In re Champlain Parkway Act 250 Permit (Fortieth Burlington LLC, Appellant)
129 A.3d 670
Vt.2015Background
- The City of Burlington and Vermont AOT sought an Act 250 permit amendment to construct the Champlain Parkway, a redesigned, two-lane roadway connecting I-89 to downtown Burlington.
- The project was divided into three segments; earlier approvals and partial construction existed for segments 1 and 2, segment 3 required review.
- Fortieth Burlington, LLC owns a commercial property adjacent to the planned Parkway/Lakeside intersection; primary access is via an eastern driveway ~150 feet from the Parkway intersection.
- A traffic expert for applicants predicted reassignment of traffic generally reducing congestion, but forecasted significant LOS deterioration at Fortieth’s eastern driveway (from LOS A to LOS E/F) under modeled growth assumptions.
- The trial court found the predicted adverse effects conditional ("may" occur) because the traffic model used overstated growth; it approved the permit subject to monitoring, reporting, and a good‑faith resolution requirement with Fortieth plus a procedure to reopen review if problems emerged.
- Fortieth appealed, arguing the conditions were unsupported or insufficient, the court misallocated burdens, and the court erred in rejecting Fortieth’s design alternative (realigning to a four‑way intersection).
Issues
| Issue | Plaintiff's Argument (Fortieth) | Defendant's Argument (City/AOT) | Held |
|---|---|---|---|
| Adequacy of conditions under Act 250 Criterion 5 | Court found Parkway will cause unreasonable congestion; monitoring/reporting conditions inadequate to mitigate impacts | Court’s findings were conditional ("may" occur); monitoring/reporting and reopening procedure appropriately tailored | Conditions upheld as supported by evidence and findings; monitoring/reporting appropriate given uncertainty |
| Authority to direct parties / impose obligations on non‑party | Court exceeded authority by effectively requiring Fortieth to alter property use to mitigate congestion | Court may direct parties to proceed in good faith; it did not mandate specific property changes | No error; court did not impose concrete obligations requiring Fortieth to change property use |
| Burden of production and proof under §6088(b) | Applicants failed initial burden—applicants’ own evidence showed unreasonable congestion so court should have denied permit or required mitigation | Applicants met burden of production with detailed traffic study; conditional findings justified | Applicants met initial burden of production; opposing party retains burden to show adverse effect and propose alternatives |
| Rejection of Fortieth’s alternative intersection design | Aligning driveway to create a four‑way intersection would materially reduce congestion and mitigate impacts | Fortieth offered no detailed engineering, environmental, or quantitative evidence to support feasibility/benefit | Court did not err in rejecting the alternative for lack of sufficient detail and proof |
Key Cases Cited
- In re Vill. Assocs. Act 250 Land Use Permit, 188 Vt. 113, 998 A.2d 712 (Vt. 2010) (standard of review for environmental court findings and credibility determinations)
- In re Eastview at Middlebury, Inc., 187 Vt. 208, 992 A.2d 1014 (Vt. 2009) (factual findings will not be disturbed unless unsupported by credible evidence)
- State v. Baker, 154 Vt. 411, 579 A.2d 479 (Vt. 1990) (discussion of burden of production/prima facie case)
- In re Goddard Coll. Conditional Use, 111 A.3d 1285 (Vt. 2014) (opposing party’s burden includes demonstrating availability of reasonable mitigating steps and alternatives)