Articles Posted in Vermont Supreme Court

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This matter stemmed from a trial court order finding defendant-appellant Richard Daniels liable for the release of hazardous waste on his property, granting summary judgment in favor of the State, and issuing an injunction compelling defendant to investigate and conduct remedial action on the property site. On appeal, defendant contested the award of summary judgment to the State and the scope of the injunction ordered by the court, and he contended the court erred in denying his motion to revisit his statute-of-limitations defense. Finding no reversible error, the Vermont Supreme Court affirmed. View "Vermont Agency of Natural Resources v. Parkway Cleaners et al." on Justia Law

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Petitioner Swanton Wind LLC appealed three determinations by the Public Utility Commission. In September 2016, petitioner requested the Public Utility Commission to grant a certificate of public good (CPG), authorizing petitioner to build a twenty-megawatt wind-powered electric-generation facility in Swanton, Vermont. Petitioner paid a $100,000 fee as part of its CPG petition, which was required by 30 V.S.A. 248b. During the next nine months, petitioner and the other parties to the proceeding engaged in substantial activity, and participating in prehearing conferences with the Commission. In early June 2017, the parties submitted filings with proposed schedules for how the proceeding should continue. As part of those filings, the Department of Public Service argued the petition and evidence were insufficient, concerned that petitioner’s filings lacked a final system-impact study. In a June 22, 2017 order, the Commission agreed, finding that it needed a final system-impact study prior to the technical hearings in order to evaluate the petition. Petitioner moved for reconsideration, which was denied. Petitioner then requested to withdraw its petition pursuant to Vermont Rule of Civil Procedure 41(a)(1), and it requested that the Commission return the $100,000 fee it paid pursuant to 30 V.S.A. 248b. In response, several parties argued that the Commission should require petitioner to pay attorney’s fees. In a January 3, 2018 order, the Commission denied petitioner’s request to return the 248b fee, saying it lacked jurisdiction to do so. It granted voluntary dismissal without prejudice pursuant to Rule 41(a)(2), rather than Rule 41(a)(1). It did not award attorney’s fees, as the parties requested, because it found no exceptional circumstances to justify an award. No party appealed that finding. However, the Commission did order that the parties could request attorney’s fees and costs for this proceeding if petitioner chose to refile the petition in the future. Petitioner appealed. The Vermont Supreme Court determined the Commission erred in concluding it lacked jurisdiction to refund the 248b fee, and erred in concluding it could reopen findings from a final order in a previous proceeding. The Court reversed and remanded the Commission’s order regarding the 248b, and struck the Commission’s order regarding attorney’s fees. View "In re Petition of Swanton Wind LLC" on Justia Law

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This appeal stemmed from an Agency of Natural Resources (ANR) decision to extend the City of Burlington’s 2011 Conditional Use Determination (2011 CUD), which permitted the City to commence construction on the Champlain Parkway project. Appellant Fortieth Burlington, LLC (Fortieth) challenged ANR’s approval of the permit extension, and the Environmental Division’s subsequent affirmance of that decision, on grounds that the City failed to adhere to several project conditions outlined in the 2011 CUD and was required to redelineate and reevaluate the wetlands impacted by the project prior to receiving an extension, among other reasons. The Environmental Division dismissed Fortieth’s claims, concluding that the project complied with the 2011 CUD’s limited requirements for seeking a permit extension and that Fortieth’s other claims were collateral attacks against the underlying permit and were impermissible. Finding no reversible error, the Vermont Supreme Court affirmed. View "In re Champlain Parkway Wetland Conditional Use Determination (Fortieth Burlington, LLC)" on Justia Law

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Allco Renewable Energy Limited (Allco) appealed the Vermont Public Utility Commission’s (PUC) denial of Allco’s motion to intervene as a party in proceedings concerning whether Green Mountain Power Corporation (GMP) could purchase power generation facilities outside of Vermont. Allco argued that it should have been allowed to intervene because it meets the criteria for intervention set out in the PUC’s own rules. In particular, Allco argued it had a substantial interest in the proceedings both as a ratepayer and as a competing supplier of power. Allco also appealed the PUC’s eventual decision to allow the purchases. The Vermont Supreme Court affirmed the PUC’s denial of Allco’s motion to intervene and accordingly dismissed Allco’s second appeal. View "In re Petition of Green Mountain Power Corp. for Approval to Invest in Hydroelectric Generation Facilities Located Outside Vermont (Allco Renewable Energy Limited, Appellant)" on Justia Law

