2012 BASIC SKILLS IN VERMONT PRACTICE & PROCEDURE. Environmental Regulation & Court Practice

Transcription

1 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.

2 VERMONT SUPERIOR COURT ENVIRONMENTAL DIVISION 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

3 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

4 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

5 2006 EXPANDED JURISDICTION

6 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

7 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

8 JURISDICTION MORE SPECIFICALLY 4 V.S.A 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

9 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

10 COURT RULES V.R.E.C.P. Specific to this Court 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

11 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

12 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

13 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

14 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.

15 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

16 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

17 V.R.E.C.P. Rule 6. Definitions Rule 7. Title Rule 8. Effective Date

18 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

19 DE NOVO FLOW-CHART

20 DE NOVO FLOW A decision is issued by a municipality, Act 250, or ANR Program

21 DE NOVO FLOW Appellant: person filing an appeal

22 DE NOVO FLOW Notice of appeal Filed by Appellant V.R.E.C.P. Rule 5 Contents, Service, Publication (Act 250)

23 DE NOVO FLOW Appeal is filed with the Environmental Court with a copy to the municipality V.R.E.C.P. 5(4)(A)

24 DE NOVO FLOW Case Filed Court does the following: Docket number assigned Judge assigned Case entered into computer Initial letters sent Tracking system activated

25 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)

26 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)

27 DE NOVO FLOW Within 20 days from date appeal filed Appellant must file its Statement of Questions V.R.E.C.P. 5(f)

28 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)

29 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

30 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

31 DE NOVO FLOW Mediation: Overview presented by Laura Zeisel, Case Manager

32 DE NOVO FLOW Court staff monitors deadlines, checking in with parties as needed to move the case along

33 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

34 DE NOVO FLOW Set Trial date(s) and Final Pre-Trial Conference

35 DE NOVO FLOW Trial held: generally in the county where case arises Site Visit: Most matters include a site visit Put evidence into context

36 DE NOVO FLOW Post Trial Filings? Due dates given at trial, if not previously established

37 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

38 Decision Issued DE NOVO FLOW

39 DE NOVO FLOW Appeals of Environmental Court Decisions are filed with the Vermont Supreme Court

40 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)

41 OTR What is OTR?: Court reviews the record from below similar to our Vermont Supreme Court review

42 No new evidence OTR

43 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

44 OTR When does OTR apply?: AMP must undertake the process to be an OTR town

45 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

46 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.

47 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

48 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.

49 OTR Briefs/Reply Briefs: Follow Rules of Appellate Court Proceedings

50 OTR Oral Argument: Possible change in the OTR practice Notice providing date by which parties must request argument otherwise, waived

51 OTR Under Advisement Written Decision Issued Potential Appeal to the Supreme Court

52 What the Judges like. PRACTICE SUGGESTIONS

53 PRE-TRIAL MOTION PRACTICE Consider the likelihood of success and the impact on the overall time the matter is pending before the Court

54 TRIAL EXHIBITS Format/labeling will be addressed during your final prehearing 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

55 PROPOSED FINDINGS AND CONCLUSIONS Prefer prior to Trial Will allow post trial supplements

56 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

57 POST - JUDGMENT Reconsideration? V.R.C.P 59(e) Motion to Alter or Amend

58 NEW JURISDICTION IN 2012 EEO Ticketing New in 2012

59 CIVIL COMPLAINT FORM 10 V.S.A. 8019

60 Thank You & Questions THE END