In re Costco Stormwater Discharge Permit, Costco Final Plat & Site Plan, Costco Act 250 Land Use Permit, Wetlands Reclassification, et al. (R.L. Vallee, Inc. and Timberlake Associates LLP, Appellants)
On
Appeal from Superior Court, Environmental Division Thomas S.
Durkin, J.
Jon T.
Anderson of Burak Anderson & Melloni, PLC and Alexander
J. LaRosa of Murphy Sullivan Kronk, Burlington, for Appellant
R.L. Vallee, Inc.
David
L. Grayck of Law Office of David L. Grayck, Montpelier, for
Appellant Timberlake Associates LLP.
Mark
G. Hall of Paul Frank Collins P.C., Burlington, for
Appellee.
William H. Sorrell, Attorney General, and Justin Kolber and
Elizabeth Tisher, Assistant Attorneys General, Montpelier,
for Appellees Agency of Natural Resources and Natural
Resources Board.
PRESENT: Reiber, C.J., Dooley, Skoglund, Robinson and Eaton,
JJ.
ROBINSON, J.
¶
1. This appeal is from a decision of the environmental
division of the superior court affirming several permits
issued to appellee Costco Wholesale Corporation for the
expansion of its existing retail store and the addition of an
adjacent six-pump gasoline station in the Town of Colchester.
Appellants R.L. Vallee, Inc. and Timberlake Associates LLP
own retail gasoline-service facilities located near the
planned development. Appellant Vallee contends the trial
court erroneously: (1) determined that Costco's proposed
traffic-mitigation measures were sufficient for issuance of
an Act 250 permit; (2) made findings concerning the impact of
an underground stormwater outlet pipe not addressed below,
and with respect to which the court limited cross examination
by Vallee's counsel; (3) concluded that the project would
not adversely affect a Class 2 wetland for issuance of an
individual wetland permit; and (4) excluded testimony and a
related exhibit prepared by appellant Vallee's wetland
consultant. Appellant Timberlake asserts that the trial court
erred in relying on a presumption with respect to the
project's impact on water pollution and waste disposal
under Act 250. We affirm.
¶
2. Costco owns property off Route 7 in the Town of
Colchester, where it operates a members-only retail store.
The Costco facility lies just north of the intersection of
the junction of Route 7, or the Roosevelt Highway, and
Interstate 89 at Exit 16. To facilitate plans to expand the
store, reconfigure a portion of its parking lots, and add a
gasoline sales facility, Costco applied for-and was granted-a
number of local and state permits, including final plat and
site plan approval from the Town of Colchester; a stormwater
discharge permit from the Agency of Natural Resources (ANR);
an Act 250 land use permit; and an individual wetlands permit
from ANR. During the application and review process,
appellant Timberlake successfully petitioned ANR to
reclassify a Class 3 wetland located on the project site to a
Class 2 wetland (the so-called "Lot 5 wetland"),
thereby triggering a fifty-foot buffer requirement around the
wetland. As a result of this change, Costo was required to
get an individual wetland permit, which in turn required a
ruling that the project would not adversely affect the
wetland's identified functions and values. Vermont
Wetland Rule § 9.5(a), 6 Code of Vt. Rules 12 004 056,
available at
http://www.lexisnexis.com/hottopics/codeofvtrules
(Wetland Rules).
¶
3. Appellants Vallee and Timberlake appealed all of the
permit determinations to the environmental division. A number
of the appeals were settled, and the rest-the final plat and
site plan approval, stormwater discharge permit, wetland
reclassification, individual wetland permit, and Act 250
permit-were the subject of a coordinated multiple-day trial.
In August 2015, the court issued findings, conclusions, and a
final judgment order affirming the remaining permits on
appeal. Appellants Vallee and Timberlake separately
appealed.[1] We set forth relevant facts as they relate
to the arguments on appeal.
¶
4. "[B]ecause the trial court determines the credibility
of witnesses and weighs the persuasive effect of evidence,
this Court will not disturb [its] factual findings unless,
taking them in the light most favorable to the prevailing
party, they are clearly erroneous." In re Route 103
Quarry, 2008 VT 88, ¶ 4, 184 Vt. 283, 958 A.2d 694
(quotation omitted). The trial court's findings
"will not be disturbed merely because they are
contradicted by substantial evidence; rather, [an appellant]
must show that there is no credible evidence to support
them." In re Miller Subdivision Final Plan,
2008 VT 74, ¶ 13, 184 Vt. 188, 955 A.2d 1200.
"Although we review the environmental court's legal
conclusions de novo, we will uphold those conclusions if they
are reasonably supported by the findings." In re
Application of Lathrop Ltd. P'ship I, 2015 VT 49,
¶ 21, ___Vt. ___, 121 A.3d 630 (citation and quotation
omitted).
¶
5. We note, as well, that "we generally give substantial
deference to an agency's interpretations of its own
regulations"-in this case ANR's interpretation of
the regulations governing the wetland and stormwater
discharge permits at issue. In re ANR Permits in Lowell
Mountain Wind Project, 2014 VT 50, ¶ 15, 196 Vt.
467, 98 A.3d 16. Appellants here "bear the burden of
showing that ANR's interpretation is wholly irrational
and unreasonable in relation to its intended purpose."
