In re Quechee Lakes Corp.

NOTICE:  This opinion is subject to motions for reargument under V.R.A.P. 40
as well as formal revision before publication in the Vermont Reports.
Readers are requested to notify the Reporter of Decisions, Vermont Supreme
Court, 111 State Street, Montpelier, Vermont 05602 of any errors in order
that corrections may be made before this opinion goes to press.


                                No. 87-108


In re Quechee Lakes Corporation              Supreme Court

                                             On Appeal from
                                             Vermont Environmental Board

                                             May Term, 1989


Darby Bradley, Chairman

C. Daniel Hershenson and Claude T. Buttrey (On the Brief) of Hershenson,
  Carter, Scott and McGee, Norwich, for appellant Quechee Lakes Corp.

Darby, Laundon, Stearns & Thorndike, Waterbury, for appellant Ridge
  Condominiums, Inc.

Jeffrey L. Amestoy, Attorney General, and John H. Hansen, Assistant
  Attorney General, Montpelier, for appellee


PRESENT:  Allen, C.J., Gibson, Dooley and Morse, JJ., and Springer, D.J.
          (Ret.), Specially Assigned


     ALLEN, C.J.   Quechee Lakes Corporation appeals from an Environmental
Board decision requiring substantial modifications in its already-
constructed Ridge condominium project.  We affirm.
     In 1981, Quechee Lakes Corporation (Quechee) obtained an Act 250 land-
use permit to build a twenty-eight-unit condominium project on a high ridge
overlooking the Quechee valley.  During the course of construction, a number
of revisions to the architectural plans were made without additional permit
procedures.  The external changes included the addition of skylights, the
enlargement of sliding glass doors, the addition of clerestory and other
windows, a fourteen-foot increase in the depth of three of the six
buildings, the addition of four-foot overhangs and wrap-around decks, a
reduction of roof pitches, and the relocation of some buildings.
     Only after construction had been completed did Quechee file an
application for an amended land use permit, seeking to bring its original
permit into conformity with the project as built.  By this time, most of the
condominium units had been sold.
     The District Environmental Commission held hearings on the alterations
and approved them in many respects.  Certain of the changes were found to be
objectionable, however, and the Commission conditioned the amended permit on
four mitigating actions:  the removal of the skylights, the installation of
non-glare glass, the addition of tree plantings, and the installation of a
barrier on the access road. (FN1)
     Quechee appealed to the Environmental Board, objecting only to the
skylight removal condition and the Commission's denial of its motion for
reconsideration.  Ridge Condominiums, Inc. (RCI), an association composed of
the project's unit owners, was granted co-applicant status by the Board and
brought a cross-appeal, challenging all of the mitigation conditions imposed
by the Commission.  After a de novo hearing and two site visits, the Board
found that the condominium buildings are "one of the most visually prominent
features in the valley."  The Board found further that, taking the skylights
and additional glazing together, approximately two-thirds more glass was
visible than was approved under the original plans; that light from the
windows and skylights is visible from many points in the valley at night;
and that reflective glare from these sources results in a significant visual
impact even during cloudy days.  The Board also found that some of the other
construction changes increased the perceived mass of the project.
     In its conclusions of law, the Board stated that it was not possible to
judge the adverse impact of the changes "without first considering the
context within which they occur, which is the Ridge project itself."
Concluding that certain of the changes at issue contributed to the overall
negative visual impact of the project, the Board required the following
remedial steps:  the removal of skylights on the western roof slopes of
Buildings 1-5, the limitation of the total glass area or screening by means
of solid balcony railings, and the addition of plantings to break up the
mass of the buildings and to restore the screening effect required by the
original permit.
     Quechee appeals from the Board's decision, (FN2) raising the following
issues:  (1) whether the Board erred in conducting hearings without
requiring that the individual unit owners be made co-applicants; (2) whether
the Board's mitigation conditions are reasonable; (3) whether the Board
erred in basing its decision on observations made during site visits; (4)
whether the parties opposing the permit satisfied their burden of proof; (5)
whether the Board's decision is supported by substantial evidence; (6)
whether the hearing before the Board was fundamentally fair; and (7) whether
the landscaping condition of the permit violates principles of res judicata.
                                    I.
     With respect to Act 250 permit applications, the Environmental Board's
Rule 10(A) provides, in part:
            The record owner(s) of the tract(s) of involved land
         shall be the applicant(s) or co-applicant(s) unless good
         cause is shown to support waiver of this requirement.
         The application shall list the name or names of all
         persons who have a substantial property interest. . . .

