Treetop Dev. Co. Act 250 ( 2014 )

STATE OF VERMONT
SUPERIOR COURT ENVIRONMENTAL DIVISION
Vermont Unit Docket No. 77-6-14 Vtec
Treetop Development Company Act 250 Application
ENTRY REGARDING MOTION
Title: Motion to Dismiss Appellant’s Statement of Questions
Filer: The Stratton Corporation et al.
Attorney: Lisa B. Shelkrot
Filed Date: July 9, 2014
Response in Opposition filed on 07/29/2014 by Attorney A. Jay Kenlan for Appellant Treetop at
Stratton Condo Association
Reply filed on 08/08/2014 by Attorney Lisa B. Shelkrot for The Stratton Corporation, et al.
The motion is GRANTED.
Treetop Development Company, LLC, Treetop Three Development Company, LLC,
Intrawest Stratton Development Corporation, and The Stratton Corporation (collectively
Stratton) received Act 250 approval for the development of 25 three-unit townhouse
condominiums near Stratton Mountain in the Town of Stratton, Vermont (the Project) from the
District 2 Environmental Commission (the Commission) on November 18, 2002. Stratton failed
to construct the Project in accordance with the terms of its Land Use Permit 2W1142 (the
Permit) and did not seek written approval for its deviations from the terms therein. Some of
Stratton’s deviations from the Project as permitted were to the stormwater management
systems, which the Permit required to be constructed in conformance with Stratton’s
stormwater discharge permits, which had been granted by the Agency of Natural Resources.
On March 12, 2012, after construction had been completed, Stratton applied for an Act
250 permit amendment to reflect any deviations from the initial Permit. The application
included a plan to remedy all violations under the initial Permit and for remediation of the
Project site. On October 21, 2013 the Commission issued Land Use Permit Amendment
2W1142-D to address the remediation and changes (the Permit Amendment). This Permit
Amendment was not appealed.
The Permit Amendment included a condition (Condition 14) stating: “The Commission
reserves the right to review erosion, the ability of the land to hold water, stormwater
management and revegetation issues outlined in these proceedings and to evaluate and
impose additional conditions as needed.” No party appealed this permit condition. In response
to additional information provided by both Stratton and the Treetop at Stratton Condominium
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Association, Inc. (Association), the Commission warned and held an additional hearing on
March 17, 2014 to consider whether to impose additional conditions pursuant to Condition 14.
The Commission, in a Memorandum of Decision issued May 16, 2014, decided not to impose
any additional conditions.
The Association timely appealed that decision to this Court. The Association represents
the interests of the owners of the Project’s townhouse condominium units. The Association has
participated in the various Act 250 proceedings and expressed an interest in ensuring that the
Project’s infrastructure, especially the stormwater management system and erosion control
elements, be constructed in conformance with the Permit, Permit Amendment, and all
applicable regulations. Stratton now moves to dismiss all of the Questions raised in the
Association’s Statement of Questions as being either collateral attacks on the Permit
Amendment or as outside the scope of the Court’s de novo review.
As a primary matter, a number of the Association’s Questions relate to the taking of
evidence, burdens of proof, and presumptions within the Commission’s proceedings. These
questions are not relevant in this de novo appeal. See Chioffi v. Winooski Zoning Bd., 151 Vt. 9,
11 (1989) (“A de novo trial ‘is one where the case is heard as though no action whatever has
been held prior thereto.’” (quoting In re Poole, 136 Vt. 242, 245 (1978))). Furthermore, these
types of alleged errors by the Commission are cured by a de novo hearing in this Court. See In
re JLD Props. of St. Albans, LLC, 2011 VT 87, ¶ 12, 190 Vt. 259. The remaining Questions ask
whether the Commission erred in deciding or failing to decide certain elements. We consider
these Questions as asking whether or not this Court should make certain findings or impose
additional conditions on appeal.
