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In re Champlain Parkway Wetland Conditional Use Determination (Fortieth Burlington, LLC)

Supreme Court of Vermont

November 9, 2018

In re Champlain Parkway Wetland Conditional Use Determination (Fortieth Burlington, LLC)

          On Appeal from Superior Court, Environmental Division Thomas S. Durkin, J.

          Judith L. Dillon of Lisman Leckerling, P.C., Burlington, for Appellant.

          Thomas J. Donovan, Jr., Attorney General, and Nicholas F. Persampieri, Assistant Attorney General, Montpelier, for Appellee Agency of Natural Resources.

          Jonathan T. Rose and Brian S. Dunkiel of Dunkiel Saunders Elliott Raubvogel & Hand, PLLC, Burlington, for Appellee City of Burlington.

          PRESENT: Reiber, C.J., Skoglund, Robinson, Eaton and Carroll, JJ.

          EATON, J.

         ¶ 1. This appeal arises following the decision of the Agency of Natural Resources (ANR) extending the City of Burlington's 2011 Conditional Use Determination (2011 CUD), which permitted the City to commence construction on the Champlain Parkway project. Appellant Fortieth Burlington, LLC (Fortieth) contests ANR's approval of the permit extension, and the Environmental Division's subsequent affirmance of that decision, on the basis that the City failed to adhere to several project conditions outlined in the 2011 CUD and was required to redelineate and reevaluate the wetlands impacted by the project prior to receiving an extension, among other reasons. The Environmental Division dismissed Fortieth's claims, concluding that the project complied with the 2011 CUD's limited requirements for seeking a permit extension and that Fortieth's other claims were collateral attacks against the underlying permit and were impermissible. We affirm.

         I. Facts and Procedural History

         ¶ 2. The relevant facts as found by the Environmental Division are as follows. In September 2016, ANR granted the City's request to extend the 2011 CUD for the Champlain Parkway project. The 2011 CUD approved the proposed project impacts as described in the City's application, provided that the project complied with several conditions that were part of the permit.

         ¶ 3. There are three conditions of the CUD at issue here, Conditions A, D, and E. Condition A requires the City to obtain the written approval of the Vermont wetlands office prior to making "material or substantial changes" to the project. Condition D provides that:

All construction activities in the wetland and adjacent 50-foot buffer zone shall be performed in compliance with Condition A and shall be completed within five years of the date of this Conditional Use Determination or this Conditional Use Determination will terminate. The Secretary may grant an extension to this five-year period. Any request for an extension must be received by the Department at least 30 days prior to the end of the five-year period in order to prevent the termination of this Conditional Use Determination. A request for extension will be considered a minor modification.

(Emphases added.) Finally, Condition E states that "[t]he wetland boundary determination is valid for five years from the date of this determination" and that "[t]he delineation will need to be re-evaluated by a qualified wetland consultant if the project is not constructed, or additional impacts are proposed, after the five-year time period expires." (Emphasis added.) The interplay between these three conditions-namely whether the conditions are linked or to be applied separately-is at the heart of this appeal. Fortieth challenges the City's compliance with Conditions A, D, and E; asserts that the project's impacts have changed since ANR granted the original permit; and argues that the City is required to redelineate and reevaluate the project's impacts on nearby wetlands prior to receiving an extension.

         ¶ 4. In September 2015, approximately three-and-a-half months before the 2011 CUD was set to expire in January 2016, the City formally requested an extension to the 2011 CUD for the project pursuant to Condition D. The request was timely according to Condition D's requirement that the application for an extension be filed at least thirty days prior to the end of the 2011 CUD's five-year period. In its request, the City notified ANR that it had not commenced construction on the project and that the City would like an extension of the original permit. The City stated that the project's wetland areas and impacts outlined in the original permit authorization had not changed.

         ¶ 5. ANR issued a Notice of Amendment to the 2011 CUD, advising that the extension request had been received on behalf of the City and setting the forty-five-day public comment period required under the 2012 Vermont Wetland Rules. Fortieth filed comments, which included Fortieth's assertion that the extension request "did not include a redelineation or re-evaluation of wetland H/I, or any field data regarding current conditions and boundaries" of the wetlands on the project site as required by Condition E.[1] Fortieth insisted that an extension of the CUD could not be granted until the site had been reevaluated. Fortieth's comments were based on Condition E's requirement that if the project was not constructed in the five years when the original CUD was valid, then the wetland boundary delineation would need to be reevaluated after the five-year period expired.

