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In re Treetop Development Co. Act 250 Development

Supreme Court of Vermont

February 12, 2016

In re Treetop Development Company Act 250 Development (Treetop at Stratton Condominium Association, Inc., Appellant)

On Appeal from Superior Court, Environmental Division Thomas G. Walsh, J.

A. Jay Kenlan of Kenlan, Schwiebert, Facey & Goss, P.C, Rutland, for Appellant.

Lisa B. Shelkrot of Langrock Sperry & Wool, LLP, Burlington, for Appellees.

William H. Sorrell, Attorney General, and Gavin J. Boyles and Scot L. Kline, Assistant Attorneys General, Montpelier, for Natural Resources Board.

PRESENT: Dooley, Skoglund and Eaton, JJ., and Tomasi and Bryan (Ret.), Supr. JJ., Specially Assigned


¶ 1. This appeal is the latest chapter in an ongoing dispute between the Treetop at Stratton Condominium Association, Inc. (Association) and the Stratton Corporation, Treetop Development Company, LLC, Treetop Three Development Company, LLC, and Intrawest Stratton Development Corporation (collectively, Stratton) over an improperly constructed stormwater management system. The pending matter follows the Association's appeal of the District 2 Environmental Commission's (Commission) refusal to impose additional conditions on Stratton's Act 250 permit, which the Environmental Division of the Superior Court determined to be invalid and unenforceable. For the reasons stated herein, we affirm.

¶ 2. On November 18, 2002, the District 2 Environmental Commission issued Act 250 Permit #2W1142 to Stratton for the construction of twenty-five three-unit townhouses (the Treetop Project) in the Town of Stratton, Vermont. Included in the Act 250 permit was approval for the development and construction of the infrastructure required for the occupancy, use, and management of the Treetop Project and associated infrastructure, including a stormwater management system.

¶ 3. A Stratton Corporation affiliate, the Treetop Development Company, LLC, completed construction of the Treetop Project in 2006, at which point all seventy-five townhouses were sold and conveyed to third-party owners. Each individual owner acquired an undivided percentage interest in the Treetop Project's common areas and facilities, including the stormwater management systems, which were managed and administered by the Association.

¶ 4. In response to problems with the stormwater management system, the Association filed suit against Stratton in 2009 seeking damages and remediation for various construction defects in the Treetop Project, including those involving the stormwater management system. The parties ultimately reached a settlement agreement, which, relevant to this appeal, required Stratton to apply for and obtain corrective permit amendments and pay for any work necessary to bring the stormwater management aspects of the Treetop Project into compliance with its Act 250 permit. On August 13, 2012, Stratton filed an application with the Commission to amend its Act 250 permit to reflect deviations from the original permit, specifically "to authorize changes in the original as-built plans to the permit plans submitted." These changes included repairs and modifications to the stormwater management system necessary to fix leaks and seepage and to bring the system into compliance with the terms of General Permit 3-9010.[1]

¶ 5. In its Findings of Fact and Conclusions of Law, the Commission expressed its concern over Stratton's "failure to build its stormwater system in compliance with its prior permits." The Commission conceded that "[w]hile Stratton's plan is not the only way to [correct significant stormwater problems], it is the plan on the table[, ] . . . [and it] has been approved by the Agency of Natural Resources and is implementable immediately." Emphasizing the importance that "the water quality and safety issues be resolved satisfactorily as soon as possible, " the Commission concluded that "issuing a permit with conditions is the most effective way to achieve this outcome." The Commission provided that it would add "protections in the permit to ensure that solutions proposed by Stratton are effective in addressing the problems, " and that it would "retain jurisdiction over these matters." In its conclusion, the Commission found that the Treetop Project would be in compliance with Act 250 criteria if it was "completed and maintained as represented in the application and other representations of the Applicants, and in accordance with the findings and conclusions of this decision and the conditions [herein]."

¶ 6. Following a decision by the Commission on October 21, 2013 to approve Act 250 Permit #2W1142-D (amended permit) with conditions, both Stratton and the Association moved to alter and amend the amended permit. After making minor changes, the Commission issued a Memorandum of Decision on November 15, 2013, granting the amended permit. The amended permit included several conditions, including conditions that required Stratton to repair the stormwater retention pond pursuant to approved plans on or before September 1, 2014, and to provide weekly reports on the progress of the repairs until completion. By that time of year, however, the weather made further site work impossible. Relevant to this appeal, permit Condition 14 provided:

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.

(Emphasis added.). Importantly, neither party appealed the amended permit, which became final and ...

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