Snyder Taft Corners Act 250 ( 2016 )


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  •                                    STATE OF VERMONT
    SUPERIOR COURT                                              ENVIRONMENTAL DIVISION
    Environmental Division Unit                                    Docket No. 15-2-15 Vtec
    The Snyder Taft Corners LLC JO                            DECISION ON MOTION
    This matter is an appeal from the Natural Resource Board’s determination that The
    Snyder Taft Corner, LLC was not entitled to a refund for a portion of the fee it paid in
    connection with an Act 250 permit amendment it submitted to the District #4 Environmental
    Commission because the issue was moot. Snyder Taft Corner, LLC (Applicant) raises one
    question on appeal: “Was it wrong to require Snyder to pay an application fee in excess of the
    statutory cap set by 10 V.S.A. § 6083a(a)(6).”
    Pending before the Court are the parties’ cross-motions for summary judgment.
    Applicant argues that the statutory cap on application fees in 10 V.S.A. § 6083a(a)(6) applies to
    the sum of all fees paid in a master plan application and successive amendment applications.
    Because the fee for its most recent amendment application would make Applicant’s total fees
    paid exceed the statutory cap, Applicant asserts that it should not have been required to pay
    the excess, and that it is entitled to a judgment in the amount of the excess it eventually paid
    (under protest). The Natural Resources Board (Board) argues that this appeal is “moot” because
    Applicant did eventually pay the excess and the sole remedy for obtaining an application fee
    refund is to first request a refund from the District Commission, and Applicant failed to do so. In
    the alternative, the Board argues that the statutory cap applies to each individual permit
    amendment, not to the sum of all fees paid for a given permit series.
    Factual Background
    The parties in this case have submitted a stipulated statement of undisputed facts. The
    record also includes exhibits filed by Applicant, which are publicly available documents from its
    various permit applications in the master plan permit series at issue. As the Board has not
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    challenged the exhibits, we also rely on the exhibits to provide undisputed facts. See V.R.C.P.
    56(c)(3) and 56(e)(2). For the sole purpose of deciding the pending motions, the Court recites
    the following facts, which we understand to be undisputed unless otherwise noted.
    1.       The Snyder Taft Corners, LLC is the developer of a mixed-use planned united
    development project in Williston, Vermont known as Finney Crossing (the Project).
    2.       The Project consists of a mix of office, service, and retail uses and a variety of housing
    types.
    3.       The Project is subject to Land Permit series 4C0887.
    4.       The Project is subject to the Town of Williston’s residential growth management process
    and must be constructed in phases over a period of at least nine years.
    5.       Applicant applied for a land use permit amendment for the Project on March 29, 2007.
    6.       The District #4 Environmental Commission (District Commission) issued Land Use Permit
    Amendment 4C0887-1R on December 16, 2009, approving the master plan for the Project’s 356
    residential units and 186,000 square feet of commercial space, and authorizing Applicant to
    begin construction of phase one of the Project.
    7.       The District Commission issued positive findings under all Act 250 criteria for the first
    phase of residential construction as well as positive findings on a majority of criteria for the
    entire Project.
    8.       The District Commission directed that “[c]onstruction of the remaining residential units
    and any commercial buildings are [sic] not authorized until a permit amendment is issued for
    that purpose.” The District Commission further directed that subsequent permit amendments
    should specifically address those criteria for which positive findings had not yet been made.
    9.       When the Applicant applied for its permit in 2007, it paid an application fee based on
    the cost of construction for the entire Project—i.e., for 356 residential units and 186,000 square
    feet of commercial space. At that time, the statutory cap for application fees under 10 V.S.A.
    § 6083a(a)(6) was $135,000.00. 1998, No. 155, § 26. Because a fee based on the actual cost of
    construction for the entire Project would exceed the cap, Applicant paid $135,000.00.
    10.      Over the next seven years, through the course of various permit amendments, the
    District Commission approved construction of a total of 361 units.
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    11.     In 2010, the Legislature increased the statutory cap to $150,000. See 2010 No. 134,
    § 33.
