Champlain Parkway Wetland CU Determination ( 2017 )

STATE OF VERMONT
SUPERIOR COURT ENVIRONMENTAL DIVISION
Docket No. 123-10-16 Vtec
Champlain Parkway Wetland CU Determination
ENTRY REGARDING MOTION
Count 1, ANR Wetland CUD Time Extension Request (123-10-16 Vtec)
Title: Motion to Alter or Amend 4/14/2017 Court Decision (Motion 6)
Filer: Fortieth Burlington, LLC
Attorney: Judith L. Dillon
Filed Date: April 28, 2017
Response in Opposition filed on 05/22/2017 by Attorney Brian S. Dunkiel for
Interested Person City of Burlington
Reply, with Request for Hearing, filed on 06/13/2017 by Attorney Judith L. Dillon for
Appellant Fortieth Burlington, LLC
Response in Opposition filed on 06/21/2017 by Attorney Hannah W. Smith for
the Vermont Agency of Natural Resources
The motion is DENIED.
This matter concerns Conditional Use Determination # 2010-125 (“the 2011 CUD”), issued
on January 14, 2011, by the Vermont Agency of Natural Resources (“ANR”). The 2011 CUD deals
with impacts to a Class II wetland and buffer zone along Englesby Brook that may be caused by
the construction of highway improvements commonly referred to as the Champlain Parkway.
That general highway improvement project first received a state land use permit in 1981. Most
recently, an amendment to its Act 250 permit for a revised project was affirmed by our Supreme
Court in 2015. See In re Champlain Parkway Act 250 Permit, 2015 VT 105.
The present appeal was filed by Fortieth Burlington, LLC (“Fortieth”) from a September 8,
2016 ANR decision to grant the City of Burlington’s (“the City”) request for an extension of time
in which to complete the work described in the 2011 CUD.
On April 14, 2017, this Court issued a decision dismissing all but Question 7 from Fortieth’s
Statement of Questions. Fortieth then filed a motion to alter or amend the Court’s April 14, 2017
decision. By Entry Order filed on August 8, 2017, this Court denied Fortieth’s request that its
Questions 3 and 4 be reinstated, and left Fortieth’s remaining requests—that its Questions 5 and
6 also be reinstated—for determination after the Court held a hearing on Fortieth’s remaining
Champlain Parkway Wetlands CU Det., No. 123-10-16 Vtec (EO on Motion to Alter or Amend) (10-10-2017) p. 2 of 3
requests. That hearing was held on September 11, 2017. We therefore turn to Fortieth’s
remaining requests for reinstatement of its Questions 5 and 6.
Fortieth moves to alter or amend the dismissal pursuant to V.R.C.P. 59(e). Because the
April 14, 2017 Decision did not render final judgement, it is an interlocutory order. Therefore,
the present motion is not strictly a Rule 59(e) motion. Even so, this Court has treated such
motions to reconsider similarly to motions to alter or amend a final judgment pursuant to Rule
59(e). See Old Lantern Nonconforming Use Appeal, No. 154-12-15 Vtec, slip op. at 2 (Vt. Super.
Ct. Envtl. Div. Sept. 13, 2017) (Durkin, J.).
The Court has four basic grounds to grant a motion to reconsider: (1) to “correct manifest
errors of law or fact upon which the judgment is based”; (2) to allow a moving party to “present
newly discovered or previously unavailable evidence”; (3) to “prevent manifest injustice”; and (4)
to respond to an “intervening change in the controlling law.” Id. (citations omitted). A
disagreement between the Court and the moving party is not evidence of a “manifest error of
law” or “manifest injustice.” In re Boutin PRD Amendment, No. 93-4-06- Vtec, slip op. at 2 (Vt.
Envtl. Ct. May 18, 2007) (Wright, J.) (citations omitted).
Fortieth has not presented any newly discovered or previously unavailable evidence, nor
has it presented any intervening change in the applicable law. Fortieth argues in its motion that
the Court failed to accept as true all factual assertions and inferences raised in its Statement of
Questions for purposes of the dismissal motion. Fortieth’s assertion here seems to be premised
upon the precedent of Fellis v. Downs Rachlin Martin PLLC, 2015 VT 129, ¶ 14, 200 Vt. 465(citations omitted). We disagree with Fortieth’s assessment; the Court made the necessary
deference in Fortieth’s favor concerning all material facts that are relevant to the pending
extension request and determined no facts against Fortieth. It appears that Fortieth disagrees
with the Court’s determinations of what facts are made material to this appeal, given the nature
of the legal issues presented in the City’s time extension request. In reviewing our April 14, 2017
Decision, the Court concludes there was no manifest error of law or fact or likelihood of a
manifest injustice in the original decision.
