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

(Katz, J., May 17, 2004)

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STATE OF VERMONT

Chittenden County, ss. :

SUNSET CLIFF

v.

VERMONT WATER RESOURCES BOARD

ENTRY

This is an attempt by petitioners to appeal an Adm inistrative Determination by the Vermont Water Resources Board regarding

reclassification of the Sunset Cliffs Wetlands. Th ey 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 therelevant facts. The Board seek to dismiss this com plaint for lack of jurisdiction. According to the Board, neither of t he two available avenues of appeal, V.R.C.P. 74 and 75, are available to pet itioners.

Petitioners, neighbors to the wetland property, or iginally 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 proc edural rules, gave notice of the petition to the general public, conducted op en hearings, and compiled

information into a factual record of the matter. I t then deliberated and issued an administrative determination declining th e 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 ap peals 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 an d its sub-chapter offers no such right of appeal. See 10 V.S.A. ch. 37. Pe titioners contend, however, that the Board’s Wetland Rules § 9 suggest s 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.st ate.vt.us/wtrboard/wet/ wetrule2002. pdf.

Petitioners’ argument has two flaws. First, the t ext 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 deci sion 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 d ecisions from the Secretary of the Agency of Natural Resources are co vered by the appellatepower of § 1270. As a petition directly to the Boa rd, petitioners’ claims

were not an appeal from the Secretary and thus do n ot 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 t he right to appeal is limited to claims or decisions pursuant to the subc hapter 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 app eals were enabled through § 1270, such appeals could not be allowed s ince 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 empowe red the ICC to set tariff rates); Youngstown Sheet and Tube Co. v. Saw yer , 343 U.S. 579, 593 (1952) (Jackson, J., concurring) (discussing the co ntinuum along which executive powers ebb and flow depending on legislat ive authority).

Petitioners argue that if they cannot appeal the B oard’s determination through Rule 74, then they should be permitted to appeal through Rule 75. This rule provides appellate revi ew 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’ ap peal meets the first two prongs of Rule 75. The Board is an agency of the s tate, and its determination may be considered an action. Also, a s discussed before, the lack of entitling language in 10 V.S.A. ch. 37, mak es Rule 74 inapplicable.This lack of statutory authority, however, raises t he 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 Repor ter’s Notes to Rule 75 explains, the third prong of Rule 75 allows for rev iew 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 onl y one that would apply here because the review does not involve a public office r performing a simple duty (mandamus); a lower court exceeding its jurisd iction (prohibition); a dormant judgment (scire facias); or the authority o f a claim for public office (quo warranto). See V.R.C.P. 81(b) (listing ancien t writs); Vermont State Employees’ , 167 Vt. at 195 (mandamus); Petition of Green Moun tain Post

No. 1 , 116 Vt. 256, 258 (1950) (prohibition); Mason v. C arr , 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 quest ions 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 for m, certiorari serves as a mechanism for the United States Supreme Court to li mit 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 ex ample, in Vermont

certiorari has been limited in the context of admin istrative 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 Boardargues that the petition to re-classify the Sunset Cliff Wetland was a

legislative rather than adjudicative action. To th is end, they cite to the Vermont Supreme Court’s decision in Appeal of Strat ton Corporation , 157 Vt. 436 (1991). There the court analyzed whether a petition to the Water Resources Board to re-classify a stream was in esse nce adjudicatory or legislative. It used three factors to distinguish the two types of actions. Id

. at 443 (citing 1 C. Koch, Adminstrative Law & Pract ice § 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 fa ctual dispute. Id . And the third is whether the result is prospective appl icability—as opposed to retrospective in effect. Id

.

Applying these criteria to the Board’s determinati on, 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 t he reclassification petition of Sunset Cliff was the sam e type of rulemaking. We agree. Like in Stratton , the Board used a broad ten-factor analysis to wei gh the policy implications to the community of re-clas sifying the wetlands. They conducted open hearings and held comment perio d 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. Th is process contrasts sharply with the private nature of adjudication whe re the Board would have dealt with limited parties and scope of criteria, a dversarial based-hearings and records, and focused on prior incidents. Cf. R ichards , 169 Vt. at 45–

47.

By concluding that the Board’s determination was l egislative in nature rather than quasi-judicial, it follows that an appeal through the rightembodied by certiorari cannot be established. This means that jurisdiction

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

the Board’s determination is to be considered rulem aking, they have a right to appeal through a declaratory judgment under the Administrative Procedures Act. 3 V.S.A. § 807. They argue that t his 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 d eclaratory challenge was the same and really came down to a question of venu e and scope of the

factual record. Stratton , 157 Vt. at 440.

While declaratory judgments on administrative ruli ngs are the venue of Washington Superior Court, the right to such a c hallenge is premised on the petitioners’ legal rights or privileges affecte d by the administrative determination. 3 V.S.A. § 807. Petitioners fail t o state which, if any, of their legal rights or privileges have been interfer ed with as a result of the Board’s determination. Their situation is analogou s 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 de cision does not necessarily trigger a right or privilege o r 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 t o the only method for

1 Unlike 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, throug h 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’ cl aim to a declaratory judgment under § 807 is unfounded and unavailable.

Based on the foregoing, plaintiff’s complaint is d ismissed.

Dated at Burlington, Vermont________________, 2004

.

________________________ Judge