In re Diverging Diamond Interchange SW Permit, Diverging Diamond Interchange A250 (R.L. Vallee, Inc. and Timberlake Associates, LLP, Appellants)
218 A.3d 564
Vt.2019Background
- VTrans proposed reconfiguring I-89 Exit 16 (diverging diamond interchange) in Colchester; project lies in Sunnyside Brook watershed and required an individual stormwater permit and an Act 250 permit after the project footprint exceeded 10 acres.
- VTrans filed iterative stormwater applications (initial 2013; revised Oct 3, 2014; further revisions Jan–Oct 2015); ANR issued a stormwater permit May 11, 2016.
- VTrans filed an Act 250 application in Nov 2013, revised in spring–summer 2014 when the project exceeded the ten-acre threshold; the District Commission granted an Act 250 permit Nov 2016.
- Vallee and Timberlake appealed both permits to the Environmental Division, raising (inter alia) claims about chloride and phosphorus pollution and whether newer water-quality standards should apply.
- The Environmental Division: (1) held the Oct 3, 2014 stormwater application administratively complete and vested (so pre‑Oct‑30‑2014 standards applied); (2) dismissed Vallee’s Act 250 Criterion 1 chloride/phosphorus questions on vesting grounds and as conflating Criterion 1 with Subcriterion 1(B); and (3) denied some party‑status claims at trial but otherwise granted the permits.
- Vermont Supreme Court: affirmed the stormwater permit, reversed the Act 250 permit, and remanded for the Environmental Division to consider Vallee’s Criterion 1 questions (chloride and phosphorus).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the stormwater application vested on Oct 3/6, 2014 so that chloride standards enacted Oct 30, 2014 do not apply | Vallee: genuine dispute when application became administratively complete; Jan 2015 revision superseded Oct 2014 application | ANR/VTrans: application was administratively complete Oct 3/6/2014; Jan 2015 materials merely supplemented technical review | Court: no genuine factual dispute; application vested Oct 2014 and stormwater permit stands; affirmed stormwater permit |
| Whether VTrans’s Jan 2015 revisions created a new vesting date | Vallee: Jan 2015 application was a new, materially different filing | State: Jan 2015 supplied requested supplemental info; not a new application | Court: revisions were normal supplemental changes; did not defeat vesting; not a new vesting date |
| Whether Act 250 Criterion 5(B) applies given vesting | Vallee: revisions extinguished original vesting so 5(B) (enacted Jun 1, 2014) should apply | State: application vested before 5(B) or revisions did not materially change the project | Court: revisions did not substantially change the project; 5(B) need not apply; court’s exclusion of 5(B) affirmed |
| Whether Criterion 1 (undue water pollution) claims re: chloride/phosphorus can be dismissed because those constituents were not regulated at vesting | Vallee: Criterion 1 is independent of Subcriterion 1(B); even absent DEC standards, Act 250 can address undue pollution and mitigation | State/VTrans: chloride/phosphorus impacts are stormwater issues governed by Subcriterion 1(B); vested stormwater regime controls; dismissal proper | Court: Criterion 1 and Subcriterion 1(B) are distinct; dismissal based solely on vesting and lack of contemporaneous DEC standards was error; remand for Environmental Division to decide Criterion 1 questions |
Key Cases Cited
- Smith v. Winhall Planning Comm’n, 436 A.2d 760 (Vt. 1981) (adopts minority rule that permit applications vest under the regulations in effect when a proper application is filed)
- In re B & M Realty, LLC, 158 A.3d 754 (Vt. 2016) (applies vesting rule and explains practicalities of permitting vesting)
- Hawk Mt. Corp. v. Envtl. Bd., 542 A.2d 261 (Vt. 1988) (Act 250 Criterion 1 allows consideration of a broad set of factors beyond mere regulatory compliance)