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In re Diverging Diamond Interchange SW Permit

Supreme Court of Vermont

August 30, 2019

In re Diverging Diamond Interchange SW Permit, Diverging Diamond Interchange A250 R.L. Vallee, Inc. and Timberlake Associates, LLP, Appellants

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

          Jon T. Anderson of Primmer Piper Eggleston & Cramer, and Alexander J. LaRosa of MSK Attorneys, Burlington, for Appellant R.L. Vallee, Inc.

          David L. Grayck of Law Office of David L. Grayck, Montpelier, for Appellant Timberlake Associates, LLP.

          Thomas J. Donovan, Jr., Attorney General, and Justin Kolber and Jenny E. Ronis, Assistant Attorneys General, Montpelier, for Appellees State of Vermont, Agency of Transportation, Agency of Natural Resources and Natural Resources Board.

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

          SKOGLUND, J.

         ¶ 1. Plaintiffs R.L. Vallee, Inc. (Vallee) and Timberlake Associates, LLP (Timberlake) appeal various aspects of three decisions that culminated in the environmental division granting the Vermont Agency of Transportation (VTrans) Act 250 and stormwater discharge permits for a highway project involving the reconfiguration of an interstate exit.[1] We conclude that the environmental division erred in dismissing Vallee's questions regarding Criterion 1 of Act 250; in all other respects, we reject Vallee's claims of error. Accordingly, we uphold issuance of the stormwater permit, reverse issuance of the Act 250 permit, and remand the matter for the environmental division to consider Vallee's questions concerning Criterion 1.

         ¶ 2. The subject project involves constructing a diverging diamond interchange[2] at Exit 16 of I-89 in Colchester and making related improvements to U.S. Route 2/7 in the immediate vicinity of Exit 16. The project is in the Sunnyside Brook watershed and requires an individual stormwater permit. VTrans initially filed a stormwater permit application with the Agency of Natural Resources (ANR) in February 2013 and then filed revised applications in October 2014 and January 2015. Further revisions to the application were made in March 2015, June 2015, and October 2015. In May 2016, ANR approved the stormwater permit application. Vallee appealed to the environmental division.

         ¶ 3. In November 2013, VTrans applied for an amended Act 250 permit based on its assumption that the project would involve only 9.82 acres of land, which would not trigger Act 250's ten-acre jurisdictional threshold for requiring a new permit. By April 2014, revisions to the project's footprint increased the affected acreage to just over ten acres, causing VTrans to revise its application to request a separate Act 250 permit for the project. In early June 2014, upon request by the District #4 Environmental Commission, VTrans provided a revised adjacent-landowners list. The Commission granted VTrans an Act 250 permit and permit amendments in November 2016. Both Vallee and Timberlake appealed to the environmental division for de novo review of the permit applications.

         ¶ 4. In a March 2017 decision concerning VTrans's Act 250 permit application, the environmental division denied Vallee party status as a landowner, see 10 V.S.A. § 6085(c)(1)(B), but granted Vallee party status as having a "particularized interest" under Act 250 that might be affected by a decision on the permit request, see id. § 6085(c)(1)(E). With regard to Act 250's Criterion 1, the court concluded that Vallee failed to show any potential impact to its groundwater but that its assertions were "sufficient to establish a reasonable possibility that Vallee's particularized interest in keeping its property free from pollution may be adversely affected by water pollution from the [Diverging Diamond Interchange] project." With regard to Act 250's Subcriterion 1(B), the court concluded that "Vallee has demonstrated a reasonable possibility that the . . . project was not designed in compliance with stormwater regulations, and that wastewater in the form of stormwater runoff may enter its property and affect its interest in keeping the property free from pollution."

         ¶ 5. Then, in three later decisions, the environmental division addressed both dockets, one concerning the stormwater discharge permit and the other concerning the Act 250 permit. In the first decision issued in October 2017, the court granted ANR's and VTrans's motions for summary judgment on thirteen of the sixteen amended questions Vallee raised with respect to the stormwater permit and denied ANR's and Vallee's cross-motions for summary judgment on three questions Vallee and Timberlake raised with respect to the Act 250 permit. Relevant to the instant appeal, the court determined that VTrans's stormwater application was administratively complete in October 2014 and therefore vested in the then-current laws and regulations, which at that time did not include chloride or phosphorus standards for waterways.

         ¶ 6. In the second decision issued in February 2018, the environmental division granted in part and denied in part ANR's and VTrans's motions to dismiss several of the Act 250 questions raised by Vallee and Timberlake. Relevant to this appeal, the court ruled that Vallee could not challenge chloride or phosphorus levels under Act 250's Criterion 1 concerning water pollution from stormwater runoff because water quality standards had not been adopted for those chemicals at the time VTrans submitted applications for Act 250 and stormwater permits.

         ¶ 7. In the third decision-the merits decision issued in June 2018 following a five-day evidentiary hearing involving the consolidated dockets-the environmental division granted VTrans's applications for Act 250 and stormwater permits. Relevant to this appeal, the court dismissed Vallee's party status with respect to Act 250's Subcriteria 1(B) and 1(E) for failure to demonstrate a particularized interest during the five-day trial[3]; nevertheless, the court addressed those criteria based on its treatment of Vallee as a friend of the court, see 10 V.S.A § 6085(c)(5), and the fact that Timberlake shared Vallee's position on the criteria. The court then went on to conclude that VTrans had satisfied both criteria. The court also ruled that Act 250's Criterion 5(A) and 5(B) did not apply to the subject project because VTrans's Act 250 application had already vested at the time those criteria were enacted.