         ¶ 6. In response to the comments, ANR agreed with Fortieth that redelineation of the wetland boundary was necessary for the project extension and instructed the City to reevaluate the wetlands on the project site. ANR later explained that this response to Fortieth's comment was in error-ANR maintained in its briefing and at oral argument before this Court that the City's request for an extension did not trigger Condition E's requirements. ANR verified that Condition D required the extension request to be filed before the five-year period expired, while Condition E required the wetland to be reevaluated after the five-year period expired-the two conditions were not linked.[2] Nonetheless, in December 2015 and May 2016, the City redelineated and field verified the wetlands that were included under the 2011 CUD, including "[p]reviously delineated wetlands" and additional wetlands P and Q. ANR reviewed the information provided by the City and determined that the redelineation of all wetlands on the project site was conducted appropriately and that no changes would preclude the project from moving forward.

         ¶ 7. ANR granted the City's extension request for the 2011 CUD, and extended all the conditions of the 2011 CUD, including Conditions A, D, and E. Fortieth appealed ANR's Extension Decision to the Environmental Division, filing twelve questions in its Statement of Questions.[3] The majority of the questions related to the project's impacts on wetland H/I and its compliance with the Vermont Wetland Rules and Vermont wetland statute 10 V.S.A. § 913 (prohibiting certain activities in wetlands and wetland buffer zones). Questions 3 and 4 challenged the City's compliance with the 2011 CUD conditions because the City "fail[ed] to redelineate the wetland boundary or re-evaluate the wetland delineation" and "provide a wetland delineation by a qualified wetland consultant" based on an updated assessment of wetland H/I prior to applying for its CUD extension. Question 7 broadly asked, "[w]hether a CUD extension request should have been granted." Questions 11 and 12 requested that the City assess the project's impacts on additional wetlands J, K, and N prior to seeking an extension. Fortieth later sought to amend Questions 11 and 12 to assess whether the project would have negative impacts on newly discovered wetland P.

         ¶ 8. After Fortieth filed its Statement of Questions, the parties filed multiple motions, which the court addressed in its April 14, 2017 decision. In that decision, the court dismissed Questions 1-6 and 8-10, and it directed Fortieth to submit a clarified Question 7. The order also granted Fortieth's request to withdraw Questions 11 and 12 and denied Fortieth's request to amend those questions. Fortieth submitted a clarified Question 7 with six subparts, which largely reiterated Fortieth's original questions.[4] After denying several motions to reconsider and conducting an evidentiary hearing in September 2017, the Environmental Division dismissed the rest of the questions and issued a judgment order.

         ¶ 9. In its decision, the Environmental Division explained that the CUD is "functionally akin" to a final permit decision, which generally may not be challenged in a subsequent proceeding. The court ultimately dismissed Questions 1, 2, 6, 8, 9, 10, and clarified Question 7 and its subparts (a)-(e) because, in its view, these questions sought to collaterally attack the 2011 CUD by attempting to tie issues related to the underlying permit to the extension request.

         ¶ 10. In addressing Questions 3, 4, 5, and 7(f), [5] the Environmental Division construed the 2011 CUD permit Conditions A, D, and E as separate provisions. Regarding Questions 3, 4, and 7(f), the court concluded that, while the City was required to comply with both Condition D (extension request) and Condition E (redelineating project impacts), the time frames for complying with Condition D and Condition E were different. Based on the plain language of the Conditions, the court concluded that the City was required to seek a permit extension under Condition D before the 2011 CUD's five-year expiration date and was required to redelineate the wetland boundary under Condition E after the five-year expiration date. Regarding Question 5, the court explained that, based on the plain language of the CUD, the City's extension request was a "minor modification" rather than a "material or substantial change," and therefore it did not trigger review of the project by the Vermont wetlands office under Condition A. Based on these conclusions, the Environmental Division approved ANR's grant of an extension for the project. Fortieth now appeals the Environmental Division's decision to this Court.

         ¶ 11. Fortieth lists a number of arguments on appeal. Most notably, Fortieth contends that the Environmental Division erred when it: (1) incorrectly applied the motion-for-summary-judgment standard rather than the motion-to-dismiss standard in dismissing Fortieth's appeal; (2) failed to apply the rules of statutory and permit construction correctly when interpreting the City's 2011 CUD conditions and dismissing Questions 3, 4, 5, and 7(f); (3) dismissed Fortieth's remaining Questions 1-10 and amended Question 7; and (4) denied Fortieth's motion to alter Questions 11 and 12 to add inquires related to project impacts on wetland P. We affirm the Environmental Division's decisions on all counts.

