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In re Waterfront Park Act 250 Amendment

Supreme Court of Vermont

April 15, 2016

In re Waterfront Park Act 250 Amendment (Alison Lockwood, Appellant)

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

Hans G. Huessy of Murphy Sullivan Kronk, Burlington, for Appellant.

Brian S. Dunkiel, Geoffrey H. Hand and Karen L. Tyler of Dunkiel Saunders Elliott Raubvogel & Hand, PLLC, Burlington, for Appellee City of Burlington.

William H. Sorrell, Attorney General, and Robert F. McDougall, Assistant Attorney General, Montpelier, for Appellee Vermont Natural Resources Board.

PRESENT: Skoglund, Robinson and Eaton, JJ., and Tomasi, Supr. J., and Morse, J. (Ret.), Specially Assigned

ROBINSON, J.

¶ 1. This case requires us to apply Act 250 Rule 34(E), which establishes a framework for determining whether a party may seek to amend an Act 250 permit. Neighbor Alison Lockwood appeals from the Environmental Division's award of summary judgment to the City of Burlington. The Environmental Division ruled that the City is entitled to seek an amendment to its Act 250 permit covering the Waterfront Park located on the shores of Lake Champlain. We affirm.

¶ 2. The material facts are not substantially in dispute. In 1990, the City obtained a land-use permit for the Waterfront Park (the Park). The City hosted a number of events at the Park in the summer of 1993 and may have hosted others prior to that time. In December 1993, the City applied for an amendment to its permit to allow for hosting of festivals and public events at the Park. During the amendment process, the City argued against any express permit condition regarding the timing, duration, and frequency of events and sound levels, taking the position that the City Parks and Recreation Commission should regulate these matters. In February 1994, after considering the impact on neighboring residents caused by noise and traffic from events, the district commission granted the amendment and imposed twenty-six conditions, some of which related to the maximum sound levels associated with events at the Park, when and where to measure those sound levels, and the timing and number of events that could be held at the Park.

¶ 3. In August 2008, neighbor purchased her property located at 200 Lake Street, which is adjacent to the Park. Prior to purchasing the property, neighbor researched and read the 1994 Permit. In buying the property, she specifically relied on the permit conditions governing the timing and frequency of events at the Park and the maximum allowed sound levels. At the time of her purchase, neighbor was aware that festivals and events would take place at the Park, but she understood these events would be limited by the conditions in the permit. Neighbor is significantly impacted by the events and festivals. She experiences loud noise for extended periods of time, significant vehicular and pedestrian traffic congestion, and limits on her ability to sleep, spend time outdoors, open her windows, and enjoy her property.

¶ 4. Since the Park's inception, there has been significant residential and commercial development in and around the Park, including the Wing Building, Cornerstone Building, 40 College Street (seventy-eight condominiums), the Gateway building, Union Station, 200 Lake Street (sixteen condominiums), ECHO Center, Waterfront Housing, 300 Lake Street (rental units), 60 Lake Street, Westlake Condominiums, Harbor Courtyard Marriott, Hilton Hotel renovations, and 180-188 Battery Street. In addition, festivals and events at the Park have become a central element of the City's and region's cultural life, as well as a central component of the City's downtown economic development strategy.[1] Collectively, the events attract over 185, 000 visitors to the Park and the City's downtown, resulting in a substantial economic benefit to businesses in the area and the City as a whole.[2]

¶ 5. In 2013, the City Council adopted PlanBTV, which outlines the City's development goals for downtown Burlington and the waterfront. With respect to the Park, Plan BTV provides:

Waterfront Park has been wildly successful as a place to host important cultural, civic, and athletic events that bring thousands of people to Burlington's waterfront each year. These events celebrate our community and lakefront, expose new people to the city, and generate millions of dollars for the local economy. The continued evolution of Burlington's waterfront into a mixed-use area that is active year-round will require a careful balance of competing demands. Waterfront businesses and residents need to embrace the important community role played by the park and its many events, while waterfront event planners and organizers need to be sensitive to the impacts that event noise, lighting, and traffic congestion has on their neighbors.

¶ 6. PlanBTV references and incorporates the Burlington Waterfront Revitalization Plan, approved in 1998, which calls for maximizing the use of the Park for festivals and special events and cautions that "the right of the public to use and enjoy the waterfront, including festivals, music and other noise producing activities must not be limited by development." Finally, the City's 2014 Municipal Development Plan emphasizes the importance of arts and entertainment, as well as recreation and tourism, in expanding economic activity and enhancing the City's quality of life.

¶ 7. This case began in November of 2012 when the City filed an application with the district environmental commission to amend a number of conditions in the 1994 permit. Among the permit conditions the City sought to amend was Condition #19, which reads as follows:

The following rules shall apply to events held in the park, unless the [City] secures written permission from the District Commission to change these rules.
a) The park can be used for events for up to 27 days between May 27 to September 15.
b) A maximum of 22 days may involve amplified music. Amplified music does not include music from acoustic instruments which is subsequently amplified.
c) No more than 18 of the 27 days may be Saturdays and Sundays.
d) Events may occur on no more than three ...

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