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The District 5 Commission denied Korrow Real Estate LLC’s as-built application for an Act 250 permit to construct a barn on property alongside the Dog and Stony Brook Rivers, finding the project failed to comply with Act 250 Criteria 1(D) and 1(F). In doing so, the Commission construed key terms as defined by the Agency of Natural Resources (ANR). On appeal, the Environmental Division reversed the decision and remanded the matter to the Commission with instructions to grant an as-built permit for the project. The Vermont Natural Resources Board appealed the decision, arguing the court failed to accord proper deference to the ANR’s statutory authority and expertise, and that the project failed to comply with the necessary Act 250 permitting criteria. The Vermont Supreme Court affirmed in part, reversed in part and remanded. The Supreme Court found the ANR determined the Korrow project was within the Act 250 “floodway” based on the project’s location relative to the FEH area surrounding the Dog and Stony Brook Rivers. The Environmental Division erred when it determined that the methodology applied by Korrow’s expert, or the methodology of the court, was superior to that employed by the ANR. In applying the ANR definition, the Supreme Court found Korrow’s project was within the “floodway” under 10 V.S.A. 6001(6), triggering analysis of project compliance with Act 250 Criterion 1(D). Even though the court erroneously found that the project was located outside the “floodway,” there was sufficient evidence to support the trial court’s conclusion that the project complied with Criterion 1(D). With respect to Criterior 1(F), the Supreme Court found two flaws in the lower court’s findings: (1) interpreting the scope of land “adjacent” to the rivers was essential to determining whether a project was on a “shoreline,” no definition of “adjacent” was provided; and (2) even applying the court’s contextual, rather than distance-based, analysis of the project’s location in relation to the Dog and Stony Brook Rivers, the court’s conclusion that the project was not on the “shoreline” was based on insufficient evidence. The Supreme Court could not determine, based on the trial court record, whether the project at issue here was constructed on a “shoreline” and, if so, whether the project complied with the subcriteria required by statute. As such, the Environmental Division’s conclusion that the project complied with Criterion 1(F) was reversed and this issue remanded to the court for further findings. Because the question of what was meant by “adjacent” was critical to the shoreline determination and had not been briefed or argued, the parties were directed upon remand to brief this issue for the court. The Supreme Court reversed the Environmental Division’s ruling defining the term “floodway,” but affirmed its conclusion that the project complied with Criterion 1(D). The Court reversed and remanded to the Environmental Division for further proceedings to determine whether this project involved a “shoreline” and, if so, the project’s compliance with Criterion 1(F). View "In re Korrow Real Estate, LLC Act 250 Permit Amendment Application" on Justia Law

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Respondents Francis and Barbara Supeno, and Barbara Ernst, appealed an order of the Environmental Division imposing a penalty of $27,213 for water and wastewater permit violations. Respondents Francis Supeno and Barbara Supeno were siblings and jointly owned property in Addison. Barbara Supeno and Barbara Ernst lived adjacent to the property. In 2009, the siblings obtained a wastewater system and potable water supply permit, which authorized the replacement of a seasonal cottage with a year-round, one bedroom residence. The permit included the construction of an on-site well and wastewater disposal system. The water supply for the property was provided through a public water system. In 2014 the Agency of Natural Resources (ANR) received a complaint of an alleged violation of the wastewater permit. ANR also became aware that the property was advertised as a two-bedroom, two-bathroom rental. An ANR enforcement officer went to the property and Barbara Supeno denied ANR access to the house. The Environmental Division granted ANR’s petition for an access order and ANR received access to the property. During the visit, the enforcement officer observed two water lines entering the basement; the officer also observed the permitted bedroom on the second floor and an additional non-permitted bedroom in the basement. Based on the officer’s observations, an emergency administrative order (EAO) was issued, wherein: (1) respondents failed to obtain a permit before modifying the rental home to add a second bedroom; (2) respondents spliced into the public water supply line serving the adjacent property and connected it to the rental property without obtaining a permit; and (3) respondents created an unapproved cross-connection at the rental property, which allowed it to switch between the well water and the public water system and created a risk that potentially polluted water could contaminate the public water supply. The EAO eventually became an Administrative Order (AO), imposing the penalty at issue here. Respondents argued that their due process rights were violated, the penalty assessment was precluded by res judicata, and the amount of the penalty was excessive. Finding no reversible error, the Vermont Supreme Court affirmed the Environmental Division. View "Agency of Natural Resources v. Supeno" on Justia Law