Fortieth argues that the Court did not properly interpret the CUD language in its April 14,
2017 Decision. We believe Fortieth’s assessment in this regard is in error. We are directed to
construe permit conditions according to the established rules governing statutory construction.
Agency of Nat. Res. v. Weston, 2003 VT 58, ¶ 16, 175 Vt. 573. Statutory interpretation is a
question of law. In re South Burlington-Shelburne Highway Project, 174 Vt. 604, 605 (2002). By
this precedent, the Court is directed to interpret the challenged language by first determining
the plain meaning of the words used by the drafters; this is how we can best arrive at the drafters’
original intent. Weston, 2003 VT 58, ¶ 16. If the meaning is plain, we go no further. In re Weeks,
167 Vt. 551, 554 (1998). As the permit conditions are clear on their face, the Court made no
factual findings against Fortieth as we were not required to consider anything other than the
plain meaning of the CUD. In fact, in rendering a determination on a pre-trial motion, it is
improper for a trial court to render any factual findings; rather, we are called upon to only view
the relevant factual representations in a light most favorable to the non-moving party. Blake v.
Nationwide Ins. Co., 2006 VT 48, ¶ 21, 180 Vt. 14, citing Fritzeen v. Trudell Consulting Engineers,
Inc., 170 Vt. 632, 633 (2000) (mem.). We followed such a procedure in our April 14, 2017
Decision.
Champlain Parkway Wetlands CU Det., No. 123-10-16 Vtec (EO on Motion to Alter or Amend) (10-10-2017) p. 3 of 3
The Court dismissed Question 6 because it impermissibly sought to challenge the 2011
CUD, made final by the lack of a timely appeal. Fortieth argues in its motion that Question 6
implicates 2011 CUD Condition E via Condition D, as Question 6 addresses potential changes in
project impacts. Specifically, Fortieth argues the plain language of the 2011 CUD conditions
required the City to conduct a reevaluation of the project’s impacts to designated wetlands prior
to applying for an extension of the construction deadline, and to then evaluate possible changes
in project impacts.
We disagree. The interpretation of permit terms is a question of law, not a question of
fact; this is a purely legal analysis. We dismissed Question 6 in the April 14, 2017 Decision based
on the doctrine of finality which is a matter of law, not fact.
The Court dismissed Question 5 in part because it raised an issue addressed by a condition
included in the 2011 CUD that is not properly before the Court in this challenge to the deadline
extension request. Fortieth’s argument is again that the Court misinterpreted the plain meaning
of the 2011 CUD in failing to conclude that the Condition A applies to a time extension request.
This is again a legal argument, not a factual assertion that the Court is required to accept as true.
Fortieth also argues that Court should not have dismissed Question 5 because the City did
not ask it to do so until its Reply Memorandum. However, the Court gave Fortieth a fair
opportunity to oppose dismissal in its Sur-Reply. Fortieth did not lack a fair opportunity to
oppose dismissal. Furthermore, Fortieth has taken the additional opportunity, in the present
motion, to raise additional arguments as to why Question 5 should not be dismissed.
Having revisited the legal analysis in our April 14, 2017, Decision concerning the issues
raised in Fortieth’s Questions 5 and 6, we remain convinced of the propriety of our legal
interpretation of Conditions A, D, and E in the 2011 CUD. We therefore decline to revise our prior
legal determinations.
For all these reasons, we conclude that Fortieth’s motion to alter or amend the April 14,
2017 decision must be DENIED.
So ordered.
Electronically signed on October 10, 2017 at Burlington, Vermont, pursuant to V.R.E.F. 7(d).
________________________________
Thomas S. Durkin, Superior Judge
Notifications:
Judith L. Dillon (ERN 5040), Attorney for Appellant Fortieth Burlington, LLC
Randy Joe Miller (ERN 7037), and Hannah W. Smith (ERN 6759), Attorneys for
the Vermont Agency of Natural Resources
Brian S. Dunkiel (ERN 4594), and Jonathan T. Rose (ERN 2170), Attorneys for
the City of Burlington
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