RE: State of Vermont Agency of Transportation (Williston Area Improvements), Declaratory Ruling Request #311, Findings of Fact, Conclusions of Law, and Dismissal Order (Jan. 31, 1996) VERMONT ENVIRONMENTAL BOARD 10 V.S.A. Chapter 151 Re: State of Vermont Agency of Transportation (Williston Area Improvements) Declaratory Ruling Request #311 FINDINGS OF FACT, CONCLUSIONS OF LAW, AND DISMISSAL ORDER This decision pertains to a petition for declaratory ruling (the Petition) filed by Judge Companies (Judge) concerning whether an additional permit is required pursuant to 10 V.S.A. Chapter 151 (Act 250) for various traffic-related improvements in the Town of Williston (the Town). These improvements, known as the "Exhibit B" improvements, are incorporated in various permits issued for developments in the Town's Tafts Corner area. If constructed, the Exhibit B improvements would be built by the State of Vermont Agency of Transportation (AOT) or by the Town. As is explained below, the Environmental Board dismisses the Petition because the Exhibit B improvements are already authorized by permit condition and the Petition constitutes an improper attack on final, unappealed permit conditions. I. SUMMARY OF PROCEEDINGS On August 14, 1995, AOT requested a jurisdictional opinion from the District #4 Coordinator concerning whether additional land use permits are required for various traffic-related improvements mandated by Condition #2 of Land Use Permit Amendment #4C0696-11-EB (Revised), issued to Taft Corners Associates, Inc. (TCA) on May 5, 1995 (the 1995 Permit Amendment), and authorizing the construction of a Wal*Mart and Sam's Club at the Taft Corners Commercial and Industrial Park (the Park) in Williston. On August 15, 1995, District #4 Coordinator C. Louis Borie issued a jurisdictional opinion stating that no additional land use permits were required. On September 13, 1995, Judge filed the Petition. On October 13, 1995, the Board issued a notice of prehearing conference concerning the Petition. Also on that date, TCA filed an affidavit attesting to the completion of the improvements required by Condition #2 of the 1995 Permit Amendment. The citation of this affidavit is not meant to confirm or deny its accuracy. On November 3, 1995, Environmental Board Chair John T. Ewing convened a prehearing conference in Montpelier, with the following participants: Judge by Schuyler Jackson, Esq. AOT by Scott A. Whitted, Esq. TCA by Stewart H. McConaughy, Esq. The Town by Richard A. Spokes, Esq. Williston Citizens for Responsible Growth (WCRG) by Gerald R. Tarrant, Esq. Maple Tree Place and CSD, Inc. (Maple Tree) by Mark L. Sperry, Esq. On November 6, 1995, Judge filed a statement of interest and WCRG filed a petition for party status. On November 7, TCA filed a petition for party status. On November 17, Judge filed a motion to limit. On November 20, 1995, the Chair issued a prehearing conference report and order which is incorporated by reference. Among other items, the prehearing conference report and order set out a detailed background statement, included an identification of various permits which incorporated the Exhibit B improvements, set forth a schedule for briefing preliminary issues, and gave parties an opportunity to request oral argument and to object to the report and order. The Board received no requests for oral argument or objections to the report and order. On November 28, 1995, Maple Tree filed a "statement of issues needing factual determination and motion in opposition to Act 250 jurisdiction." On November 29, the following were filed: the Town's memorandum relating to Board jurisdiction; AOT's memorandum on preliminary issues and attached affidavits; a petition for party status by Dan and Leo O'Brien d/b/a O'Brien Brothers (the O'Briens); and TCA's memorandum on preliminary issues. The Town's memorandum includes a request to dismiss the Petition. On December 11, 1995, Judge filed a response "to claims of law as to standing to petition and jurisdiction." The Board deliberated on December 20, 1995 and on January 24, 1996. II. ISSUES a. Whether, pursuant to 10 V.S.A. § 6007(c) and Environmental Board Rules (EBR) 3(D) and 14, Judge has standing to bring, and WCRG, TCA and the O'Briens have or should be granted the right to participate in, the Petition. b. Whether to grant or deny the Town's request to dismiss the Petition. III. FINDINGS OF FACT EBR 18(D) requires the Board to issue findings of fact in order to explain and support dismissal of a matter before it. The findings of fact below are based on the following land use permits, amendments, and supporting exhibits and findings of fact and conclusions of law: Taft Corners Associates, Inc., #4C0696 (July 31, 1987), #4C0696-R-4 (April 27, 1988), and #4C0696-11-EB (Revised, May 5, 1995); O'Brien Brothers, #4C0648 (Sep. 2, 1987); and Adams Properties, Ltd., #4C0700-4 (Oct. 31, 1988); Northshore Development, Inc., #4C0720-R-4 (Oct. 27, 1988); and Alan and Maureen Pidgeon, #4C0768 (Feb. 2, 1989). The findings of fact are also based