Aрpellant Taft Corners Associates, Inc. (TCA) appeals from a decision of the Environmental Board, claiming that the Board exceeded the scope of its authority by deciding issues that were not raised before the district commission. We hold that the Board had no jurisdiction to decide issues that were not before the commission and reverse.
In October 1986, TCA filed an application for a pеrmit to develop a 223-acre commercial and industrial park at Taft Corners in Williston. On July 31, 1987, the district commission issued findings of fact and conclusions of law under Act 250, 10 V.S.A. §§ 6001-6092, and granted a permit (1987 permit) authorizing Phase I of the development. The 1987 permit allowed TCA to construct 4,400 feet of roads and utilities and to subdivide 10 to 14 lots of a planned 37-lot commercial and industrial subdivision. The commission approved Phase I prоvided that TCA complied with thirty-six conditions contained in the per mit. Condition 5 allowed a maximum of 999 parking spaces and 145 peak-hour vehicle trips. Condition 6 provided:
Prior to the commencement of construction on any lot within this subdivision the Permittee, Taft Corners Associates, and any purchaser or tenant of any lot shall file an amendment application under criteria l(Air), 1(E), 1(B), 4, 7(fire services), 8 and 9(F). This amendment application shall be accompanied by evidence of conformance to the Findings under criteria 1(B), 2 and 3, 5 and 9(J) and shall file a cumulative impact statement.
In January 1988, TCA filed a second application, requesting reconsideration of some conditions of the 1987 permit and approval for Phase II of the park. On April 27, 1988, the commission issued an amended umbrella permit (1988 permit) approving subdivision of the remaining lots and incorporating all conditions previously established, including the 1987 permit condition 6 that TCA obtain commission аpproval before construction on any lot. The 1988 permit amended condition 5, allowing 4,900 parking spaces (if there were no objections to the air quality permit, when filed) and 2,825 peak-hour vehicle trips.
In May 1991, TCA filed an amendment application seeking approval to construct a 114,513-square-foot Wal-Mart retail store and a 132,500-square-foot Sam’s Discount Price Club for warehouse sales. Williston Citizens for Responsible Growth (WCRG) petitioned for party status on criteria 5 (traffic), 8 (aesthetics), and 10 (conformance with local and regional plans). The petition was accompanied by a motion to apply criterion 10, alleging that TCA’s application constituted a significant change to the character of the development approved by the umbrella permit and did not comply with the revised town plan adopted after the permit was issued.
The district commission granted WCRG party status on criterion 8 (aesthetics), one of the criteria left open for consideration under amendment applications. The commission determined, however, that WCRG would not materially assist the commission in determining whether the application was in conformance with criterion 5. Further, it cоncluded that the application proposed no “material change” in the project; thus, there were no grounds to reconsider criterion 10 beyond compliance with the umbrella permit. Accordingly, it denied WCRG’s request for party status on criteria 5 and 10.
On November 15, 1991, the district commission issued findings of fact and conclusions of law on the amendment application under all criteria set forth in condition 6 of the 1987 permit, and granted a permit (1991 permit) to construct Wal-Mart/ Sam’s subject to thirty-four conditions. WCRG appealed the decision to the Environmental Board and requested a de novo hearing on all ten Act 250 criteria. The City of Burlington moved for party status on several criteria.
Prior to an evidentiary hearing, the Board requested briefs on preliminary issues related to the scope of review. On March 31, 1992, the Board ruled that its Umbrella Permit Policy required specific identification of the type and character of activities proposed “so that the potential impacts can be meaningfully reviewed,” and that final approval under the Umbrella Permit Policy may be granted only on those aspects of a proposed project for which the impacts may be evaluated, such as natural resources at the site. Thus, the Board concluded that potential offsite impacts and impacts from individual uses cannot be addressed until the specific use of each tenant is identified. It determined that TCAs umbrella permit applications had not provided the specificity required by simply identifying a proposed project as “retail” or “major retail.”