Here, most of the condominium units had been purchased by third parties
prior to the filing of the permit amendment application.  Because the unit
owners own the common elements jointly, they were the record owners of the
involved land at the time the amendment application was filed.  Quechee
concedes that it lacks standing to assert due process claims on behalf of
the unit owners, but it argues that the Board's failure to require the unit
owners to be made co-applicants was a violation of its own regulations, that
the violation was jurisdictional and that the Board's decision is fatally
flawed.  It requests a remand to determine whether good cause can be shown
to exclude the record title owners as applicants or co-applicants.
     Rule 10(A) permits a waiver of the requirement that record owners of
involved land be made applicants or co-applicants for good cause shown.
The Board carefully considered the relationship between RCI and the unit
owners and made the following findings and conclusions:
     RCI requested party status as a co-applicant in the Ridge
     proceedings.  RCI is an association composed of the owners of
     units within the Ridge Condominiums.  RCI was formed in 1982 and,
     as of August 1, 1984 when QLC filed amendment application #
     3W0364-1A-EB, 25 of the 28 units within the project had been
     conveyed by QLC to third party members of RCI.  Ridge unit owners
     have designated RCI to represent their interests in the Board
     proceedings.  The issues presented in the Ridge appeal implicate
     the property interests of unit owners: conditions imposed by the
     Commission would require physical changes to condominium units.
     We conclude that RCI can represent the interests of Ridge unit
     owners (see Board Rule 14(D)) and those owners have a substantial
     property interest in the land involved in the Ridge project within
     the meaning of Board Rule 10(A).  We will, therefore, exercise the
     discretion afforded to the Board by the latter Rule and will admit
     RCI as a co-applicant to these proceedings. (FN3)

     The Board recognized that the owners had a substantial interest within
the meaning of the Rule and that the owners had designated RCI to represent
their interests in the Board proceedings.  The admission of RCI as a co-
applicant constituted a waiver by the Board, and it is unnecessary to remand
for a determination that has already been made.  Both practicality and
fairness applaud the Board's action, and we give particular weight to the
interpretation of a regulation by an administrative agency.  In re Hydro
Energies Corporation, 147 Vt. 570, 574, 522 A.2d 240, ___ (1987).
                                    II.
     A permit granted by the Board "may contain such requirements and con-
ditions as are allowable within the proper exercise of the police power and
which are appropriate with respect to [the Act 250 criteria] . . . ."  10
V.S.A. { 6086(c).  Quechee argues that the mitigating conditions imposed by
the Board here are unreasonable and contrary to public policy, specifically
contending that compliance with the conditions would require Quechee and RCI
to violate the by-laws of the condominium association, to commit criminal
trespass by entering the unit owners' premises, and to materially alter
buildings owned by non-parties. (FN4)  We disagree.
     The first condition of the original permit obtained by Quechee
mandated:
            The project shall be completed as set forth in . . .
         the plans and exhibits stamped "Approved" and on file
         with the District Environmental Commission, and in
         accordance with the conditions of this permit.  No
         changes shall be made in the project without the written
         approval of the District Environmental Commission.