on a document entitled "CHITTENDEN COUNTY, Williston/Taft Corners Transportation Study" (December 1987), which was Exhibit C7 to Land Use Permit #4C0696-11-EB (Revised). The findings of fact are further based on the Petition; In re Taft Corners Associates, Inc., 160 Vt. 583 (1993); City of Burlington v. State of Vermont Environmental Board, Vt. , 6 Vt. Law Week 282 (Oct. 17, 1995); a motion to intervene and remand filed by Judge with the Board on February 8, 1995; and a memorandum of decision issued by the Board with respect to #4C0696-11-EB (Revised) on May 5, 1995. Official notice is taken of the aforementioned documents pursuant to 3 V.S.A. § 810. The Board may take notice at any stage of the proceedings. In re Handy, 144 Vt 610, 612-613 (1984). All of the documents are prior decisions or matters of public record concerning which the parties are familiar. The text of the findings below was substantially included in the Chair's prehearing conference report in this matter of November 20, 1995, and no objections to said text were filed. 1. During the mid-1980s, a cooperative effort was made under the auspices of the Chittenden County Regional Planning Commission (CCRPC) to study traffic conditions in the Town of Williston. Other participants in this cooperative effort included, and were not necessarily limited to, AOT, the Town, and various area developers such as TCA. 2. CCRPC completed the study in December 1987 and issued a document entitled "CHITTENDEN COUNTY, Williston/Taft Corners Transportation Study." The document is known as the 1987 "WATS" Study. 3. The 1987 WATS Study recommends a four-stage plan for a host of improvements to the roads in Williston, focusing in particular on the Tafts Corner area and the Park. The study contains a Table 6.A which lists the recommended improvements. 4. While the WATS Study was being done, the District #4 Commission was processing an Act 250 application submitted by TCA for an "umbrella permit" for the Park. 5. On July 31, 1987, the District Commission issued Land Use Permit #4C0696 and supporting findings of fact and conclusions of law (the Umbrella Permit) to TCA. The Umbrella Permit gave only partial approval to the Park. Condition #6 of the Umbrella Permit required that any amendment applications for the Park include "evidence of conformance to the Findings under criteria . . . 5." 6. The findings supporting the Umbrella Permit under Criterion 5 of 10 V.S.A. § 6086(a) (traffic safety and congestion) cite a cooperative effort concerning traffic impacts, including a traffic study. This was the 1987 WATS Study, then underway. 7. In connection with the traffic study, the findings cite Exhibit #109, which is dated May 6, 1987 and is entitled "Stipulation of the Town of Williston and Taft Corners Associates, et al." (the 1987 Stipulation). The 1987 Stipulation was signed by TCA, AOT, the Town, and the CCRPC. 8. Among other items, the 1987 Stipulation includes an "Exhibit B," which is entitled "Williston Off-Site Improvements." This includes four phases of traffic-related improvements to occur in Williston, primarily in the Taft Corners area, between 1987 and 2007. The nature of these improvements is such that the involvement of the Town and AOT, or both, is necessary to achieve them. 9. The so-called "Exhibit B" improvements were the same as those listed in Table 6.A of the 1987 WATS Study. 10. After a further application from TCA for full approval of the Park, on April 27, 1988, the District Commission issued Land Use Permit Amendment #4C0696-R-4 (the 1988 Amendment). The 1988 Amendment completed the umbrella permit approval for the Park and made various revisions to the Umbrella Permit. 11. In the 1988 Amendment, the District Commission found that the parties had completed the cooperative traffic study. The District Commission cited an Exhibit #26, which is dated February 17, 1988 and is entitled "Stipulation of Town of Williston and Taft Corners Associates, et al." The 1988 Stipulation was signed by TCA, AOT, the Town, and the CCRPC. One of the exhibits of the 1988 Stipulation was the 1987 Stipulation, and thus the so-called "Exhibit B improvements" were again included. 12. The Umbrella Permit and the 1988 Amendment were not appealed to the Board pursuant to 10 V.S.A. § 6089(a). 13. The Exhibit B improvements were also incorporated into other permits issued by the District Commission to developers for projects in Williston, including developers other than TCA. Exhibit B was incorporated in at least the following land use permits: #4C0648, issued to O'Brien Brothers on September 2, 1987 for Phase I of a planned residential subdivision off Shunpike Road in Williston; #4C0720-R-4, issued to Northshore Development, Inc. and Graham Realty for an increase in traffic from an already approved 37-lot commercial and residential subdivision off Route 2 in Williston; #4C0700-4, issued to Adams Properties, Ltd. on October 31, 1988 for an increase in traffic from an already-approved 17-lot commercial subdivision off Brownell Road in Williston; and #4C0768, issued to Alan and Maureen Pidgeon on February 2, 1989 for eight industrial lots off Shunpike Road. None of these permits was appealed to the Board. 