1 STATE OF VERMONT ENVIRONMENTAL COURT

} In re: Marcelino Waste Facility } Docket No. 44-2 -07 Vtec (Appeal from Act 250 JO #4-205, 3 rd Recons.) } } }

Decision on Motion for Permission to Take an Interl ocutory Appeal

This matter concerns a jurisdictional opinion issue d by the District #4 Environmental Commission Coordinator (“District Coordinator”), co ncerning the need for an Act 250 permit for the A. Marcelino & Company Facility (“Marcelino Fac ility”), a recycling facility located in South Burlington, Vermont. Ranger Asphalt and Conc rete Processing, Inc. (“Ranger”), first requested the jurisdictional opinion and then appea led the District Coordinator’s 2 nd reconsideration of that jurisdictional opinion, dat ed January 23, 2007, in which the District

Coordinator announced his determination that the im provements to the Marcelino Facility did not constitute development so as to trigger Act 250 jurisdiction. The owners of the Marcelino Facility (“Marcelino”) thereafter filed a motion to dismiss Ranger’s appeal to this Court, which was denied in an opinion dated May 30, 2007. On Se ptember 18, 2007, Marcelino filed a request for reconsideration, arguing that Ranger is not a proper party to appeal in this case. This motion for reconsideration was denied on October 4, 2007. On October 16, 2007, Marcelino filed a Motion for P ermission to Take an Interlocutory Appeal; that motion is now ripe for this Court’s co nsideration. In deliberating over the motion at hand, this Court decided, sua sponte , to revisit the May 30, 2007 Decision denying Marcelino’s motion to dis miss. Taking into consideration further research and deliberation over the applicable law, this Court hereby reverses its May 30, 2007 Decision and grants Marcelino’s motion to dismiss. Accordingly, Marcelino’s motion for permission to take an interlocutory appeal is now m oot and therefore denied. 1

Discussion Appellee Marcelino has consistently maintained tha t Ranger should not be granted party status under 10 V.S.A. §§ 8502 and 8503, because Ra nger has not alleged an injury. Therefore,

1 Also pending is Ranger’s motion to compel Marceli no’s answers to certain discovery requests. Due to the Decision announced here, that motion is now also mo ot and therefore denied.2

a careful analysis of this claim is warranted. Thi s Court’s analysis of the statutes 2 begins with 10 V.S.A. § 6007(c), which states that “any person” ma y request a jurisdictional opinion (“JO”) from a district coordinator. From this general rig ht, Ranger has argued, and this Court has repeatedly agreed, flows the right to appeal to thi s Court when the requested JO is adverse to the desires of the requesting party. In this light, we have previously concluded that Ranger, after having suffered a reconsideration of the requested JO not to its liking, is a “person aggrieved” who is entitled to appeal. Our further examination of this legal issue has led us to the conclusion that we were not correctly interpreting the term “p erson aggrieved,” as used in the applicable

statutes. While the right to request a JO is granted to all, the right to appeal a JO is limited to parties that meet certain specific statutory requir ements. 3 Section 6007(c) has been discussed at length by the former Vermont Environmental Board (“ E-Board”) in its prior decisions. A brief discussion of the E-Board’s past interpretation of similar statutory language is therefore

warranted. 4 The first point of note is that the E-Board recogni zed a difference between standing and party status. See Re: Putney Paper Company, Inc. , Declaratory Ruling Request #335, Findings of Fact, Conclusions of Law, and Order at 5-6 (Vt. Envtl. Bd., May 29, 1997) (stating that “standing” is the proper analysis when parties wish to appeal; analysis of “party status” is reserved for when new parties seek to join an actio n initiated by another). It therefore seems that the proper argument to be analyzed in this matter i s whether Ranger has standing , rather than party status, to appeal to the Environmental Court. The mere fact that Ranger was the party that originally requested the JO does not alone control our determination of Ranger’s standing to bring this appeal. See Re: Alpine Pipeline Company , Declaratory Ruling Request #415, Memorandum of Decision at 7 (Vt. Envtl. Bd., Jan. 3 , 2003) (“The legislature clearly created a

2 Where statutory language is clear and unambiguous , the court must apply the plain meaning of the lan guage used therein. Watson v. Dimke , 178 Vt. 504 (2005). The forthcoming analysis of the statutes will adhere to this rule of construction.

3 10 V.S.A. § 6007(c) concludes with the statement, “A jurisdictional opinion of a district coordinato r shall be subject to a request for reconsideration in accorda nce with the rules of the board and may be appealed to the environmental court pursuant to chapter 220 of this title.”