         II. Standard of Review

         ¶ 12. We review the court's factual findings for clear error and its findings of law de novo. In re Vill. Assocs. Act 250 Land Use Permit, 2010 VT 42A, ¶ 7, 188 Vt. 113, 998 A.2d 712. Thus, we review the Environmental Division's grant of the City's motion to dismiss and its interpretation of the 2011 CUD permit conditions without deference. In re Confluence Behavioral Health, LLC, 2017 VT 112, ¶ 12, __ Vt. __, 180 A.3d 867 (reviewing Environmental Division's interpretation of permit conditions de novo); Skaskiw v. Vt. Agency of Agric., 2014 VT 133, ¶ 6, 198 Vt. 187, 112 A.3d 1277 ("We review decisions on a motion to dismiss de novo under the same standard as the trial court and will uphold a motion to dismiss for failure to state a claim if it is beyond doubt that there exist no facts or circumstances that would entitle the plaintiff to relief." (quotation omitted)).

         III. Motion-to-Dismiss Standard

         ¶ 13. First, Fortieth alleges that the court erred in granting the City's motion to dismiss because it failed to apply the appropriate standard. Fortieth contends that the court incorrectly held Fortieth to the standard for opposing summary judgment motions and relieved the City of the greater burden under the motion-to-dismiss standard. As a result, Fortieth claims that it was prevented from introducing facts or discovering evidence that might support its appeal.

         ¶ 14. As explained above, this Court reviews a motion to dismiss de novo under the same standard as the trial court. Skaskiw, 2014 VT 133, ¶ 6. We will uphold a dismissal "for failure to state a claim if it is beyond doubt that there exist no facts or circumstances that would entitle the plaintiff to relief." Id. (quotation omitted). "We assume as true all facts as pleaded" by the nonmoving party, and "accept as true all reasonable inferences derived therefrom, and assume as false all contravening assertions in the [moving party's] pleadings." Birchwood Land Co. v. Krizan, 2015 VT 37, ¶ 6, 198 Vt. 420, 115 A.3d 1009. Because we review the Environmental Division's decision granting the City's motion to dismiss de novo, whether the Environmental Division applied the correct legal standard is not relevant to this appeal.

         IV. Interpretation of 2011 CUD Conditions

         ¶ 15. Next, we consider whether the Environmental Division erred in construing the 2011 CUD conditions and dismissing Fortieth's Questions 3, 4, 5, and 7(f). As explained above, we review the Environmental Division's interpretation of the CUD conditions de novo. Confluence Behavioral Health, LLC, 2017 VT 112, ¶ 12. We construe permit conditions according to the established rules governing statutory construction. Agency of Nat. Res. v. Weston, 2003 VT 58, ¶ 16, 175 Vt. 573, 830 A.2d 92 (mem.). In doing so, we first look to the plain meaning of the words used by the drafters to determine their original intent. Id. If the plain meaning of the language is clear, we "accept[] the plain meaning of the words because we presume that they express the underlying intent."[6] Id.

         ¶ 16. On appeal, Fortieth asserts two theories to support its contention that the City violated the 2011 CUD permit conditions. First, Fortieth contends that Conditions D and E must be read together, such that the City was required to redelineate the wetland boundaries implicated by the project prior to applying for a permit extension. Second, Fortieth asserts that the City's request for an extension constitutes a "material or substantial change" under Condition A and therefore the City required the "written approval of the Vermont Wetlands Office" prior to obtaining an extension. As we explain below, under the language of this permit, the only relevant consideration regarding a request for an extension under Condition D is the timeliness of the request. The request for a permit extension was made more than thirty days before the expiration of the five-year CUD period, and thus was timely under the 2011 CUD permit. Accordingly, there exists no set of facts upon which Fortieth could prevail on this issue, and we affirm the court's dismissal of Questions 3, 4, 5, and 7(f).

         A. Conditions D and E

         ¶ 17. First, Fortieth argues that the City must redelineate and reevaluate the wetlands on the project site pursuant to Condition E prior to seeking an extension of the 2011 CUD under Condition D. We disagree; the plain language of the 2011 CUD requires the timely filing of an extension application to be considered for a project extension, nothing more.