14. The 1987 and 1988 Stipulations later became one subject of litigation involving an amendment application to approve the construction of a combination Wal*Mart and Sam's Club at the Park. WCRG was a party to this litigation. The litigation ultimately resulted in Land Use Permit Amendment #4C0696-11-EB (Revised) and supporting findings of fact and conclusions of law, issued by the Environmental Board to TCA on May 5, 1995 (the 1995 Permit Amendment). 15. Among other things, the 1995 Permit Amendment found and concluded that the District Commission based and conditioned the Umbrella Permit and the 1988 Amendment: [O]n the commitment of the parties, including [TCA], that the traffic-related improvements to be done by the State and the Town listed in Exhibit B to the 1987 Stipulation were to be in place as needed to ensure that the traffic generated by the Park does not cause unsafe conditions or unreasonable congestion. Under the Umbrella Permit and the 1988 Amendment, each amendment application must comply with this condition. 16. The 1995 Permit Amendment included Condition #2, which required that many of the Exhibit B improvements be installed, constructed, and operating prior to commencement of construction on the proposed Wal*Mart and Sam's Club. 17. Simultaneously with the 1995 Permit Amendment, the Board issued a memorandum of decision which, in relevant part, denied as untimely a motion to intervene and remand filed by Judge. Judge's motion to intervene and remand was filed during the course of the proceedings resulting in the 1995 Permit Amendment and in part challenged the validity of Condition #2 on the basis that an Act 250 permit allegedly is independently required for the Exhibit B improvements. Judge did not appeal this memorandum of decision. 18. No party appealed the 1995 Permit Amendment pursuant to 10 V.S.A. § 6089. On October 17, 1995, the Vermont Supreme Court dismissed a petition for extraordinary relief which had been filed by WCRG and the City of Burlington regarding the 1995 Permit Amendment. 19. The Petition states, in relevant part: The projects specified in Exhibit B, in aggregate, being undertaken by the State of Vermont, including those undertaken by Taft Corners Associates on State property under agreement with the Agency of Transportation in response to Condition 2 of the Taft Corners Associates land use permit, constitute a development within the meaning of 10 V.S.A. Section 6001(3) and Rule 2 of the Environmental Board. For the above stated reasons, Act 250 review of Exhibit B improvements to the State highway system as a development, including those identified in the Coordinator's opinion letter, is required. Judge Companies asks the Environmental Board to issue an order to the Agency of Transportation directing it stop all Exhibit B improvement work to the State highway system until an Act 250 permit has been obtained. IV. CONCLUSIONS OF LAW A. Standing and Party Status Questions have been raised regarding the standing of Judge to bring the Petition. The party status of WCRG and TCA is in dispute. The O'Briens seek an affirmative ruling on party status. The Board concludes that it need not make overall standing and party status determinations at this time. The Board believes that it should first determine the issues raised by the Town's memorandum, particularly those issues concerning dismissal on grounds not relating to standing or party status. For the limited purpose of participating with regard to these issues, Judge, TCA, WCRG, and the O'Briens are granted party status pursuant to 10 V.S.A. § 6007(c), EBR 3(D), and EBR 14(B)(1). B. The Town's Request for Dismissal The Town requests that the Board dismiss the Petition without a hearing on the merits. The Town argues that permit conditions cannot be challenged by declaratory ruling request, that no justiciable controversy exists to trigger Board jurisdiction, that finalized permits cannot be collaterally attacked, and that no permit condition requires another permit for mandated highway improvements. Judge contends that it must be allowed to present evidence on the merits of whether the Exhibit B improvements constitute "development". Judge has not requested a hearing on any facts relevant to the Town's request for dismissal, or requested a hearing to contest the dismissal. EBR 18(D) provides: The board may, on its own motion or at the request of a party, consider the dismissal, in whole or in part, of any matter before the board for reasons provided by these rules, by statute, or by law. At the request of a party or on its own motion, the board will entertain oral argument prior to considering any such dismissal; such argument shall be preceded by notice to the parties unless dismissal is considered at a regularly convened hearing on the matter. A decision to dismiss shall include a statement of findings of fact and conclusions