The Board also ruled that the district commission had not properly reviewed the earlier applications under several criteria and that each of those criteria must be reconsidered. The Board disagreed with TCA’s argument that only those criteria listed in condition 6 of the 1987 permit were still open for review, maintaining that it had authority to “reopen[] parts of an umbrella permit in certain circumstances.” Further, the Board ruled that the amendment application constituted a substantial change to the development approved in the umbrella permit “because many of the potential impacts from this project were never considered.” Consequently, the Board remanded the amendment application to the district commission to review under the criteria it had identified as inadequately reviеwed during the umbrella permit application process.
TCA appeals from this decision, claiming that the Board exceeded its authority by addressing issues that were not raised before
I.
We first address this Court’s authority to consider this appeal prior to an administrative decision on the merits. WCRG and the City оf Burlington argue that the Court has no jurisdiction to consider the appeal because the order from which TCA appeals is not a final order. We agree that TCA has not exhausted all administrative remedies as the Board’s order remanded the case to the district commission for consideration of various criteria. See
In re Pelham North, Inc.,
Ordinarily, we decline to review a decision that is not a final disposition of the matter.
Id.
Nevertheless, where an agency has clearly exceeded its jurisdiction in an intermediate ruling, interlocutory review is appropriate. See
id.
at 652,
We also note that appeals from decisions of the Environmental Board are brought pursuant to 10 V.S.A. § 6089(a) and 3 V.S.A. § 815(a). Under § 815(a), an intermediate ruling, such as this, is aрpealable only if review of the final decision would not provide an adequate remedy. “It must at least be shown that appeal of the ultimate order will not provide an adequate remedy or that the nature of the claimed defect in the order is such that the harm is greatly aggravated by delay.”
In re Central Vermont Public Service Corp.,
TCA maintains that the delay and expense associated with a remand to the district commission would effectively require it to abandon the Wal-Mart/Sam’s project altogether after considerable expenditures over the past five years in reliance on the umbrella permit. We conclude that, where a decision clearly exceeds the jurisdiction of the Board and requires the applicant virtually to commence the application process again, the delay and expense involved justify our consideration of the interlocutory decision.
Amici WCRG and the City of Burlington contend that TCA must fulfill the requirements of V.R.A.P. 5 (interlocutory appeals) or V.R.A.P. 5.1 (appeals of collateral final orders), and that under either rule the appeal must be dismissed as untimely filed. We disagree. Appeals from administrative boards to this Court are brought pursuant to V.R.A.P. 13. The Reporter’s Notes to this rule prоvide that “by virtue of 3 V.S.A. § 815(a), appeals of interlocutory rulings of administrative agencies should be treated as appeals from final decisions.” Thus, we treat this appeal as an appeal from a final decision under V.R.A.P. 4, and conclude that the notice of appeal was timely.
ANR argues that TCA failed to raise the jurisdictional issues before the Board, and therefore, this Court lacks authority tо
consider
II.
TCA contеnds that the Environmental Board did not have jurisdiction to decide issues that were not contested before the district commission. Thus, the only issues properly before the Board, according to TCA, were those raised by WCRG regarding criteria 5,8, and 10. ANR maintains that, because the Board found that the amendment application involved a substantial change to the development as previously approvеd, it could remand the application to the commission for consideration under any of the Act 250 criteria. We do not agree with either position but, rather, conclude that the scope of the Board’s review lies between these two positions.
In reviewing decisions of the Environmental Board, we afford great deference to the Board’s interpretation of Act 250, even in appeals raising jurisdictional issues.
In re Denio,
The scope of a de novo hearing is thus limited to those issues raised in the notice of appeal. See, e.g.,
In re Killington, Ltd.,
The Board’s jurisdiction is limited, however, by the scope of the proceedings below. It has no jurisdiction to decide issues regarding criteria that were not before the district commission and not ruled upon by it.
