State of Vermont 

Superior Court—Environmental Division 

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E N T R Y R E G A R D I N G M O T I O N 

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In re Moretown Landfill Cell Three Reclassification Docket No. 37-3-13 Vtec 

Title: Motion for Declaratory Judgment 

Filed: 4/2/2013 

Filed By: Applicant-Appellant Moretown Landfill, Inc. 

Response in Opposition filed 4/8/13 by Interested Persons Scott Baughman and Lisa Ransom 

Response in Opposition filed 4/11/13 by Interested Person Martha Douglass 

Response in Opposition filed 4/11/13 by the Vermont Agency of Natural Resources through 

the Vermont Attorney General 

Reply filed 4/12/13 by Applicant-Appellant 

___ Granted ___ Denied X Other 

Applicant-Appellant Moretown Landfill, Inc. (Applicant) operates a solid waste facility 

located at 187 Palisades Park in Moretown, Vermont. On March 14, 2013, the Vermont Agency 

of Natural Resources (ANR) denied recertification of the landfill for failure to control odor and 

landfill gas emissions and for the facility’s contribution to violations of groundwater quality 

standards. The decision allowed Applicant to continue operating its facility under its prior 

certification for 30 days; that is, until April 15, 2013. Applicant appealed the denial to this Court

on March 29, 2013. Now before us is Applicant’s motion requesting a declaratory judgment on 

the question of whether Applicant’s prior certification may remain in effect during the 

pendency of its appeal, rather than expiring on April 15, 2013. 

ANR filed a memorandum in opposition through the Vermont Attorney General. 

Neighbors Scott Baughman and Lisa Ransom (Neighbors) filed a memorandum in opposition 

through their attorney James Dumont, Esq. Moretown resident Martha Douglas, appearing pro 

se, filed a memorandum in opposition to Applicant’s motion, and Ronald Doyle and Dianne 

Doyle filed short statements in opposition as well. Applicant filed a reply. Applicant is 

represented by Brian Dunkiel, Esq., Andrew Raubvogel, Esq., and Erik Nielsen, Esq.; Appellee 

Vermont Agency of Natural Resources is represented by Matthew Chapman, Esq., Gavin J. 

Boyles, Esq., and Nicholas F. Persampieri, Esq.; and Martha Douglas, Thomas Douglas, Dianne 

Doyle, Ronald Doyle, Christine F. Belanger, David Belanger, and Mark Fischer appear pro se as 

interested parties. 

Applicant argues that the following provision of the Vermont Administrative 

Procedures Act (VAPA) controls this permit renewal situation: 

When a licensee has made timely and sufficient application for the renewal of a 

license or a new license with reference to any activity of a continuing nature, the 

existing license does not expire until the application has been finally determined 

by the agency, and, in case the application is denied or the terms of the new 
In re Moretown Landfill Cell Three Reclassification, No. 37-3-13 Vtec (EO on Decl. J.) (04-12-13) Pg. 2 of 4. 

license limited, until the last day for seeking review of the agency order or a later 

date fixed by order of the reviewing court. 

3 V.S.A. § 814(b). Parties do not dispute that the landfill activity is of a continuing nature, and 

nothing in the record indicates that the recertification application was untimely or insufficient 

for the purposes of allowing the DEC to consider whether to approve it (although some parties 

contend that the application is insufficient to obtain approval, a separate issue). Rather, 

Applicant reasons that its application has not “been finally determined by the agency” until this 

Court completes its de novo review; Applicant asserts that the landfill may therefore continue 

operating under its prior license throughout the pendency of the instant appeal. Moreover, 

Applicant claims that it has a constitutionally protected property interest in continuing 

operation under its prior permit throughout the pendency of this appeal. 

