In re Champlain Parkway Act 250 Permit, 14–352.

• Decision Date: 21 August 2015
• Docket Number: No. 14–352.,14–352.
• Citation: 129 A.3d 670
• Parties: In re CHAMPLAIN PARKWAY ACT 250 PERMIT (Fortieth Burlington, LLC, Appellant).
• Court: Vermont Supreme Court

129 A.3d 670

In re CHAMPLAIN PARKWAY ACT 250 PERMIT (Fortieth Burlington, LLC, Appellant).

No. 14–352.

Supreme Court of Vermont.

Aug. 21, 2015.

Christina A. Jensen of Lisman Leckering, P.C., Burlington, for Appellant.

Brian S. Dunkiel, Geoffrey H. Hand, Elizabeth H. Catlin and Victoria M. Westgate of Dunkiel Saunders Elliott Raubvogel & Hand, PLLC, Burlington, for Appellee City of Burlington.

Present: REIBER, C.J., DOOLEY, SKOGLUND, ROBINSON and EATON, JJ.

SKOGLUND J.

¶ 1. The City of Burlington and the Vermont Agency of Transportation (AOT) applied for an Act 250 permit amendment to complete a project known as the Champlain Parkway, a roadway designed to route traffic more efficiently from Interstate 89 in South Burlington to the City of Burlington's downtown area. The environmental court concluded that the application complied with Act 250's transportation criterion (Criterion 5) subject to conditions requiring that applicants monitor and report on the project's traffic-congestion and safety impacts, and work with the opposing party in this proceeding, Fortieth Burlington, LLC, to resolve any remaining issues. Fortieth has appealed, asserting that: (1) the conditions imposed by the court were not supported by the evidence and findings, exceeded the court's authority, and were insufficient to mitigate the project's adverse impacts; (2) the court misapplied the burdens of production and proof; and (3) the court erred in rejecting Fortieth's proposed conditions. We affirm.

¶ 2. The facts may be summarized as follows. The Champlain Parkway is a substantially modified version of the original Southern Connector project, a proposed four-lane highway running from Interstate 89 in South Burlington to downtown Burlington that received initial Act 250 approval in 1981. Although the first and southernmost phase of the project was constructed in the late 1980s, the discovery of hazardous material along the project route and subsequent remediation efforts halted further progress. The project subsequently evolved to its current form as the Champlain Parkway, with a roadway reduced to two lanes, a new route bypassing the contaminated area, and additional bicycle and pedestrian accommodations.

¶ 3. Applicants sought an Act 250 permit amendment for the redesigned project, which was divided into three segments for planning and construction purposes; the first, running from Interstate–189 to Home Avenue, had been previously approved and constructed; the second, running from Home Avenue north to Lakeside Avenue, was previously approved but never constructed; and the third, running from Lakeside Avenue east to Pine Street then north to terminate at Main Street, had not been previously reviewed or approved. In April 2012, the District No. 4 Environmental Commission issued an order finding that the project complied with all but two Act 250 criteria, Criteria 1(B) and 4 relating to wastewater and erosion control, which required approved stormwater permits.

¶ 4. Several parties appealed the ruling to the environmental court, although only one—Fortieth Burlington, LLC—remained by the time of the hearing. The questions on appeal related exclusively to the whether the project would "cause unreasonable congestion or unsafe conditions with respect to use of highways ... and other means of transportation existing or proposed" under Criterion 5 of Act 250. 10 V.S.A. § 6086(a)(5)(A).

¶ 5. Fortieth owns property on the north side of Lakeside Avenue, just west of the intersection with the planned Parkway. Its neighbor to the east on Lakeside is a property owned by the Burlington Department of Public Works (DPW). Fortieth's property contains a large commercial building with a number of tenants, including the Veterans Administration, a pediatric practice group, the University of Vermont, and others. The property also contains a parking lot with approximately 720 spaces located to the rear and west side of the building. Access to the lot is via two driveways, one on the east side of the building, about 150 feet west of the Parkway intersection, and another on the west side of the building. The eastern driveway is approximately twenty-four feet wide, twelve to enter and twelve to exit, and provides the primary access to the main parking area to the rear of the building. A third potential access point is via a road at the north end of the lot running east to Pine Street through land owned by the Burlington Electric Department. Access by way of this road has been blocked by the City, and it is not currently in use.

