In re Cvps/Verizon Act 250 Land Use Permit, No. 07-441.

Docket NºNo. 07-441.
Citation2009 VT 71, 980 A.2d 256
Case DateAugust 06, 2009
980 A.2d 256
2009 VT 71
In re CVPS/VERIZON ACT 250 LAND USE PERMIT NUMBERS 7C1252 AND 7C0677-2.
No. 07-441.
Supreme Court of Vermont.
August 6, 2009.

[980 A.2d 257]

Christopher D. Roy of Downs Rachlin Martin, PLLC, Burlington, for Appellant.

William H. Sorrell, Attorney General, and Paul R. Brierre, Assistant Attorney General, Montpelier, for Appellee.

William B. Piper and Joslyn L. Wilschek of Primmer Piper Eggleston & Cramer, PC, Montpelier, for Amicus Curiae Thirteen of Vermont's Municipal Electric Departments.

Victoria J. Brown of Primmer Piper Eggleston & Cramer, PC, Burlington, for Amicus Curiae Vermont Electric Cooperative, Inc.

Harriet Ann King of King & King, Waitsfield, for Amicus Curiae Green Mountain Power Corporation.

Present: REIBER, C.J., DOOLEY, SKOGLUND and BURGESS, JJ., and ALLEN, C.J. (Ret.), Specially Assigned.

¶ 1. SKOGLUND, J.


In this appeal, we consider the scope of Act 250 jurisdiction over utility line projects.

980 A.2d 258

Central Vermont Public Service Corporation (CVPS) sought an Act 250 permit to extend one of its electrical distribution lines. It appeals from the Environmental Court's determination that it must not only obtain a permit pursuant to Act 250 Rule 70, 12 Code of Vt. Rules 004 060-18 to -20, which specifically applies to utility line projects, but it must also obtain an amendment to an existing Act 250 permit held by a third party and be named as a co-permittee on that permit.1 CVPS argues that the court erred in ordering it to be named as a co-permittee on the third-party permit because Rule 70 provided the sole basis for jurisdiction over its project. We agree that the Environmental Court erred, and we therefore reverse the court's decision.

¶ 2. The record indicates the following. In October 2006, CVPS applied for an Act 250 permit to construct a 2500-foot extension of an electrical distribution line in Danville, Vermont, most of which would be located underground.2 CVPS obtained easements for its line corridor, one of which traversed land subject to an existing Act 250 permit held by a third party ("Barry permit"). The Barry permit approved the creation of three building sites, but it did not authorize further development of the subject property.

¶ 3. CVPS subsequently requested a jurisdictional opinion from the District 7 Environmental Coordinator on whether its line corridor would require an amendment to the Barry permit, in addition to the Act 250 permit required under Rule 70 for the line extension itself. The district coordinator issued an initial jurisdictional opinion, concluding that an amendment to the Barry permit was required because the project constituted a "material change" to the development approved under the Barry permit. See Rule 2(C)(6) (defining "material change" as any change to a permitted development or subdivision that has a significant impact on any finding, conclusion, term or condition of the project's permit and which may result in an impact with respect to any of the criteria specified in 10 V.S.A. § 6086(a)(1)-(10)); see also Rule 34(A) (permit amendment required for any "material change" to a permitted development); Rule 34(C) (noting that, at discretion of district commission, a proposed amendment may instead be subject to new application process).

¶ 4. In December 2006, the district commission issued two permits — a new Act 250 permit to CVPS and an amended Barry permit that named CVPS as a co-permittee. Both permits stated that the utility line project was subject to Act 250 jurisdiction for two independent reasons: (1) the project met the criteria set forth in Rule 70, and (2) the project constituted a "material change" to the Barry permit under Rule 2(C)(6).

¶ 5. CVPS appealed both permits to the Environmental Court, and the appeals were consolidated. CVPS argued that the district commission erred by finding that a "material change" to an existing development could be an independent trigger for jurisdiction over its utility line project. CVPS also argued that the district commission erred in naming it as a co-permittee in the Barry permit. CVPS moved for summary judgment, and the Land Use Panel of the Natural Resources Board opposed its request. In an August 2007

980 A.2d 259

decision, the court granted summary judgment to the land use panel.

¶ 6. The court first considered the terms of the Barry permit, which addressed the future residential development of a 289-acre parcel of land. The Barry permit had approved three future building sites as identified on a site development plan, but it had not approved the actual subdivision or the construction of these residences. Instead, the permit required an amendment before actual construction or subdivision of any parcels associated with the building sites.

¶ 7. The permit noted that the primary concern in developing the tract for residential purposes was the fact that the majority of the parcel was a mapped deer yard. For this reason, the permittee had agreed, as a condition of the permit, that no further development of the tract would be allowed unless it could be demonstrated that the development would not have any further impact on the tract's ability to serve as a protected deer yard or unless the tract was no longer appropriate, necessary or functional as a deer yard. The permit also prohibited any further development of the parcel absent the concurrence of the Department of Fish and Wildlife, the Agency of Natural Resources, and the District Environmental Commission, and the written approval of the district commission or a written determination from the district coordinator that a permit was not required. In light of these provisions, the court concluded that the Barry permit plainly required an amendment before CVPS could construct and install its electrical distribution line.3

¶ 8. Even if the Barry permit had not expressly required an amendment, the court continued, a permit amendment would nonetheless be required under Rule 34(A), if the extension of the utility line constituted a material or substantial change to the previously-permitted project. In so concluding, the court rejected CVPS's assertion that Rule 70 provided a separate regulatory framework for utility projects, to the exclusion of Rule 34(A). It reasoned that Rule 70 simply provided procedures for the processing of applications for new transmission lines, and if the Natural Resources Board had intended to exempt such projects from "amendment jurisdiction" under Rule 34(A), it could have done so. Nonetheless, the court found that it could not determine from the facts provided if the project constituted a material or substantial change to the Barry permit, and thus, summary judgment was not appropriate on this ground. Because the Barry permit itself required an amendment, however, the court found that this conclusion did not change the result.