    12.     On September 17, 2014, Applicant submitted Land Use Permit Application 4C0887-1R-H
    (H Amendment Application) for the construction of twenty additional residential units. If
    approved, this would bring the total number of permitted units to 381.
    13.     Applicant noted that an application fee based on the construction costs for the twenty
    additional units would be $19,170.00 under 10 V.S.A. § 6083a(a).
    14.     Applicant provided payment of $11,962.50, which represented its calculation of the
    difference between the sum of all fees paid to that point and the then-existing statutory cap of
    $150,000 under Section 6083a(a)(6) (2010).
    15.     Applicant claimed that the $11,962.50 payment amounted to the maximum allowed fee
    for the Project according to 10 V.S.A. § 6083a(a)(6).
    16.     On September 18, 2014, the District Coordinator issued a jurisdictional opinion (JO 4-
    240) to Applicant that determined that Applicant’s application was incomplete because it did
    not include the required fee of $19,170.00 (the full fee based on construction costs for the H
    Amendment Application).
    17.     As of September 26, 2014, Applicant had paid the remaining application fee amount for
    a total of $19,170.00 so that its application could go forward.            Applicant noted in
    correspondence to the District Coordinator that it was paying the fee “under protest.”
    18.     On September 26, 2014, the H Amendment Application was deemed complete.
    19.     On October 1, 2014, the District Commission published a notice of minor application for
    the H Amendment Application. The District Commission issued the permit on December 16,
    2014 without a hearing, pursuant to the minor amendment procedures in Act 250 Rule 51.
    20.     On October 20, 2014, Applicant filed a notice of appeal of JO 4-240 with the
    Environmental Division of the Superior Court. The District Coordinator’s JO 4-240 erroneously
    advised Applicant that an appeal of the JO was to be filed with the Environmental Division when
    the correct challenge was by a request for reconsideration to the Board. Pursuant to a
    stipulation between the parties, the Court dismissed the appeal without prejudice because it
    was filed in the incorrect forum.
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    21.    Applicant filed a request for reconsideration of JO 4-240 with the Board on November
    11, 2014. Applicant argued for a refund in the amount of $8,220.00, claiming that the balance
    was an overpayment.
    22.    On November 25, 2014, the Board distributed a Notice of Reconsideration, and during
    the fifteen-day notice period, the Board received no request for a hearing or any replies.
    23.    Applicant did not submit a request for a refund of the fee paid with the District
    Commission.
    24.    In its reconsideration decision, the Board found that the incompleteness issue
    considered under JO 4-240 was moot because Applicant had not submitted a refund request to
    the District Commission.
    Discussion
    The pending cross motions for summary judgment raise two issues. The first is whether
    Applicant’s appeal is moot because Applicant failed to follow proper procedure in requesting a
    refund. The second is whether Applicant’s application fee for the minor amendment to its
    already-approved master plan should be subject to the statutory cap, 10 V.S.A. § 6083a(a)(6),
    that was applied to the master plan, or instead should be considered an distinct application
    subject to a new cap.
    I.     Summary Judgment Standard
    Pursuant to Rule 56 of the Vermont Rules of Civil Procedure, the Court will grant
    summary judgment to a moving party if that party demonstrates that “there is no genuine
    dispute as to any material fact and the movant is entitled to judgment as a matter of law.”
    V.R.C.P. 56(a). When considering cross-motions for summary judgment, the Court considers
    each motion individually and gives the opposing party the benefit of all reasonable doubts and
    inferences. City of Burlington v. Fairpoint Commc’ns, Inc., 
    2009 VT 59
    , ¶ 5, 
    186 Vt. 332
    . The
    Court also accepts as true all factual allegations made in opposition to a motion for summary
    judgment, so long as they are supported by “specific citations to particular parts of materials in
    the record.” V.R.C.P. 56(c)(1)(A). If the responding party “fails to properly support an assertion
    of fact or fails to properly address another party’s assertion of fact,” the Court may “consider
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    the fact undisputed for purposes of the motion.” V.R.C.P. 56(e)(2). The Court “need consider
    only the materials cited in the required statements of fact, but it may consider other materials
    in the record.” V.R.C.P. 56(c)(3).
