In re Taft Corners Associates

IN_RE_TAFT_CORNERS_ASSOCIATES.92-215; 160 Vt. 583; 632 A.2d 649


 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, 109 State Street, Montpelier, Vermont 05609-0801 of any errors in
 order that corrections may be made before this opinion goes to press.


                                 No. 92-215


 In re Taft Corners Associates, Inc.          Supreme Court

                                              On Appeal from
                                              Environmental Board

                                              December Term, 1992


 Elizabeth Courtney, Chair

 Robert B. Hemley and Stewart H. McConaughy of Gravel and Shea, Burlington,
    for appellant

 Jeffrey L. Amestoy, Attorney General, and J. Wallace Malley, Jr., Assistant
    Attorney General, Montpelier, for appellee Agency of Natural Resources

 Francis X. Murray and Susan Gilfillan of McNeil & Murray, Burlington, for
    appellee City of Burlington

 Gerald R. Tarrant of Tarrant and Marks, Montpelier, for appellee Williston
    Citizens for Responsible Growth

 John T. Sartore of Paul, Frank & Collins, Inc., Burlington, and Stephen S.
    Ostrach, New England Legal Foundation, Boston, Massachusetts, for amici
    curiae Greater Burlington Industrial Corporation, Franklin County
    Industrial Development Corporation, Rutland Industrial Development
    Corporation, Bank of Vermont, Chittenden Bank, Franklin Lamoille Bank,
    Howard Bank, Merchants Bank, Vermont Federal Bank, and Vermont National
    Bank.


 PRESENT:  Gibson, Dooley, Morse and Johnson, JJ., and Martin, Supr. J.,
           Specially Assigned


      GIBSON,J.   Appellant Taft Corners Associates, Inc. (TCA) appeals from
 a decision of the Environmental Board, claiming that the Board exceeded the
 scope of its authority by deciding issues that were not raised before the
 district commission.  We hold that the Board had no jurisdiction to decide
 issues that were not before the commission and reverse.
      In October 1986, TCA filed an application for a permit to develop a
 223-acre commercial and industrial park at Taft Corners in Williston.  On
 July 31, 1987, the district commission issued findings of fact and
 conclusions of law under Act 250, 10 V.S.A. {{ 6001-6092, and granted a
 permit (1987 permit) authorizing Phase I of the development.  The 1987
 permit allowed TCA to construct 4,400 feet of roads and utilities and to
 subdivide 10 to 14 lots of a planned 37-lot commercial and industrial
 subdivision.  The commission approved Phase I provided that TCA complied
 with thirty-six conditions contained in the permit.  Condition 5 allowed a
 maximum of 999 parking spaces and 145 peak-hour vehicle trips.  Condition 6
 provided:
         Prior to the commencement of construction on any lot
         within this subdivision the Permittee, Taft Corners
         Associates, and any purchaser or tenant of any lot shall
         file an amendment application under criteria 1(Air),
         1(E), 1(B), 4, 7(fire services), 8 and 9(F).  This
         amendment application shall be accompanied by evidence
         of conformance to the Findings under criteria 1(B), 2
         and 3, 5 and 9(J) and shall file a cumulative impact
         statement.
 Thus, the 1987 permit, known as an "umbrella permit" because it established
 conditions for the development as a whole, required TCA to obtain commission
 approval prior to construction on any lot in order to ensure that the
 conditions of the permit were fulfilled.
      In January 1988, TCA filed a second application, requesting
 reconsideration of some conditions of the 1987 permit and approval for Phase
 II of the park.  On April 27, 1988, the commission issued an amended
 umbrella permit (1988 permit) approving subdivision of the remaining lots
 and incorporating all conditions previously established, including the 1987
 permit condition 6 that TCA obtain commission approval before construction
 on any lot.  The 1988 permit amended condition 5, allowing 4,900 parking
 spaces (if there were no objections to the air quality permit, when filed)
 and 2,825 peak-hour vehicle trips.
      In May 1991, TCA filed an amendment application seeking approval to
 construct a 114,513-square-foot Wal-Mart retail store and a 132,500-square-
 foot Sam's Discount Price Club for warehouse sales.  Williston Citizens for
 Responsible Growth (WCRG) petitioned for party status on criteria 5
 (traffic), 8 (aesthetics), and 10 (conformance with local and regional
 plans).  The petition was accompanied by a motion to apply criterion 10,
 alleging that TCA's application constituted a significant change to the
 character of the development approved by the umbrella permit and did not
 comply with the revised town plan adopted after the permit was issued.
      The district commission granted WCRG party status on criterion 8
 (aesthetics), one of the criteria left open for consideration under
 amendment applications.  The commission determined, however, that WCRG would
 not materially assist the commission in determining whether the application
 was in conformance with criterion 5.  Further, it concluded that the
 application proposed no "material change" in the project; thus, there were
 no grounds to reconsider criterion 10 beyond compliance with the umbrella
 permit.  Accordingly, it denied WCRG's request for party status on criteria
 5 and 10.
      On November 15, 1991, the district commission issued findings of fact
 and conclusions of law on the amendment application under all criteria set
 forth in condition 6 of the 1987 permit, and granted a permit (1991 permit)
 to construct Wal-Mart/Sam's subject to thirty-four conditions.  WCRG ap-
 pealed the decision to the Environmental Board and requested a de novo
 hearing on all ten Act 250 criteria.  The City of Burlington moved for
 party status on several criteria.
      Prior to an evidentiary hearing, the Board requested briefs on
 preliminary issues related to the scope of review.  On March 31, 1992, the
 Board ruled that its Umbrella Permit Policy required specific identification
 of the type and character of activities proposed "so that the potential
 impacts can be meaningfully reviewed," and that final approval under the
 Umbrella Permit Policy may be granted only on those aspects of a proposed
 project for which the impacts may be evaluated, such as natural resources at
 the site.  Thus, the Board concluded that potential offsite impacts and
 impacts from individual uses cannot be addressed until the specific use of
 each tenant is identified.  It determined that TCA's umbrella permit
 applications had not provided the specificity required by simply identifying
 a proposed project as "retail" or "major retail."
      The Board also ruled that the district commission had not properly
 reviewed the earlier applications under several criteria and that each of
 those criteria must be reconsidered.  The Board disagreed with TCA's
 argument that only those criteria listed in condition 6 of the 1987 permit
 were still open for review, maintaining that it had authority to "reopen[]
 parts of an umbrella permit in certain circumstances."  Further, the Board
 ruled that the amendment application constituted a substantial change to the
 development approved in the umbrella permit "because many of the potential
 impacts from this project were never considered."  Consequently, the Board
 remanded the amendment application to the district commission to review
 under the criteria it had identified as inadequately reviewed during the
 umbrella permit application process.
      TCA appeals from this decision, claiming that the Board exceeded its
 authority by addressing issues that were not raised before the district
 commission.  It also argues that the Board (1) violated the doctrine of res
 judicata by overturning the umbrella permit, (2) offended due process by
 failing to provide notice that the permit was in jeopardy, and (3)
 disregarded rulemaking requirements by announcing that umbrella permits may
 not grant final approval on several criteria.  Appellee Agency of Natural
 Resources (ANR) maintains that the Board's authority is not limited to
 issues raised before the district commission and that the other issues TCA
 raises are not properly before this Court because they were not brought
 before the Board.  Further, it argues that the Board's determination that
 the amendment application proposed a substantial change to the umbrella
 permit was supported by substantial evidence, and that remanding to the
 district commission for review of the additional criteria was proper.
 Amici on both sides raise additional issues.
                                     I.
      We first address this Court's authority to consider this appeal prior
 to an administrative decision on the merits.  WCRG and the City of
 Burlington argue that the Court has no jurisdiction to consider the appeal
 because the order from which TCA appeals is not a final order.  We agree
 that TCA has not exhausted all administrative remedies as the Board's order
 remanded the case to the district commission for consideration of various
 criteria.  See In re Pelham North, Inc., 154 Vt. 651, 652, 578 A.2d 124, 124
 (1990) (memo.) (Board's order remanding to district commission for further
 proceedings is not a final order).
      Ordinarily, we decline to review a decision that is not a final
 disposition of the matter.  Id.  Nevertheless, where an agency has clearly
 exceeded its jurisdiction in an intermediate ruling, interlocutory review is
 appropriate.  See id. at 652, 578 A.2d  at 125.  The Court has previously
 considered interlocutory appeals that challenge the extent of the authority
 of an administrative board.  See, e.g., In re Green Mountain Power Corp.,
 133 Vt. 107, 109, 329 A.2d 372, 373 (1974); In re New England Tel. & Tel.
 Co., 131 Vt. 310, 314, 305 A.2d 598, 600 (1973).   Because we conclude that
 the Board has clearly exceeded the scope of its authority, its intermediate
 ruling is properly before us.  We limit our review, however, to those issues
 concerning the scope of the Board's authority.
      We also note that appeals from decisions of the Environmental Board
 are brought pursuant to 10 V.S.A. { 6089(a) and 3 V.S.A. { 815(a).  Under {
 815(a), an intermediate ruling, such as this, is appealable only if review
 of the final decision would not provide an adequate remedy.  "It must at
 least be shown that appeal of the ultimate order will not provide an
 adequate remedy or that the nature of the claimed defect in the order is
 such that the harm is greatly aggravated by delay."  In re Central Vermont
 Public Service Corp., 142 Vt. 138, 140, 453 A.2d 1108, 1109 (1982).
      TCA maintains that the delay and expense associated with a remand to
 the district commission would effectively require it to abandon the Wal-
 Mart/Sam's project altogether after considerable expenditures over the past
 five years in reliance on the umbrella permit.  We conclude that, where a
 decision clearly exceeds the jurisdiction of the Board and requires the
 applicant virtually to commence the application process again, the delay and
 expense involved justify our consideration of the interlocutory decision.
      Amici WCRG and the City of Burlington contend that TCA must fulfill
 the requirements of V.R.A.P. 5 (interlocutory appeals) or V.R.A.P. 5.1
 (appeals of collateral final orders), and that under either rule the appeal
 must be dismissed as untimely filed.  We disagree.  Appeals from
 administrative boards to this Court are brought pursuant to V.R.A.P. 13.
 The Reporter's Notes to this rule provide that "by virtue of 3 V.S.A. {
 815(a), appeals of interlocutory rulings of administrative agencies should
 be treated as appeals from final decisions."  Thus, we treat this appeal as
 an appeal from a final decision under V.R.A.P. 4, and conclude that the
 notice of appeal was timely.
      ANR argues that TCA failed to raise the jurisdictional issues before
 the Board, and therefore, this Court lacks authority to consider these
 issues on appeal.  See 10 V.S.A. { 6089(c); In re Denio, ___ Vt. ___, ___,
 608 A.2d 1166, 1168-69 (1992).  Review of the Environmental Board record
