Lot 20, 295 Applewood Road Wetland Determination - Decision on Motion

VERMONT SUPERIOR COURT
Environmental Division Docket No. 24-ENV-00072
32 Cherry St, 2nd Floor, Suite 303,
Burlington, VT 05401
802-951-1740
www.vermontjudiciary.org

Lot 20, 295 Applewood Road Wetland Determination

ENTRY REGARDING MOTION
Title: Motion to Dismiss (Motion: 5)
Filer: Kane Smart, Esq.
Filed Date: April 17, 2025
No response filed.
The motion is GRANTED.
This is an appeal of a July 17, 2024 decision of the Agency of Natural Resources (ANR)
denying Steven and Bonnie Platt, Hilary Burditt, and Joshua Vogel’s (together, Appellants) request for
reconsideration of a wetland determination, dated September 11, 2023, concluding that there was a
Class II wetland located on property owned by Alta Assets, LLC (Alta Assets) located at 295
Applewood Road, Warren, Vermont (the Property). Presently before the Court is ANR’s motion to
dismiss Appellants for lack of standing. Appellants have not filed any response to the motion
challenging their standing.
A party’s standing is a question of subject matter jurisdiction. Brod v. Agency of Nat. Res.,
2007 VT 87, ¶ 8, 182 Vt. 234 (citation omitted). Thus, the Court reviews the pending motion to
dismiss under the standard of review afforded by Vermont Rules of Civil Procedure (V.R.C.P.) Rule
12(b)(1). In re Main St. Place LLC, Nos. 120-7-10 Vtec, 191-11-10 Vtec, et. al., slip op. at 2 (Vt. Super.
Ct. Envtl. Div. Jun. 19, 2012) (Durkin, J.). That is, the Court accepts as true all uncontroverted factual
allegations and construes them in a light most favorable to the nonmoving party. Rheaume v. Pallito,
2011 VT 72, ¶ 2, 190 Vt. 245. When a party’s standing is challenged, however, the party must
demonstrate that it has standing to appeal to this Court. See In re Silver Birch Props., LLC, No. 22-
ENV-00070, slip op. at 3 (Vt. Super. Ct. Envtl. Div. Mar. 29, 2023) (Durkin, J.) (citing Bischoff v.
Bletz, 2008 VT 16, ¶ 15, 183 Vt. 235) (“While the Court initially accords persons who enter a timely
appearance party status, if challenged the party must demonstrate, at a minimum, that they are vested
with constitutional standing to remain as a party before the Court in the pending appeal.”).
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Only a “person aggrieved by an act or decision of the Secretary [of ANR]” may appeal that
decision to this Court. 10 V.S.A. § 8504(a). A “person aggrieved” is one “who alleges an injury to a
particularized interested protected by the provisions of law listed in section 8503 of [Title 10],
attributable to an act or decision by . . . the Secretary [of ANR] . . . that can be redressed by the
Environmental Division . . .” 10 V.S.A. § 8502(7).1
The standing requirement originates with Article III of the United States Constitution, which
states that courts only have jurisdiction over actual cases or controversies, and Vermont has adopted
this case or controversy requirement. Paige v. State, 2018 VT 136, 209 Vt 379 (citation omitted). The
“case and controversy requirement” ensures that a party show “the threat of actual injury to a
protected legal interest . . . .” Town of Cavendish v. Vt. Pub. Power Supply Auth., 141 Vt. 144, 147
(1982). To show standing, plaintiffs have the burden of demonstrating “(1) injury in fact, (2) causation,
and (3) redressability.” Parker v. Town of Milton, 169 Vt. 74, 77 (1998); see also Lujan v. Defenders
of Wildlife, 504 U.S. 555, 560–61 (1992) (describing the three elements in detail). A party’s “particular
injury” cannot be “merely speculating about the impact of some generalized grievance.” Parker, 169
Vt. at 77; see Town of Cavendish, 141 Vt. at 147 (same); see also 10 V.S.A. § 8502(7) (requiring that
a person aggrieved must show a “particularized injury”). Further, an injury may not be “conjectural
or hypothetical rather than actual or imminent.” Turner v. Shumlin, 2017 VT 2, ¶ 9, 204 Vt. 78
(citations omitted). “Stated another way, a [party] must allege personal injury fairly traceable to the
defendant’s allegedly unlawful conduct, which is likely to be redressed by the requested relief.” Parker,
169 Vt. at 78.
Appellants have failed to respond to the pending motion. As such, they fail to adequately
support their claim of standing as required when standing is challenged. Thus, it is difficult for the
Court to analyze their standing. Despite this, the Court reviews the comments and petition Appellants
submitted to ANR below in support of their petition presently on appeal. ANR provided these
documents as exhibits to the present motion.
A review of these comments shows that Appellants want the wetland to be delineated as a
Class III wetland as opposed to a Class II wetland so that the Meadowland Overlay regulations within
the Town of Warren (Town) Land Use Development Regulations (Zoning Regulations) will apply to
the Property and limit the portion of the Property that may be developed by a single-family home.
They assert the Meadowland Overlay regulations are meant to protect agricultural lands and soils in