Despite the unequivocal proscription, Quechee made substantial alterations
during construction without seeking the Commission's approval.  The Board
found that some of these unauthorized changes "either singly or when
considered together, have an undue adverse impact on the scenic, natural
beauty and aesthetics of the area and that there were no unanticipated
circumstances or other mitigating factors justifying the changes."
     Under 10 V.S.A. { 6090(c), the Board had the power to revoke the
original permit for Quechee's violation of the "no changes" condition.
Instead, because the Board was "persuaded that the impacts resulting from
the unauthorized changes can be substantially mitigated," it imposed the
conditions Quechee now challenges.  We hold that the conditions are
reasonable on these facts. (FN5)
                                   III.
     The Board made two site visits to the Quechee valley during the course
of the proceedings, and its findings of fact and conclusions of law were
based in part on observations made during these visits.6  Quechee maintains
that the Board erred in this respect, arguing that the Board's personal
observations are not evidence and that, in any event, the Board failed to
put the observations on the record.
     Whether administrative fact-finders may base their findings on site
visit observations is a question of first impression in Vermont.  This Court
has held that judicial findings can be grounded on knowledge acquired from
site visits, as long as such examinations are not the exclusive basis for
the findings.  Daigle v. Conley, 121 Vt. 305, 309, 155 A.2d 744, 747-48
(1959).  Other jurisdictions are split on this question.  Compare Key v.
McCabe, 54 Cal. 2d 736, 739, 356 P.2d 169, 171, 8 Cal. Rptr. 425, 427 (1960)
(en banc) (trier of fact's view of an area can provide substantial, indepen-
dent evidence supporting findings and conclusions) and Dooley v. Leo, 184
Conn. 583, 587, 440 A.2d 236, 238 (1981) (visual observation of property by
trier of fact is evidence that may be considered to the same extent as any
other evidence) with Gilbert v. City of Caldwell, 112 Idaho 386, 398, 732 P.2d 355, 367 (1987) (trial court's view of premises is not evidence).  A
similar split exists among jurisdictions where site visits by administrative
tribunals have been at issue.  Compare Mrowka v. Board of Zoning Appeals,
134 Conn. 149, 154, 55 A.2d 909, 912 (1947) (zoning board members entitled
to consider facts gleaned from site visit to the same extent as though they
had been offered into evidence) with Koplar v. State Tax Commission, 321 S.W.2d 686, 696 (Mo. 1959) (tax commission can take view of property to
enable it to understand the evidence, but view itself cannot constitute
evidence).
     We see no reason to depart from the rule stated in Daigle simply
because an administrative fact-finder is involved.  Administrative tribunals
can base their decisions on a broader, not narrower, range of evidence than
courts can.  See Petition of Central Vermont Public Service Corp., 141 Vt.
284, 292, 449 A.2d 904, 909 (1982).  We conclude that the Board's partial
reliance on knowledge garnered from the site visits was not erroneous.
     Quechee contends that the Board erred, nonetheless, by failing to enter
its observations into the record.  We agree that site visit observations on
which the fact-finder intends to rely must be placed on the record in order
to preserve the right of rebuttal and to facilitate review. (FN7)  Here, however,
this argument was waived because Quechee failed to raise it before the Board
in a post-decision motion made under Environmental Board Rule 31.8  Cf.
Lemery v. Caledonia Sand and Gravel Co., 117 N.H. 441, 449, 374 A.2d 929,
934 (1977) (where court viewed premises after the close of evidence,
defendant could have moved for reopening of the testimony "if it felt it had
any meaningful rebuttal").
                                    IV.
     Quechee next asks this Court to disregard the evidence produced through
its own witnesses and from the Board's site visits and instead to focus upon
the evidence actually introduced by the parties opposing the application.
Quechee argues that this latter evidence, taken alone, was insufficient to
establish that the project would have an adverse aesthetic impact.  Since 10
V.S.A. { 6088(b) places the burden of proof on the parties opposed to the
permit where aesthetic impact is at issue, Quechee contends that the Board
erred in concluding that the project would have such an impact. (FN9)
     This argument is founded upon fundamental misconceptions regarding the
significance of { 6088 and the burden of proof concept.  Act 250 establishes
ten criteria that a proposed development covered by the Act must meet before
a permit is granted.  See id. at { 6086(a).  Section 6088(a) provides that
the permit applicant has the burden of proving compliance with six of these
criteria.  Subsection (b) of the statute goes on to provide that "[t]he
burden shall be on any party opposing the applicant with respect to [the
remaining criteria]."  Among these other criteria is the one at issue here,
requiring a finding that the project "will not have an undue adverse effect
on . . . aesthetics . . . ."  Id. at { 6086(a)(8).
     In sum, { 6088 represents a legislative determination that the
applicant should prove compliance with certain of the criteria but that any
alleged burdens or impacts falling under the other criteria should be proved
by the opposing parties.  The statute imposes no limits, direct or indirect,
on the evidence the Board is allowed to consider in deciding whether a
particular issue has been proved.
     This conclusion follows because of the nature of the burden of proof
concept.  The fact that a party has the burden of proof does not mean that
he must necessarily shoulder it alone; it simply means that he, and not the
other party, bears the risk of non-persuasion.
         The burden of proof, i.e., the risk of non-persuasion,
         never shifts from the party on whom it is placed. . . .
         but it should be observed that the burden of proof is
         satisfied by the actual proof of facts which need to be
         proved, regardless of which party introduces the
         evidence.

