Morean-Usher v. Town of Whitingham

 NOTICE:  This opinion is subject to motions for reargument under V.R.A.P.
 40 as well as formal revision before publication in the Vermont Reports.
 Readers are requested to notify the Reporter of Decisions, Vermont Supreme
 Court, 109 State Street, Montpelier, Vermont 05609-0801 of any errors in
 order that corrections may be made before this opinion goes to press.


                                 No. 90-545


 Jeanne Morean-Usher, Kirk Usher,             Supreme Court
 Henry Millett, Carol Millett,
 Bob Kelley, Marcia Kelley,                   On Appeal from
 Howard Powell, Gladys Powell                 Windham Superior Court

      v.

 Town of Whitingham                           March Term, 1992


 Richard Walsh Norton, J.

 Holly Ernst Groschner of Downs Rachlin & Martin, St. Johnsbury, for
   plaintiffs-appellees

 Richard M. Gale and Robert M. Fisher, Law Clerk (On the Brief) of Gale,
   Gale & Corum, Brattleboro, for defendant-appellant

 Jeffrey L. Amestoy, Attorney General, Ron Shems, Assistant Attorney
   General, and Stephanie Delaney, Law Clerk (On the Brief), Montpelier,
   for amicus curiae State of Vermont

 Deborah L. Markowitz, Montpelier, for amicus curiae Vermont League of
   Cities and Towns


 PRESENT:  Allen, C.J., Dooley, Morse and Johnson, JJ.


      ALLEN, C.J.   The Town of Whitingham appeals a superior court order
 permanently enjoining the Town from spreading sludge on property adjoining
 plaintiffs' land in the town.  We conclude that the court lacked
 jurisdiction and vacate its order.
      The Town's sewage treatment plants create sludge which must be
 periodically removed to maintain the plants' continued operation.  In 1989,
 the Town applied to the Vermont Agency of Natural Resources for an interim
 certification pursuant to 10 V.S.A. { 6605(b) seeking approval to spread
 sludge on a pasture next to the plaintiffs' property.
      On September 24, 1990,  plaintiffs filed a complaint in superior court
 against the Agency and the Town seeking to prevent the Agency from issuing
 the interim certification and to prevent the Town from implementing the
 certification.  They contended that copper contamination of groundwater
 posed health risks to neighboring residents.  The Agency issued an interim
 certification to the Town on October 1, 1990, which extended to September 7,
 1992.  The court dismissed the Agency as a party, because the certification
 had already been issued.  The Town then moved to dismiss for lack of
 subject matter jurisdiction.  The superior court found that it had
 jurisdiction over the matter and granted a permanent injunction enjoining
 the Town from dumping sludge on the proposed site until the court was
 satisfied that public health and welfare were properly addressed.
      On appeal, the Town argues that the superior court erred in taking
 jurisdiction to review the issuance of the interim certification by the
 Agency because exclusive jurisdiction of appeals from Agency certifications
 resides in the "Waste Facility Panel" provided for in 10 V.S.A. { 6101 et
 seq.  Plaintiffs claim that this appeal is moot because the certification
 has expired, and we first address this contention.
      Plaintiffs' mootness argument rests on language in the interim
 certification which states that the site chosen for sludge application is
 authorized only during the first year of the certification.  For a case to
 avoid dismissal for mootness, an "actual controversy" must be in existence
 "at all stages of review, not merely at the time the plaintiff originally
 filed the complaint."  Doria v. University of Vermont, ___ Vt. ___, ___, 589 A.2d 317, 319 (1991).  Plaintiffs argue that after October 1, 1991, the date
 upon which the authorization to spread sludge expired, there was no longer
 an actual controversy because the sludge could no longer be spread on the
 proposed site.  Plaintiffs further contend that the Town may not qualify for
 a new permit.  We disagree.
      The Agency did not revoke the certification after the Town missed the
 sludge application deadline on October 1, 1991, and the certification
 remains in effect until September 7, 1992.  One section of the certification
 allows for modification during its term for cause with written approval
 from the Secretary of the Agency.  The certification could be modified at
 any time before September 7, 1992, to permit newly created sludge from the
 Town's sewage treatment plants to be spread on the contested site.  This
 case, therefore, is not moot.
      The Town argues that the superior court was without jurisdiction to
 review the Agency's decision to issue the interim certification.  The
 Vermont Legislature granted the Waste Facility Panel "exclusive jurisdiction
 to review decisions and hear and determine appeals" from Agency decisions
 concerning solid waste management facilities.  10 V.S.A. { 6101(b).  The
 statute provides no exceptions to this grant of exclusive jurisdiction.  The
 Legislature often creates administrative bodies to resolve problems in a
 particular field of expertise.  See, e.g., In re Petition of Town of
 Sherburne, 154 Vt. 596, 603, 581 A.2d 274, 278 (1990) (Legislature appointed
 Water Resources Board as administrative body with expertise to classify
 state waters).  Within the limits of the authority conferred upon the
 administrative entity by the Legislature, its jurisdiction is exclusive and
 can be reviewed only in the manner provided by the enabling statute.
 McFeeters v. Parker, 113 Vt. 139, 144, 30 A.2d 300, 304 (1943).  See also
 Town of Charlotte v. Richmond, No. 90-528 (Vt. Feb. 14, 1992) (exclusive
 statutory remedy for persons aggrieved by zoning decision is appeal to
 zoning board of adjustment).  Plaintiffs sought relief in the wrong forum,
 and therefore, the superior court order must be vacated.
      Further, plaintiffs were required to exhaust administrative remedies
 before seeking injunctive relief from the courts.  "As a general rule, the
 courts will not interfere with a board or commission or review its acts
 until all remedies before such board or commission have been invoked or
 exhausted."  Smith v. Highway Board, 117 Vt 343, 349. 91 A.2d 805, 818
 (1952).  Title 10 V.S.A. { 6104(c) allows the Waste Facility Panel to grant
 stays when it finds that such remedy is necessary.  The superior court
 erroneously concluded that the discretionary nature of the stay did not
 provide an adequate remedy at law.  We disagree with this conclusion.  A
 stay issued by the Waste Facility Panel and an injunction issued by the
 courts are essentially the same remedy.  Both are discretionary, and, if
 granted, a stay would have provided the same relief sought in superior
 court.  As plaintiffs failed to pursue that remedy, the superior court erred
 in taking equitable jurisdiction over the matter.  We conclude that the
 plaintiffs were required to appeal the interim certification to the Waste
 Facility Panel and to have sought a stay from that body. (FN1)
      We agree with plaintiffs' contention that the certification must be
 remanded to the Agency for modification.  The certification expressly states
 that "[a] change in the operator's sludge use or disposal practice is a
 cause for modification."  Because the Town has already disposed of the
 sludge which was the basis for approval, the disposal of newly created
 sludge involves a change in disposal practice.  Modification is also
 necessary because litigation prevented the Town from adhering to the
 certification's strict compliance schedule.  Long term treatment and storage
 is not authorized unless the conditions of the compliance schedule are met.
 Thus, the agency must make new findings and provide new certification
 requirements to account for the different composition of any new sludge
 that might be applied to the proposed site.
      Injunction issued 11/15/90 dissolved and certification remanded to
 Vermont Agency of Natural Resources.

                                         FOR THE COURT:




                                         Chief Justice



FN1.      That the plaintiffs now denominate their action as sounding in
 nuisance does not help their case.  Both the exclusive jurisdiction of the
 Waste Facility Panel and the administrative process would be rendered
 meaningless if we allowed the plaintiffs to pursue a nuisance claim in
 superior court before exhausting their administrative remedies.