¶ 9. Finally, the court addressed CVPS's assertion that it should be removed as a co-permittee on the Barry permit for various policy reasons, including concerns about the operation of its line should another co-permittee violate the terms of the Barry permit. The court found insufficient "good cause" under Rule 10(A) to warrant a waiver of the co-applicant requirement, noting that CVPS had not identified any authority for the proposition that, as the owner of an easement in the property and the developer of the land within the line corridor, it should be removed as a co-permittee. The court clarified,

980 A.2d 260

however, that CVPS should be listed as a co-permittee only to the extent of its easement interest in the line corridor, and not as to the remainder of property subject to the Barry permit. The court thus denied CVPS's motion for summary judgment and granted summary judgment to the land use panel on the question of whether an amendment to the Barry permit was required. This appeal followed.

¶ 10. On appeal, CVPS argues that the court's decision regarding amendment jurisdiction was both unnecessary and unsupported by the rules. We review the Environmental Court's summary judgment ruling using the same standard as the Environmental Court. In re Hildebrand, 2007 VT 5, ¶ 9, 181 Vt. 568, 917 A.2d 478 (mem.). Summary judgment is appropriate where there is no genuine issue of material fact and any party is entitled to judgment as a matter of law. Id.; V.R.C.P. 56(c)(3). As discussed below, we conclude that Rule 70 provided the sole basis for Act 250 jurisdiction over this utility project, and thus, the court erred in ordering CVPS to be named as a co-permittee on an amended Barry permit.4

I. Mootness

¶ 11. Before turning to the merits, we briefly respond to the issue raised by the dissent. The dissent concludes, sua sponte, that this appeal should be dismissed because CVPS no longer has a legal stake in the outcome of this case and there is no meaningful relief that can be afforded CVPS by this Court and, thus, CVPS is seeking an advisory opinion. The dissent misunderstands the issues presented on appeal.

¶ 12. As recounted above, the Environmental Court concluded that, based on the language of the Barry permit, CVPS was subject to the terms of the permit and, consequently, that it must obtain an amendment to the Barry permit before installing its line. It further found that CVPS would be required to seek a permit amendment pursuant to Rule 34 if the extension of the utility line constituted a material or substantial change to the Barry permitted project. These obligations were in addition to the requirement that CVPS obtain an Act 250 permit for its line under Rule 70. These are the decisions appealed to this Court. CVPS argues that

980 A.2d 261

Rule 70 provides the sole basis for Act 250 jurisdiction over utility line projects and that it should not be required to seek an amendment for a permit to which it was never a party and under rules that do not control here. CVPS retains a legal stake in the outcome of these proceedings, and...

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2 practice notes
  • In re N. E. Materials Grp. LLC Act 250 JO # 5–21, No. 14–190.
    • United States
    • Vermont United States State Supreme Court of Vermont
    • July 17, 2015
    ...that ‘legislation in derogation of common law property rights will be strictly construed.’ " In re CVPS/Verizon Act 250 Land Use Permit, 2009 VT 71, ¶ 14, 186 Vt. 289, 980 A.2d 256 (quoting Comm. to Save Bishop's House, Inc. v. Med. Ctr. Hosp. of Vt., Inc., 137 Vt. 142, 152, 400 A.2d 1015, ......
  • In re SP Land Co., No. 10–332.
    • United States
    • Vermont United States State Supreme Court of Vermont
    • September 22, 2011
    ...to the rules governing Act 250 that we do to other statutes. See In re CVPS/Verizon Act 250 Land Use Permit Numbers 7C1252 & 7C0677–2, 2009 VT 71, ¶ 14, 186 Vt. 289, 980 A.2d 256. This includes the presumption that the drafters of the rules intended the plain and ordinary meaning of the lan......
2 cases
  • In re N. E. Materials Grp. LLC Act 250 JO # 5–21, No. 14–190.
    • United States
    • Vermont United States State Supreme Court of Vermont
    • July 17, 2015
    ...that ‘legislation in derogation of common law property rights will be strictly construed.’ " In re CVPS/Verizon Act 250 Land Use Permit, 2009 VT 71, ¶ 14, 186 Vt. 289, 980 A.2d 256 (quoting Comm. to Save Bishop's House, Inc. v. Med. Ctr. Hosp. of Vt., Inc., 137 Vt. 142, 152, 400 A.2d 1015, ......
  • In re SP Land Co., No. 10–332.
    • United States
    • Vermont United States State Supreme Court of Vermont
    • September 22, 2011
    ...to the rules governing Act 250 that we do to other statutes. See In re CVPS/Verizon Act 250 Land Use Permit Numbers 7C1252 & 7C0677–2, 2009 VT 71, ¶ 14, 186 Vt. 289, 980 A.2d 256. This includes the presumption that the drafters of the rules intended the plain and ordinary meaning of the lan......

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