Costco Act 250 LU Permit

Environmental Court of Vermont
State of Vermont
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E N T R Y R E G A R D I N G M O T I O N
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In re: Costco Act 250 Permit Amendment Docket No. 143-7-09 Vtec
Project: Expansion of existing Costco/Colchester facilities
Applicant: Costco Wholesale Corp. and Lake Champlain Trans. Co.
(Appeal from Dist #4 Env. Commission,
Costco Permit amendment #4C0288-19B)
Title: Motion for Additional Party Status (Filing No. 1)
Filed: July 23, 2009; Supporting Memorandum filed July 27, 2009.
Filed By: Pietro J. Lynn and David Grayck, Co-Counsel for Timberlake Assoc.
Response filed on 08/13/09 by Cross Appellant Costco Wholesale Corp.
Granted (as to criteria 5 & 9(K); Denied (as to remaining requested criteria).
Timberlake Associates (“Timberlake”) appeared and participated in the
proceedings before the District #4 Environmental Commission (“District
Commission”) concerning the request by Co-Applicants Costco Wholesale Corp. and
Lake Champlain Trans. Co. (“Costco”) for Act 250 authority to expand their pre-
existing retail/wholesale facility off of Routes 2 and 7 (also known as the
Roosevelt Highway) in Colchester. In its Findings of Fact, Conclusions of Law
and Order of June 23, 2009, the District Commission granted Timberlake’s request
for party status under Act 250 criteria 5 and 9(K), as “Friends of the
Commission,” pursuant to 10 V.S.A. § 6085(c)(5). The District Commission
specifically granted Timberlake’s request for full party status under Act 250
criterion 10, but denied it under criteria 1, 1(B), 1(E), 1(G), 5, and 9(K).
Timberlake, by its present motion, seeks a grant of full party status under
these Criteria.
Adjoiners and other persons who wish to be parties in an Act 250
proceeding must show that they have “a particularized interest protected by this
chapter that may be affected” by a determination made upon the relevant Act 250
criteria. 10 V.S.A. § 6085(c)(1)(E). We regard this showing to be in the
manner of an “offer of proof,” since a person or entity requesting party status
in an Act 250 proceeding is not required to show that it will prevail at trial,
but merely that their interests “may be affected” by the proposed development.
Thus, we review the offers of evidence presented by Timberlake for a possible
causal connection between the proposed future development and the impact that
concerns Timberlake.
Applicant Costco filed an objection to Timberlake’s request, although the
only argument offered by Costco was that the motion was “premature”, given that
the District #4 Environmental Commission (“District Commission”) had not yet
ruled on a motion to alter the appealed-from decision. The District Commission
thereafter issued its Memorandum of Decision on Costco’s Motion to Alter on
August 14, 2009. Costco has offered no further objection to Timberlake’s
requests and no other party in this appeal has filed an objection.
Timberlake first presents its arguments for why it is entitled to party
status under criteria 5 and 9(K), which concerns a proposed development’s
In re Costco Act 250 Permit Amendment, No. 143-7-09 Vtec (Entry Order on Timberlake party status request) Page 2
possible impact on traffic and public investments, including investments in
public highways. These arguments are strong, since Timberlake’s commercial
property also depends upon safe and clear access to the Roosevelt Highway, just
as Costco does for its nearby commercial facility. For these reasons, we
conclude that Timberlake is entitled to party status under Act 250 criteria 5
and 9(K).
Timberlake next offers its arguments for party status under Act 250
criteria 1 (whether a proposed project will result in undue water or air
pollution), 1(B) (whether the proposed development meets applicable waste
disposal regulations); 1(E) (whether the proposed development will allow
adjacent streams to be maintained in their natural condition “and will not
endanger the health, safety, or welfare of the public or of adjoining
landowners”); and 1(G) (whether proposed development will violate applicable
wetlands rules). 10 V.S.A. §§ 6086(a)(1), (1)(B), (1)(E), and (1)(G).
Timberlake presents persuasive arguments under these collective criteria,
alleging that the Costco facility may contribute to the discharge of stormwater
and the pollutants and hazardous materials that sometimes flows with stormwater.
But the evidence presented leaves uncertainties as to what is alleged and a gap
in the causal connection to a particularized interest held by Timberlake. For
example, Timberlake’s expert seems to allege that wetlands violations exist at
the current Costco facility; we are left to wonder what allegation is made as to
the proposed Costco expansion, which is the only development over which we have
jurisdiction in this appeal. To the extent violations exist at the current
facility, the jurisdictional authority over such violations rests with the
Natural Resource Board, under its enforcement authority. Further, Timberlake
makes numerous references to a shared stormwater basin, but we are left to
wonder the relative proximity between the multiple wetlands and discharge basins
Timberlake references. Timberlake makes no reference to specific streams and
regulated wetlands on the Costco project site, and no specific reference to a
measurable increase in stormwater runoff that will be caused by the project
expansion proposed in this application. To the extent Timberlake makes
reference to possible harm from future development at the Costco site, or
adjoining commercial sites, such concerns can be addressed in those future
permit proceedings; we have no jurisdiction to address such future possible
concerns in this proceeding.
To receive or maintain party status, the requesting party must present
some connection between the project under review and an interest that is
protected by the various Act 250 criteria particular to them. 10 V.S.A.
§ 6085(c)(1)(E). Since we cannot discern from the evidence Timberlake has thus
far presented what impact, if any, may be caused by the Costco expansion under
the identified Act 250 criteria, we must DENY their request for party status
under Act 250 criteria 1, 1(B), 1(E), and 1(G). In so ruling, we conclude that
without an offer that identifies specific streams or protected wetlands on or
near the Costco project site that the proposed expansion may impact, Timberland
has not met the particularized showing required in 10 V.S.A. § 6085(c)(1)(E).
___________________________________________ __December 4, 2009___
Thomas S. Durkin, Judge Date
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Date copies sent to: ____________ Clerk's Initials _______
Copies sent to: See attached service list.
In re Costco Act 250 Permit Amendment, No. 143-7-09 Vtec (Entry Order on Timberlake party status request) Page 3
Attorneys Jon T. Anderson and David W. Rugh for Appellant R.L. Vallee, Inc.
Attorney Pietro J. Lynn for Cross-Appellant Timberlake Assoc.
Attorney David Grayck, Co-Counsel for Cross-Appellant Timberlake Assoc.
Attorney Mark G. Hall for Cross Appellant Costco Wholesale Corp.
Attorney William H. Rice for Vt. Agency of Transportation
Attorney Catherine Gjessing for Agency of Natural Resources
Attorney John H. Hasen for Nat’l Resources Board/LU Panel (FYI purp. only)