1 STATE OF VERMONT ENVIRONMENTAL COURT

} In re Times & Seasons, LLC } Act 250 Reconsideration } Docket No. 45-3-09 Vtec }

Decision on Multiple Motions Times and Seasons, LLC (“Applicant”) seeks an Act 250 permit authorizing the construction and operation of a gift shop and deli, with related improvements, on a 7.3± acre tract of land located at 1675 Dairy Hill Road in So uth Royalton, Vermont. Applicant’s initial efforts began in March 2004. After its application was denied, both by the District 3 Environmental Commission (“District Commission”) an d the former Vermont Environmental Board (“Environmental Board”) for failing to satisf y Act 250 criteria 8, 9(B), and 10, Applicant appealed to the Vermont Supreme Court. The Supreme Court affirmed the permit denial on the grounds that the project did not comply with criter ia 8 and 9(B). The Supreme Court issued its final entry order, addressing Applicant’s motion fo r re-argument, on March 14, 2008. Applicant thereafter filed with the District Commis sion an application for reconsideration pursuant to 10 V.S.A. § 6087(c). 1 As explained more fully below, § 6087(c) allows a n applicant to apply for reconsideration with the District Comm ission within six months of a final Act 250 permit application denial if the applicant certifie s that it has corrected the deficiencies identified during the denial. 2 An Act 250 permit may issue if those problems are satisfactorily addressed. The District Commission determined that Applicant’s modified project complied with Act 250 criterion 8, but it denied the application for failing to satisfy criterion 9(B). Applicant timely appealed that decision to this Court; the on ly issue raised in the appeal is whether the deficiencies regarding criterion 9(B) have been cor rected such that the proposal now complies with criterion 9(B). No adjoining landowners have appeared in these pro ceedings. The only entities to appear in opposition to Applicant’s proposal are the Land Use Panel of the Vermont Natural Resources Board (“NRB”), which is represented by its attorney , Mark L. Lucas, Esq., and the Town of

1 We note here, for clarity, that an application for reconsideration filed pursuant to 10 V.S.A. § 6087 (c) is wholly different from a motion to amend under V.R.C.P. 59( e), which is often called a motion for reconsiderat ion.

2 Although Act 250 applicants have long taken advant age of § 6087(c), this case appears to be the first instance in which an Act 250 permit applicant sought reconsider ation following a denial by the Vermont Supreme Cou rt.2

Royalton Planning Commission (“Planning Commission” ), which is represented by Geoffrey H. Hand, Esq. Applicant is represented by David L. Gr ayck, Esq. and Zachary K. Griefen, Esq. The Agency of Natural Resources has informational s tatus through Judith L. Dillon, Esq. Currently pending before the Court are three cross -motions for summary judgment, filed on behalf of Applicant, the NRB, and the Planning C ommission. The NRB has also filed two

motions that seek to strike from the record certain pleadings filed by Applicant. Because our decision on the motions for summary judgment is rea ched without considering any of the challenged pleadings, and because the issues discus sed herein are dispositive, we need not

address the NRB’s motions to strike.

Procedural History & Factual Background For the sole purpose of putting the pending motions into context, we recite the following facts, which we understand to be undisputed unless otherwise noted:

1. In March 2004, Applicant sought approval under Act 250 to construct and operate a gift shop and deli on a 7.3± acre tract of land near the Joseph Smith Birthplace Memorial; Applicant’s property is located at 1675 Dairy Hill Road in South Royalton, Vermont. In addition to constructing a roughly 4,800-square-foot gift sh op and a twenty-seat deli, Applicant proposed to improve the parcel with an access drive and park ing lot, a pump station, a septic field, and a

drilled well.

2. On August 25, 2004, the District Commission denied Applicant’s Act 250 permit application; Applicant appealed that decision to th e Environmental Board.

3. The Environmental Board denied Applicant’s applicat ion, concluding that the proposed project did not comply with Act 250 criteria 8, 9(B ), or 10. Re: Times and Seasons, LLC

, No. 3W0839-2-EB, Findings of Fact and Conclusions o f Law, and Order (Altered) (Vt. Envtl. Bd. Nov. 4, 2005).

