ¶ 8 (citing Ex. 4, App. A(d)(1)(C)).
6. In this case, the standard isolation zone required by the Rules extends, or overshadows, onto a portion of Appellants' Property. Id. ¶ 9 (citing Ex. 5 ¶ 8).
7. The area of Appellants' property covered by the isolation zone is approximately 10 percent of Appellants' total lot. Id. ¶ 10 (citing Ex. 5 ¶ 9).
8. This portion of Appellants' property is currently undeveloped and does not contain any potable water supply. Id. ¶ 11 (citing Ex. 5 ¶ 8).
9. Outside of the isolation zone, Appellants' property already contains a well/potable water supply, a wastewater system, and a residence. Id. ¶ 12 (citing Ex. 6 at Resp. 6).
10. The Rules, § 1-1104, contain an essentially reciprocal isolation zone for construction of a potable water supply. Id. ¶ 13 (citing Ex. 4 § 1-1104).
11. In order to qualify for a potable water supply permit, an applicant must demonstrate, among other things, that the proposed location of its water supply does not contain any wastewater system within its associated isolation zone. Id. ¶ 14 (citing Ex. 4, App. A(e)(1)(C)-(D)).
12. Under some circumstances, an applicant can request a reduction in the isolation distances for its potable water supply. Id. ¶ 15 (citing Ex. 4 § 1-1104(k)). Reductions in the isolation distances for wastewater systems are also available. Id. ¶ 16 (citing Ex. 4 § 1-912(e)).
13. Appellants' have no plans to install a potable water supply in the area encompassed by the isolation zone. Id. ¶¶ 17-18, 19 (citing Ex. 6 at Resps. 8, 10-11). Appellants have produced no permits, analysis, or engineering plans demonstrating an intention to install a potable water supply in this portion of their property. Id. Appellants have not applied for a permit to construct a potable water supply in the isolation zone or analyzed whether a reduction in the isolation zone could be obtained. Id.
14. Appellants received notice of Applicant's application for the Permit by certified mail (the Notice). Id. ¶ 22 (citing Ex. 5 ¶ 11; Ex. 7); see also Appellants' Cross-SUMF ¶ 2 (Ex. A). The Notice enclosed a site plan "showing the location of the . . . proposed wastewater system (the septic system)" that included "presumptive isolation zones drawn around the proposed . . . septic system," and explained that "[a] presumptive isolation zone is an area that, . . . when drawn around components of a septic system (the leachfield or septic tank or
3
other tanks that are part of the septic system), shows where a well, with a design capacity of 2 gallons per minute or less, cannot be located" pursuant the Rules. See Appellants' Cross-SDMF ¶ 2 (Ex. A); Cf. Applicant's Cross-SDMF ¶ 2 (disputing only "in relevant part"); see also Applicant's SUMF ¶¶ 22-25.
15. The Notice also included the prescribed notice form, which stated that Appellants "have the opportunity to discuss, and potentially resolve, conflicts before a permit is issued ...." Applicant's SUMF ¶ 24 (citing Ex. 7 at 2-3); see Appellants' Cross-SDMF ¶ 2 (Ex. A); cf. Applicant's Cross-SDMF ¶ 2 (disputing only "in relevant part"). The Appellants' contractor contacted Mr. Parent to request that the Wastewater System design be altered to remove the isolation zone from Appellants' property. Applicant's SUMF ¶ 26 (citing Ex. 1 ¶ 4). Mr. Parent discussed potential design alternatives with DJK, which were subsequently presented to the Appellants. Id. ¶ 28 (citing Ex. 5 ¶ 12).
16. Appellants did not contact DJK again until they filed the current appeal. Id. ¶ 29 (citing Ex. 1 ¶ 10). Appellants filed the present appeal on May 24, 2021. See Notice of Appeal (filed May 24, 2021).

DISCUSSION

In Applicant's motion for summary...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT