City of Burlington v. VT Environmental Board

City of Burlington v. VT Environmental Board (95-369); 164 Vt 607; 669 A.2d 1184

[Filed 17-Oct-1995]


                                ENTRY ORDER

                 SUPREME COURT DOCKET NO. 95-369 & 95-370

                           SEPTEMBER TERM, 1995


City of Burlington             }     APPEALED FROM:
                               }
                               }
     v.                        }     Original Jurisdiction
                               }    
State of Vermont Environmental }
Board                          }     DOCKET NO. 4C0696-11-EB (R)    
                               }
                               }
Williston Citizens for         }
Responsible Growth             }
                               }    Original Jurisdiction
     v.                        }
                               }
State of Vermont Environmental }     DOCKET NO. 4C0696-11-EB (R)
Board                          }


       In the above-entitled causes, the Clerk will enter:

       Plaintiffs, Williston Citizens for Responsible Growth and City of
  Burlington, brought extraordinary relief petitions to obtain review of
  orders issued by the Vermont Environmental Board in the Act 250 permit
  proceedings of Taft Corners Associates to construct two buildings for use
  as retail and warehouse sales by Wal-Mart and Sam's Discount Price Club. 
  Plaintiffs participated as parties before the Board.  Neither plaintiff is,
  however, a party who may appeal to this Court from a judgment of the Board. 
  See 10 V.S.A. Sec. 6085(c) (listing parties who may appeal); In re Cabot
  Creamery Coop., 6 Vt. L.W. 188, 188 (July 14, 1995).

       We recently ruled that a party, not entitled to appeal, is also
  precluded from obtaining review in the nature of an appeal by filing a
  petition for extraordinary relief: "Petitioner may not challenge the merits
  of an Environmental Board decision by relying on the extraordinary relief
  provided by Rule 75.  In other words, petitioner may not do indirectly what
  he cannot do directly.  Such an end run circumvents the Legislature's
  intent."  Cabot Creamery, 6 Vt. L.W. 

 

  at 188.(FN1)  Relying on Cabot Creamery, the Board and Taft Corners
  Associates, the permit applicant, move to dismiss this action.
  
       Plaintiffs respond that an exception to Cabot Creamery exists to
  enforce a mandate of this Court that the Board has refused to follow. 
  Specifically, plaintiffs charge that the Board has violated the mandate
  issued by this Court in In re Taft Corners Assocs., 160 Vt. 583, 632 A.2d 649 (1993), a decision on an earlier appeal related to the permit in issue
  here.  

       The procedural posture of the case is complicated by the fact that
  applicant holds an "umbrella permit" to develop a 223-acre commercial and
  industrial park at Taft Corners in Williston.  Under the terms of the
  umbrella permit, the applicant must obtain a further permit when it
  proposes to develop a lot within the park to show compliance with Act 250
  criteria left open at the time of the umbrella permit and with specific
  umbrella permit conditions.  Applicant obtained an individual development
  permit from the district environmental commission for the Wal-Mart and
  Sam's Club stores, but that permit was overturned by the Environmental
  Board, which found that the individual proposal required a reopening of
  parts of the umbrella permit.  On appeal, we reversed the Board decision,
  concluding that the Board had exceeded its jurisdiction in reopening the
  umbrella permit and reaching issues not properly before it.  We issued a
  specific mandate detailing the questions over which the Board properly had
  jurisdiction on remand:

       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.

       Id. at 594, 632 A.2d  at 655.  Plaintiffs allege that rather than
  determining whether the development complies with conditions imposed to
  respond to criterion 5, the Board actually amended those permit conditions
  to allow the applicant to comply with criterion 5.  This, they argue, was a
  violation of our mandate.

 

       Without analyzing the precedents on which plaintiffs rely, we will
  assume that we have jurisdiction, at plaintiffs' behest, to enforce the
  specific provisions of our mandate.  We conclude, however, that such
  jurisdiction would not extend to this proceeding, which is no more than an
  appeal of the Board order.

       After this Court's decision, the Board held five days of hearings in
  February and March of 1994.  One of the dominant issues in the hearings was
  whether the applicant had complied with certain permit conditions requiring
  road improvements to comply with criterion 5 on traffic impacts.  To
  determine compliance, the Board first had to determine what the permit
  conditions were, a task made difficult because the critical condition
  incorporated by reference a stipulation and exhibits, which were subject to
  varying interpretations.  Specifically, the 1987 stipulation incorporates
  Exhibit B, which lists recommended major road improvements in four stages. 
  The stipulation further states that the "Town and the state will use their
  best efforts to accomplish the financing and construction of the needed
  improvements," and the applicant "agrees to cooperate with the Town in
  paying its fair share of the off site improvements."  Applicant argued that
  none of these improvements had to be made before permits were issued for
  individual lots because it had no responsibility to make the improvements. 
  Plaintiffs argued that all the improvements had to be in place before an
  individual permit could be issued, irrespective of who was responsible for
  making the improvements.

       The Board agreed with neither of the extreme positions.  It concluded
  that it had to evaluate the traffic conditions at the time of each
  individual development request and require such improvements shown on
  Exhibit B "to ensure that the traffic generated by the Park does not cause
  unsafe conditions or unreasonable congestion."  Applying this standard, the
  Board initially required extensive road improvements to Routes 2 and 2A,
  and improvements under the Interstate 89 bridge, to comply with the permit
  condition.  Both the applicant and the Town of Williston sought amendments
  to this order.

       The Board granted the motion of the Town.  The Town argued that the
  evidence supported the need for certain intersection improvements but did
  not support the need to widen roads between the intersections.  With one
  exception, the Board agreed and modified the list of required road
  improvements.

       The Board denied most of the applicant's motion, but did amend a
  finding of fact as requested by the applicant.  The original finding said
  that Exhibit B to the stipulation required a widening of Route 2A at
  Interstate 89 to provide two through lanes, plus a left turning lane, in
  each direction.  The amended finding reads Exhibit B to require only one
  through lane in each direction.

       Plaintiffs maintain that the umbrella permit condition requires full
  compliance with all of the road improvements in Exhibit B before any
  individual development permits may be issued.  Plaintiffs also claim that
  the road improvements required by the Board were selected with no evidence
  or findings to support them.

 

       The Board purported to determine what the umbrella permit conditions
  relating to traffic were and whether the individual development proposal
  complied with them.  It did not purport to amend the umbrella permit
  conditions.  Plaintiffs argue that, because the permit conditions are not
  what the Board found them to be, the Board must have amended them.  We find
  this to be a creative recasting of the issues to create jurisdiction.  As
  in Cabot Creamery, we find this to be an "end run" that circumvents the
  intent of the Legislature in limiting the parties that may appeal to this
  Court.

       The Board's interpretation of the umbrella permit conditions imposed
  to meet criterion 5 may or may not be correct.  Similarly, it may or may
  not be correct in its determination of what the applicant must do to meet
  these conditions.  Whether or not correct on the merits, the Board followed
  our mandate in resolving these issues.  Plaintiffs' petitions for
  extraordinary relief are nothing more than attempts to appeal how the Board
  resolved the issues.  Because the Legislature has expressly precluded
  appeal by plaintiffs, we must dismiss this attempt to circumvent the
  legislative limitation.

       Petitions for extraordinary relief dismissed.



                                BY THE COURT:



    
                                _______________________________________
                                Frederic W. Allen, Chief Justice


                                _______________________________________
                                Ernest W. Gibson III, Associate Justice

    
                                _______________________________________
                               ÚÄ¿ John A. Dooley, Associate Justice


                                _______________________________________
                                James L. Morse, Associate Justice

                            
                                _______________________________________
                                John P. Meaker, Superior Judge
                                Specially Assigned

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                                  Footnotes


FN1.  In Cabot Creamery, petitioner brought the extraordinary relief
  petition in superior court.  This case was brought here, without going
  first to superior court.  In view of our disposition, we do not decide
  whether this case should be dismissed for failure to exhaust the superior
  court remedy.  See V.R.A.P. 21(b) (complaint in original action for
  extraordinary relief in Supreme Court shall state why there is no adequate
  remedy by proceedings for extraordinary relief in superior court).