Parish v. Milk Producers Ass'n, 261 Md. 618, 691-92, 277 A.2d 19, 53-54,
cert. denied, 404 U.S. 940 (1971) (emphasis in original).  The Board was at
liberty to consider all of the evidence, including that garnered during its
site visits, in determining whether the opposing parties had carried their
burden of proof.
                                    V.
     Quechee argues in the alternative that the evidence -- taken in its
entirety -- is insufficient to support the Board's findings and conclusions.
We disagree.
     Where the sufficiency of the evidence is questioned on appeal from a
decision of the Board, this Court employs a deferential standard of review.
See In re Gallagher, 150 Vt. 50, 52, 549 A.2d 637, 639 (1988).  The
legislature has mandated that "[t]he findings of the board with respect to
questions of fact, if supported by substantial evidence on the record as a
whole, shall be conclusive."  10 V.S.A. { 6089(c).  This Court has defined
"substantial evidence" to mean "'such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion.'"  Baxter v. Vermont
Parole Board, 145 Vt. 644, 647-48, 497 A.2d 362, 364 (1985) (quoting
Richardson v. Perales, 402 U.S. 389, 401 (1971)). (FN10)  After reviewing the
record as a whole, we conclude that the Board's findings and conclusions are
supported by substantial evidence.
     Quechee's initial argument on this point is based on the proposition
that it presented uncontradicted expert testimony to the effect that the
changes at issue had no adverse aesthetic impact.  But this assertion simply
highlights a conflict in the evidence, and, as this Court observed in a
seminal Act 250 case:
            Where a conflict in the evidence develops, its
         resolution falls within the Board's jurisdiction, for
         the Board is the proper trier of fact.  The trier of
         fact has the right to believe all of the testimony of
         any witness, or to believe it in part and disbelieve it
         in part, or to reject it altogether.  Thus, it is not
         for this Court to reweigh conflicting evidence, reassess
         the credibility or weight to be given certain testimony,
         or determine on its own whether the factual decision is
         mistaken.

In re Wildlife Wonderland, Inc., 133 Vt. 507, 511, 346 A.2d 645, 648 (1975).
Instead, our focus is upon the evidence supporting the Board's findings and
the question whether that evidence is adequate.
     Because Quechee does not challenge particular findings of fact and
because an exhaustive reproduction of the record here would be inappro-
priate, we will summarize our review of the evidence.  First, the record
includes both testimony and photographic evidence supporting the Board's
findings concerning the significant increase in the total window area and
the reflective glare caused by this increase in combination with the
addition of the skylights.  Second, there was evidence supporting the
Board's findings that the changes had increased the perceived mass of the
buildings as well as evidence that additional plantings would mitigate this
effect.  Finally, in addition to this evidence and the Board's own
observations at the site, there was testimony that the cumulative effect of
the unauthorized changes could increase the already adverse impact of the
project.  We hold that the record included sufficient evidence that
reasonable minds could accept as adequate support for the Board's findings
and conclusions.
                                    VI.
     In its next claim of error, Quechee maintains that the Board used the
permit amendment proceedings to reconsider the impact of the entire Ridge
project rather than ruling on the changes at issue.  Contending that the
parties were not notified specifically that this would be the scope of the
proceedings, Quechee argues that fundamental due process requirements were
violated.  Because we are not persuaded by Quechee's characterization of the
proceedings, we find no error.
     In support of its theory concerning the Board's focus, Quechee points
to the written conclusions of law, in which the Board stated:
            The question to be decided . . . is whether the
         changes [Quechee] made after the District Commission had
         issued the original land use permit for the Ridge
         project resulted in an "undue adverse effect."  Although
         the original permit is not now on appeal . . . it is not
         possible for the Board to judge these changes without
         first considering the context within which they occur,
         which is the Ridge project itself.

The Board went on to describe the magnitude of the adverse visual impact
that the project has in the Quechee valley and the sensitive nature of the
area itself, concluding that:
            If the Board were evaluating the Ridge project today,
         it would find that the project's impact on the scenic
         and natural beauty of the Quechee valley is "adverse."
         The Board members shared a strong negative reaction to
         the visual impact of the project which extended far
         beyond a matter of personal taste.