of law and shall be made within 20 days of the final hearing at which dismissal is considered. In view of EBR 18(D) and the Town's request, the Board will examine whether, as a matter of law, the Board should dismiss this matter. The Board's examination begins with the statutes applicable to declaratory rulings and to appeals. The Environmental Board hears requests for declaratory ruling under 10 V.S.A. § 6007(c), 3 V.S.A. § 808, and EBR 3(D). These statutes and rule refer to the "applicability" of Act 250 or of statutes, rules and orders. The Board also hears appeals of District Commission decisions pursuant to 10 V.S.A. § 6089(a). The Board's decisions under Section 6089(a) may be appealed to the Supreme Court under Section 6089(b). The Supreme Court has stated that the purpose of a declaratory ruling is "to test 'the applicability [to a given set of facts] of any statutory provision or of any rule or order of an agency.' " In re Petition of D.A. Associates, 150 Vt. 18, 19 (1988), quoting In re State Aid Highway No. 1, Peru, Vermont, 133 Vt. 4, 7 (1974). The State Aid Highway No. 1 case was an appeal from an Environmental Board declaratory ruling. That case also states that: [D]eclaratory judgment statutes cannot be substituted for adequate and available remedies of review (as we have under 10 V.S.A. § 6089) of decisions by administrative tribunals." 133 Vt. at 8. In discussing the State Aid Highway No. 1 case, the Court further stated in the D.A. Associates decision: In short, the Court was saying that declaratory rulings are not appellate in nature, and cannot be resorted to as a substitute for, or in lieu of, proper appellate remedies. State Aid Highway No. 1 is still good law, and we hold it controls the result in this case. The jurisdictional defect first attached when petitioner sought to bypass proper appeals procedure by seeking a § 808 ruling. 150 Vt. at 19. (Italics in the original.) In addition, the Court has previously rejected a collateral attack on traffic-related permit conditions based on an alleged lack of jurisdiction. In doing so, the Court cited the authority of the Board and District Commissions to review the traffic safety and congestion impacts of development and to issue permit conditions. 10 V.S.A. § 6086(a)(5), (c); In re Alpen Associates, 147 Vt. 647 (1986) (mem.). The Court stated: In light of this statutory mandate, we disagree with appellant's claim that condition #14 is void on jurisdictional grounds. Traffic and other environmental studies are well within the scope of activity contemplated by Act 250, and the commission clearly has jurisdiction over this sort of consideration. Whether or not the commission erred in requiring appellant, as a condition of an Act 250 permit, to contribute, together with other permittees, to the funding of a regional traffic study is a question to be addressed pursuant to the appellate review procedure set forth in 10 V.S.A. § 6089. Appellant did not timely appeal, and this Court will not entertain collateral attacks with regard to "mere errors or irregularities in the exercise of jurisdiction." [Citation omitted.] Id. (Emphasis added.) Based on these statutes and case law, it is clear that the Board cannot hear a declaratory ruling which seeks to test the validity of a permit condition. The appropriate avenue for challenging a permit condition is a timely appeal under 10 V.S.A. § 6089. The Petition in essence seeks to challenge the validity of permit conditions. This is because the Exhibit B improvements, which are the subject of the Petition, are already authorized by Condition #2 of the 1995 Permit Amendment, and by the Umbrella Permit, 1988 Amendment, and other permits issued for developments in the Tafts Corner area. By claiming that another Act 250 permit is needed, Judge of necessity attacks the validity of those permits. Moreover, while the Petition purports simply to seek a ruling as to the applicability of Act 250, it is clear that Judge seeks to revive its prior claim, made in a motion to intervene and remand filed during the course of the proceedings resulting in the 1995 Permit Amendment, that Condition #2 was and is invalid because another Act 250 permit is required. Judge did not appeal the denial of the motion to intervene and remand in the prior proceedings. Judge cannot now raise its claim in another guise. To hold otherwise would be to undermine the finality of unappealed permits and conditions. Given the number of permits at issue, such would result in substantial jeopardy to those applicants and other parties who have relied on the permits. Based on the foregoing, this matter must be dismissed. The Board therefore need not reach any of the other alleged grounds for dismissal raised by the Town or any other parties. V. ORDER The Petition is dismissed. Dated at Montpelier, Vermont this 31st day of January, 1996. ENVIRONMENTAL BOARD /s/John T. Ewing John T. Ewing, Chair John M. Farmer Arthur Gibb Samuel Lloyd William Martinez Rebecca M. Nawrath Robert G. Page Steve E. Wright dr311.dec(a14)