         ¶ 8. On appeal to this Court, Vallee, joined by Timberlake, [4] argues that the environmental division erred: (1) in its February 2018 decision by dismissing Vallee's challenge to the Act 250 permit application under Criterion 1 based on its improper conflating of Criterions 1 and 1(B); (2) in its October 2017 decision by concluding as a matter of law that VTrans's stormwater application was complete in October 2014 and thus vested in regulations predating chloride and phosphorus standards; and (3) in its June 2018 decision by declining to address Act 250's Criterion 5(B) based on its determination that VTrans's Act 250 application vested before Criterion 5(B) was enacted. I. The Stormwater Discharge Permit

         ¶ 9. We first consider Vallee's argument, with respect to its challenge to the stormwater permit, that the environmental division erred in its October 2017 decision by granting VTrans summary judgment on Vallee's questions addressing chloride management. The environmental division ruled that VTrans's stormwater permit application was administratively complete and vested in then-current laws and regulations when VTrans submitted it on October 3, 2014. The significance of this ruling is that stormwater discharge permit applications are reviewed for compliance with the Vermont Water Quality Standards, which did not include any specific standards for chloride until October 30, 2014.

         ¶ 10. The environmental division made the following undisputed findings concerning VTrans's stormwater permit application. VTrans initially filed a stormwater permit application for the project on February 13, 2013. A couple of days later, ANR sent VTrans a letter stating that the application had been received and indicating that the letter did not serve as notice the application was complete. VTrans filed a revised application on October 3, 2014. That same day, an ANR employee informed other ANR personnel by email that the application had been received.[5]On October 16, 2014, the same ANR employee sent VTrans a letter stating that she had conducted her initial technical review of the application and that she was requesting additional information. The letter included requests to update application materials, provide additional information, and clarify parts of the application that were unclear.

         ¶ 11. On October 17, 2014, counsel for ANR sent an email to counsel for VTrans stating that an upcoming hearing on Act 250 Criterion 1(B) concerning waste disposal should be postponed because of the issues outlined in the October 16 letter. The email stated that ANR would ask VTrans to develop a chloride management plan. Counsel for VTrans agreed to postpone the Act 250 hearing. In a November 14, 2014 email, counsel for ANR told counsel for VTrans that providing the information sought in the October 16 letter "might not result in a final complete application because there may need to be further requests for information and revisions to the stormwater application after that."

         ¶ 12. On January 13, 2015, VTrans sent ANR a revised stormwater permit application that complied with the requests in ANR's October 16 letter. Among other things, the revised application listed landowners from whom land would be required for the project and included a chloride management plan as an appendix to the application. VTrans submitted further revisions to the application on March 4, June 15, and October 17 of 2015.

         ¶ 13. In February 2016, ANR provided public notice of a draft stormwater discharge permit for the project. On May 11, 2016, ANR approved the stormwater permit application and issued VTrans a permit.

         ¶ 14. On appeal to the environmental division, Vallee argued that VTrans's application did not vest until after October 30, 2014, when the new water quality standards that included chloride and phosphorus standards were in place. For their part, ANR and VTrans argued that the permit application vested when ANR deemed it administratively complete on October 6, 2014.

         ¶ 15. In addressing the parties' arguments, the environmental division first considered ANR's principles and practices concerning the review and vesting of stormwater applications. ANR reviews stormwater permit applications in two steps. First, it determines whether the application is administratively complete. When the application is considered administratively complete, ANR conducts a technical review of the application on its merits and decides whether it should be approved, denied, or modified. While acknowledging that ANR does not explicitly define administrative completeness, the court cited ANR's policies and guidelines in concluding that a stormwater permit application is administratively complete when it includes all components normally required in an application such that ANR can review the technical merits of the application.

         ¶ 16. The environmental division found that, in this case, VTrans included in its October 3, 2014 application all of the elements required to review the application, as indicated on the notice-of-intent form submitted by VTrans along with the application. The court further found that the ANR employee reviewing the application indicated in an email that same day that she was going to conduct an initial review at her earliest convenience to determine whether the application was administratively complete. The court also noted an affidavit from another ANR employee who averred that he had reviewed the permit application materials and deemed the application complete on October 6, 2014. Further, the court cited an October 16, 2014 letter from the reviewing ANR employee indicating that she had begun her technical review of the application, which, according to the court, demonstrated that she must have deemed the application administratively complete before that date.

         ¶ 17. Based on these findings, the environmental division concluded that VTrans's application for a stormwater permit vested in the laws and regulations in place at the time the administratively complete application was filed on October 3, 2014. The court based its conclusion on this Court's determination that a permit applicant's rights vest in the laws that exist at the time a proper permit application was filed. See Smith v. Winhall Planning Comm'n, 140 Vt. 178, 181-82, 436 A.2d 760, 761 (1981) (adopting minority rule that subdivision permit applications vest "under the then existing regulations as of the time when proper application is filed"); In re B & M Realty, LLC, 2016 VT 114, ¶ 22, 203 Vt. 438, 158 A.3d 754 (applying minority rule). The court also considered that the water-quality-standard regulations in place at the time VTrans filed its administratively complete stormwater application: (1) defined an application as "any request for a permit . . . filed with, and deemed complete by, the reviewing authority" and (2) stated that "the Water Quality Standards in effect at the time of the filing [of any application] shall apply." 2011 Vermont Water Quality Standards §§ 1-01A.2, 1-01B.4, Code of Vermont Rules 12 030 025; see In re Hannaford Bros. Co., No. WQ-01-01, slip op. at 9-11 (Vt. Water Res. Bd. June 29, 2001), DEC/Decisions/wrp/2001/wq-01-01-mod.pdf [] ("For purposes of determining the vested rights of a permit applicant, the Board understands a complete application as follows: the application is such that the applicant would ...

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