In addition to emphasizing these statements by the Board, Quechee highlights
findings of fact that address the project as a whole and dicta used by the
Board to express concern regarding the use of permit amendment procedures to
correct permit violations.
     To the extent that any of these gleanings from the Board's opinion
appear inappropriate, it is because they are taken out of context.  The
Board repeatedly displayed a commendable determination to adhere to the
question before it, i.e., the adverse aesthetic impact, if any, of the
unauthorized changes made by Quechee.  On several occasions prior to the
hearing, the Board stressed that the proceedings were limited to evaluating
the impacts of the project changes; in a January 3, 1986 memorandum, the
chairman wrote:  "I remind all parties that this appeal [to the Board] does
not involve review of the Ridge project as a de novo evaluation of the
original project application."  This admonition was reiterated throughout
the hearing.
     Moreover, immediately following the passages from the Board's opinion
quoted above, the Board stated:
            The question to be decided in this appeal is not
         whether the Ridge project itself should be denied an Act
         250 permit because it causes an "undue adverse effect,"
         but whether the changes constructed by [Quechee], when
         coupled with the original project, have such an effect.
         The position that [Quechee] and RCI urge upon this Board
         is that the impact of the changes is virtually indistin-
         guishable from the impact of the original project, and
         therefore should be approved. . . .  The fact remains
         that a 42-46% increase in glass area, plus the other
         changes made after the original permit was issued, do
         have a significant visual impact, especially when the
         project is located in a sensitive area.

(Emphasis in original.)  We also note that one Board member was sufficiently
disconcerted by the limited scope of the proceedings to file a dissenting
opinion, maintaining that the Board should have gone beyond the changes
themselves to consider the "different project" actually built.
     We conclude that the Board acted properly in considering the impact of
the unauthorized changes within the context of the entire project. (FN11)  Its
findings and conclusions relating to the project as a whole were necessary
to establish a baseline from which to measure the changes at issue.  The
Board's analysis under the statute was restricted to these changes, and the
mitigating conditions imposed under the order address only the changes and
not the project originally approved.  No error appears on this ground.
                                   VII.
     Quechee also presses a due process claim based on several alleged
evidentiary errors committed by the Board.  The claimed errors involve the
testimony of four witnesses:  three interested parties and a landscape
architect who submitted a landscaping plan aimed at mitigation of the
adverse effects created by the Ridge project.  Conceding that none of the
cited evidentiary rulings, standing alone, would constitute reversible
error, Quechee argues nonetheless that the cumulative effect of these
rulings was the denial of a fundamentally fair hearing.
     With respect to the testimony of the three interested parties, Quechee
asserts that it was irrelevant, prejudicial, and highly inflammatory and
that it should not have been admitted.  We observe, first, that the Board
repeatedly reminded these witnesses of the scope of the hearings, and, in
one instance, struck objectionable testimony from the record.  Moreover,
because Quechee points to no finding by the Board based on the challenged
evidence, it has failed to demonstrate the requisite prejudice.
     The landscape architect's testimony stands on a different footing,
however, because the Board referred to his landscaping plan in its order.
Quechee objects to the admission of this evidence because the architect
admitted that he had only a limited familiarity with the changes that were
the subject of the hearing and because the landscaping plan was addressed to
the entire project rather than to the changes alone.  Hence, Quechee argues,
the testimony was irrelevant and prejudicial.
     We observe that the architect's testimony and plans were primarily
concerned with two problems:  the reflective glare caused by the additional
glazing and the increase in the perceived mass of the project.  Both of
these needs for mitigation were created by the changes at issue.  Further,
even assuming that the plans otherwise addressed the entire project in some
way, we hold that the Board's consideration and reliance on the plans were
proper under the circumstances.  If the Board believed that an overall
landscape plan was the only means of mitigating the adverse impact of the
unauthorized changes, then this condition was appropriate under the
provisions of 10 V.S.A. { 6086(c) and the related testimony was therefore
relevant.
                                   VIII.
     Quechee's final claim of error is grounded on the doctrine of res
judicata.  On June 7, 1984, the Commission issued the first amended land use
permit involving the Ridge project.  This permit was necessary because, in
the Commission's words, "over-zealous cutting of existing vegetation" had
rendered compliance with the original permit impossible.  The amended permit
approved changes in the project's landscaping plans, and an untimely appeal
of the permit was dismissed.  Quechee maintains that this was a final
administrative determination as to the landscaping plans and, therefore,
that the additional landscaping requirements of the Board's order violate
the res judicata principle.
     "The concept of res judicata embraces two doctrines, claim preclusion
and issue preclusion (or collateral estoppel), that bar, respectively, a
subsequent action or the subsequent litigation of a particular issue because
of the adjudication of a prior action."  McClain v. Apodaca, 793 F.2d 1031,
1033 (9th Cir. 1986).  But res judicata applies only where a party seeks to
relitigate the identical issues already decided.  See Stowe Center, Inc. v.
Burlington Savings Bank, 141 Vt. 634, 637, 451 A.2d 1114, 1115 (1982).
     Here, because of the unauthorized changes in the construction of the
project, the landscaping issue was no longer identical to that decided by
the Commission in the first permit amendment proceedings, and res judicata
does not apply. (FN12)
     Affirmed.

