Vermont Bar Association

Seminar Materials

2012 BASIC SKILLS IN VERMONT

PRACTICE & PROCEDURE

Environmental Regulation & Court Practice

August 23 & 24, 2012

Windjammer Conference Center

South Burlington, VT

Faculty:

Jacalyn Fletcher, Esq.

Gerald R. Tarrant, Esq.

Hon. Thomas G. Walsh

Laura Zeisel, Esq.

H O N . T H O M A S S . D U R K I N H O N . T H O M A S G . W A L S H

VERMONT SUPERIOR COURT ENVIRONMENTAL DIVISION

WELCOME & INTRODUCTIONS

• Thomas G. Walsh, Environmental Judge

• Jackie Fletcher, Env. Division Court Manager

• Laura Zeisel, Env. Division Case Manager • Presentation will provide a review of the process and practice before

the Environmental Division

• Gerry Tarrant, Esq. • Chair, VBA Environmental Law Section

• Presentation will cover several recent Environmental Division and Supreme Court decisions

HISTORY OF THE ENVIRONMENTAL “COURT”

• Legislature formed the Court in 1990 • One Judge • Limited Jurisdiction – forum for appeals of violations of state environmental

regulations

• 1998 Jurisdiction expanded to appeal of municipal

zoning/subdivision decisions

• 2005/2006 Permit Reform • Expanded Jurisdiction – appeals of Act 250 & 40 + ANR program decisions • Added a second judge

• 2012 ANR Ticketing added to Court’s jurisdiction

2006 EXPANDED JURISDICTION

THE ENVIRONMENTAL DIVISION

• Two (2) Superior Court Judges – sitting alone (4 VSA §1001)

• Court is located in Berlin, Vermont

• Judges travel – 4 V.S.A.§ 1001(e)

• Non-evidentiary hearings/conferences conducted by telephone unless ordered by the Court to be in person

• The Office & Staff:

• Overview Presented by Jackie Fletcher, Court Manager

OVERVIEW OF THE ENVIRONMENTAL DIVISION’S JURISDICTION

• Municipal Decisions - of the 269 towns and villages in Vermont, 206 have enacted zoning regulations. Decisions made pursuant to these regulations are appealable to our Court.

• Act 250 Decisions (coordinators and district commissions)

• ANR Program Decisions (44+ programs)

• Enforcement • Municipal

• State

JURISDICTION MORE SPECIFICALLY

• 4 V.S.A. § 34

• 10 V.S.A. Chapter 201

• ANR & Act 250 Enforcement

• 10 V.S.A. Chapter 220

• Appeals of Municipal Zoning & Subdivision decisions;

• Appeals of decisions of the 40+ ANR permitting programs;

• Appeals of Act 250 District Coordinator decisions & District Commission decisions

• 24 V.S.A. Chapter 117

• Vermont Planning and Development Act

• 24 V.S.A. Chapter 61, Subchapter 12

• Local Solid Waste Ordinances

• Revocation of permits issued under 10 V.S.A. Chapter 151

• Revocation of Act 250 Permits

JURISDICTION CONTINUED

• V.R.E.C.P. Rule 3. Civil Actions • Lists the original jurisdiction of the Court

• Examples are:

• Revocation of Act 250 permits

• Revocation of municipal permits

• Enforcement of AO’s of ANR

• Actions to recover penalties for municipal violations

• Actions by the AG to challenge validity of a bylaw relating to equal treatment of housing

COURT RULES

• V.R.E.C.P. – Specific to this Court http://www.vermontjudiciary.org/GTC/environmental/default.aspx

• V.R.C.P. – Apply so far as applicable. See V.R.E.C.P. 3 & 5(a)

• V.R.A.P. – Apply so far as applicable. See V.R.E.C.P. 3 &5(a)&(h)

• V.R.E. – Apply, BUT: evidence not admissible under the Rules of Evidence may be admitted if it is of a type commonly relied upon by reasonably prudent persons in the conduct of their affairs. 4 V.S.A. § 1003; V.R.E.C.P. 2(e); see also MAPA 24 V.S.A. § 1206

V.R.E.C.P.

