In Re Musto Wastewater System and Water Supply Permit WW-1-1949 in Re Musto Wastewater System and Water Supply Permit Revocation
106 A.3d 929
Vt.2014Background
- Neighbor neighbors a lake property; Musto’s permit was for replacement of septic/water supply for a small seasonal camp on Lake Bomoseen.
- ANR granted the wastewater/water supply permit on March 30, 2009.
- Neighbor petitioned ANR to revoke the permit in August 2009; revocation hearing occurred May 2010; petition denied.
- Neighbor appealed the permit to the environmental court May 27, 2010 and separately appealed ANR’s revocation denial on January 9, 2013; court reviewed de novo based on the ANR record without new live testimony.
- Disputes centered on (a) the number of bedrooms used to determine design capacity, and (b) whether the project was a reconstruction under the Wastewater Rules, potentially affecting whether a variance was required.
- Environmental court dismissed the direct appeal as untimely under 10 V.S.A. § 8504(a); court also denied revocation and upheld ANR’s interpretations; Musto cross-appealed on standing, which the court did not resolve for purposes of this decision.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Timeliness of direct appeal under 10 V.S.A. § 8504(a) | Hignite argues appeal should be timely based on discovery of ground April 30, 2010. | Musto argues appeal untimely under § 8504(a) 30-day limit. | Untimely; jurisdiction lost; dismissal affirmed. |
| ANR’s interpretation of 'bedroom' under Wastewater Rules | Three-bedroom count supported by neighbor’s evidence; strict reading would reduce capacity. | ANR interpreted bedroom liberally to ensure adequate wastewater capacity. | Affirmed; ANR’s interpretation and denial of revocation upheld. |
| Alleged false/misleading information about reconstruction and design flow | Reconstruction claim used to obtain variance; misled authorities. | Reconstruction provision allowed if within footprint and no increased design flow. | Affirmed; no reversible error; no misrepresentation requiring revocation. |
| Standing to pursue the appeals | Neighbor had standing as adjoining property owner. | Court did not address standing in this decision. |
Key Cases Cited
- Cingular Wireless PCS, LLC, 2012 VT 46, 192 Vt. 20, 54 A.3d 141 (2012 VT (Supreme Court)) (deferential review of agency interpretations of its own regulations; framing rights of landowners under permitting scheme)
- Conservation Law Found. v. Burke, 162 Vt. 115, 645 A.2d 495 (1993) (deference to agency interpretations; need for compelling error to overturn)
- In re Hignite, 2003 VT 111, 176 Vt. 562, 844 A.2d 735 (2003) (due process/noticing issues in permit appeals; related to surrounding dispute)
- Boutwell v. Town of Fair Haven, 148 Vt. 8, 527 A.2d 225 (1987) (jurisdictional nature of timely appeals; failure to appeal timely bars review)