ANR and Neighbors first contend that this permit renewal situation is governed not by 

the general provisions in VAPA, but by the more recent 10 V.S.A. § 8504, governing appeals to 

the Environmental Division. Specifically, they argue that Applicant has failed to show that it is 

entitled to a stay of ANR’s decision under 10 V.S.A. § 8504(f)(2).1 Further, they argue that to the 

extent that VAPA is relevant, ANR’s decision denying recertification constitutes a final 

determination by the relevant agency, and that therefore the language of VAPA allows the 

landfill to operate under its prior permit only “until the last day for seeking review of the 

agency order or a later date fixed by” this Court in our discretion. Finally, they argue that 

Applicant has no constitutionally protected property interest in continued operation of its 

facility and that, even if it did, Applicant has been afforded ample due process and, in any case, 

that Applicant waived this argument by failing to request a hearing at any time during the 

nearly four years when its recertification application was pending. 

I. 3 V.S.A. § 814(b) does not entitle Applicant’s prior certification to remain in effect 

during the pendency of its appeal. 

Applicant’s argument that 3 V.S.A. § 814(b) requires the landfill’s previous license to 

remain in effect until this Court has completed its de novo review contravenes the statute’s plain 

language. In § 814(b), the Legislature clearly distinguished between “the agency” and “the 

reviewing court,” providing that when an agency denies an application, the existing license 

lasts “until the last day for seeking review of the agency order or a later date fixed by order of 

the reviewing court.” Moreover, VAPA contemplates the scenario in the instant case where 

“the final decision of an agency is expressly provided by law to be reviewable in superior 

court,” (3 V.S.A. § 815(c) (emphasis added)); here, ANR’s final determination is reviewable by 

the Superior Court’s Environmental Division. We see no reason for deviating from the plain 

meaning of the statute simply because we review the instant appeal de novo. 

In sum, as applied to this case, the phrase “finally determined by the agency” 

unambiguously refers to ANR’s March 14, 2013 denial of Applicant’s request for recertification.2 

 

1 “Upon petition by a party or upon its own motion for a stay of an act or decision, the environmental 

division shall perform the initial review of the request and may grant a stay. Any decision under this

subsection to issue a stay shall be subject to appeal to the supreme court according to the Rules of 

Appellate Procedure.” 10 V.S.A. § 8504(f)(2). 

2

 In its reply brief, Applicant argues that this conclusion would contravene “precedent” set by the Water 

Resources Board in a footnote to a Prehearing Conference and Order in 2002. (Applicant’s Reply Brief at 
In re Moretown Landfill Cell Three Reclassification, No. 37-3-13 Vtec (EO on Decl. J.) (04-12-13) Pg. 3 of 4. 

Thus, Applicant’s prior certification does not remain in effect during the pendency of its appeal 

under 3 V.S.A. § 814(b). Rather, since the ANR denied the recertification, the existing license 

expires on the last day for seeking review of the agency order or a later date fixed by order of 

this Court. 

3 V.S.A. § 814(b) grants this Court, in its discretion, the authority to fix an expiration 

date for a permit that ANR has declined to renew. The statute does not establish criteria under 

which a reviewing court may extend the expiration date of a permit, however, and we have 

found no case law establishing such standards. 

Accordingly, we consider the equity of the matter before us. Here, Applicant has argued 

that it will suffer appreciable financial losses if this Court allows its permit to expire on April 15, 

within 30 days of ANR’s denial of recertification. Applicant argues that the context of a landfill 

is somewhat unique in that closure involves not merely cessation of activity, but a series of steps 

to cap off the landfill that, if ANR’s order were to be reversed on appeal, would have to be 

undone and redone at the final closure of the facility.3 While we appreciate the harms alleged 

by Neighbors and the State attributable to Applicant’s continued operation of Cell 3 of the 

facility, under the unique circumstances of this case, we extend, pursuant to 3 V.S.A. § 814(b), 

ANR’s March 14, 2013 Order that “[t]he facility shall cease accepting waste on Monday, April 

15, 2013” an additional 90 days, or until July 15, 2013. The remainder of ANR’s March 14, 2013 

Order remains unmodified. 

