30 A.3d 641
Vt.2011Background
- Appeal from Environmental Court decision approving site plan, conditional use, subdivision, and Act 250 permits for a large Wal-Mart in St. Albans.
- Appellants allege due process violations from DRB chair’s participation, and bias by other DRB members.
- Environmental Court conducted de novo review after finding potential bias could be cured by new hearing.
- New Act 250 permit application filed in 2005, following a prior denial; court applied successive-application doctrine.
- Evidence showed substantial prior and intervening commercial growth and changes in conditions since the 1993 denial.
- Court affirmed, concluding changes in circumstances justified the new Act 250 application and compatibility analysis addressed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Was DRB chair’s participation a due process violation? | VNRC contends chair biased the process. | JLD/DOE argues de novo review cures bias. | De novo review cures due process concerns. |
| Does the successive-application doctrine bar a new Act 250 permit? | Appellants argue reconsideration required; no new permit. | Court properly applied successive-application doctrine. | New application permitted under successive-application doctrine. |
| Did the evidence establish a change in circumstances to permit the new application? | Changes not sufficiently demonstrated. | Significant commercial growth and reduced concerns showed a change. | Significant intervening growth and altered conditions supported anew application. |
| Is the Wal‑Mart project compatible with adjacent uses under the subdivision rules? | Hudak farm is adjacent; compatibility analysis required. | Hudak farm not sufficiently adjacent; no compatibility analysis needed. | Hudak farm not adjacent; compatibility analysis not required; findings affirmed. |
Key Cases Cited
- In re Wal‑Mart Stores, Inc., 167 Vt. 75 (Vt. 1997) (growth, economic impacts, and second‑order considerations under Criterion 9(A))
- In re Times & Seasons, LLC Act 250 Reconsideration, 2011 VT 76 (Vt. 2011) (reconsideration process and preservation of initial findings)
- In re Dunkin Donuts S.P. Approval, 2008 VT 139 (Vt. 2008) (mem., balance of finality and flexibility in Act 250)
- In re Carrier, 155 Vt. 152 (Vt. 1990) (principles governing successive applications)
- In re Route 103 Quarry, 2008 VT 88 (Vt. 2008) (credibility and standard of review in Act 250 findings)
- In Miller Subdivision Final Plan, 2008 VT 74 (Vt. 2008) (standard for review of agency findings)
- Liteky v. United States, 510 U.S. 540 (U.S. 1994) (impartiality and bias standards for decisionmakers)
- Ward v. Village of Monroeville, 409 U.S. 57 (U.S. 1972) (structural due process concerns and de novo correction)
- Vasquez v. Hillery, 474 U.S. 254 (U.S. 1986) (structural defects in tribunals and cure via later review)