In re Snowstone LLC Stormwater Discharge Authorization
| Decision Date | 21 May 2021 |
| Docket Number | No. 20-076,20-076 |
| Parties | IN RE SNOWSTONE LLC STORMWATER DISCHARGE AUTHORIZATION (Michael Harrington et al., Appellants) |
| Court | Vermont Supreme Court |
Merrill E. Bent of Woolmington, Campbell, Bent & Stasny, P.C., Manchester Center, for Appellants.
Lawrence G. Slason and Samantha L. Snow of Law Office of Salmon & Nostrand, Bellows Falls, and David R. Cooper of Facey Goss & McPhee P.C., Rutland, for Appellees.
PRESENT: Robinson, Eaton, Carroll and Cohen, JJ., and Morris, Supr. J. (Ret.), Specially Assigned
¶ 1. Neighbors appeal three Environmental Division rulings related to their appeal of the Agency of Natural Resources’ (ANR) decision to authorize Snowstone LLC to discharge stormwater at a proposed project site pursuant to a multi-sector general permit (MSGP). First, the court dismissed for lack of statutory standing most of neighbors’ questions on appeal and dismissed the remaining questions as not properly before the court. Second, the court concluded that neighbors’ motion for a limited site visit was moot, given its dismissal of neighbors’ appeal. Finally, the court granted Justin and Maureen Savage's (landowners) motion to intervene in the proceedings. We conclude that neighbors have standing to appeal the ANR's authorization to act under a MSGP and that their motion for a limited site visit is not moot. We further conclude that the court acted within its discretion to allow landowners to intervene. Accordingly, we reverse the dismissal of neighbors’ appeal and the dismissal of the motion for a site visit, and we affirm the court's decision to grant landowners intervention.
¶ 2. This appeal arises from Snowstone's proposed dimensional stone extraction project at a quarry off Tierney Road in Cavendish, Vermont. Snowstone sought to acquire a 0.93-acre portion of landowners’ 176-acre tract of land to carry out the project. Specifically, Snowstone planned to acquire a 0.64-acre parcel where the stone quarry was located and where extraction would take place, along with a 0.29-acre easement over an existing "woods road" running from the quarry to a shared portion of landowners’ driveway. Cavendish is a "one-acre town" for purposes of determining Act 250 jurisdiction, meaning that any commercial or industrial development on more than one acre of land requires an Act 250 state land use permit pursuant to 10 V.S.A. § 6001(3)(A)(ii).
¶ 3. Snowstone filed a request for a Jurisdictional Opinion (JO) pursuant to 10 V.S.A. § 6007(c) to determine whether its proposed project would be subject to Act 250 jurisdiction. Neighbors, who were all neighboring or adjoining landowners and residents of Tierney Road, offered public comment in the proceedings. The district coordinator acknowledged neighbors as interested parties with a "particularized interest" in the outcome of the JO.
¶ 4. In October 2017, the district coordinator determined that in light of the terms of the agreement between landowners and Snowstone, the entire 176-acre tract should be considered to be owned or controlled by a single person for purposes of determining Act 250 jurisdiction, rather than only the 0.93-acre portion that Snowstone contracted to acquire from landowners. Snowstone appealed that determination to the Environmental Division of the Superior Court. Neighbors timely intervened in the appeal. In addition to supporting the district coordinator's conclusion that the project tract comprises the entire 176 acres, neighbors argued that the project would require one or more stormwater discharge permits, which would include conditions making it physically impossible to locate and operate the project within the 0.93-acre parcel and thus would likely be subject to Act 250 jurisdiction.
¶ 5. In May 2018, following discovery and some settlement discussions, the Environmental Division conducted a de novo merits hearing focused on two principal legal issues: (1) whether the landowners-to-Snowstone purchase and sale agreement was an "arm's-length transaction" such that the land subject to Act 250 jurisdiction was limited to the parcel and easement that Snowstone planned to purchase,1 and (2) whether the evidence presented supported Snowstone's assertion that its activities could be contained within the 0.93-acre parcel that it intended to acquire from landowners. After Snowstone presented its case-in-chief, at Snowstone's urging and with neighbors’ consent, the court issued an order bifurcating the two issues with the expectation that it would render a decision on the first, while Snowstone sought any necessary stormwater and discharge permits.
