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In re Champlain Parkway Act 250 Permit

Supreme Court of Vermont

August 21, 2015

In re Champlain Parkway Act 250 Permit (Fortieth Burlington, LLC, Appellant)

Appeal from conditional approval of Act 250 permit. Superior Court, Environmental Division, Walsh, J., presiding.

Christina A. Jensen of Lisman Leckering, P.C., Burlington, for Appellant.

Brian S. Dunkiel, Geoffrey H. Hand, Elizabeth H. Catlin and Victoria M. Westgate of Dunkiel Saunders Elliott Raubvogel & Hand, PLLC, Burlington, for Appellee City of Burlington.

Present: Reiber, C.J., Dooley, Skoglund, Robinson and Eaton, JJ.


Page 671


[¶1] The City of Burlington and the Vermont Agency of Transportation (AOT) applied for an Act 250 permit amendment to complete a project known as the Champlain Parkway, a roadway designed to route traffic more efficiently from Interstate 89 in South Burlington to the City of Burlington's downtown area. The environmental court concluded that the application complied with Act 250's transportation criterion (Criterion 5) subject to conditions requiring that applicants monitor and report on the project's traffic-congestion and safety impacts, and work with the opposing party in this proceeding, Fortieth Burlington, LLC, to resolve any remaining

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issues. Fortieth has appealed, asserting that: (1) the conditions imposed by the court were not supported by the evidence and findings, exceeded the court's authority, and were insufficient to mitigate the project's adverse impacts; (2) the court misapplied the burdens of production and proof; and (3) the court erred in rejecting Fortieth's proposed conditions. We affirm.

[¶2] The facts may be summarized as follows. The Champlain Parkway is a substantially modified version of the original Southern Connector project, a proposed four-lane highway running from Interstate 89 in South Burlington to downtown Burlington that received initial Act 250 approval in 1981. Although the first and southernmost phase of the project was constructed in the late 1980s, the discovery of hazardous material along the project route and subsequent remediation efforts halted further progress. The project subsequently evolved to its current form as the Champlain Parkway, with a roadway reduced to two lanes, a new route bypassing the contaminated area, and additional bicycle and pedestrian accommodations.

[¶3] Applicants sought an Act 250 permit amendment for the redesigned project, which was divided into three segments for planning and construction purposes; the first, running from Interstate-189 to Home Avenue, had been previously approved and constructed; the second, running from Home Avenue north to Lakeside Avenue, was previously approved but never constructed; and the third, running from Lakeside Avenue east to Pine Street then north to terminate at Main Street, had not been previously reviewed or approved. In April 2012, the District No. 4 Environmental Commission issued an order finding that the project complied with all but two Act 250 criteria, Criteria 1(B) and 4 relating to wastewater and erosion control, which required approved stormwater permits.

[¶4] Several parties appealed the ruling to the environmental court, although only one -- Fortieth Burlington, LLC -- remained by the time of the hearing. The questions on appeal related exclusively to the whether the project would " cause unreasonable congestion or unsafe conditions with respect to use of highways ... and other means of transportation existing or proposed" under Criterion 5 of Act 250. 10 V.S.A. § 6086(a)(5)(A).

[¶5] Fortieth owns property on the north side of Lakeside Avenue, just west of the intersection with the planned Parkway. Its neighbor to the east on Lakeside is a property owned by the Burlington Department of Public Works (DPW). Fortieth's property contains a large commercial building with a number of tenants, including the Veterans Administration, a pediatric practice group, the University of Vermont, and others. The property also contains a parking lot with approximately 720 spaces located to the rear and west side of the building. Access to the lot is via two driveways, one on the east side of the building, about 150 feet west of the Parkway intersection, and another on the west side of the building. The eastern driveway is approximately twenty-four feet wide, twelve to enter and twelve to exit, and provides the primary access to the main parking area to the rear of the building. A third potential access point is via a road at the north end of the lot running east to Pine Street through land owned by the Burlington Electric Department. Access by way of this road has been blocked by the City, and it is not currently in use.

[¶6] As it approaches Lakeside Avenue from the south, the planned Parkway will have a traffic signal and a left-turn/through lane for ...

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