Vermont Superior Court

 Environmental Division

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 E N T R Y R E G A R D I N G M O T I O N 

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Ridgewood Est. HOA & Indian Creek HOA Docket No. 57-4-10 Vtec 

Project: Ridgewood Est. HOA & Indian Creek HOA 

Applicant: Ridgewood Est & Indian Creek HOA 

 ANR Storm Water Permit 

 

Title: Motion to Dismiss for Lack of Standing, No. 1 

Filed: June 24, 2010 

Filed By: Gjessing, Catherine, Attorney for: Interested Person Agency of Natural 

Resources 

Response filed on 07/13/10 by Appellant Daniel S. Connelly Opposition 

 

___ Granted ___ Denied ___ Other 

 The subject of this appeal is a March 16, 2010 decision 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 decision 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 been delegated authority for 

the federal NPDES program. See generally In re NPDES Stormwater Petition, 2006 

Vt. 91, 180 Vt. 261; In re Stormwater NPDES Petition, 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 financial interest as a condominium 

owner in one of the two homeowners’ associations that had applied for this 

authorization. He does not assert that he has a particularized 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 state 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. § 8502(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 the provisions of law listed in 

[§] 8503”); see also id. § 8504(a) (“[a]ny person aggrieved by an act or 

decision of the secretary . . . under the provisions of law listed in [10 V.S.A. 

§] 8503 . . . may appeal to the environmental court). 
Page 2 

 Until his most recent filing, the interest Appellant claims to be affected 

by the March 16, 2010 decision was solely the potential for his financial 

liability, as a member of the Indian Creek Homeowners’ Association, for 

“obligations for common expenses including permit enforcement penalties and 

corrective actions” due to the fact that the Indian Creek and Ridgewood Estates 

discharges were considered together in a single application. Appellant’s Notice 

of Appeal (Apr. 13, 2010). In paragraph 6.2 of Appellant’s July 13, 2010 

response to the ANR Motion to Dismiss for Lack of Standing, he adds the issue 

that the value of his property “will be depressed by the added liability and 

costs, under this permit, for treating storm water discharge activity located 

solely at Ridgewood.” These potential financial interests are not within the 

zone of interest protected or regulated by the state 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. Envtl. Ct. Aug. 15, 2007) 

(Wright, J.) (finding standing for watershed association due to potential for 

effect of discharge on members’ use and enjoyment of stream, which was an 

interest protected by the statute invoked). See also Hinesburg Sand & Gravel 

Co., Inc., 166 Vt. 337, 341–42 (1997) (discussing zone-of-interests test). 

 However, in paragraph 6.3 of his July 13, 2010 response to the ANR Motion 

to Dismiss for Lack of Standing, Appellant raises for the first time the 

aesthetics issue that an existing pond on Indian Creek 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 resulting “muddy, shallow pool” 

will “alter[] the ecology of this pond to the detriment 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 their “esthetic” interests that 

were to be protected under the applicable statute).
Page 3 

 Accordingly, the ANR’s Motion to Dismiss this appeal 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 aesthetic interests in observing 

wildlife at the pond in question. However, the Motion 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 

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Date copies sent to: ____________ Clerk's Initials _______ 

Copies sent to: 

 Appellant Daniel S. Connelly 

 Attorney Catherine Gjessing for Interested Person Agency of Natural 

Resources 

 Attorney William E. Flender for Interested Person City of South Burlington 

 Co-Counsel for party 6 Cielo Marie Mendoza 

 Interested Person Ridgewood Estates Homeowners Association, Inc.