    II.    Mootness
    The Board argues that this appeal is moot because Applicant already paid the disputed
    application fee, and its only procedural avenue for requesting a refund was to submit a written
    request for the refund to the District Commission pursuant to 10 V.S.A. § 6083a(e). Because the
    District Commission never had an opportunity to issue a decision on the request, the Board
    argues, it was without authority to consider Applicant’s refund request.
    We conclude that this appeal is not moot. 10 V.S.A. § 6083a(e) provides, “A written
    request for an application fee refund shall be submitted to the District Commission to which the
    fee was paid within 90 days of the withdrawal of the application.” By its terms, the provision
    applies to “refunds” for applications that have been withdrawn. All subsections of
    Section 6083a(e) must be read with this limitation, and thus only apply to refunds for
    withdrawn applications. The application here has not been withdrawn, and it is not the kind of
    scenario to which Section 6083a(e) applies. Therefore, Applicant’s appeal is not moot.
    III.   Applicability of Statutory Cap
    Applicant argues that it was overcharged for its H Amendment Application because the
    fee charged, in combination with the application fees it previously paid for the Project, exceed
    the statutory cap provided by 6083a(a)(6). The statutory cap for a permit application fee in
    place at the time the H Amendment Application was filed provides, “In no event shall a permit
    application fee exceed $150,000.” 10 V.S.A. § 6083a(a)(6) (2010). Applicant argues that it is
    entitled to a refund of $8,220.00 because the cap applies to the sum of all fees paid for permits
    and permit amendments that relate to a single project. In response, the Board argues that each
    permit amendment application is a separate and distinct “permit application.” Therefore, the
    Board reasons, Applicant’s H Amendment Application was a permit application separate from
    the previously approved permits and thus is independently subject to the $150,000.00 cap.
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    The issue before the Court is whether Applicant’s H Amendment Application, a minor
    amendment to the previously approved master plan, constitutes a distinct permit application
    subject to an independent statutory cap under 10 V.S.A. § 6083a(a)(6). For the following
    reasons, we conclude it does not and that Applicant is entitled to the return of the portion of
    the H Amendment Application fee it ultimately paid that was above the statutory cap.
    When interpreting a provision of a statute, our primary objective is to effectuate the
    intent of the Legislature. In re Grievance of Danforth, 
    174 Vt. 231
    , 238 (2002). In doing so, we
    adhere to familiar principles of statutory interpretation. In re Bove Demolition/Const.
    Application, 
    2015 VT 123
    , ¶ 8. We begin with the plain meaning of the statute, and if the plain
    language of the statute resolves the conflict without doing violence to the legislative scheme,
    we look no further. Appeal of Weeks, 
    167 Vt. 551
    , 554 (1998). If applying the plain language is
    impossible, would undermine the purpose of the statute, or would produce absurd results, then
    we examine “the broad subject matter of the statute, its effects and consequences, and the
    purpose and spirit of the law to determine legislative intent.” In re Bove Demolition, 
    2015 VT 123
    , ¶ 8. If a statute is ambiguous, we must discern the intended meaning of the ambiguous
    term by reference to the “entire statute, including its subject matter, effects and consequences,
    and the reason and spirit of the law.” Tarrant v. Dept. of Taxes, 
    169 Vt. 189
    , 197 (1999).
    The plain language of the fee cap provision states, “In no event shall a permit
    application fee exceed $150,000.” 10 V.S.A. § 6083a(a)(6) (2010). The statute does not define
    the term “permit application.” Considering the legislative purpose of Section 6083a, we find it
    cannot mean that every individual application, regardless of complexity or size of the project, is
    a separate “permit application” subject to its own cap.
    The purpose of Section 6083a is explicitly stated in the first paragraph of the statute,
    which provides in relevant part, “[A]pplicants shall be subject to the following fees for the
    purpose of compensating the State of Vermont for the direct and indirect costs incurred with
    respect to the administration of the Act 250 program.” § 6083a(a). This purpose comports with
    the general requirement that regulatory fees be set to reasonably reflect the cost of
    administering the regulation. See Pollak v. City of Burlington, 
    158 Vt. 650
    , 651 (1992); Argast v.
