STATE OF VERMONT ENVIRONMENTAL COURT

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

Additional Decision on Motion to Reconsider Dismiss al

On January 28, 2008, this Court issued its Decision on Appellant’s motion to reconsider our decision to dismiss the pending appeal, determi ning that Appellant has failed to provide a sufficient showing that it had a particularized int erest that was sufficient to allow Appellant to have standing to maintain this appeal. In re: Marc elino Waste Facility , Docket No. 44-2-07 Vtec (Vt. Envtl. Ct. Jan. 28, 2008) (“January 28 th Decision”). In the January 28 th Decision, the Court offered Appellant the further opportunity to supple ment its showing that it had sufficient standing. Appellant did so by filing a supplementa l affidavit. We therefore now revisit the central issue of whether Appellant has made a suffi cient showing that it seeks review of the project’s impact on an interest particular to Appel lant, such that Appellant should be allowed to continue its prosecution of this Act 250 jurisdicti onal opinion appeal. As noted in our earlier decisions, this matter conc erns a jurisdictional opinion issued by

the District #4 Environmental Commission Coordinato r (“District Coordinator”), concerning the need for a new Act 250 permit for the A. Marcelino & Company Facility (“Marcelino Facility”), a pre-existing recycling facility in South Burlingt on, Vermont. Ranger Asphalt and Concrete Processing, Inc. (“Appellant”) first requested the jurisdictional opinion and then appealed the

District Coordinator’s second reconsideration of th at jurisdictional opinion, dated January 23, 2007, in which the District Coordinator announced h is determination that the improvements to the already-existing Marcelino Facility did not con stitute new development so as to trigger Act 250 jurisdiction. The owners of the Marcelino Faci lity (“Marcelino”) thereafter filed with this Court a motion to dismiss Ranger’s appeal, which th is Court initially denied in a decision dated May 30, 2007. This Court ultimately reconsidered t hat determination and, on November 6, 2007, announced its determination that Ranger’s app eal should be dismissed. On November 30, 2007, Appellant filed its request t hat the Court reconsider its dismissal of Ranger’s appeal. Marcelino filed a memorandum i n opposition; the parties thereafter filed competing reply memoranda. As a consequence of tho se filings, the Court announced in its- 2 -

January 28 th Decision that Appellant had failed to articulate t he minimum facts necessary to show that it had standing to appeal the challenged jurisdictional opinion and therefore declined to vacate its Decision and Judgment Order of November 6, 2007. In light of Appellant’s most recent filing, we again revisit our determinations.

Discussion The supplemental affidavit Appellant filed from its principal, Robert Mazza, includes forty-five separate, single-spaced paragraphs on se ven pages; it goes into great detail concerning Mr. and Mrs. Mazza’s efforts, through their company , Ranger Asphalt, to abide by the Chittenden County Regional Plan and the Chittenden County Solid Waste Management Plan. Mr. Mazza accuses Marcelino of violating the Region al Plan and the Solid Waste Management Plan; many of his accusations, if true, could bring about serious and substantial impacts upon lands and environments adjacent to the Marcelino pl ant. We have no means in this proceeding to doubt the sincerity and veracity of Mr. Mazza’s rep resentations. However, his most recentlyfiled affidavit has brought no more facts to light that relate to the standing requirements announced in our prior Decisions. We therefore, ag ain, decline to vacate our Decision and Judgment Order of November 6, 2007. We continue to conclude that the applicable law req uires one who wishes to appeal an adverse Act 250 District Coordinator jurisdictional opinion to have standing to maintain that appeal. To have standing, the purported appellant “must specify (1) an injury; (2) to a particularized (i.e., not generalized) interest pro tected by Act 250; (3) that is impacted by the proceedings appealed from; and (4) that this Court can redress.” January 28 th Decision at 3, citing 10 V.S.A. § 8502(7). While we commend Mr. M azza for the obvious extra effort made in elaborating his concerns, his newest affidavit prov ides no new facts or assertions that satisfy this standing requirement. In this newest affidavit, filed with the Court on F ebruary 13, 2008, Mr. Mazza grieves what he perceives to be Marcelino’s generalized avo idance of the Act 250 permitting process. He does not dispute that the Marcelino Facilities p re-date the adoption of the Vermont Land Use laws (commonly known as Act 250; codified in 10 V.S .A., chapter 151). * He makes no reference in any affidavit to the specific acts all eged to have occurred on the Marcelino site—a

