State of Vermont Superior Court—Environmental Division

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In re Lake Champlain Bluegrass Festival Jurisdictio nal Opinion (#6-007) Docket No. 204-11-10 Vtec (Appeal from Act 250 Jurisdictional Opinion issued by the District Env. Commission Coordinator)

Title: Motion to Dismiss (Filing No. 1)

Filed: February 14, 2011

Filed By: Liam L. Murphy, Attorney for Appellees St even Palmer, Haybale Entertainment, LLC, Loren Palmer, and Windmill Bay Farms, LLC

Response in Opposition filed on 2/23/11 by Joseph F . Cahill, Jr., Attorney for Appellants Rene Prairie , Jr.
and Louise Prairie

Reply filed on 4/1/11 by Liam L. Murphy, Attorney f or Appellees Steven Palmer, Haybale Entertainment, LLC, Loren Palmer, and Windmill Bay Farms, LLC

Supplemental information filed on 5/4/11 by Joseph F. Cahill, Jr., Attorney for Appellants Rene Prairi e, Jr.
and Louise Prairie

Supplemental information filed on 5/4/11 by Liam L. Murphy, Attorney for Appellees Steven Palmer, Haybale Entertainment, LLC, Loren Palmer, and Windmill Bay Farms, LLC

___ Granted X Denied ___ Other

Before us is a motion to dismiss the appeal of Rene R. Prairie and Louise Prairie (“Appellants”) of a reconsidered jurisdictional opinion (“JO”) issued o n October 11, 2010 by the District 6 Environmental Commission Coordinator (“District Coordinator”) pur suant to 10 V.S.A., Chapter 151 (commonly known as “Act 250”). The JO concerns the use of property to host an annual bluegrass music festival in Alburgh

, Vermont. Through their motion, Haybale Entertainme nt, LLC and its agent Steven Palmer, and Windmill Bay Farms, LLC and its agent Loren Palmer, (collect ively “Festival Organizers”) have sought dismissal of the appeal, arguing that Appellants have no standin g to appeal.

Following an initial examination of the parties’ pl eadings and our own legal research, we concluded that it was appropriate to convert the pending moti on to dismiss to a motion for summary judgment on t he question of Appellants’ standing. See V.R.C.P. 12( b) (“If, on a motion . . . to dismiss . . . , matte rs outside the pleadings are presented to and not excluded by the court, the motion shall be treated as one for s ummary judgment . . . .”). By our Entry Order of April 27 , 2011, we provided the parties with an opportunity to supplement their initial filings; both the Festival Organizers and Appellants subsequently completed s uch filings. We now take up the substance of the pendi ng motion.

The standard we employ in determining whether to gr ant the Festival Organizers summary judgment is a familiar one: we are directed to do so only af ter concluding that there are no material facts in dispute and that they are entitled to judgment as a matter of l aw. See V.R.C.P. 56(c)(3). In assessing the mater ial facts, we must “accept as true the [factual] allegations m ade in opposition to the motion for summary judgmen t, so long as they are supported by affidavits or other e videntiary material,” and give the non-moving party (here, Appellants) the benefit of all reasonable doubts an d inferences. Robertson v. Mylan Labs., Inc. , 2004 VT 15, ¶ 15, 176 Vt. 356 (citations omitted).Lake Champlain Bluegrass Festival JO , No. 204-11-10 Vtec (EO on Motion to Dismiss) (5-1 2-11) Pg. 2 of 3

In their filings, the Festival Organizers argue tha t Appellants have no standing to appeal the Distric t Coordinator’s JO of October 11, 2010. The Organize rs argue that Appellants do not make adequate factu al representations to meet the standing requirements d ictated in the statutes controlling the procedure f or appealing a jurisdictional opinion. They also refu te some of the facts Appellants allege and argue th at Appellants have made insufficient reference to evid ence in support of their factual allegations.

