In re Costco Stormwater Dishcharge Permit, Costco Final Plat & Site Plan, Costco Act 250 Land Use Permit, Wetlands, Reclassification (R.L. Vallee, Inc. and Timberlake Associates LLP, Appellants)
151 A.3d 320
Vt.2016Background
- Costco sought permits to expand its Colchester store and add a six-pump gas station; permits included town site/plat approval, an ANR stormwater discharge permit, an Act 250 permit, and an individual wetlands permit after ANR reclassified an on-site wetland from Class 3 to Class 2 (triggering a 50-foot buffer).
- Nearby retail gasoline competitors R.L. Vallee, Inc. and Timberlake Associates LLP appealed the permits to the Environmental Division; the court affirmed the remaining permits and Vallee and Timberlake appealed to the Supreme Court.
- Key factual features: (1) the site lies adjacent to congested Route 7 near I-89 Exit 16; (2) Costco’s plans add ~155 peak-hour trips and propose near-term intersection improvements plus future I-89 interchange reconfiguration funded regionally; (3) Costco proposed a revised stormwater treatment system routing much runoff through detention/treatment structures and an underground directional-drilled outfall to Sunnyside Brook (partly within the newly protected wetland buffer).
- The Environmental Division credited ANR and Costco experts that the new stormwater system meets Vermont Stormwater Management standards, would reduce pollutant loading to the Lot 5 wetland, and that the near-term intersection improvements would mitigate the project’s incremental traffic impacts.
- Vallee challenged the sufficiency of traffic mitigation under Act 250 Criterion 5, objected to the court addressing an underground pipe not expressly reviewed by ANR and to limits on cross-examination, contested that the project would adversely affect the Class 2 wetland (including cumulative impacts), and sought admission of a WinSLAMM-based expert exhibit excluded as unreliable. Timberlake argued ANR’s stormwater permit presumption of compliance was rebutted.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Traffic mitigation under Act 250 Criterion 5 | Vallee: near-term intersection fixes are insufficient; mitigation should be conditioned on completion of I-89 interchange reconfiguration | Costco: the project adds only ~155 peak trips, experts say near-term improvements (turn lanes, signal timing, signage) will fully mitigate incremental impact | Court: Affirmed — credible expert testimony supported finding that near-term improvements mitigate the project’s incremental traffic impacts; no condition requiring I-89 work was necessary |
| Approval/consideration of underground directional-drilled pipe not reviewed by ANR; limits on cross-examination | Vallee: court lacked jurisdiction to approve pipe absent ANR review and improperly restricted cross-examination on pipe impacts | Costco/ANR: pipe disclosed in plans; impacts are minimal and do not affect absent parties; Environmental Division may address insubstantial later revisions | Court: Affirmed — remand unnecessary because the pipe’s impacts were minimal; cross-exam limitation was within court’s discretion and not a due-process violation |
| Impact on Class 2 wetland and cumulative impacts; need for mitigation sequencing | Vallee: diverting stormwater away from wetland will reduce its functions; cumulative impacts not properly considered; mitigation sequencing required | Costco/ANR: new system reduces pollutant loading, meets current standards, wetland receives other groundwater/surface inputs; ANR considered cumulative impacts | Court: Affirmed — record showed credible expert and ANR testimony that the project would have no more than minimal adverse effect and that cumulative impacts were considered |
| Exclusion of Vallee’s WinSLAMM-based exhibit/testimony (Daubert / evidentiary reliability) | Vallee: exclusion was improper and prejudicial; bench trial makes Rule 403 exclusion questionable | Costco: model inputs were unreliable, averages misrepresented on-the-ground variability; Daubert gatekeeping and Rule 403 concerns justified exclusion | Court: Affirmed — trial court acted within discretion in excluding the exhibit as methodologically unreliable; any error was not substantially prejudicial |
| Rebuttal of ANR stormwater-permit presumption for water pollution/waste disposal (Act 250 §§ 6086(a)(1), 6086(a)(1)(B)) | Timberlake: cross-examination showed ANR relied on national design standards without field performance tests, rebutting the presumption of compliance | Costco/ANR: permit creates rebuttable presumption; Timberlake’s evidence only showed lack of field-testing, not actual noncompliance | Court: Affirmed — Timberlake failed to produce affirmative evidence that standards would not achieve expected outcomes; presumption stood |
Key Cases Cited
- In re Champlain Parkway Act 250 Permit, 129 A.3d 670 (Vt. 2015) (applicant bears burden of production; court may impose reasonable conditions under Act 250)
- In re Lathrop Ltd. P’ship I, 121 A.3d 630 (Vt. 2015) (environmental court need not remand for insubstantial revisions that do not affect new parties)
- In re Entergy Nuclear Vt. Yankee Discharge Permit, 989 A.2d 863 (Vt. 2009) (trial court’s credibility determinations entitled to deference)
- In re Route 103 Quarry, 958 A.2d 694 (Vt. 2008) (appellate review deference to environmental court factual findings)
- Pilgrim Partnership, 572 A.2d 909 (Vt. 1990) (project need not be principal cause of traffic problems to require mitigation under Criterion 5)
- Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (U.S. 1993) (trial court gatekeeping on reliability and relevance of expert scientific testimony)
- USGen New England, Inc. v. Town of Rockingham, 862 A.2d 269 (Vt. 2004) (apply Daubert reliability principles; trial court gatekeeper role)
- Hawk Mountain Corp., 542 A.2d 261 (Vt. 1988) (agency certificates create rebuttable presumption of compliance under Act 250)