                                        FOR THE COURT:




                                        Chief Justice


                       On Motion for Reargument

     Allen, C.J.  Quechee has moved for reargument pursuant to V.R.A.P. 40,
asserting that the Court's determination that the failure of the district
commission and the Board to require compliance with Board Rule 10(A) was
not jurisdictional was erroneous.  The opinion has been clarified, and that
part of the opinion that could be read as inconsistent with our holding in
In re Spencer, No. 87-158 (Vt. June 2, 1989) has been amended.  This change
does not affect the outcome of the case, and movant's other grounds for
seeking reargument are without merit.
     Motion to reargue is denied.



FN1.     The Commission was "frankly dismayed" to find that further changes
had been made to the project after the commencement of the amended permit
application proceedings, including the addition of the access road.

FN2.     RCI also appeals from the decision, joining in Quechee's brief on
all but the first issue.

FN3.     In a footnote the Board acknowledged that RCI was not a party before
the district commission, explaining that the applicants had not identified
"all persons with a substantial property interest" as required under Rule
10(A) and because RCI had not sought party status.  But even if RCI was not
a party before the district commission, it sought and obtained party status
before the Board on appeal and did so as the representative of the unit
owners -- a fact supported on the record and found specifically by the
Board.
     If RCI as the representative of the unit owners believed that its
omission before the district commission had rendered those proceedings a
nullity, it was bound to raise that point before the Board and did not do
so.  Rather, it sought, and obtained, full participation before the Board
and was content to receive party status then.  Quechee may not complain
about RCI's decision now.

FN4.   In support of its proposition that permit conditions must be reason-
able, Quechee cites 10 V.S.A. { 6087(b), which provides:  "A permit may not
be denied solely for the reasons set forth in subdivisions (5), (6) and (7)
of section 6086(a) of this title.  However, reasonable conditions and re-
quirements allowable in section 6086(c) of this title may be attached to
alleviate the burdens created."  Because we are dealing here with subdivi-
sion (8) of { 6086(a) (undue adverse effect on . . . aesthetics), { 6086(b)
is not applicable.  We interpret the appropriate" qualification of {
6086(c), however, to mean that any permit condition that the Board imposes
must be reasonable.

FN5.     With respect to Quechee's "criminal trespass" contention and related
arguments, we note that the unit owners, as successors in interest, are also
bound by the conditions of the permit.

FN6.     Specifically, Quechee challenges the Board's findings that light
emitted from the windows and skylights of the project at night is "visible
from many points throughout the valley" and that the changes at issue "are
clearly perceptible."  Contending that no evidence on the record would
support these findings, Quechee urges that they must have been based on the
Board's personal observations.

FN7.     Vermont's Administrative Procedure Act provides that "[t]he record
in a contested case shall include . . . all evidence received or considered;
. . ."  3 V.S.A. { 809(e)(2).

FN8.     Rule 31(A) states, in pertinent part:  "Motions to alter decisions.
A party may file within fifteen days from the date of the decision such
motions as are appropriate with respect to the decision."  This rule
provides a party with an opportunity to object, and 10 V.S.A. { 6089(c)
requires that an objection be raised before the Board to preserve a claim of
error for appeal.

FN9.     Although the State argues persuasively that { 6088(b) does not apply
to post hoc permit amendment applications and that the burden of proof
should be on Quechee, our disposition of the claim of error makes an answer
to this question unnecessary.

FN10.      This standard of review should be distinguished from the "clearly
erroneous" standard applied where this Court reviews judicial findings of
fact.  See generally C.H. Koch, Administrative Law and Practice { 9.5 at 93-
96 (West 1985) (contrasting the two standards).  Under the classic
formulation, a finding is "'clearly erroneous' when although there is
evidence to support it, the reviewing court on the entire evidence is left
with the definite and firm conviction that a mistake has been committed."
United States v. Gypsum Co., 333 U.S. 364, 395 (1948) (emphasis added).

FN11.      It should be noted that two of Quechee's expert witnesses insisted
on testifying regarding the changes in the context of the rest of the
project.

FN12.      If Quechee's theory of res judicata were correct, then the doctrine
might well have barred its first application for an amended permit, relating
to changes in the landscaping, as well as the application that is the
subject of this appeal.