Vermont Superior Court

Environmental Division

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Ridgewood Est. HOA & Indian Creek HOA Do cket No. 57-4-10 Vtec Project: Ridgewood Est. HOA & Indian Creek HOA Applicant: Ridgewood Est & Indian Creek HOA

AN R Storm Water Permit

Title: Motion to Dismiss for Lack of Standing, No. 1 Filed: June 24, 2010 Filed By: Gjessing, Catherine, Attorney for: Intere sted Person Agency of Natural

Resources Response filed on 07/13/10 by Appellant Daniel S. C onnelly Opposition

___ Granted ___ Denied ___ Other

The subject of this appeal is a March 16, 2010 dec ision of the Department of Environmental Conservation of the Vermont Agency of Natural Resources (ANR) authorizing stormwater discharge from the Ridgewood Estates and the Indian Creek Condominiums to Potash Brook under the authority of National Pollutant Discharge Elimination System (NPDES) General Permit 3-9030. This stormwater General Permit and the ANR’s related residual designation d ecision were issued in November 2009 by the ANR under the authority of the state’s water pollution control statute, 10 V.S.A. ch. 47. The state has be en delegated authority for the federal NPDES program. See generally In re NPD ES Stormwater Petition, 2006 Vt. 91, 180 Vt. 261; In re Stormwater NPDES Petitio n, No. 14-1-07 Vtec (Vt. Env. Ct. Aug. 28, 2008) (Durkin, J.).

In his Notice of Appeal filed April 13, 2010, and his “Annex to Pleading” filed June 9, 2010, Appellant asserts only a financ ial interest as a condominium

owner in one of the two homeowners’ associations th at had applied for this authorization. He does not assert that he has a pa rticularized interest that is affected or potentially affected in any way related to the environmental effects of the stormwater discharge. That is, he does not allege an injury to a particularized interest protected by the relevant s tate environmental statutes listed in 10 V.S.A. § 8503, which is a requirement for standing under the definition of “person aggrieved” in 10 V.S.A. § 850 2(7). See 10 V.S.A. § 8502(7) (defining a “[p]erson aggrieved” to mean “a person who alleges an injury to a particularized interest protected by th e provisions of law listed in [§] 8503”); see also id. § 8504(a) (“[a]ny person a ggrieved by an act or decision of the secretary . . . under the provision s of law listed in [10 V.S.A. §] 8503 . . . may appeal to the environmental court ).Page 2

Until his most recent filing, the interest Appella nt claims to be affected by the March 16, 2010 decision was solely the poten tial for his financial liability, as a member of the Indian Creek Homeowne rs’ Association, for “obligations for common expenses including permit e nforcement penalties and

corrective actions” due to the fact that the Indian Creek and Ridgewood Estates discharges were considered together in a single app lication. Appellant’s Notice of Appeal (Apr. 13, 2010). In paragraph 6.2 of App ellant’s July 13, 2010 response to the ANR Motion to Dismiss for Lack of S tanding, he adds the issue that the value of his property “will be depressed b y the added liability and costs, under this permit, for treating storm water discharge activity located solely at Ridgewood.” These potential financial in terests are not within the zone of interest protected or regulated by the stat e water pollution control statute. See, e.g., In re Unified Buddhist Church, Inc., Indirect Discharge Permit, No. 253-10-06 Vtec, slip op. at 2–4 (Vt. En vtl. Ct. Aug. 15, 2007) (Wright, J.) (finding standing for watershed associ ation due to potential for effect of discharge on members’ use and enjoyment o f stream, which was an interest protected by the statute invoked). See al so Hinesburg Sand & Gravel Co., Inc., 166 Vt. 337, 341–42 (1997) (discussing z one-of-interests test).

However, in paragraph 6.3 of his July 13, 2010 res ponse to the ANR Motion to Dismiss for Lack of Standing, Appellant raises f or the first time the aesthetics issue that an existing pond on Indian Cr eek property “may be substantially drained to create a detention [pond] for storm water runoff activities located solely at Ridgewood.” He claims that he and his guests

observe wildlife at Indian Creek and that the resul ting “muddy, shallow pool” will “alter[] the ecology of this pond to the detri ment of the particularized aesthetic interest previously enjoyed by [himself] and his guests.” Of the interests claimed by Appellant, this interest alone is a potential injury in fact capable of being redressed by this Court in a proceeding under the statute at issue in this appeal. See In re Champlain Marina , Inc., Dock Expansion, No. 28-2-09 Vtec, slip op. at 5–8 (Vt. Envtl. Ct. July 31, 2009) (stating that in order to have standing under 10 V.S.A. § 8502(7), “ aggrieved person[s]” must

assert an interest that falls within “the ‘zone of interests’ of the statute under which they claim standing,” and holding that neighbors had standing due to the asserted impacts of the proposed project on the ir “esthetic” interests that were to be protected under the applicable statute).Page 3

Accordingly, the ANR’s Motion to Dismiss this appe al for lack of Appellant’s standing is GRANTED in Part, as to the financial interests claimed by Appellant, and is DENIED as to Appellant’s aesth etic interests in observing wildlife at the pond in question. However, the Mot ion to Dismiss Questions from the Statement of Questions will be analyzed in the context of the limited issue on which Appellant has standing.

___________________________________________ __ ____________________ Judge Date

=================================================== ===================== Date copies sent to: ____________ Cle rk's Initials _______ Copies sent to: Appellant Daniel S. Connelly Attorney Catherine Gjessing for Interested Pers on Agency of Natural

Resources Attorney William E. Flender for Interested Pers on City of South Burlington Co-Counsel for party 6 Cielo Marie Mendoza Interested Person Ridgewood Estates Homeowners Association, Inc.