4 Prior to enactment of the Permit Reform Law, whic h vested this Court with expanded jurisdiction, Act 250 appeals (including appeals from jurisdictional opin ions) were heard and ruled upon by the former Envir onmental Board. Under the revisions to 10 V.S.A. § 8504(m), we are directed to give “[p]rior decisions of the Environmental Board . . . the same weight and considerations as p rior decisions of the Environmental Court.”.3

different threshold for requesting a jurisdictional opinion (‘any person’) and appealing a jurisdictional opinion (only certain interested par ties).”). In order to demonstrate standing under §6007(c) in proceedings that were previously appealed to the E-Board, the party seeking to appea l had to show that any proposed plans for development will affect their protected interests; that is, those interests specifically protected by any one of the ten Act 250 criteria or their sub-cr iteria. 5 See Re: Stone Cutter's Way/Winooski East Waterfront Redevelopment Project , Declaratory Ruling Request #391, Memorandum of Decision (Vt. Envtl. Bd., June 1, 2001) (where a pa rty was not able to demonstrate injury to a protected interest, that party did not have standin g to appeal). See also Putney Paper Company,

Inc. , Declaratory Ruling Request #335 at 4–5 (where the party’s interests were not affected by the outcome of the District Coordinator’s JO, that party did not have standing to appeal to the EBoard). The E-Board’s discussions and rulings on t he issue of standing to appeal a JO consistently maintain that the right to appeal is l imited to those parties that meet the requirement of standing. The interests protected under Act 250 are not procedural interests, but are substantive interests that give rise to substantive rights, including the right to appeal. The E-Board also recognized that the test for stand ing is similar in E-Board cases and civil cases. See Stone Cutter’s Way , Declaratory Ruling #391 at 6 n.2, referencing Par ker v.

Town of Milton , 169 Vt. 74, 77 (1998) (reciting the three element s of standing: (1) injury in fact, (2) causation, and (3) redressability). Accordingl y, the legislature limited the right to appeal in civil courts to those who can show that a particula rized interest protected by Act 250 will be

harmed. This limitation is stated in 10 V.S.A. § 8504 (enti tled “Appeals to the Environmental Court”), which states that “any person aggrieved” b y a JO issued by a district coordinator may appeal that decision to the Environmental Court. For Ranger to have the proper status to appeal this JO, Ranger must meet this express statutory limitation. 6 It must qualify as a “’[P]erson aggrieved . . . w ho alleges an injury to a

5 These criteria are, briefly stated: water and air pollution, water availability, burdens upon stream s, protected wetlands and water supplies, soil erosion, transpor tation concerns, burdens upon educational facilitie s, provision of government services, effects on aesthetics and area wildlife, conformance with the Capability and Deve lopment Plan, and conformance with local and regional plans

. 6 Ranger acknowledges in its response to Marcelino’ s motion for permission to take an interlocutory ap peal that the Vermont legislature has expressly restricted the ri ght to appeal under Act 250. Ranger also states th at the statutory provisions applicable to appeals from district coor dinators’ jurisdictional opinions are more lenient than those that apply to decisions from the district commissions. Whether this is true is material to our analysis he re. However4

particularized interest protected by the provisions of law listed in section 8503 of this title, attributed to an act or decision by the district co ordinator, . . . that can be redressed by the environmental court or the supreme court.” 10 V.S. A. § 8502(7). Stemming from this definition are four main points of discussion: (1) an injury m ust be alleged; (2) to a particularized interest protected by the provisions of law; (3) that is inj ured or affected by the act of the district coordinator in rendering the JO; (4) that can be re dressed either by this Court or our Supreme Court. Our review of the record presently before u s fails to provide evidence of Ranger satisfying any of these four statutory requirements for standing. It is for these reasons that we choose to revisit our May 30 th Decision and enter a dismissal of Ranger’s appeal. Section 8503(b)(2) states that Title 10, Chapter 2 20 (§§ 8501-8505) applies to appeals concerning jurisdictional opinions issued by a dist rict coordinator under Act 250. A careful reading of this provision leads to the conclusion t hat Chapter 220 governs the appeals process, but § 8503 does not, by itself, give rise to the sp ecific right to appeal. Rather, this Chapter as a whole should be read to require that parties seekin g to appeal must first meet the statutory requirements set forth in the provisions of Chapter 220 in order to bring such appeal. Stated another way, parties have the right to appeal a JO if there is a specific allegation of injury to an interest protected by the provisions of law referen ced in §8503. Appellant Ranger argued in its October 1, 2007 resp onse to Marcelino’s motion for reconsideration that “Ranger’s particularized inter est protected by §8503, therefore, is its legal right to request a jurisdictional opinion . . ..” This Court disagrees, for the simple reason that while “all persons” are entitled to request a JO, t he class of persons that are entitled to appeal a JO is more restricted. The proper analysis is to d etermine whether Ranger has established in the record before us that it has an interest protected by the provisions of Act 250 itself (i.e.: Title 10