* The Marcelino Facility is what once was the Burli ngton Landfill, established in the 1960’s. Marceli no has operated the Facility since 1992 pursuant to a leas e with the City. See District #4 Coordinator Juris dictional Opinion #4-205 (first reconsideration), dated Novem ber 3, 2006.- 3 -

power line and a small shack, since removed—that we re determined to not be significant enough to trigger Act 250 jurisdiction. Thus, the very ac ts which would have been the subject of an Act 250 permit application, if Marcelino was found to b e required to file such an application, are no where specifically referenced by Mr. Mazza. We con tinue to be left to wonder what action of Marcelino, over which the Court would have authorit y to grant relief in this proceeding or a subsequent application proceeding, has caused a spe cific harm to Ranger Asphalt that is particular to it. Appellant has again failed to sh ow such a specific, particularized injury. We again wish to emphasize that we have no basis fo r doubting the sincerity with which Appellant has referenced actions, perhaps in violat ion of the Regional Plan, which may cause some measurable injury. But the injury asserted by Appellant is a shared concern, not particular to Appellant. Appellant has yet to show an injury that this Court could address in these specific proceedings. As noted in Steel Co. v. Citizens for a Better Environment , 523 U.S. 83 (1998), a general desire to see that land use laws are proper ly enforced, while valiant, is not itself an injury that this Court could redress in the pending appeal . Id at 107. The concerns expressed on behalf of Appellant here are not unlike the concerns expressed by Mr. Hendricks in the former Environmen tal Board decision entitled Re: Putney Paper Company, Inc. , Declaratory Ruling Request #335, Findings of Fact , Conclusions of Law, and Order (Vt. Envtl. Bd., May 29, 1997), where the Board concluded that because Mr. Hendricks’s interests were not affected by the spec ific jurisdictional opinion that was then under appeal, he did not have standing to maintain the ap peal. Id . at 5-6. Appellant’s showing here has no more specificity of a particularized interest th an that put forth by Mr. Hendricks in Putney Paper

. We see no need to further analyze the legal issues addressed in our January 28 th Decision. However, as we revisit these issues, we are again r eminded of the long established foundation for the principles of standing articulated in our Janua ry 28 th Decision by a reading of Parker v. Town

of Milton , 169 Vt. 74 (1999). The Parker case was initiated by Milton residents who had concerns about plans to build a bridge to serve Hus ky Injection Moldings. The Supreme Court affirmed the trial court’s dismissal of the plainti ffs’ action. In addressing the necessity that a plaintiff have standing to maintain a specific laws uit, the Supreme Court referenced constitutional limitations: “‘The judicial power, as conferred by the Constitution of this State upon this Court, is the same as that given to the F ederal Supreme Court by the United States- 4 -

Constitution; that is, the right to determine actua l controversies arising between adverse litigants, duly instituted in courts of proper jurisdiction.’” Id . at 77 (quoting In re Constitutionality of

House Bill 88 , 115 Vt. 524, 529 (1949)). We repeat that Appellant here lacks standing to mai ntain this jurisdictional opinion appeal. We reach this conclusion for the same reas ons articulated in our prior decisions. We conclude that Appellant has failed to show the exis tence of an actual controversy, over which this Court has authority to adjudicate in the proce eding now under appeal.

Conclusion For the reasons stated above, this Court declines to vacate its Decision and Judgment Order of November 6, 2007. Those entries remain fi nal. This concludes the current proceedings

before this Court.

Done at Newfane, Vermont this 21 st day of March, 2008.

___________________________________ Thomas S. Durkin, Environmental Judge