• Rule 1. Scope of Rules

• These rules govern the procedure in the Environmental Division

• Construed and administered to: • Ensure summary and expedited proceedings,

• Full and fair determination

V.R.E.C.P.

• Rule 2. General Provisions • Coordination of Proceedings

• If matters involve significant common issues of law or fact, the Court may:

• Advance, defer, coordinate, or combine proceedings

• Discovery

• Court to establish type, sequence, and amount – limiting to that necessary

• Pretrial Conference and Order

• By telephone, initial with judge and later with Case Manager

• Establish process to reach resolution

• Evidence

• Site Visit – Will take place unless parties agree otherwise – for context

V.R.E.C.P.

• Rule 3. Civil Actions

• Actions shall be commenced and conducted as civil actions

• Long list of matters within the Court’s original jurisdiction with a catch all at the end

V.R.E.C.P.

• Rule 4. Review of Environmental Enforcement Orders

• AO

• AOD

• Emergency Order

• Important note: 10 VSA § 8012 – Request a hearing within 15 days; Hearing to be held within 30 days unless continued for good cause.

V.R.E.C.P.

• Rule 5. Appeals • Notice of Appeal

• Contents, Service, Publication (Act 250)

• Appearance • 20 days to appear from last appeal or notice thereof (or later Intervene)

• Claims and Challenges to Party Status • Interlocutory from District Commission

• Automatic unless challenged

• If denied below, must appeal AND FILE A MOTION FOR PARTY STATUS

• Stay • Not automatic unless permit is for stream alteration or shoreline

encroachment,

• Or denial of interested person status by BOA, PC, or DRB

V.R.E.C.P.

• Rule 5 con’t • Statement of Questions

• Filed within 20 days of appeal

• Court’s review is limited to the SOQ

• Subject to motion to clarify or dismiss

• De novo or On-the-Record (OTR)

• De novo (trial anew) – Court applies the substantive standard from below

• OTR

• AMPs which have adopted OTR, or

• Decision of Commissioner of Forest, Parks, and Recreation

• Appeal to the Supreme Court

V.R.E.C.P.

• Rule 6. Definitions

• Rule 7. Title

• Rule 8. Effective Date

COURT’S TWO METHODS OF REVIEW

• De novo – trial anew

• On-the-Record – like the Vermont Supreme Court’s review

• Important for parties and lawyers to know which method of review will be employed

DE NOVO FLOW-CHART

DE NOVO FLOW

• A decision is issued by a municipality, Act 250, or ANR Program

DE NOVO FLOW

• Appellant: person filing an appeal

DE NOVO FLOW

• Notice of appeal – Filed by Appellant

• V.R.E.C.P. Rule 5 • Contents, Service, Publication (Act 250)

DE NOVO FLOW

• Appeal is filed with the Environmental Court with a copy to the municipality

• V.R.E.C.P. 5(4)(A)

DE NOVO FLOW

• Case Filed – Court does the following:

• Docket number assigned

• Judge assigned

• Case entered into computer

• Initial letters sent

• Tracking system activated

DE NOVO FLOW

• Within 5 business days of the filing of the appeal municipality sends to Appellant the List of Interested Parties

• V.R.E.C.P. 5(4)(A)

DE NOVO FLOW

• Appellant then sends a copy of the Notice of Appeal to Interested Parties by certified mail

• V.R.E.C.P. 5(4)(A)

DE NOVO FLOW

• Within 20 days from date appeal filed Appellant must file its Statement of Questions

• V.R.E.C.P. 5(f)

DE NOVO FLOW

• Within 20 days from receiving the Notice of Appeal other parties must file their Entry of Appearance

• V.R.E.C.P. 5(c)

DE NOVO FLOW

• Initial Conference with the Judge

• Generally by telephone

• Always recorded

• Within the first 4-6 weeks from the filing of the appeal

DE NOVO FLOW

• Following the Initial Conference, the Judge issues a Scheduling Order.

• The Scheduling Order tailors the course of the appeal to what that individual case needs.