¶ 6. As it approaches Lakeside Avenue from the south, the planned Parkway will have a traffic signal and a left-turn/through lane for traffic turning left onto Lakeside Avenue or going straight into the DPW access drive, as well as a right-turn lane for traffic travelling east on Lakeside Avenue to Pine Street, where another traffic signal and left-turn lane will allow traffic to continue northbound on the Parkway toward downtown Burlington. The traffic signal at the intersection of the Parkway and Lakeside Avenue will include five separate dedicated phases for traffic from each of the following approaches: the Parkway; eastbound Lakeside Avenue; westbound Lakeside Avenue; DPW's driveway; and Fortieth's eastern driveway.

¶ 7. The court held a two-day evidentiary hearing in February 2014, and issued a written decision on the merits, containing extensive findings and conclusions, in July 2014. Applicants relied substantially on a detailed report and testimony by an experienced transportation expert analyzing the predicted traffic and safety impacts of the Parkway. His report stated, and the court found, that overall the Parkway "is not a traffic generating project" but rather will "reassign[ ] traffic from the existing street network" and thereby "generally decrease" congestion in the area. Traffic on Lakeside Avenue from the Parkway intersection to Pine Street, however, was expected to increase. In particular, the traffic expert projected that the Level of Service (LOS)—a standard measure of delays per vehicle at intersections—at Fortieth's eastern driveway for both the morning and afternoon "peak hours" would increase as a result of the Parkway project from "LOS A" (little or no delay) to "LOS E" (very long delays) in the morning and "LOS F" (extreme delays) in the afternoon, based on a traffic-light cycle of 120 seconds in the morning and 150 seconds in the afternoon. AOT's policy is to maintain a rating of "LOS C" (average delays) for this type of project, subject to exceptions on a case-by-case basis. The result for vehicles exiting the eastern driveway could be lengthy backups and delays.

¶ 8. The expert's report noted that its projections were based on future traffic forecasts, or "predictive traffic models," generated years earlier which assumed traffic growth of approximately 2.5% annually along Pine Street, whereas actual growth rates had been much lower, on average 0.25% annually. Thus, employing the "actual vehicle volume" on Lakeside Avenue generated a "built-in reserve capacity" for the system to handle more traffic with fewer delays than the model forecast.¹

¶ 9. In light of the foregoing, the trial court concluded that, "if the [ ] predicted delays are realized, the traffic attempting to exit Fortieth's property may experience unreasonable congestion" and, as a result, "may result in unsafe conditions" if frustrated drivers decided to enter the intersection when lights are yellow or red. (Emphasis added.) Based on the conditional nature of the identified impacts, the trial court approved the project but determined to impose conditions focused on "monitoring and reporting, as well as a right of action" if further evidence substantiated "that the Parkway is creating unreasonable traffic congestion and unsafe traffic conditions." Accordingly, the court ordered applicants to "perform traffic studies and signal warrant analysis" at specified intersections, including Lakeside Avenue and the Parkway, semiannually for the first year of operation and annually for years two and three; to submit written reports of the monitoring results to the District Commission and Fortieth; and to "work in good faith" with Fortieth to "resolve any traffic congestion and safety issues." If these efforts failed to achieve resolution, the court provided that Fortieth could petition the Commission "to reopen its consideration of the application currently before the Court" within sixty days of receipt of the final traffic report. The court thereupon remanded the matter to the District Commission; applicants submitted the required stormwater discharge permits; and the Commission issued an Act 250 permit, in October 2014, incorporating the conditions imposed by the trial court.² This appeal followed.

¶ 10. Under our standard of review, the environmental court determines the credibility of witnesses and weighs the persuasive effect of evidence, and we will not overturn its...