In re Korrow Real Estate, LLC, 2017-133
Decision Date | 13 April 2018 |
Docket Number | No. 2017-133,2017-133 |
Citation | 2018 VT 39 |
Court | Vermont Supreme Court |
Parties | In re Korrow Real Estate, LLC Act 250 Permit Amendment Application (State of Vermont, Appellant) |
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 J. Donovan, Jr., Attorney General, and Kyle H. Landis-Marinello, Assistant Attorney General, Montpelier, for Appellant.
L. Brooke Dingledine of Valsangiacomo, Detora & McQuesten, P.C., Barre, and David L. Grayck of Law Office of David L. Grayck, Montpelier, for Appellee.
PRESENT: Reiber, C.J., Robinson, Eaton and Carroll, JJ., and Wesley, Supr. J. (Ret.), Specially Assigned
¶ 1. The District 5 Commission denied Korrow Real Estate LLC's as-built application for an Act 250 permit to construct a barn on property alongside the Dog and Stony Brook Rivers, finding the project failed to comply with Act 250 Criteria 1(D) and 1(F). In doing so, the Commission construed key terms as defined by the Agency of Natural Resources (ANR). On appeal, the Environmental Division reversed the decision and remanded the matter to the Commission with instructions to grant an as-built permit for the project. The Vermont Natural Resources Board now appeals the court's decision, asserting that the court failed to accord proper deference to the ANR's statutory authority and expertise, and that the project fails to comply with the necessary Act 250 permitting criteria. We affirm in part, and reverse and remand in part.
¶ 2. By way of background, appellee, Korrow Real Estate LLC (Korrow), owns properties off Vermont Route 12A in the Town of Northfield, on either side of Stony Brook Road. On the northerly side of Stony Brook Road is an improved parcel of land that hosts offices for Gillespie Fuels and Propane, a business related to Korrow. In 2011, Korrow began constructing a large barn on a parcel of land on the southerly side of Stony Brook Road. Korrow intended to use the barn to house Gillespie propane trucks. As built, the barn is roughly 8000 square feet, and sits at the confluence of the Dog River and the Stony Brook River. After the project was complete in the summer of 2012, Korrow brought dry pack onto the property to level the parking area inside the barn. Korrow also brought a small amount of earthen fill to level areas outside the barn. Portions of this fill were placed in proximity to the nearby rivers. Prior to building the barn and bringing in the fill, Korrow sought and received a municipal zoning permit. However, Korrow constructed these improvements without first obtaining an Act 250 permit, which is required for development of this kind. It was not asserted this omission was intentional.
¶ 3. In 1970, the Vermont Legislature passed Act 250 to protect and conserve Vermont's lands and environment, and to ensure that land use would not be detrimental to the public welfare and interests. 1969, No. 250, § 1 (Adj. Sess.); see generally 10 V.S.A. §§ 6001-6111. Act 250 requires a land-use permit before certain development can occur. 10 V.S.A. § 6081(a) (). "Development" means, in relevant part, "[t]he construction of improvements for commercial or industrial purposes on more than one acre of land within a municipality that has not adopted permanent zoning and subdivision bylaws." Id. § 6001(3)(A)(ii). Korrow's project is a "development" subject to Act 250 because it is a commercial project constructed on a 6.5-acre parcel in a municipality that hasnot adopted permanent zoning and subdivision bylaws. As such, the Korrow project requires an Act 250 permit to remain as built on the property site.
¶ 4. When Act 250 applies to development, a permit can only issue if the project complies with all ten Act 250 criteria. Id. § 6086(a)(1) ( ). These criteria specifically address development on or near waterways and rivers. Id. On appeal, the parties dispute whether the Korrow project complies with Act 250 Criterion 1(D), pertaining to development within the "floodway" and "floodway fringe" of nearby waters, and Criterion 1(F), pertaining to development on "shorelines." Id. § 6086(a)(1)(D), (F). These provisions of Act 250 aim to protect Vermonters from the hazards of flooding and erosion, and to preserve the scenic and recreational features of rivers and their shorelines. Id. An applicant for an Act 250 permit, such as Korrow, bears the burden of proving compliance with both Criterion 1(D) and Criterion 1(F). Id. § 6088(a).
¶ 5. To determine project compliance with Criterion 1(D), the threshold question is whether the project is in the "floodway" or "floodway fringe" of a nearby waterway; if it is, then the applicant must prove that the project will not "restrict or divert the flow of flood waters," and "significantly increase the peak discharge of the river," and "endanger the health, safety and welfare of the public or of riparian owners during flooding." Id. § 6086(a)(1)(D)(i), (ii).
¶ 6. Similarly, Criterion 1(F) requires a threshold determination as to whether the project is located on a "shoreline." Id. § 6086(a)(1)(F). If so, shoreline development "must of necessity be located on a shoreline" and must be conducted in a manner that "will, insofar as possible and reasonable": (1) retain shorelines and waters "in their natural condition"; (2) allow continued and recreational access to the waters; (3) provide screening between the development and the river; and (4) "stabilize the bank from erosion, as necessary, with vegetation cover." Id. § 6086(a)(1)(F)(i)-(iv).
¶ 7. Act 250 provides definitions for the terms "floodway, "floodway fringe," and "shoreline":
10 V.S.A. § 6001(6), (7), (17) (emphases added). These provisions expressly grant the ANR authority to define the scope of the "floodway" and "floodway fringe." Id. § 6001(6), (7). If the ANR determines that a project falls within the "floodway" or "floodway fringe," then the project must also comply with additional Criterion 1(D) specifications to receive permit approval. 10 V.S.A. § 6086(a)(1)(D)(i)-(ii) ( ).
¶ 8. The Natural Resources Board (NRB) has statutory authority to adopt rules pertaining to Act 250 permit applications. 10 V.S.A. § 6025(b) (). The NRB has adopted such a rule defining "shoreline" for the purpose of determining compliance with Criterion 1(F). Act 250 Rules, Rule 2(C)(20),http://nrb.vermont.gov/sites/nrb/files/documents/2015%20Adopted%20Rules.pdf [https://perma.cc/4G79-LLZY] [hereinafter NRB Rule]. NRB Rule 2(C)(20) defines "shoreline" as follows:
¶ 9. With these definitions in mind, we return to Korrow's application to the District Commission for an as-built Act 250 permit. Applications for an Act 250 permit are filed with the District Commission to determine compliance with Act 250 criteria, including Criterion 1(D) and Criterion 1(F) discussed above. 10 V.S.A. § 6083(a) (). In the application at issue, Korrow indicated the project involved "development or subdivision on or near a river, lake, pond or reservoir shoreline." The Commission heard testimony from an ANR expert regarding the project's potential impacts on the Dog and Stony Brook Rivers, and evaluated the project's compliance with Act 250 Criteria 1(D) and 1(F).
¶ 10. Regarding Criterion 1(D), the ANR calculated the scope of the "floodway" and "floodway fringe" and determined that the Korrow project fell within the Act 250 "floodway." To calculate the scope of the "floodway," the ANR adhered to its "Technical Guidance for Determining Floodway...
To continue reading
Request your trial-
Athens Sch. Dist. v. Vt. State Bd. of Educ.
...Board to engage in a generalized rather than an individualized implementation of legislative policy. See In re Korrow Real Estate, LLC Act 250 Permit Amendment Application, 2018 VT 39, ¶ 20, 207 Vt. 274, 187 A.3d 1125 ("Even when conducting an evidentiary hearing, the court owes deference t......
-
In re Robinson, 18-112
...the agency's area of expertise, such "[d]ecisions ... are presumed correct, valid, and reasonable." In re Korrow Real Estate, LLC Act 250 Permit Amendment Application, 2018 VT 39, ¶ 21, 207 Vt. 274, 187 A.3d 1125 (quotation omitted). We apply this deferential standard in limited circumstanc......
-
Athens Sch. Dist. v. Vt. State Bd. of Educ.
...Board to engage in a generalized rather than an individualized implementation of legislative policy. See In re Korrow Real Estate, LLC Act 250 Permit Amendment Application, 2018 VT 39, ¶ 20, 207 Vt. 274, 187 A.3d 1125 ("Even when conducting an evidentiary hearing, the court owes deference t......
-
In re Morrisville Hydroelectric Project Water Quality
...(2) complex methodologies are applied; or (3) such decisions are within the agency's area of expertise." In re Korrow Real Estate, LLC Act 250 Permit Amend. App., 2018 VT 39, ¶ 20, 207 Vt. 274, 187 A.3d 1125 (quotation omitted). A party arguing that an agency is not due deference has "the b......
-
What’s New?
...of how the courts accord deference to the Agency of Natural Resource’s statutory authority and expertise. In re Korrow Real Estate, LLC, 2018 VT 39 (No. 2017-133). Perhaps the single most important issue encountered in 2018 has been the celebration and scrutiny of Act 250. With its Fiftieth......