Sunset Cliff v. Vermont Water Resources Board, No. S0187-04 Cncv 

(Katz, J., May 17, 2004) 

[The text of this Vermont trial court opinion is unofficial. It has been 

reformatted from the original. The accuracy of the text and the 

accompanying data included in the Vermont trial court opinion database is 

not guaranteed.] 

STATE OF VERMONT 

Chittenden County, ss.: 

SUNSET CLIFF 

v. 

VERMONT WATER RESOURCES BOARD 

ENTRY 

 This is an attempt by petitioners to appeal an Administrative 

Determination by the Vermont Water Resources Board regarding 

reclassification of the Sunset Cliffs Wetlands. They argue that the Board’s 

refusal to reclassify the property as a higher and more protected class 

violates the Board’s Rules concerning wetlands and misapprehends the 
relevant facts. The Board seek to dismiss this complaint for lack of 

jurisdiction. According to the Board, neither of the two available avenues 

of appeal, V.R.C.P. 74 and 75, are available to petitioners. 

 Petitioners, neighbors to the wetland property, originally filed a 

petition with the Board to reclassify this property from a class III to a class 

II wetland. The Board, in accordance with its procedural rules, gave notice 

of the petition to the general public, conducted open hearings, and compiled 

information into a factual record of the matter. It then deliberated and 

issued an administrative determination declining the petition and 

reaffirming the property’s class III designation. 

 Petitioners all but concede that V.R.C.P. 74(a) is inapplicable to the 

present appeal. That rule allows superior court appeals from the decisions 

of governmental agencies when the party is entitled to such an appeal by 

statute. Here, the petition was filed and decided under Board Rules adopted 

through 10 V.S.A. § 905. This statutory section and its sub-chapter offers 

no such right of appeal. See 10 V.S.A. ch. 37. Petitioners contend, 

however, that the Board’s Wetland Rules § 9 suggests another statutory 

ground in 10 V.S.A. § 1270 for the appeal. See Vt. Wetland Rules § 9 

(adopted Dec. 10, 2001), available at http://www.state.vt.us/wtrboard/wet/ 

wetrule2002. pdf. 

 Petitioners’ argument has two flaws. First, the text of Wetland Rules 

§ 9 does not grant appellate powers to petitioners. Rather, it states that 

“[a]ny act or decision of the Secretary under these rules may be appealed 

within 30 days to the Board . . . . Any final decision of the Board on an 

appeal may be appealed as provided for in 10 V.S.A. Section 1270.” Id. 

This means that appeals to the Board from acts or decisions from the 

Secretary of the Agency of Natural Resources are covered by the appellate 
power of § 1270. As a petition directly to the Board, petitioners’ claims 

were not an appeal from the Secretary and thus do not fit the category 

created by § 9. 

 Even if we were to ignore § 9, the second flaw in petitioners’ 

argument is that the statutory authority of § 1270 is sharply limited. 10 

V.S.A. § 1270 The section explicitly states that the right to appeal is 

limited to claims or decisions pursuant to the subchapter on water pollution 

control. 10 V.S.A. § 1270; see generally 10 V.S.A. ch. 47. As the Board 

correctly notes, petitioners’ claims are unrelated to this subchapter and are, 

therefore, outside the range of appeals entitled by § 1270. Thus, even if the 

Board’s rules somehow stated that all potential appeals were enabled 

through § 1270, such appeals could not be allowed since an administrative 

rule cannot expand beyond its statutory authority. See, e.g., Interstate 

Commerce Comm’n v. Am. Trucking Ass’n, 467 U.S. 354 (1984) 

(determining whether an ambiguous delegation empowered the ICC to set 

tariff rates); Youngstown Sheet and Tube Co. v. Sawyer, 343 U.S. 579, 593 

(1952) (Jackson, J., concurring) (discussing the continuum along which 

executive powers ebb and flow depending on legislative authority). 

 Petitioners argue that if they cannot appeal the Board’s 

determination through Rule 74, then they should be permitted to appeal 

through Rule 75. This rule provides appellate review for: 

 1) any action by an agency of the state, including the Board, 

 2) that is not appealable under Rule 74, 

 3) if such a review is otherwise available by law. 

V.R.C.P. 75(a). Parties agree that petitioners’ appeal meets the first two 

prongs of Rule 75. The Board is an agency of the state, and its 

determination may be considered an action. Also, as discussed before, the 

lack of entitling language in 10 V.S.A. ch. 37, makes Rule 74 inapplicable. 
This lack of statutory authority, however, raises the question of whether 

there is another source of law to satisfy the third prong of Rule 75(a) and 

establish jurisdiction for our review. 

 Since there is no other ready source of statutory authority, we will 

turn to a more general source of law. As the Reporter’s Notes to Rule 75 

explains, the third prong of Rule 75 allows for review that “is available as a 

matter of general law by proceedings in the nature of certiorari, mandamus, 

or prohibition.” Id. at rep.n.; see also Vermont State Employees’ Ass’n v. 