 reveals that all of the issues regarding the scope of the Board's authority
 were raised before the Board and are thus properly before us.  Because we do
 not reach the other issues raised before this Court, we need not consider
 whether failure to raise them below precludes our review on appeal.
                                     II.
      TCA contends that the Environmental Board did not have jurisdiction to
 decide issues that were not contested before the district commission.  Thus,
 the only issues properly before the Board, according to TCA, were those
 raised by WCRG regarding criteria 5, 8, and 10.  ANR maintains that, because
 the Board found that the amendment application involved a substantial change
 to the development as previously approved, it could remand the application
 to the commission for consideration under any of the Act 250 criteria.  We
 do not agree with either position but, rather, conclude that the scope of
 the Board's review lies between these two positions.
      In reviewing decisions of the Environmental Board, we afford great
 deference to the Board's interpretation of Act 250, even in appeals raising
 jurisdictional issues.  In re Denio, ___ Vt. at ___, 608 A.2d  at 1169.
 Thus, "absent a compelling indication of error," we will uphold the Board's
 decision regarding the scope of its authority.  In re Killington, 3 Vt. L.W.
 251, 252 (1993).  Nevertheless, as an administrative body, the Board has
 only the adjudicatory authority conferred on it by statute,  In re Boocock,
 150 Vt. 422, 424, 553 A.2d 572, 574 (1988), and the courts may intervene
 where it exceeds the bounds of its enabling legislation.  The statutory
 authority for appeals from a district commission to the Board is set forth
 in 10 V.S.A. { 6089(a), which provides that "[t]he Board shall hold a de
 novo hearing on all findings requested by any party."
      The scope of a de novo hearing is thus limited to those issues raised
 in the notice of appeal.  See, e.g., In re Killington, Ltd., 3 Vt. L.W. at
 253; In re Green Peak Estates, 154 Vt. 363, 372, 577 A.2d 676, 681 (1990).
 Once an Act 250 criterion is noticed for appeal, however, issues generally
 within the scope of the criterion are properly before the Board.  In re
 Killington, 3 Vt. L.W. at 253 (allowing new evidence to be presented
 concerning criterion 8(f) which was before the Board).  In its original and
 amended notices of appeal, WCRG requested a de novo hearing on all ten Act
 250 criteria.
      The Board's jurisdiction is limited, however, by the scope of the
 proceedings below.  It has no jurisdiction to decide issues regarding
 criteria that were not before the district commission and not ruled upon by
 it.  In re Vermont Gas Systems, 150 Vt. 34, 40, 549 A.2d 627, 630 (1988).
 The district commission ruled on the criteria specified in condition 6 of
 the 1987 permit: 1 (air), 1(B) (waste disposal), 1(E) (streams), 4 (soil
 erosion), 7 (fire services), 8 (aesthetics) and 9(F) (energy conservation),
 as well as criteria 1(B), 2, 5 and 9(J) to determine compliance with the
 sewer, water, traffic and energy conditions of the umbrella permit.
 Ultimately, it decided there had been no showing of a significant impact on
 criterion 10 and thus no showing of a substantial change to the development
 as previously approved.  As these were the issues before the commission,
 these are the issues that could properly be raised before the Board.
      ANR argues that the Board has discretion to raise issues that were not
 brought before the commission, based on Environmental Board Rule (EBR)
 40(D), which provides:  "The scope of the appeal hearing shall be limited to
 those reasons assigned by the appellant why the commission was in error
 unless substantial inequity or injustice would result from such limitation."
 We do not decide whether this rule violates the more restricted mandate of
 10 V.S.A. { 6089 because, in the instant case, the Board did not proceed
 under the rule.  EBR 40(D) is not cited in its decision, nor is there any
 finding that substantial inequity or injustice would result from limiting
 review to those issues that were before the commission and raised in the
 notice of appeal.
      ANR also argues that the Board could properly remand the application to
 the commission for consideration of additional criteria because the Board
 determined that the Wal-Mart/Sam's project involved a substantial change to
 the development as approved in the umbrella permit.  EBR 34(B) provides
 that "[i]f a proposed amendment involves substantial changes to a permitted
 project or permit, it shall be considered as a new application."  In such
 circumstances, review under all ten criteria would be required before the
 commission in the first instance.  See 10 V.S.A. { 6086(a) (before granting
 a permit, the district commission or Board shall find that the development
 satisfies all ten Act 250 criteria).  A "substantial change" is defined as
 "any change in a development or subdivision which may result in significant
 impact with respect to any of the [ten] criteria."  EBR 2(G); In re Orzel,
 145 Vt. 355, 360-61, 491 A.2d 1013, 1016 (1985) (approving this definition).
      In the proceedings before the commission, WCRG sought party status on