In Act 250 appeals, this Court, “applying the substantive standards that were applicable
before the tribunal appealed from, shall hold a de novo hearing on those issues which have
been appealed . . . .” 10 V.S.A. § 8504(h). Thus, before considering the Association’s Questions
and Stratton’s objections to those Questions, we must determine what decision is being
appealed and what standards were applicable before the Commission.
The decision at issue on appeal is the Commission’s May 16, 2014 Memorandum of
Decision. This decision resulted from the Commission’s express retention of jurisdiction over
stormwater management, erosion control, and related issues contained in Condition 14 of the
Permit Amendment. The standards applicable under Act 250 require that the Commission
make positive findings under all 10 Act 250 Criteria “[b]efore granting a permit.” 10 V.S.A. §
6086(a). In an Act 250 permit, the Commission is authorized to include “conditions as are
allowable proper exercise of the police power and which are appropriate within the respect to
[the 10 Act 250 Criteria] . . . .” 10 V.S.A. § 6086(c). A district commission may therefore use
permit conditions to retain jurisdiction over and impose additional conditions on a project, but
cannot “establish future obligations that are completely unknown.” In re Kevin L. Rogers, Inc.,
No. 88-5-09 Vtec, slip op. at 9 (Vt. Envtl. Ct. Nov. 4, 2009) (Wright, J.).
Like all permit conditions, conditions that retain jurisdiction must be expressed with
sufficient clarity to apprise a landowner of the limitations placed on the use of his or her land.
In re Eustance Act 250 Jurisdictional Opinion, 2009 VT 16, ¶ 41, 185 Vt. 447 (citing Agency of
Natural Resources v. Handy Family Enters., 163 Vt. 476 (1995)). Furthermore, where
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compliance is based on estimates or projected impacts, the Commission may likewise utilize
permit conditions to retain jurisdiction over that matter. If retained via conditions, the
Commission can use its jurisdiction to ensure that post-development realities conform to
estimates, or if they do not, to impose additional conditions. Where jurisdiction is retained by
condition, however, the intent of the retained jurisdiction must be clear and must make the
potential future obligations known to the applicant. See Eustance, 2009 VT 16 at ¶ 41.
The sole purpose of Condition 14 is to ensure compliance with the initial Permit and
Permit Amendment. This authority does not belong to the Commission. Rather, it rests with
the Natural Resources Board‘s authority to ensure compliance with an Act 250 Permit and its
conditions through its enforcement powers. 10 V.S.A. § 6027(g). Further, the Association
cannot use Condition 14 to privately enforce the Permit or Permit Amendment. The proper
avenue to ensure compliance with the Permit and Permit Amendment is within the related and
ongoing enforcement action by the Natural Resources Board and the Agency of Natural
Resources, NRB v. Stratton Corporation, No. 106-7-14 Vtec.
For these reasons, Stratton’s Motion to Dismiss the Association’s Statement of
Questions is GRANTED in its entirety and the Association’s appeal is DISMISSED.
A judgment order accompanies this decision. This concludes the matter before the
Court.
Electronically signed on November 14, 2014 at 02:20 PM pursuant to V.R.E.F. 7(d).
_________________________________________
Thomas G. Walsh, Judge
Superior Court, Environmental Division
Notifications:
A. Jay Kenlan (ERN 3775), Attorney for Appellant Treetop at Stratton Condo Assn
Lisa B. Shelkrot (ERN 2441), Attorney for Appellee The Stratton Corporation
Lisa B. Shelkrot (ERN 2441), Attorney for Appellee Intrawest Stratton Developmt Cor
Lisa B. Shelkrot (ERN 2441), Attorney for Appellee Treetop Development Co., LLC
Lisa B. Shelkrot (ERN 2441), Attorney for Appellee Treetop Three Developmt Co, LLC
Jon Groveman (ERN 5336), Attorney for Interested Person Agency of Natural Resources
Melanie Kehne (ERN 2561), Attorney for Interested Person Natural Resources Board
Peter Gill (ERN 4158), Attorney for party 10 Co-counsel
rkane
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