4. The Board determined that Applicant failed to satis fy criterion 8 for two reasons: Applicant did not take adequate mitigation measures to minimize the project’s aesthetic impact, and the project violated a clear, written community standard intended to preserve the scenic beauty of the area. Id . at 42–50. The Board also concluded that the prop osal did not comply with criterion 9(B) because the project would signi ficantly reduce the agricultural potential of 1.9± of the 2.8± acres of primary agricultural soil on the project site. Id . at 51–56. Finally, the Board concluded that Applicant did not satisfy crit erion 10 because Applicant failed to show that3

locating the commercial development close to the to wn center was not feasible, which was a directive stated in the Town of South Royalton Town Plan (“Town Plan”). Id . at 58–67.

5. Applicant appealed the Environmental Board’s decisi on to the Supreme Court, and on February 1, 2008, the Court affirmed in part and re versed in part the denial of Applicant’s application. In re Times & Seasons, LLC , 2008 VT 7, 183 Vt. 336.

6. The Supreme Court agreed that Applicant’s proposed project did not comply with criterion 8, affirming the Environmental Board’s fi nding that Applicant took inadequate mitigation measures to minimize the project’s aesth etic impact. Id . at ¶¶ 9–10. 3 The Court also agreed that Applicant’s project did not comply with criterion 9(B), finding no error in the Board’s conclusion that 1.9± of 2.8± acres of prima ry agricultural soils would be impacted by the project. Id . at ¶ 16. 4 However, the Court reversed the Board’s determina tion regarding criterion 10, concluding that the general Town Plan recommendation that commercial developments be located close to the town center “w here feasible” was too ambiguous to be enforced against Applicant. Id . at ¶ 23. Accordingly, the Supreme Court’s Februa ry 1 decision established that Applicant’s proposed project only exhibited deficiencies in regard to Act 250 criteria 8 and 9(B).

7. Applicant thereafter filed a motion for re-argument with the Supreme Court; the Court denied its motion by entry order of March 14, 2008.

8. Approximately five and one-half months after this d enial, on August 29, 2008, Applicant filed a reconsideration request with the District C ommission pursuant to 10 V.S.A. § 6087(c). Section 6087(c) allows an applicant who has been de nied an Act 250 permit to seek reconsideration of the permit within six months of the final permit denial—so long as the applicant certifies that it has corrected the defic iencies identified in the prior denial of its origi nal application. 10 V.S.A. § 6087(c). 5

9. On February 20, 2009, the District Commission deter mined that the Applicant’s revised project design corrected the problems concerning Ac t 250 criterion 8, but the project continued

3 As a result of this conclusion, the Court did not reach whether the proposed project violated any cle ar, written community standard. In re Times & Seasons, LLC , 2008 VT 7, ¶ 10.

4 The Court also agreed with the Environmental Boar d that Applicant had failed to meet each of the fou r subcriteria to criterion 9(B). Id . at ¶ 17–20 (examining 10 V.S.A. § 6086(a)(9)(B)(i )–(iv)).

5 Interpreting and implementing this provision, the Environmental Board promulgated Rule 31(B), which s ays in part that “[a]n applicant for a permit which has re ceived a final denial of an Act 250 permit applicat ion from a district commission or a court may, within six mont hs of the date of that decision, apply to the distr ict commission for reconsideration pursuant to 10 V.S.A. § 6087(c) .” Act 250 Rule 31(B).4

to be noncompliant with criterion 9(B). It therefo re denied Applicant’s application. Applicant timely appealed to this Court on March 11, 2009. A s a consequence of prior pretrial motions and amended pleadings, Applicant’s Amended Statement of Questions raises the sole issue of whether Applicant’s proposal now complies with Act 250 criterion 9(B).

10. The Court has not been provided with Applicant’s re consideration request. Nor has the Court been provided with the affidavit certifying t hat the deficiencies have been corrected, which is required by 10 V.S.A. § 6087(c). In fact, Appli cant makes no claim that it has revised its March 2004 application to bring the project into co mpliance with criterion 9(B).

11. The record further indicates that Applicant already constructed a building on the project site while the original Act 250 application was pen ding before the Supreme Court. The roughly 4,800-square-foot building is located in approximat ely the same footprint as the gift shop and deli proposed in March 2004, and the floor plan is substantially similar. Applicant has represented that this building’s sole purpose, for the time being, is to produce maple syrup. 6 We have not been made aware that this building has bee n actually operated for this purpose.

12. At the request of the parties, the Court visited th e property with the parties and conducted a site visit. This site visit helped the Court put into context the facts the parties have represente d in support of their respective motions for summary judgment.

