Thursday, July 1, 2010

Environmental Court Limits Application of Municipal Regulations in Lake Champlain Dock Expansion Appeal

In re Champlain Marina Dock Expansion
Docket No. 28-2-09 Vtec
Order on Partial Motion for Summary Judgment

In this case, a group of neighbors is appealing the decision of the Vermont Department of Environmental Conservation (DEC) to issue a permit for Champlain Marina to expand its docks in Lake Champlain's Spaulding Bay, which is located in Colchester, Vermont. In February, Champlain Marina moved for summary judgment as to one of the questions that the Neighbors raised on appeal, namely, whether the DEC's decision to grant the permit under 29 V.S.A. section 405(b) is consistent with Section 7.03(F)(5) of the Colchester Zoning Ordinance. Section 405(b) sets out the criteria that DEC must consider when determining whether any encroachment on the waters of the state will adversely effect the public good. One of the Section 405(b) criteria is "consistency with municipal shoreland zoning ordinances," such as Colchester Zoning Ordinance Section 7.03(F)(5).

The Marina argued that Section 7.03(F)(5) exceeds the town's authority to regulate shorelands because it purports to regulate facilities that "project[] outward from the mean-water mark" of Lake Champlain. In an earlier case, the Environmental Court had decided that under state law, waters beyond the mean water mark are navigable waters, that the state has not provided municipalities with any authority to regulate in the navigable waters, and thus only the state may regulate areas that are beyond the mean water mark. In re Svendsen Dock Extension Variance, No. 1-1-09 Vtec, Decision on Cross Motions for Summary Judgment (Vt. Env. Ct. Oct. 14, 2009). The Marina argued that under the Svendsen decision, Section 7.03(F)(5) of the Colchester Zoning Ordinance was invalid, and thus, as a matter of law, it would be improper for DEC or the Environmental Court to consider the dock expansion's consistency with that provision in any decision regarding whether the dock expansion should be allowed under 29 V.S.A. section 405(b).

The Court agreed with the Marina, reasoning that at least some of the provisions of Section 7.03(f)(5) exceeded the town's regulatory authority, and thus could not be considered under 29 V.S.A. section 405(b). The Court also noted that although some of Section 7.03(F)(5)'s provisions appeared to be proper exercises of the town's authority, the Neighbors had not supplied the Court with any factual basis for concluding that the proposed dock expansion would have any effect on those provisions. Thus, the Court granted summary judgment in favor of the Marina on this question.

The Court's full decision is available at: http://www.vermontjudiciary.org/GTC/Environmental/ENVCRT%20Opinions/In%20re%20Champlain%20Marina%20Dock%20Expansion%20%2028-2-09%20Vtec%20EO%20on%20partial%20summary%20judgment%20request.pdf