In re Korrow Real Estate, LLC Act 250 Permit Amendment Application (State of Vermont, Appellant)
187 A.3d 1125
Vt.2018Background
- Korrow Real Estate built an ~8,000 sq. ft. barn and brought fill near the Dog River and Stony Brook in Northfield in 2012 without first obtaining an Act 250 permit; the parcel is a commercial "development" subject to Act 250.
- ANR used its technical guidance (including a fluvial erosion hazard, FEH, assessment) to map an Act 250 "floodway" that included parts of the barn and fill, even though FEMA/NFIP maps did not.
- The District 5 Commission, relying on ANR, found the project within the Act 250 floodway and on a river "shoreline," and ordered removal/relocation for noncompliance with Criteria 1(D) (floodway/floodway fringe) and 1(F) (shoreline).
- The Environmental Division reversed: it rejected ANR’s floodway methodology, found the project outside the floodway, and concluded the project complied with Criteria 1(D) and 1(F), ordering issuance of an as-built Act 250 permit.
- The Natural Resources Board appealed, arguing the Environmental Division failed to afford proper deference to ANR’s statutorily delegated expertise and methodologies; the Supreme Court affirmed in part, reversed in part, and remanded.
Issues
| Issue | Plaintiff's Argument (Korrow) | Defendant's Argument (NRB/ANR) | Held |
|---|---|---|---|
| Whether ANR’s FEH-based methodology properly defines the Act 250 "floodway" and whether the court should defer to ANR | ANR methodology is incorrect; court’s own assessment shows project is outside floodway | Legislature delegated floodway/floodway-fringe determinations to ANR; complex geomorphic methods are within ANR expertise and entitled to deference | Court must defer to ANR on floodway definition absent arbitrary/capricious or due-process violation; ANR definition applied and project is within the floodway (but see compliance below) |
| Whether the project complies with Criterion 1(D) (development in floodway will not restrict/divert floodwaters or endanger others) | Project’s location and evidence (slope, lack of historical flooding) show it will not restrict/divert floodwaters or endanger public/riparian owners | If project is in ANR-defined floodway, it must meet Criterion 1(D) and ANR concerns about FEH impacts are significant | Although within ANR floodway, record contains credible evidence supporting the Environmental Division’s factual findings that the project does not restrict/divert flows or endanger safety; Criterion 1(D) satisfied |
| Whether the project is on a "shoreline" (definition of "adjacent") and whether court should defer to NRB rule interpretation | Project is not on a shoreline (court’s functional analysis) | NRB Rule and statute define shoreline broadly; adjacency and potential impacts support shoreline finding | Environmental Division’s factual findings that project is not on a shoreline are insufficient and inadequately define or apply "adjacent"; remand required for further findings and briefing on "adjacent" |
| If on shoreline, whether the project meets Criterion 1(F) including the statutory "of necessity" requirement | Project complies with the four subcriteria (retain natural condition, access, screening, bank stabilization) | If project is on shoreline, must also show it is "of necessity" located on the shoreline per statute and NRB rule | Trial court failed to address the "of necessity" element and did not make adequate findings against the shoreline scope; remand for determination of shoreline status and, if applicable, "of necessity" and subcriteria compliance |
Key Cases Cited
- Plum Creek Me. Timberlands, LLC v. Vt. Dept. of Forests, Parks & Rec., 155 A.3d 694 (Vt. 2016) (courts must defer to agency interpretations of policy/methodology within agency expertise even in de novo hearings)
- In re Woodford Packers, Inc., 830 A.2d 100 (Vt. 2003) (ANR has statutory authority to define Act 250 "floodway" and "floodway fringe"; agency methodology entitled to deference absent arbitrary/capricious application)
- In re Zaremba Gr. Act 250 Permit, 127 A.3d 93 (Vt. 2015) (appellate review standard: factual findings reviewed for clear error; legal conclusions de novo)
- In re Vill. Assocs. Act 250 Land Use Permit, 998 A.2d 712 (Vt. 2010) (clarifies standard of review and trial-court role in weighing evidence)
- McShinsky v. Town of Colchester, 572 A.2d 916 (Vt. 1990) (courts must determine whether shoreline development is "of necessity" located on shoreline under Criterion 1(F))