II. Alternatively, this Court may temporarily authorize continued operations in the 

interest of justice. 

ANR and Neighbors are correct that 10 V.S.A. § 8504(f) addresses the topic of stays in 

the context of appeals to the Environmental Division. First, 10 V.S.A. § 8504(f)(1) enumerates 

two circumstances where stays are automatic; those circumstances do not apply to the case 

before us. This Court has the ability to issue stays upon petition by a party or upon its own 

motion. 10 V.S.A. § 8504(f)(2). This Court’s own rules of procedure regarding stays harmonize 

with the statute, providing that: 

Unless the act or decision appealed from is automatically stayed pursuant to 10 

V.S.A. § 8504(f)(1) by the filing of the appeal . . . the court, after the notice of 

appeal has been filed may, on its own motion, or on motion of a party, stay the 

act or decision and make such other orders as are necessary to preserve the rights 

of the parties upon such terms and conditions as are just. 

V.R.E.C.P. 5(e). The Reporter’s Notes state that this Court will ordinarily make such a decision 

after notice and hearing, but that, for the purpose of preserving the rights of the parties on 

terms and conditions that are fair to all, this Court may “issue a temporary stay ex parte while 

determining whether to issue a permanent stay.” See Reporter’s Notes, V.R.E.C.P. 5(e). At this 

time, however, Applicant has not submitted evidence sufficient for this Court to issue a stay of 

ANR’s final determination for the pendency of this appeal. 

Based upon the foregoing, we ORDER that ANR’s March 14, 2013 Order that “[t]he 

facility shall cease accepting waste on Monday, April 15, 2013” is extended an additional 90 

 

2, filed Apr. 12, 2013.) We have reviewed this footnote; its interpretation of 3 V.S.A. § 814 remains

unclear, and we do not find it binding. 

3

 Applicant also challenges ANR’s order on constitutional grounds; we address that claim below. 
In re Moretown Landfill Cell Three Reclassification, No. 37-3-13 Vtec (EO on Decl. J.) (04-12-13) Pg. 4 of 4. 

days, or until July 15, 2013. The remainder of ANR’s March 14, 2013 Order remains 

unmodified. Further, pursuant to V.R.E.C.P. Rules 1 and 2, we ORDER the following. 

1. If Applicant wishes to move for a stay of ANR’s March 14, 2013 Order, as modified 

by this Order, Applicant must file, if at all, on or before May 3, 2012. 

2. If Applicant so files, all parties shall file with the Court on or before May 10, 2013, 

in writing their dates of unavailability for the weeks of June 17 and June 24, 201 for a 

half day hearing on the motion. 

3. Lastly, if Applicant so files, all pleadings in reply to Applicant’s motion shall be filed 

on or before May 31, 2013. 

In light of our decision granting a temporary extension of ANR’s March 14, 2013 Order 

that “[t]he facility shall cease accepting waste on Monday, April 15, 2013” an additional 90 days, 

we decline at this time to address the constitutional claims that Applicant raised in its filings. 

 

_________________________________________ April 12, 2013 

 Thomas G. Walsh, Judge Date 

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Date copies sent: ___________ Clerk's Initials ______ 

Copies sent to: 

 Attorney Brian Dunkiel for Applicant-Appellant Moretown Landfill, Inc. 

 Attorneys Andrew Raubvogel and Erik Nielsen, Co-Counsel for Applicant-Appellant 

 Attorney Matthew Chapman for Appellee Vermont Agency of Natural Resources 

 Attorneys Gavin J. Boyles and Nicholas F. Persampieri, Co-Counsel for Appellee 

 Attorney James Allen Dumont for Interested Persons Scott Baughman and Lisa Ransom 

 Interested Persons Martha Douglas, Thomas Douglas, Dianne Doyle, Ronald Doyle, Christine F. Belanger, David 

Belanger, and Mark Fischer.