, Chapter 151, as referenced in 10 V.S.A. § 8503(b)(2 )). Act 250 provides the process by which parties seek ing to develop or subdivide land may do so by obtaining the proper state land use permit ; it also provides for an appeals process through which parties may appeal adverse decisions regarding permits granted or denied. These processes are not necessarily the interests to be p rotected under Act 250; they are the means by which certain interests are protected. The interes ts sought to be protected by Act 250 concern

lenient §8504(a) may be, it is not so lenient as to grant all persons the right to appeal a JO. The l imitations are stated expressly in § 8504(a) and the other provisions com prising Chapters 151 and 220 of Title 10.5

development and land use issues. 7 If not for these interests, this Court is left to question why a permit would be necessary at all, and therefore, wh y an appeal of an adverse decision should be

allowed. As stated in Ranger’s response to Marcelino’s motio n for reconsideration, the intent behind Act 250 is to promote land development that is “not unduly detrimental to the environment, will promote the general welfare . . . and [is] suitable to the demands and needs of the people of this state.” 1969, No. 250 (Adj. Sess .), § 1, eff. April 4, 1970. This statement does not purport to rationalize granting all parties the right to appeal in Act 250 proceedings, but rather serves to underscore the interests protected by the provisions of Act 250, and the need for the permitting and appeals process to effectuate th e goals of this legislation. It also underscores the need for the general public to actively protect these interests. Accordingly, the statutes allow any party to request a JO. But the right to appeal a JO is expressly limited by Chapter 220 to those whose interests are specifically protected by Act 250, and further limited to the right to appeal a JO that has detrimentally affected those p rotected interests. Another point of discussion flows from the above c onsiderations; that is, parties must allege an injury to the particularized interests protected under §8 503. Appellant Ranger argues that the injury it sustained was “that it did not p revail before the district coordinator.” This allegation is insufficient to grant standing to app eal, for two reasons: first, it is not an injury to an interest protected by Act 250; second, it is not al leging an actual injury. To merely allege an adverse opinion, without showing an actual injury c aused by the opinion, is contrary to the legal requirement of “case or controversy.” 8 The injury alleged cannot be a “generalized griev ance.” Hinesburg Sand & Gravel Co., Inc. v. State , 166 Vt. 337, 341 (1997). Rather, appellant must allege injury in fact. Id . The requirement that the appellant allege an inj ury, as is stated in the definition of “person aggrieved,” should not be rea d in such as way as to contravene the longstanding requirements of standing. 9

7 Vermont courts have recognized the purpose of Act 250: “to regulate the impacts of development.” In re Vermont RSA Ltd. Partnership , 2007 VT 22, ¶ 9 (citing In re Audet , 2004 VT 30, 176 Vt. 617 (mem.)). A list of speci fic criterion that must be satisfied before a permit is issued is provided in 10 V.S.A. § 6086; these are commonly known as the Act 250 criteria. See supra note 4.

8 Agency of Natural Resources v. United States Fire Ins. Co. , 173 Vt. 302, 306 (2001) (“Vermont has adopted thi s requirement and with it the requirement that for pl aintiffs to have standing to bring a case, they mus t have suffered a particular injury that is attributable to the defen dant and that can be redressed by a court of law.”)

9 Considered to be a fundamental element of standing , “’Injury in fact’ is defined as ‘the invasion of a legally protected interest.’ Determining whether plaintiff has suffered an invasion of a legally protected in terest requires6

Our analysis thus far leads to a short discussion o f the third and forth requirements for standing contained in 10 V.S.A. § 8502(7): that th e JO being appealed must have impacted upon the specific protected interest of this litigant, a nd that either this Court or our Supreme Court can redress the impact upon the protected interest. Si nce Ranger has not identified an interest protected by Chapter 151 of Title 10 (i.e.: Act 250 ), the JO challenged here cannot be said to have injured a “particularized interest”, thus prov iding this Court or the Supreme Court with an injury it may redress. Thus, Ranger has not satisf ied the requirements of 10 V.S.A. §§ 8502(7), 8503(b)(2) and 8504 (a) that would entitle it to ha ve standing to appeal the District Coordinator’s

JO in this case. In sum, this Court now reads Title 10, Chapter 220 to state that parties have the right to appeal a JO issued by a district coordinator, if th e party specifically alleges (1) an injury; (2) to a particularized interest protected by Act 250; (3) t hat the JO somehow injures or impacts; (4) provided that such injury can be redressed by this Court or our Supreme Court. The particularized interest protected here is not the r ight to request or appeal a JO, but rather the interests considered in the provisions of Act 250 i tself. In the case at hand, Ranger has made no showing of injury attributed to the adverse JO that adversely affected an interest protected under the provisions of Act 250. Absent a showing of suc h injury, Ranger cannot have standing to appeal the JO in this matter.

Conclusion For the reasons stated above, this Court, on a sua sponte basis, believes it appropriate to revisit its May 30, 2007 Decision and hereby grants Marcelino’s Motion to Dismiss. All subsequent motions are now moot, as this appeal is dismissed. A Judgment Order accompanies this Decision, thereby concluding the proceedings n ow before this Court.

Done at Berlin, Vermont this 6 th day of November, 2007.

___________________________________ Thomas S. Durkin, Environmental Judge

inquiry into the substance of plaintiff's claim.” See Hinesburg , 166 Vt. at 341 (internal citations omitted). In t his matter, Ranger has not put forth any substantive cl aims of injury to an interest protected by Act 250.