¶ 6. The court issued an interim order providing a timeline for Snowstone to submit to ANR or its subdivisions applications for any necessary stormwater and discharge permits. The interim order also required Snowstone to include neighbors on an "Interested Persons List" and provided that "Snowstone w[ould] not contest Neighbors’ standing in permitting proceedings concerning the proposed quarry or Neighbors’ status as ‘persons aggrieved’ for purposes of standing to intervene in the permitting process or to appeal."
¶ 7. Snowstone submitted an application to the Department of Environmental Conservation, a department within ANR, for authority to act under an MSGP. The application outlined Snowstone's proposed stormwater pollution prevention plan (SWPPP), as well as the best management practices it planned to follow throughout the project operations. The Department opened the permit application for public comment, and neighbors participated in the proceedings by submitting a number of comments and questions. In response, Snowstone revised its proposed plan. ANR approved Snowstone's revised application, authorizing operations under the MSGP (ANR Authorization) in June 2019.
¶ 8. In July 2019, neighbors timely appealed ANR's determination to the Environmental Division, filing a statement of questions pursuant to the Vermont Rules for Environmental Court Proceedings.2 See V.R.E.C.P. 5(f) (). Snowstone moved to dismiss neighbors’ appeal and statement of questions, arguing that neighbors lacked standing under 10 V.S.A. § 8504(a) to raise the legal issues presented in questions 1-18, 22, 26, and 28 (). Snowstone argued that neighbors’ remaining questions 19-21, 23-25, and 27 raised issues outside the court's jurisdiction as it related to the ANR Authorization.
¶ 9. On the issue of standing, the Environmental Division concluded that neighbors had not presented adequately grounded claims that the ANR Authorization could have an adverse impact on their particularized interests, and thus they lacked statutory standing to appeal the ANR Authorization. Specifically, the court rejected neighbors’ two assertions of potential impact on their particularized interests. First, the court found the record did not support neighbors’ assertion that their "interest[s] would be affected by water pollution" if Snowstone were to "improperly manage[ ] stormwater runoff from the Snowstone project." Noting that there was no basis to assume the project would be "improperly managed," the court said that it could not conclude that neighbors’ assertions "create[d] even a possibility of the impacts [they] assert[ed]." Second, the court rejected neighbors’ contention that they had "suffered a reduction in their home values by virtue of the proposed project," finding no legal authority to support considering impacts on home value as a basis for standing to appeal an ANR authorization to operate under an MSGP.3
¶ 10. The Environmental Division also dismissed neighbors’ remaining questions. It concluded that questions 19-21 were premised on unsubstantiated speculation that Snowstone's project would exceed the proposed 0.93-acre area. And, the court determined that questions 23-25 and 27 sought improper "advisory opinion[s] on the general topics of what other permits may be required" for the project.
¶ 11. In a separate order issued the same day, the Environmental Division dismissed as moot neighbors’ motion in both dockets (the JO appeal and the ANR Authorization appeal) for a limited site visit. The court reasoned that it had determined neighbors lacked standing to appeal the ANR Authorization, and neighbors had not requested further hearing in the JO appeal, so a site visit was no longer necessary. Finally, in another separate order issued that day, the court granted landowners’ motion to intervene in the appeal of the ANR Authorization as well as the outstanding appeal from the district coordinator's JO.
¶ 12. On appeal to this Court, neighbors challenge all three trial court orders relating to the appeal of the ANR Authorization. They argue that the Environmental Division erroneously dismissed most of their questions for lack of statutory standing without an evidentiary hearing, and they challenge the court's determination that the remaining questions were outside the court's jurisdiction or improperly sought an advisory opinion. Second, neighbors argue that, because they have standing and did request further hearing in the JO appeal, the court erred in dismissing as moot their motion for a limited site visit. Finally, neighbors contend that the Environmental Division abused its discretion in finding landowners’ motion to intervene timely. We address each argument in turn.
¶ 13. We conclude that the Environmental Division erred in dismissing the lion's share of neighbors’ questions on appeal for lack of statutory standing, and in dismissing questions 20-21 as outside the scope of the appeal, but we affirm the dismissal of questions 19, 23-25, and 27. First, we conclude that neighbors have standing to appeal the ANR Authorization because neighbors have shown a reasonable...
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In re Snowstone, LLC Act 250 Jurisdictional Opinion
...dismissal of the MSGP appeal for lack of standing and remanded the matter for consideration on the merits. 2021 VT 36, ¶ 19, --- Vt. ––––, 256 A.3d 62. That matter is currently pending in the Environmental Division. Nothing in our decision here should be construed as precluding the need for......