    State Envtl. Bd., 
    143 Vt. 84
    , 86 (1983) (requiring evidence of the reasonable relationship
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    between charges assessed and services rendered by the commission). Therefore, the fee
    provisions of 10 V.S.A. §§ 6083a(a)1–6 should be interpreted to achieve a fee that roughly
    equates to the costs of reviewing the proposed project. As a result, to interpret the term
    “permit application” in 6083a(a)(6) to apply to any and all applications, regardless of size or
    complexity, would undermine the purpose of the statute. We therefore must interpret the
    applicability of the term “permit application” in harmony with purpose of the statute and in the
    context of the permitting process.
    The specific context relevant here is that of master plan permits with subsequent minor
    amendments. A master plan enables an applicant proposing a large development to seek up-
    front review of the entire project, with subsequent expedited reviews of amendments to the
    master plan. See Act 250 Rule 21(F). An amendment to the master plan will be deemed a
    “minor amendment” and can bypass comprehensive review if the District Commission
    determines that it will not result in significant adverse impacts under any of the ten criteria of
    10 V.S.A. § 6086a. Act 250 Rule 51(A). Such a review process, with substantial attention given
    to the master plan and expedited review to minor amendments, is designed to increase
    efficiency and reduce costs. See Act 250 Rule 21(G) (“These procedures are intended to
    minimize costs and inconvenience to applicants . . . .”). The efficiency and cost saving benefits
    of master plan review is reaffirmed by the Legislature’s inclusion of a specific master plan fee
    provision in 10 V.S.A. 6083a(a)(5), which imposes an additional fee for “For projects involving
    the review of a master plan, a fee equivalent to $0.10 per $1,000.00 of total estimated
    construction costs in current dollars in addition to the fee established in subdivision 1 . . . for
    any portion of the project seeing construction approval.” It would be inconsistent with the
    explicit purpose of 10 V.S.A. § 6083a if the extra fee provision for master plan approval did not
    result in cost and efficiency savings for subsequent permit applications related to the master
    plan.
    With the understanding that the term “permit application” in 10 V.S.A. § 6083a(a)(6)
    cannot mean, as the Board suggests, that any application—minor permit amendments or initial
    Act 250 applications—are distinct “permit applications,” we turn to the facts here to consider
    whether the fee Applicant was charged in excess of the statutory cap, was appropriate. We
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    conclude it was not. The H Amendment Application was treated as a minor amendment to the
    previously reviewed and approved master plan, and thus was subject to expedited review and
    approved without a hearing. The Board makes no offer as to the actual administrative costs of
    reviewing the master plan application or the H Amendment Application which is a minor
    amendment to the master plan. Rather, the Board argues that Section 6083a on its face
    requires a permit application fee for each permit application regardless of whether the permit
    is an amendment to a previously approved project or is the initial Act 250 permit. As previously
    discussed, this interpretation ignores the clear purpose of Section 6083a—to compensate the
    State for the costs incurred administering the Act 250 program. Therefore, based on the facts
    here, we conclude that Section 6083a(a)(6) limited the allowable fee for Applicant’s H
    Amendment Application to the difference between the sum of its prior application fees for the
    Project and the then existing statutory cap of $150,000.
    Conclusion
    Based on the foregoing, we find that Applicant’s appeal is not moot and that Applicant
    was overcharged for its H Amendment Application. We therefore GRANT summary judgment to
    Applicant. Applicant is thus entitled to the return of the portion of the H Amendment
    Application fee it ultimately paid that was above the statutory cap of $150,000.00.
    This completes the current proceedings before this Court.            A judgment order
    accompanies this decision.
    Electronically signed on January 27, 2016 at 12:43 PM pursuant to V.R.E.F. 7(d).
    _________________________________________
    Thomas G. Walsh, Judge
    Superior Court, Environmental Division
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Document Info

Docket Number: 15-2-15 Vtec

Filed Date: 1/27/2016

Precedential Status: Precedential

Modified Date: 4/24/2018