In re Champlain Parkway Wetland Conditional United Statese Determination (Fortieth Burlington, LLC

• Decision Date: 09 November 2018
• Docket Number: No. 2017-413,2017-413
• Citation: 2018 VT 123
• Court: Vermont Supreme Court
• Parties: In re Champlain Parkway Wetland Conditional Use Determination (Fortieth Burlington, LLC)

2018 VT 123

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

No. 2017-413

Supreme Court of Vermont

April Term, 2018

November 9, 2018

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 by email at: JUD.Reporter@vermont.gov or by mail at: 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.

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.

¶ 1. EATON, J. 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; andargues 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 itscompliance 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 aqualified 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 andconducting a 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 ...