Under the applicable statutory scheme, in order for Appellants to have standing to appeal the JO, they must qualify as “person[s] aggrieved” by the J O determination. 10 V.S.A. §§ 8503(b)(2), 8504(a). To qualify as “person[s] aggrieved,” Appellants must a llege facts supporting a finding on each of the fou r elements found in 10 V.S.A. § 8502(7): “(1) an inju ry; (2) to a particularized (i.e., not generalized) interest protected by Act 250; (3) that is impacted by the p roceedings appealed from; and (4) that this Court c an redress” in this appeal proceeding. In re Marcelin o Waste Facility , No. 44-2-07 Vtec, slip op. at 4 (Vt. Envtl. Ct. Jan. 28, 2008) (Durkin, J.). The standards fou nd in § 8502(7) incorporate both the three familiar constitutional elements of standing—injury in fact, causation, and redressability—as well as the prude ntial elements of a particularized injury that falls with in a statute’s zone of interests—here, that implica tes interests protected by Act 250 criteria or sub-crit eria. See In re Marcelino Waste Facility , No. 44-2-07 Vtec, slip op. at 3 (Vt. Envtl. Ct. Nov. 6, 2007) (Durkin , J.); In re Champlain Marina, Inc. Dock Expansion , No. 28-2-09 Vtec, slip op. at 4–5 (Vt. Sup. Ct. Envtl. Div. July 31, 2009) (Durkin, J.) (citing Hinesburg Sand &
Gravel Co. v. State , 166 Vt. 337, 341 (1997).

Accepting as true the allegations Appellants make i n their response to the Festival Organizers’ motion, allegations Appellants support with two aff idavits and exhibits, we find them sufficient to sa tisfy the standing requirements of 10 V.S.A. § 8502(7) and de feat the pending motion. Appellants’ allege that t hey own land that abuts the property on which the blueg rass festival is proposed to occur and that their a ccess to and enjoyment of (primarily via hunting) their land is impacted by the noise, activity, and vehicles a ssociated with the festival. Thus, Appellants have establish ed that they have particularized interests that may be impacted by the festival operations and that may be addressed under Act 250 criteria 5 (concerning tra ffic) and 8 (concerning scenic and natural beauty). See 10 V.S.A. § 6086(a)(5), (a)(8).

Appellants also allege that the construction undert aken in preparation for the festival may impact
wetlands on the festival site as well as the draina ge patterns of water in the area. We find these al legations insufficient, when reviewed alone, to establish sta nding. Specifically, Appellants’ statements appear speculative in that they neither clearly identify a ny impact on Appellants (i.e., a particularized inj ury) nor describe how the impacts they allege are governed b y specific Act 250 criteria. However, because Appellants make a sufficient showing of particulari zed interest impacts that may occur and may be gove rned by Act 250 criteria 5 and 8, we conclude that Appel lants have standing to appeal the JO.

We must emphasize, however, that our references her e to specific Act 250 criteria should in no way be read as conclusions that Appellants have made a sufficient showing to secure party status under any criteria. Such determinations would be premature a nd are not necessary in an appeal of a jurisdiction al opinion. Compare 10 V.S.A.§ 8054(a) (merely requir ing one to be a “person aggrieved” to appeal a determination made by a district coordinator) with 10 V.S.A. § 8054(d) (imposing additional restrictio ns, including the attainment of party status as to spec ific Act 250 criteria, on one who appeals a distric t commission determination).

Because we conclude that Appellants have sufficient ly shown that they have standing to appeal the October 11, 2010 JO, we DENY the Festival Organizers’ motion. Having resolved the legal challenge to Appellants’ standing to bring this appeal, we must now determine whether Act 250 jurisdiction applies to the festival. The Court will conduct a pre-trial telep hone conference to determine pre-trial scheduling ( see attached notice); the parties should prepare for th is conference by discussing what scheduling is need ed and appropriate prior to trial, including the procedura l issues of further discovery and mediation.Lake Champlain Bluegrass Festival JO , No. 204-11-10 Vtec (EO on Motion to Dismiss) (5-1 2-11) Pg. 3 of 3

_________________________________________ May 12, 2011

_____ Thomas S. Durkin, Judge Date

=================================================== ========================== Date copies sent to: ____________ Clerk's Initials _______
Copies sent to:
Joseph F. Cahill, Jr., Attorney for Appellants Rene Prairie, Jr. and Louise Prairie
Liam L. Murphy, Attorney for Appellees Steven Palme r, Haybale Entertainment, LLC, Loren Palmer, and Windmill Bay Farms, LLC
John H. Hasen, Attorney for the Vermont Natural Res ources Board/Land Use Panel