Justia Government & Administrative Law Opinion Summaries

From 2006 to 2016, Vermont Gas Systems, Inc. (VGS) operated under an “alternative regulation” plan (ARP). Pursuant to the ARP, VGS’s rates were automatically adjusted every quarter based on changes in gas costs. In 2011, VGS proposed amending its ARP by establishing the System Expansion and Reliability Fund (SERF) as a means of facilitating the expansion of its service into Addison County, Vermont, and perhaps beyond, while maintaining a smooth rate trajectory. At the time of the proposal, VGS would have been required under the ARP’s automatic rate adjustments to reduce customer rates for the spring 2011 quarter by approximately $4.4 million, which would have been the ninth rate reduction in the previous ten quarters. Instead of reducing rates for existing customers pursuant to the provisions of the ARP, VGS proposed depositing that amount annually into SERF to smooth out rate increases resulting from future expansion of services. Under the proposal, VGS’s rates would remain the same rather than be reduced by an automatic adjustment. In this ratemaking proceeding, AARP appealed an order of the Vermont Public Utility Commission that incorporated a memorandum of understanding (MOU) reached by the Department of Public Service and VGS. Among other things, the incorporated MOU set VGS’s firm non-gas rates for the tax year beginning October 1, 2016; allowed VGS to use a specified amount from a fund previously authorized by the Commission to mitigate the rate effects of any system expansion; and established both the penalty for VGS’s imprudent costs associated with the Addison Natural Gas Project (ANGP) and its return on equity. The Vermont Supreme Court reversed and remanded the matter for the Commission to make further findings regarding VGS’s ANGP-related imprudent costs and, if necessary, to reconsider the penalty imposed for those costs under the incorporated MOU. View "In re Investigation into Petiton of Vermont Gas Systems, Inc. (AARP, Appellant)" on Justia Law

The question this case presented for the Vermont Supreme Court’s review was whether steep increases in project cost estimates for the Addison Natural Gas Project, combined with changes in energy markets, created a “substantial change” such that Vermont Gas System, Inc. (VGS) had to secure an amended certificate of public good under Public Utility Commission Rule 5.408. In ruling on Conservation Law Foundation’s (CLF) separate petition for declaratory relief, distinct from post-judgment review of the Commission’s certificate of public good, the Commission held that increased cost estimates for VGS’s natural gas pipeline project, coupled with changes in the energy markets, were not a “substantial change” under Rule 5.408. The Supreme Court deferred to the Commission’s reasonable interpretation of Rule 5.408 and accordingly affirm. View "In re Petition of Conservation Law Foundation" on Justia Law

The District 5 Commission denied Korrow Real Estate LLC’s as-built application for an Act 250 permit to construct a barn on property alongside the Dog and Stony Brook Rivers, finding the project failed to comply with Act 250 Criteria 1(D) and 1(F). In doing so, the Commission construed key terms as defined by the Agency of Natural Resources (ANR). On appeal, the Environmental Division reversed the decision and remanded the matter to the Commission with instructions to grant an as-built permit for the project. The Vermont Natural Resources Board appealed the decision, arguing the court failed to accord proper deference to the ANR’s statutory authority and expertise, and that the project failed to comply with the necessary Act 250 permitting criteria. The Vermont Supreme Court affirmed in part, reversed in part and remanded. The Supreme Court found the ANR determined the Korrow project was within the Act 250 “floodway” based on the project’s location relative to the FEH area surrounding the Dog and Stony Brook Rivers. The Environmental Division erred when it determined that the methodology applied by Korrow’s expert, or the methodology of the court, was superior to that employed by the ANR. In applying the ANR definition, the Supreme Court found Korrow’s project was within the “floodway” under 10 V.S.A. 6001(6), triggering analysis of project compliance with Act 250 Criterion 1(D). Even though the court erroneously found that the project was located outside the “floodway,” there was sufficient evidence to support the trial court’s conclusion that the project complied with Criterion 1(D). With respect to Criterior 1(F), the Supreme Court found two flaws in the lower court’s findings: (1) interpreting the scope of land “adjacent” to the rivers was essential to determining whether a project was on a “shoreline,” no definition of “adjacent” was provided; and (2) even applying the court’s contextual, rather than distance-based, analysis of the project’s location in relation to the Dog and Stony Brook Rivers, the court’s conclusion that the project was not on the “shoreline” was based on insufficient evidence. The Supreme Court could not determine, based on the trial court record, whether the project at issue here was constructed on a “shoreline” and, if so, whether the project complied with the subcriteria required by statute. As such, the Environmental Division’s conclusion that the project complied with Criterion 1(F) was reversed and this issue remanded to the court for further findings. Because the question of what was meant by “adjacent” was critical to the shoreline determination and had not been briefed or argued, the parties were directed upon remand to brief this issue for the court. The Supreme Court reversed the Environmental Division’s ruling defining the term “floodway,” but affirmed its conclusion that the project complied with Criterion 1(D). The Court reversed and remanded to the Environmental Division for further proceedings to determine whether this project involved a “shoreline” and, if so, the project’s compliance with Criterion 1(F). View "In re Korrow Real Estate, LLC Act 250 Permit Amendment Application" on Justia Law