Vermont Crim. Justice Training Council, 167 Vt. 191, 195 (1997). Of 

these ancient writs, certiorari is arguably the only one that would apply here 

because the review does not involve a public officer performing a simple 

duty (mandamus); a lower court exceeding its jurisdiction (prohibition); a 

dormant judgment (scire facias); or the authority of a claim for public office 

(quo warranto). See V.R.C.P. 81(b) (listing ancient writs); Vermont State 

Employees’, 167 Vt. at 195 (mandamus); Petition of Green Mountain Post 

No. 1, 116 Vt. 256, 258 (1950) (prohibition); Mason v. Carr, 118 Vt. 467 

(1955) ( scire facias); Burke v. Beecher, 101 Vt. 441 (1929) (quo warranto). 

 The writ of certiorari is not a general review of a lower court or 

tribunal but a limited review of “substantial questions of law affecting the 

merits of the case.” Burroughs v. West Windsor Bd. of Sch. Dirs., 141 Vt. 

234, 237 (1982). In its most popular surviving form, certiorari serves as a 

mechanism for the United States Supreme Court to limit its jurisdiction 

over appeals. Sup. Ct. R. 10–16. While our use of certiorari does not 

invoke the same discretionary nature of the Supreme Court, the comparison 

does capture the limitations to this right. For example, in Vermont 

certiorari has been limited in the context of administrative action to quasijudicial acts. Richards v. Town of Norwich, 169 Vt. 44, 47 (1999); see also 

Rhodes v. Town of Woodstock, 132 Vt. 323, 325 (1974).. Here the Board 
argues that the petition to re-classify the Sunset Cliff Wetland was a 

legislative rather than adjudicative action. To this end, they cite to the 

Vermont Supreme Court’s decision in Appeal of Stratton Corporation, 157 

Vt. 436 (1991). There the court analyzed whether a petition to the Water 

Resources Board to re-classify a stream was in essence adjudicatory or 

legislative. It used three factors to distinguish the two types of actions. Id. 

at 443 (citing 1 C. Koch, Adminstrative Law & Practice § 2.3, at 61–62 

(1985)). The first is whether the inquiry done by the Board is of a 

generalized or individualized nature. Id. The second is whether the inquiry 

focuses on resolving a policy type question or a factual dispute. Id. And 

the third is whether the result is prospective applicability—as opposed to 

retrospective in effect. Id. 

 Applying these criteria to the Board’s determination, the Court 

easily concluded that the legislative nature of the hearings, the policy nature 

of the Board’s decision, and its future effect made the process policy-based 

rulemaking. Id. at 443–45. In this case, the Board argues that the reclassification petition of Sunset Cliff was the same type of rulemaking. We 

agree. Like in Stratton, the Board used a broad ten-factor analysis to weigh 

the policy implications to the community of re-classifying the wetlands. 

They conducted open hearings and held comment period where the public 

was free to weigh in on the petition. And finally, their determination has a 

future effect on the wetland and the community. This process contrasts 

sharply with the private nature of adjudication where the Board would have 

dealt with limited parties and scope of criteria, adversarial based-hearings 

and records, and focused on prior incidents. Cf. Richards, 169 Vt. at 45–

47. 

 By concluding that the Board’s determination was legislative in 

nature rather than quasi-judicial, it follows that an appeal through the right 
embodied by certiorari cannot be established. This means that jurisdiction 

does not adhere to petitioners’ claims. Petitioners argue in response that if 

the Board’s determination is to be considered rulemaking, they have a right 

to appeal through a declaratory judgment under the Administrative 

Procedures Act. 3 V.S.A. § 807. They argue that this right is supported by 

the initial reasoning in Stratton where the Court noted that the burden on 

the Stratton Corporation in either an appeal or a declaratory challenge was 

the same and really came down to a question of venue and scope of the 

factual record. Stratton, 157 Vt. at 440. 

 While declaratory judgments on administrative rulings are the venue 

of Washington Superior Court, the right to such a challenge is premised on 

the petitioners’ legal rights or privileges affected by the administrative 

determination. 3 V.S.A. § 807. Petitioners fail to state which, if any, of 

their legal rights or privileges have been interfered with as a result of the 

Board’s determination. Their situation is analogous to the Stratton 

Corporation in that their primary connection to the Board’s determination is 

as neighbors to the area affected, which may result in a greater, impact 

down the line.1

 But, proximity or disproportionate impact by a decision 

does not necessarily trigger a right or privilege or recourse to § 807. As the 

Court in Stratton wrote, “Stratton’s interest may be different from that of 

other members of the public, but it has no right to turn a public issue into a 

private contest.” Id. at 445. To the extent that petitioners’s rights and 

privileges are threatened by the re-classification, they are not subject to 

declaratory judgments but rather they are subject to the only method for 

 

1Unlike petitioners, the Stratton Corporation did at least identify a 

potential conflict with re-classification and their proposed golf course 

development. Id. at 439. The Court, however, concluded that these concerns 

were speculative. Id. at 444. 
protecting such rights in a complex society, through the power of citizens 

over legislative bodies. Id. (quoting Bi-Metallic Investment Co. v. State 

Bd. of Equalization, 239 U.S. 441, 445 (1915)). Thus, petitioners’ claim to 

a declaratory judgment under § 807 is unfounded and unavailable. 

 

 Based on the foregoing, plaintiff’s complaint is dismissed. 

 Dated at Burlington, Vermont________________, 2004. 

 ________________________ 

 Judge