In re Vermont Gas Systems,
ANR argues that the Board has discretion to raise issues that were not brought before the commission, based on Environmental Board Rule (EBR) 40(D), which provides: “The scope of the appеal hearing shall be limited to those reasons assigned by the appellant why the commission was in error unless substantial inequity or injustice would result from such limitation.” We do not decide whether this rule violates the more restricted mandate of 10 V.S.A. § 6089 because, in the instant case, the Board did not proceed under the rule. EBR 40(D) is not cited in its decision, nor is there any finding that substantial inequity or injustice would result from limiting review to those issues
ANR also argues that the Board could properly remand the application to the commission for consideration of additional criteria because the Board determined that the Wal-Mart/ Sam’s project involved a substantial change to the development as approved in the umbrella permit. EBR 34(B) provides that “[i]f a proposed amendment involves substantial changes to a
permitted project or permit, it shall be considered as a new application.” In such circumstances, review under all ten criteria would be required before the commission in the first instance. See 10 V.S.A. § 6086(a) (before granting a permit, the district commission or Board shall find that the development satisfies all ten Act 250 criteria): A “substantial change” is defined as “any change in a development or subdivision which may result in significant impact with respect to any of the [ten] criteria.” EBR 2(G);
In re Orzel,
In the proceedings before the commission, WCRG sought party status on criterion 10 on the ground that the amendment application represented a “significant change” to the development as approved becаuse it did not conform to the new town plan. The commission ruled against WCRG and never considered whether the Wal-Mart/Sam’s project involved a significant impact on any other criteria. Thus, before the Board, the question of substantial change was limited to consideration of the project’s impact on criterion 10. Only if the Board found that the project may result in a significant impact on criterion 10 could it remand the application to the commission to consider as a new application. The Board made no such finding. Thus, the conclusion that the amendment involves a significant change to the development is not supported, and a remand for the commission to consider it as a new application was not proper.
WCRG also argued before the commission that the proposed project represented a “material change” to the development due to its size and market characteristics, as well as the reconfiguration of three lots into two lots. The commission ruled that, although reconfiguration of lot lines may flag a material change, it must have a significant impact on one or more of the ten criteria to trigger review; the commission concluded there had been no such showing here. On appeal before the Board, WCRG maintained that the lot reconfiguration had the potential to make significant impacts and thus constituted a substantial change, requiring review of the application under all ten criteria. We agree with the commission. A reconfiguration of the lots, by itself, is insufficient to establish a material or substantial change. The reconfiguration must have significant impact on one of the ten criteria. Because WCRG raised the issue of substantial change only under criterion 10 before the commission, the Board is restricted to reviewing the application for substantial change under this criterion.
The arguments for upholding the remand would require rewriting the Board’s decision. The order to remand the amendment application to the сommission was not based on EBR 40(D) or a finding of a significant change but rather on the conclusions that umbrella permits can be “reopened” and that “many of the potential impacts from this project were never considered.” We find no authority that allows the Board to “reopen” an umbrella permit. An umbrella permit is a final decision unless appealed within thirty days of issuance. See 10 V.S.A. § 6089(a). Because neither the 1987 umbrella permit nor the 1988 amendment was appealed to the Board, the findings, conclusions and permits are final and are not subject to attack in a subsequent application proceeding, whether or not they were properly granted in the first instance. “To hold otherwise would severely undermine the orderly governance of development and would upset reasonable reliance on the process.”
Levy v. Town of St. Albans Zoning Bd. of Adjustment,
III.
We address one final issue in the interest of judicial economy. In determining whether the project constituted a substantial
Criterion 10 was closed and TCA’s rights vested in the 1987 plan when the period for appealing the umbrella permit
expired. Thus, the Board must determine de novo whether the amendment application complies with town and regional plans in effect in 1987. Cf.
In re Ross,
Reversed and remanded to the Board for а de novo hearing on the issues that were before the district commission and raised in the notice of appeal, namely:
whether the amendment application satisfies criteria l(air), 1(B), 1(E), 7(fire services), 8, and 9(F);
whether the development complies with the conditions of the umbrella permit on criteria 1(B), 2, 5, and 9(J); and
whether the amendment application proposes a significant impact on criterion 10.