Id. ¶ 17 (quotation omitted).
I.
Traffic Issues
¶
6. Appellant Vallee first asserts that the evidence failed to
support the trial court's finding that Costco's
proposed near-term highway improvements were sufficient to
mitigate the development's traffic impacts under
Criterion 5 of Act 250. See 10 V.S.A. § 6086(a)(5)(A)
(providing that Act 250 permit requires finding that
development "[w]ill not cause unreasonable congestion or
unsafe conditions with respect to use of the highways").
Vallee contends that, while long term improvements to the
traffic flow at the I-89/Route 7 intersection may mitigate
the traffic impacts of this project, the near-term
improvements proposed by Costco are themselves insufficient
to mitigate those impacts.
¶
7. The trial court found that both Lower Mountain View Drive
and Hercules Drive provide access to Costco from Route 7.
Lower Mountain View Drive intersects Route 7 about 100 yards
north of the junction with I-89 and generally provides the
greater flow of traffic into and out of the Costco
development. Hercules Drive intersects with Route 7 farther
north and provides better access to Costco visitors who are
coming from or traveling to locations north of the I-89/Route
7 junction.
¶
8. During the afternoon weekday rush hour, traffic is
particularly congested on Route 7 at the I-89 interchange,
and will sometimes back up to the intersection with Lower
Mountain View Drive. The congestion has led the Vermont
Agency of Transportation (VTrans) to propose improvements to
the I-89/Route 7 Exit 16 junction, including a signalized
interchange known as a Double Crossover Diamond. VTrans is
pursuing permits for these improvements. The improvements
will be funded through several sources, including area
businesses such as Costco. However, the timeframe for its
completion is uncertain and could run to ten years or more.
¶
9. The trial court further found that the proposed Costco
development would likely cause 155 new vehicle trips during
peak traffic hours. Most but not all of this new traffic will
exit Costco via Lower Mountain View Drive, turning left onto
Route 7, toward the I-89 interchange. To mitigate the impact
of the additional traffic-which the court found to be
"measurable, but not substantial"-Costco proposed
to construct certain near-term improvements to the Route
7/Lower Mountain View Drive intersection, including the
addition of a second dedicated left-hand turn lane from Lower
Mountain View Drive onto southbound Route 7, a second
dedicated right-hand turn lane for vehicles turning right
from Lower Mountain View Drive onto northbound Route 7, and
another travel lane for through traffic and traffic turning
right onto Route 7 from Lower Mountain View Drive. In
addition, Costco has proposed better synchronization of
traffic lights at all area intersections "to allow for
more optimal traffic flow, " and a "Do Not Block
Driveway" sign at the curb cut for Vallee's
facility. The court found that these improvements would
"fully mitigate the additional traffic that the proposed
Costco [development] will generate, " and thus
determined that the development complied with Criterion 5.
¶
10. Vallee maintains that there was "no evidence"
to support the trial court's finding that Costco's
proposed near-term improvements to the Lower Mountain View
Drive intersection, without reconfiguration of the I-89
interchange, were sufficient to mitigate the project's
full traffic impacts. Vallee contends that the expert
simulations relied upon by Costco assumed the completion of
the reconfiguration of the I-89 interchange, and that
reconfiguration was essential to mitigate the
project-generated traffic. Vallee argues that the
improvements to the Route 7/Lower Mountain View Drive
intersection are inadequate to mitigate the effects of the
additional traffic at the I-89/Route 7 interchange, and that
they do nothing more than increase "storage
capacity" for cars to wait in traffic at Lower Mountain
View Drive and Exit 16. For these reasons, Vallee argues the
trial court erred in refusing to condition approval of the
Act 250 permit upon completion of the I-89 interchange
improvements.
¶
11. As noted, before granting an Act 250 permit, a district
commission or court must find that a project "[w]ill not
cause unreasonable congestion or unsafe conditions with
respect to use of the highways." 10 V.S.A. §
6086(a)(5)(A). The burden of proof in this regard "shall
be on any party opposing the applicant." Id.
§6088(b). The applicant nevertheless bears the burden of
production to establish at least a "prima facie
case" of compliance. In re Champlain Parkway Act 250
Permit, 2015 VT 105, ¶ 15, ___Vt.___, 129 A.3d 670.
While a court or district commission may not deny an
application "solely for the reasons set forth" in
Criterion 5, it may impose "reasonable conditions and
requirements" consistent with the police power to
"alleviate the burdens created" by the project. 10
V.S.A. § 6087(b); see also id. § 6086(c)
("A permit may contain such requirements and conditions
as are allowable proper exercise of the police power.").
¶
12. Viewed in the light of these standards, we conclude the
record evidence here was sufficient to support the trial
court's findings and conclusions under Criterion 5. With
respect to the impact of the additional traffic at the I-89
interchange, Costco's traffic expert testified that the
estimated 155 additional peak-hour trips generated by the
project represented "a very small percentage of the
overall daily [vehicular] traffic" in the area, which
numbered in thousands along the busy Route 7 corridor
adjacent to Costco; that this figure was less than the daily
fluctuations in traffic volume at those intersections, and
thus "small enough" to be considered by traffic
engineers as "insignificant"; and ...