Discussion Applicant seeks an Act 250 permit for a deli and g ift shop on a 7.3± acre parcel near the Joseph Smith Birthplace Memorial in South Royalton, a project initially proposed in March 2004. It was initially denied a permit by the Dist rict Commission in 2004, and was thereafter denied a permit by the Environmental Board in 2005. In March of 2008, the denial of Applicant’s application was affirmed by the Vermont Supreme Court for failing to comply with Act 250 criteria 8 and 9(B). Within six months of the Supreme Court’s March 14, 2008 entry order, Applicant filed with the District Commission an application for reconsideration pursuant to 10 V.S.A. § 6087(c). Based upon the additional evidence of renewed compliance, the District Commission granted the application with respect to criterion 8, but it denied the application

6 In reliance on Applicant’s representation, the Di strict Commission Coordinator issued an Act 250 Jur isdictional Opinion that determined Applicant’s construction of the building solely for maple syrup production qua lified as farming, which is exempt from Act 250 jurisdiction under 10 V.S.A § 6001(22)(D). Jurisdictional Opini on #3-104 from Julia Schmitz, District 3 Environmental Commis sion Coordinator, to Josephine Levasseur, Chair of the Royalton Planning Commission, at 2 (June 15, 2006).5

under criterion 9(B). Applicant has now appealed t hat decision to this Court. The sole issue on appeal is whether Applicant has corrected the defic iencies that formed the basis for the application denial and satisfied criterion 9(B) as a result. If so, Applicant may be entitled to an Act 250 permit for the March 2004 application invol ving the gift shop and deli. Currently pending before the Court are three cross- motions for summary judgment. In its motion, the Planning Commission principally maintai ns that we should summarily deny Applicant an Act 250 permit because Applicant faile d to seek reconsideration within six months of the Environmental Board decision. The Planning Commission contends that since Applicant instead appealed to the Supreme Court, it waived it s right to seek reconsideration. The Commission argues that allowing Applicant to seek r econsideration after exhausting its appellate options undermines judicial principles of finality. The NRB contends in its motion for summary judgment that, even if Applicant’s application for reconsideration was timely, Applica nt’s Act 250 application should be summarily denied because Applicant has not modified its proje ct to correct the deficiencies identified by the Supreme Court. The NRB argues that the Court’s pri or finding of noncompliance with criterion 9(B) is the law of the case and, absent a demonstra tion that the conflicts have been addressed, the pending application must be denied as a matter of l aw. Applicant has responded in opposition to both motio ns, in addition to filing its own motion for summary judgment. Applicant argues agai nst the Planning Commission’s motion by contending that the six-month window to file for re consideration began when the Supreme Court’s March 14 entry order rendered final the Act 250 permit denial. In opposition to the NRB, Applicant argues that no project modifications are necessary because the statutory definition of “primary agricultural soils” has been amended and, because of that amendment, the soils on Applicant’s land are no longer regarded as the type of agricultural soils protected under criterion 9(B). 7 Applicant ultimately contends that the undisputed facts indicate that its Act 250 application is entitled to approval as a matter of law because the proposed project satisfies the

7 Applicant also argues, in the alternative, that e ven if the soils its development will impact are re garded as “primary agricultural soils,” as now defined, it sh ould be allowed to present evidence, including new evidence offered in support of the application it seeks to h ave reconsidered, that it can satisfy the mitigatio n and other subsections of criterion 9(B). Because we conclude below that this amended definition does not apply within the context of reconsidering Applicant’s original appli cation, we do not address this additional legal arg ument.6

current version of 10 V.S.A. § 6086(a)(9)(B). 8 For the reasons detailed below, we decline to adopt Applicant’s reasoning and concur with the arg uments made on behalf of the NRB in regard to reconsideration requirements. We begin our analysis by noting (as we must) that s ummary judgment is only appropriate “when the record clearly shows that there is no gen uine issue of material fact and that the movant is entitled to judgment as a matter of law.” Madk our v. Zoltak , 2007 VT 14, ¶ 12, 181 Vt. 347 (quoting Bacon v. Lascelles , 165 Vt. 214, 218 (1996)); see also V.R.C.P. 56(c) (3). The Court “place[s] the burden of proof on the moving party, and give[s] the opposing party the benefit of all reasonable doubts and inferences.” Chapman v. Sparta , 167 Vt. 157, 159 (1997). However, when presented with cross-motions for summary judgm ent, we must consider each motion independently, affording all reasonable doubts and inferences to the party opposing the particular

motion under consideration. DeBartolo v. Underwrit ers at Lloyd’s of London , 2007 VT 31, ¶ 8, 181 Vt. 609 (mem.) (citing Toys, Inc. v. F.M. Burli ngton Co. , 155 Vt. 44, 48 (1990)). We apply these standards to the pending cross-motions, begin ning with the Planning Commission’s argument that Applicant’s reconsideration request w as untimely. Act 250 permit applicants have long taken advantage of the opportunity to seek reconsideration pursuant to 10 V.S.A. § 6087(c). S ee, e.g., Re: Sherman Hollow, Inc.