• Pretrial Motions

• Mediation & ID of Mediator

• Mediator’s Report

• Discovery

• Parties’ unavailable Dates for Trial

DE NOVO FLOW

• Mediation:

• Overview presented by Laura Zeisel, Case Manager

DE NOVO FLOW

• Court staff monitors deadlines, checking in with parties as needed to move the case along

DE NOVO FLOW

• Conference(s) with Case Manager:

• Always by telephone

• Never recorded

• Review status

• Follow-up on mediation/settlement discussions

• If case settles, follow-up to see that settlement documents timely filed

• If case has not settled, move towards resolution by motion or trial

DE NOVO FLOW

• Set Trial date(s) and Final Pre-Trial Conference

DE NOVO FLOW

• Trial held: generally in the county where case arises

• Site Visit:

• Most matters include a site visit

• Put evidence into context

DE NOVO FLOW

• Post Trial Filings?

• Due dates given at trial, if not previously established

DE NOVO FLOW

• Under Advisement

• No set amount of time. Each case is different. Goal is to give each case the appropriate amount of time and attention

DE NOVO FLOW

• Decision Issued

DE NOVO FLOW

• Appeals of Environmental Court Decisions are filed with the Vermont Supreme Court

ON-THE-RECORD REVIEW - OTR

• This is the Court’s second method of review and it is less common

• Per V.R.E.C.P. Rule 5(h)

OTR

• What is OTR?:

• Court reviews the record from below – similar to our Vermont Supreme Court review

OTR

• No new evidence

OTR

• Court’s review:

• Uphold the facts if supported by substantial evidence in the record

• Review legal conclusions w/out deference unless the conclusion was within the area of expertise of the body below –

• Currently there are no bodies below having expertise

OTR

• When does OTR apply?:

• AMP – must undertake the process to be an OTR town

OTR

• Need a resolution or bylaw that:

• Provides that appeals from the AMP will be OTR

• Must define the level of development subject to OTR

• Must state that Municipal Admin. Proc. Act applies

• See Goddard College EO issued in April 2012

OTR

• Effort this year before the legislature to create a pilot program for Act 250 District Commission decisions to be reviewed OTR before the Environmental Division.

OTR

• The Record – what is it?:

• Original papers filed with the AMP

• Writings & Exhibits considered by the AMP

• Electronic recording of the AMP proceedings

• Transcript of the AMP Proceeding, if any:

• If AMP proceeding < 12 hrs then electronic recording is ok

• If AMP proceeding is >= 12 hrs then must be a transcript

OTR

• Appellant must order a transcript (if required) within 10 days of filing the appeal (copy of the request must be served on the other parties)

• Clerk of AMP must file the Record with the Court within 30 days of the filing of the appeal.

OTR

• Briefs/Reply Briefs:

• Follow Rules of Appellate Court Proceedings

OTR

• Oral Argument:

• Possible change in the OTR practice –

• Notice providing date by which parties must request argument – otherwise, waived

OTR

• Under Advisement

• Written Decision Issued

• Potential Appeal to the Supreme Court

PRACTICE SUGGESTIONS

• What the Judges like….

PRE-TRIAL MOTION PRACTICE

• Consider the likelihood of success and the impact on the overall time the matter is pending before the Court

TRIAL EXHIBITS

• Format/labeling will be addressed during your final pre-hearing conference

• Need an original for the court, copies for all parties and consider having an extra copy for the Judge to review as you are examining the witness

PROPOSED FINDINGS AND CONCLUSIONS

• Prefer prior to Trial

• Will allow post trial supplements

FOR OTR APPEALS

• Even if the proceeding below is less than 12 hours, consider whether having a transcript vs. the electronic recording would be more appropriate

POST - JUDGMENT

• Reconsideration?

• V.R.C.P 59(e) – Motion to Alter or Amend

NEW JURISDICTION IN 2012

• EEO Ticketing

• New in 2012

CIVIL COMPLAINT FORM – 10 V.S.A.§8019

THE END

• Thank You & Questions…