The District 5 Commission denied Korrow Real Estate LLC’s as-built application for an Act 250 permit to construct a barn on property alongside the Dog and Stony Brook Rivers, finding the project failed to comply with Act 250 Criteria 1(D) and 1(F). In doing so, the Commission construed key terms as defined by the Agency of Natural Resources (ANR). On appeal, the Environmental Division reversed the decision and remanded the matter to the Commission with instructions to grant an as-built permit for the project. The Vermont Natural Resources Board appealed the decision, arguing the court failed to accord proper deference to the ANR’s statutory authority and expertise, and that the project failed to comply with the necessary Act 250 permitting criteria. The Vermont Supreme Court affirmed in part, reversed in part and remanded. The Supreme Court found the ANR determined the Korrow project was within the Act 250 “floodway” based on the project’s location relative to the FEH area surrounding the Dog and Stony Brook Rivers. The Environmental Division erred when it determined that the methodology applied by Korrow’s expert, or the methodology of the court, was superior to that employed by the ANR. In applying the ANR definition, the Supreme Court found Korrow’s project was within the “floodway” under 10 V.S.A. 6001(6), triggering analysis of project compliance with Act 250 Criterion 1(D). Even though the court erroneously found that the project was located outside the “floodway,” there was sufficient evidence to support the trial court’s conclusion that the project complied with Criterion 1(D). With respect to Criterior 1(F), the Supreme Court found two flaws in the lower court’s findings: (1) interpreting the scope of land “adjacent” to the rivers was essential to determining whether a project was on a “shoreline,” no definition of “adjacent” was provided; and (2) even applying the court’s contextual, rather than distance-based, analysis of the project’s location in relation to the Dog and Stony Brook Rivers, the court’s conclusion that the project was not on the “shoreline” was based on insufficient evidence. The Supreme Court could not determine, based on the trial court record, whether the project at issue here was constructed on a “shoreline” and, if so, whether the project complied with the subcriteria required by statute. As such, the Environmental Division’s conclusion that the project complied with Criterion 1(F) was reversed and this issue remanded to the court for further findings. Because the question of what was meant by “adjacent” was critical to the shoreline determination and had not been briefed or argued, the parties were directed upon remand to brief this issue for the court. The Supreme Court reversed the Environmental Division’s ruling defining the term “floodway,” but affirmed its conclusion that the project complied with Criterion 1(D). The Court reversed and remanded to the Environmental Division for further proceedings to determine whether this project involved a “shoreline” and, if so, the project’s compliance with Criterion 1(F). View "In re Korrow Real Estate, LLC Act 250 Permit Amendment Application" on Justia Law

The Village of Waterbury terminated Adam Hubacz as one of its police officers. The Village appealed when the trial court granted Hubacz's Rule of Civil Procedure 75 petition overturning its employment action. On interlocutory appeal, the superior court certified a question of law to the Supreme Court: whether a State’s Attorney’s unilateral decision to refuse to prosecute any cases investigated by a particular municipal police officer, alone, a sufficient basis for termination of the officer pursuant to 24 V.S.A. 1931? The Supreme Court answered this question generally in the affirmative, but with the limitations. "[C]onsideration requires a finding that the officer in question cannot fulfill the duties associated with his employment and cannot be reassigned in such a way as to accommodate the nonprosecution decision." View "Hubacz v. Village of Waterbury" on Justia Law