 criterion 10 on the ground that the amendment application represented a
 "significant change" to the development as approved because it did not
 conform to the new town plan.  The commission ruled against WCRG and never
 considered whether the Wal-Mart/Sam's project involved a significant impact
 on any other criteria.  Thus, before the Board, the question of substantial
 change was limited to consideration of the project's impact on criterion 10.
 Only if the Board found that the project may result in a significant impact
 on criterion 10 could it remand the application to the commission to
 consider as a new application.  The Board made no such finding.  Thus, the
 conclusion that the amendment involves a significant change to the
 development is not supported, and a remand for the commission to consider it
 as a new application was not proper.
      WCRG also argued before the commission that the proposed project
 represented a "material change" to the development due to its size and
 market characteristics, as well as the reconfiguration of three lots into
 two lots.  The commission ruled that, although reconfiguration of lot lines
 may flag a material change, it must have a significant impact on one or more
 of the ten criteria to trigger review; the commission concluded there had
 been no such showing here.  On appeal before the Board, WCRG maintained that
 the lot reconfiguration had the potential to make significant impacts and
 thus constituted a substantial change, requiring review of the application
 under all ten criteria.  We agree with the commission.  A reconfiguration of
 the lots, by itself, is insufficient to establish a material or substantial
 change.  The reconfiguration must have significant impact on one of the ten
 criteria.  Because WCRG raised the issue of substantial change only under
 criterion 10 before the commission, the Board is restricted to reviewing the
 application for substantial change under this criterion.
      The arguments for upholding the remand would require rewriting the
 Board's decision.  The order to remand the amendment application to the
 commission was not based on EBR 40(D) or a finding of a significant change
 but rather on the conclusions that umbrella permits can be "reopened" and
 that "many of the potential impacts from this project were never
 considered."  We find no authority that allows the Board to "reopen" an
 umbrella permit.  An umbrella permit is a final decision unless appealed
 within thirty days of issuance.  See 10 V.S.A. { 6089(a).  Because neither
 the 1987 umbrella permit nor the 1988 amendment was appealed to the Board,
 the findings, conclusions and permits are final and are not subject to
 attack in a subsequent application proceeding, whether or not they were
 properly granted in the first instance.  "To hold otherwise would severely
 undermine the orderly governance of development and would upset reasonable
 reliance on the process."  Levy v. Town of St. Albans Zoning Bd. of
 Adjustment, 152 Vt. 139, 143, 564 A.2d 1361, 1364 (1989).
                                    III.
      We address one final issue in the interest of judicial economy.  In
 determining whether the project constituted a substantial change under
 criterion 10, the commission concluded there had been no showing that Wal-
 Mart/Sam's did not comply with the town plan "in effect at the time of the
 original permit."  The Board ruled, however, that the project must be
 reviewed for compliance with the town and regional plans "in effect on the
 date that applications for approval of specific, identified uses are filed."
 TCA argues that, on remand, the Board must decide on the basis of the 1987
 Williston Town Plan whether the amendment application may have a significant
 impact on criterion 10.  We agree.
      Criterion 10 was closed and TCA's rights vested in the 1987 plan when
 the period for appealing the umbrella permit expired.  Thus, the Board must
 determine de novo whether the amendment application complies with town and
 regional plans in effect in 1987.  Cf. In re Ross, 151 Vt. 54, 57-58, 557 A.2d 490, 492 (1989) (no rights vested in town plan in effect at time of
 application where application was denied on merits and denial was affirmed
 before Board; new application must comply with new plan).  If the Board
 finds that the application is not in compliance with these plans, and that
 it constitutes a substantial change to the development approved in the
 umbrella permit, then it may remand the application to the district
 commission to consider as a new application, which would be subject to town
 and regional plans in effect at the time it was filed.
      Reversed and remanded to the Board for a de novo hearing on the issues
 that were before the district commission and raised in the notice of
 appeal, namely:
      [1] whether the amendment application satisfies criteria 1(air), 1(B),
 1(E), 7(fire services), 8, and 9(F);
      [2] whether the development complies with the conditions of the
 umbrella permit on criteria 1(B), 2, 5, and 9(J); and
      [3] whether the amendment application proposes a significant impact on
 criterion 10.

                                    FOR THE COURT:



                                    _______________________________
                                    Associate Justice