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Allco Renewable Energy Ltd. (Allco) appealed the denial of its motion to intervene, and its renewed motion to intervene, in a certificate-of-public-good (CPG) proceeding for a solar electric generation facility. The applicant, GMPSolar–Richmond, LLC (GMPSR), was an affiliate of Green Mountain Power Corp. (GMP), an electricity utility, owned by GMP and an investor. Allco was developing a number of solar electric generation facilities in Vermont. A hearing officer denied Allco’s request for intervention as of right and permissive intervention; the Public Service Board (PSB) also denied the motion for reconsideration. On appeal to the Vermont Supreme Court, Allco argued PSB used the wrong framework in reviewing its request and incorrectly applied the intervention criteria. Finding no reversible error, however, the Supreme Court affirmed the PSB. View "In re Petition of GMPSolar-Richmond, LLC" on Justia Law

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At issue before the Vermont Supreme Court in this appeal was whether land dedicated to a public use could be condemned for another public use when the new use did not materially interfere with the prior use. Intervenors, a group of Hinesburg residents who use Geprags Park, appealed the Public Service Board’s order authorizing Vermont Gas Systems, Inc. (VGS) to condemn an easement through the park for the purpose of installing a natural gas pipeline. They argued the Board erred in authorizing the condemnation in light of the fact that the park was already dedicated to a public use, and in concluding that the condemnation was necessary under 30 V.S.A. section 110(a)(2). The Supreme Court affirmed the Board’s decision, but remanded for a minor correction to the order relating to the terms of the easement. View "In re Vermont Gas Systems, Inc." on Justia Law

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Neighbors for Healthy Communities (neighbors) appealed the Environmental Division’s decision to grant North East Materials Group, LLC, (NEMG) an Act 250 permit for operating an asphalt plant. Neighbors specifically challenged the court’s findings and conclusions under Criterion 5 and Criterion 8 of Act 250, claiming that conditions imposed by the court pursuant to these two criteria repeat existing requirements that NEMG did not or could not comply with and, thus, were insufficient to meet Act 250’s criteria. After review, the Vermont Supreme Court found no reversible error and affirmed. View "In re North East Materials Group, LLC Amended Act 250 Permit" on Justia Law

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Appellants Natural Resources Board and Applicant Two Rivers-Ottauquechee (TRO) Regional Commission appealed the Environmental Division’s award of an Act 250 permit to Applicant B&M Realty, LLC, to construct a large mixed-use business park near the Interstate 89 Exit 1 interchange in the Town of Hartford. The trial court concluded that the project satisfied Act 250, including the requirement that it conform with the 2007 TRO Regional Plan. The Natural Resources Board and the TRO Regional Commission argued on appeal that the project was inconsistent with mandatory and unambiguous provisions in the regional plan. Applicant cross-appealed, arguing that the 2007 Regional Plan did not apply, and that the Supreme Court need not consider the plan because the proposed development will not have substantial regional impact. The Supreme Court concluded that the 2007 Regional Plan applied and that the trial court’s conclusion that the project will have substantial regional impact is supported by the evidence, but held that the project was inconsistent with several provisions in the regional plan. The Court accordingly reversed. View "In re B&M Realty, LLC" on Justia Law