         ¶ 18. The permit language at issue provides the following. Condition D governs project-extension requests. Condition D mandates that "[a]ll construction activities in the wetland . . . shall be completed within five years" of the CUD. If the project requires an extension beyond that five-year time period, Condition D simply provides that "[a]ny request for an extension must be received by the Department at least 30 days prior to the end of the five-year period in order to prevent the termination of [the 2011 CUD]." (Emphasis added.) If this requirement is met, "[t]he Secretary may grant an extension to this five-year period." Condition E is a separate provision that governs delineation of the project's wetland boundaries. Condition E explains that the project's "wetland boundary determination is valid for five years from the date of [the 2011 CUD]." However, "[t]he delineation will need to be re-evaluated by a qualified wetland consultant if the project is not constructed, or additional impacts are proposed, after the five-year time period expires." (Emphasis added.)

         ¶ 19. Upon reviewing the conditions outlined above, the Environmental Division concluded that the CUD conditions were "clear on their face": the City was not required to conduct a new wetland delineation prior to applying for an extension of the City's five-year term because the procedures for receiving a time extension under Condition D were separate from Condition E's requirement that the City redelineate the wetland boundary. We agree.

         ¶ 20. Based on the plain language of Conditions D and E, we conclude that the City was not required to redelineate the wetland boundaries prior to seeking a permit extension for the project. First, the language of these conditions indicates that they were intended to be read separately. The language of Condition D is simple: the only condition to seeking an extension is timeliness. If the application for an extension is timely submitted within thirty days of the CUD's expiration date, then "[t]he Secretary may grant an extension to this five-year period." While the 2011 CUD requires the City to comply with all conditions, nowhere does the 2011 CUD specify compliance with Condition E as a prerequisite to seeking a time extension under Condition D. Such a reading would be contrary to the plain language of the CUD. Had the extension provision been meant to be intertwined with Condition E, as the dissent suggests, it would have been a simple matter to include such language within Condition D. It is not for us to rewrite the CUD in a way that might seem more advisable to some, but rather to construe it according to its plain language when, as here, that language is clear.

         ¶ 21. Second, while the City is required to comply with both Conditions D and E, these provisions have a timeline. Under Condition D, which expressly governs project extensions, the City must apply for a project extension at least thirty days before the CUD's five-year expiration date to avoid termination. In contrast, Condition E, which requires re-assessment of the wetland boundaries, only becomes applicable after the initial five-year permit has expired. Therefore, under the 2011 CUD conditions, the City was required to comply with Condition D and seek an extension before Condition E's requirements were triggered. In theory, this would relieve projects that were not approved for an extension, either due to untimely filings or due to the Secretary's denial of their application, from unnecessarily undergoing the redelineation process. Therefore, under the 2011 CUD, applying for a permit extension was not conditioned upon re-assessing the project's wetland boundaries.

         ¶ 22. Applying these permit conditions to the case at hand, Condition D simply required the City to seek a permit extension at least thirty days prior to the CUD's termination date in January 2016, which it did. As such, ANR was correct in granting the City's permit-extension request because the City was not required to comply with Condition E prior to filing for an extension.[7]

         ¶ 23. Fortieth argues that comparing the 2010 Vermont Wetland Rules (VWR) to the most recent version of the rules supports its position that the two provisions were intended to be linked.[8] However, the 2010 VWR were still in force when the 2011 CUD was issued and when the City sought a permit extension. As such, the language of the 2018 VWR does not control our interpretation of the 2011 CUD conditions. To the extent that the 2018 VWR is instructive, these changes lend further support to our interpretation that Conditions D and E were not linked when the 2011 CUD and this extension were granted.

         ¶ 24. The 2010 VWR, which was in effect at the time the 2011 CUD issued, simply explains that:

[a]n individual wetland permit shall remain valid for one year from the date of issuance unless the Secretary specifies a longer period not to exceed five years. The Secretary may extend a permit for up to a total of ten years beyond the date of issuance of the original permit.

Vermont Wetland Rules § 9.1 (2010) [hereinafter 2010 VWR] https://dec.vermont.gov/sites/dec/files/documents/WSMD_VermontWetlandRules_2010_7_16.p df [https://perma.cc/YRJ2-ZTXK]. Under this version of the VWR, there are no qualifications limiting the Secretary's ability to extend the original permit for up to ten years beyond the original issuing date. In contrast, the more recent 2018 VWR provides an expanded version of this language:

The Secretary may extend a permit for up to a total of ten years beyond the date of issuance of the original permit if the permittee re-evaluates and re-delineates the wetland resources impacted by the authorized activity and the Secretary determines there will be no impact to Class I or Class II wetland or buffer beyond those impacts permitted under the original permit. If any additional wetland ...

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