Plaintiff-inmate Kirk Wool appealed the dismissal of his claim that the Vermont Department of Corrections violated a statutory obligation to negotiate and award a contract to provide telephone services to inmates serving in state correctional facilities in a manner that provided for the lowest reasonable cost to inmates. After review, the Vermont Supreme Court affirmed the trial court’s dismissal of plaintiff’s claim for money damages, but reversed the dismissal of plaintiff’s claim for mandamus relief and remanded for further proceedings. As plaintiff alleged, DOC was required by Vermont law, albeit not specifically and exclusively by the statute he identified in his complaint, to use a competitive bidding process in contracting for telephone services for inmates. The Court found plaintiff’s allegations were sufficient to confer standing and give fair notice to DOC of the claim and the grounds upon which it rested. View "Wool v. Menard" on Justia Law

Plaintiff-inmate Kirk Wool appealed the dismissal of his claim that the Vermont Department of Corrections violated a statutory obligation to negotiate and award a contract to provide telephone services to inmates serving in state correctional facilities in a manner that provided for the lowest reasonable cost to inmates. After review, the Vermont Supreme Court affirmed the trial court’s dismissal of plaintiff’s claim for money damages, but reversed the dismissal of plaintiff’s claim for mandamus relief and remanded for further proceedings. As plaintiff alleged, DOC was required by Vermont law, albeit not specifically and exclusively by the statute he identified in his complaint, to use a competitive bidding process in contracting for telephone services for inmates. The Court found plaintiff’s allegations were sufficient to confer standing and give fair notice to DOC of the claim and the grounds upon which it rested. View "Wool v. Menard" on Justia Law

At issue for the Vermont Supreme Court’s review was a determination of whether the evidence and findings supported the trial court’s conclusion that a child with significant mental-health issues was a child in need of care or supervision (CHINS) because she was “without or beyond the control of . . . her parent, guardian, or custodian,” or “CHINS-C.” After review, the Court concluded that a child with significant mental illness who cannot be safely cared for by a parent in the home is not CHINS-C if the parent has effectively exercised parental authority to ensure that the child’s care is properly managed in another setting. Accordingly, the Court reversed the trial court’s merits determination that M.L. was a child in need of supervision. View "In re M.L." on Justia Law

At issue for the Vermont Supreme Court’s review was a determination of whether the evidence and findings supported the trial court’s conclusion that a child with significant mental-health issues was a child in need of care or supervision (CHINS) because she was “without or beyond the control of . . . her parent, guardian, or custodian,” or “CHINS-C.” After review, the Court concluded that a child with significant mental illness who cannot be safely cared for by a parent in the home is not CHINS-C if the parent has effectively exercised parental authority to ensure that the child’s care is properly managed in another setting. Accordingly, the Court reversed the trial court’s merits determination that M.L. was a child in need of supervision. View "In re M.L." on Justia Law

Claimant Louis LaFountain appealed pro se the Employment Security Board’s denial of his claim for unemployment benefits. Claimant was employed as a store manager at the Eden General Store for three-and-a-half years. Claimant sought unemployment compensation benefits, and a claims adjudicator denied his request. The claims adjudicator found that claimant left his employment due to a certified health condition, which precluded the discharge of duties inherent in such employment. She further found that claimant was currently unable to work and that he therefore was ineligible for unemployment compensation. Claimant appealed this decision to an administrative law judge (ALJ). Following a hearing, the ALJ found claimant had Chronic Obstructive Pulmonary Disease (COPD), which worsened during his last year of employment to the point that he had to reduce his hours to part-time and eventually stop working. Claimant needed a well-ventilated or purified-air environment to prevent exacerbation of his COPD. Claimant has been working with Vocational Rehabilitation (VocRehab) to explore part-time employment. Several months earlier, in late February 2017, claimant had applied for Social Security Disability Insurance (SSDI) benefits. The ALJ concluded that claimant was not able to work, and thus, he was ineligible for unemployment benefits. The Vermont Supreme Court found the purpose of the unemployment compensation law was not “to provide sick benefits nor to compensate those who cease working because of illness.” Instead, the law was designed “to assist members of the working force who are made jobless by operations of the economy over which they have no individual control.” The Court determined the Board’s findings did not adequately support its conclusion: Claimant testified that he wanted to work and that he could work part-time. Claimant stated that he had not been applying for any work but that he had been going to VocRehab every week and that his counselor was trying to match him up with a job that fit his needs. Claimant believed that he could continue to do retail work as long as he was sitting down. He also stated that he could perform computer work, preferably from home. Claimant testified that he had experience working on his computer from home and that he was exploring this type of work with his VocRehab counselor. Claimant’s VocRehab counselor did not testify at the hearing. View "LaFountain v. Department of Labor" on Justia Law