1 ANR also cites to the general constitutional provisions of standing, injury, causation, and redressability that, as

a practical matter, are reflected in the definition of persons aggrieved.

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accordance with the Warren Town Plan. See Ex. A at 2. While Appellants take issue with Alta Asset’s
engineering with respect to the wetland at issue and argue that the Class II delineation was in error,
they provide no other non-local zoning injury to them.
This injury is not “attributable” to the decision on appeal issued by the Secretary, nor has there
been any allegation that the zoning implications are a consideration by ANR when ANR issues
wetlands delineations. What’s more, even if the alleged injury was attributable to the decision on
appeal itself, the documents provided do not connect the application or non-application of the
Meadowland Overlay regulations to any injury that is particularized to Appellants.2 To the extent that
their comments address general concerts with Vermont’s land and environment or a general interest
in the applicability of the Zoning Regulations, these are generalized grievances that are not sufficiently
particularized. Parker, 169 Vt. at 77; see Town of Cavendish, 141 Vt. at 147; see also 10 V.S.A.
§ 8502(7).
Finally, even if the Court were to assume that the Appellants have raised a sufficient
particularized injury as it relates to the Zoning Regulations, that injury is not redressable by this Court
in this appeal. In a previous docket, this Court concluded that Alta Assets had a final and binding
permit for the construction of a single-family home on the Property issued in December 2022 and
that Appellants could not challenge that permit and its determinations with respect to the applicability
of the Meadowland Overlay regulations in a subsequent permitting decision. In re Alta Assets, LLC
Appeal, No. 23-ENV-00071 (Vt. Super. Ct. Envtl. Div. Jan. 31, 2024) (Durkin, J.). The Vermont
Supreme Court affirmed this Court’s decision in a February 2025 Entry Order. See In re Alta Assets,
LLC Appeal, No. 24-AP-122 (Vt. Super. Ct. Feb. 2025).
Thus, Alta Assets has a final and binding zoning permit that does not subject its project to the
Meadowland Overlay regulations. This Court can issue no decision in this wetlands delineation appeal
that can redress Appellants’ alleged injury that stems from a decision within that final and binding
conclusion. Put another way, even if this Court were to issue a decision in Appellants’ favor and
conclude that the at-issue wetland is a Class III wetland and not a Class II wetland, that decision would

2 For example, their comments note that they have had to comply with these overlay regulations and have a

general interest in protecting resources, such as agricultural soils which serve climate functions. To the extent they argue
that the Property is “active farmland” and there is an interest in protecting soils, it is not disputed that the Property is
owned by Alta Assets and Appellants do not connect in their comments to any injury particular to them at this time.
Appellants have failed to respond to the pending motion to demonstrate how such an assertion is a particularized interest
to each of them giving rise to their standing to appeal. They do not provide an assertion that the wetland at issue impacts
them at their properties, and instead Appellants assert that the at-issue wetland is not hydrologically connected to any
nearby wetland and provides no significant functions.

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not change the fact that Alta Assets has a zoning permit that did not apply the Meadowland Overlay
regulations to the Property and that its zoning permit is final and binding on all parties. Thus, their
alleged injury is not redressable by this Court.
Appellants fail to respond to the pending motion challenging their standing. Upon a review
of ANR’s exhibits, which include Appellants’ written comments and petition to ANR below, the Court
concludes that Appellants lack standing to appeal ANR’s decision to this Court because their injury is
not “attributable” to the decision on appeal, it is not particularized to them and, to the extent that it
is, it is not redressable by the Court. Thus, ANR’s motion to dismiss is GRANTED and this matter
is DISMISSED.
This concludes the matter before the Court. A Judgment Order accompanies this Decision.
Electronically signed this 18th day of June 2025 pursuant to V.R.E.F. 9(D).

Thomas G. Walsh, Judge
Superior Court, Environmental Division

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