, No. 4C0422-5R-1-EB, Findings of Fact, Conclusions o f Law, and Order (Revised) (Vt. Envtl. Bd. June 19, 1992), aff’d , 160 Vt. 627 (1993) (mem.). Most often, however, applicants have applied for reconsideration after being denied an A ct 250 permit by the applicable district commission or the Environmental Board. See, e.g., Re: Gary Savoie d/b/a WLPL , No. 2W0911- EB (Reconsideration), Findings of Fact, Conclusions of Law, and Order (Vt. Envtl. Bd. Aug. 27, 1997). In fact, the Court has not been made aware of any prior instance in which an applicant applied for reconsideration following a denial by t he Vermont Supreme Court. This case presents such a situation. Instead of seeking reconsideration within six month s of the District Commission or Environmental Board denials in 2004 and 2005, Appli cant chose to appeal to the Supreme Court. Only after the Supreme Court issued a final entry o rder on March 14, 2008, thereby bringing

8 Criterion 9(B) applies only if primary agricultur al soils exist on the project site. If primary agr icultural soils are present, criterion 9(B) requires an applicant to de monstrate either that the proposed project will not reduce the agricultural potential of such soils, or that the p roposed project will comply with sub-criteria (i)-( iv). 10 V.S.A. § 6086(a)(9)(B).7

finality to the denial of Applicant’s Act 250 appli cation, did Applicant seek reconsideration pursuant to 10 V.S.A. § 6087(c). As a result, Appl icant’s reconsideration request was filed four years after the District Commission and Environment al Board denials, but only five and one-half months after the Supreme Court’s final determinatio n. The Planning Commission argues in its motion for su mmary judgment that Applicant cannot seek reconsideration after appealing an Act 250 permit denial to the Supreme Court. It maintains that § 6087(c) only allows reconsideratio n within six months of a denial by the Environmental Board (or presumably this Court, now that it has been assigned jurisdiction over Act 250 appeals), and that Applicant waived its rig ht to seek reconsideration by appealing to the Supreme Court. According to the Planning Commissio n, allowing Applicant to request reconsideration and offer new evidence in support o f reconsideration, after exhausting its appellate options, undermines the principles of fin ality and judicial economy. While we share the Planning Commission’s concerns f or efficiency and finality, we disagree with the conclusion that reconsideration o ffends these principles. As is discussed below, the reconsideration process authorized by § 6087(c) respects finality by limiting the issues that can be raised; an applicant cannot chal lenge final determinations previously made in the original permit denial. In addition, allowing an applicant to seek reconsideration upon its original application following an appeal to the Sup reme Court, based upon new evidence that it has cured the found deficiencies, adds legitimacy t o the process and does not involve the unnecessary expenditure of judicial resources. For the following reasons, we conclude that Applicant did not waive its right to file a reconsi deration request by first exhausting its appellate rights. Applications for reconsideration filed pursuant to 10 V.S.A. § 6087(c) provide an Act 250 applicant with a unique opportunity. Under thi s provision, “[a] person may, within six months [of a permit denial], apply for reconsiderat ion of his permit” if he certifies that he has corrected the problems that formed the basis for th e denial. 10 V.S.A. § 6087(c). This “give[s] an applicant whose application has been denied an o pportunity to revise its proposal to correct

the deficiencies identified in the denial without h aving to file a new application.” Re: Berlin

Associates , No. 5W0584-14-EB, Mem. of Decision, at 5 (Vt. Env tl. Bd. Jan. 10, 1992). As a result, she need not pay a new application fee, and all the affirmative findings made in the original decision are entitled to a rebuttable pres umption of validity. Id . at 5–6.8

In order to enjoy the benefits of seeking reconside ration, however, an applicant is limited to correcting the deficiencies that provided the ba sis for the original permit denial. “[R]equiring that deficiencies be corrected serves the important policy of preserving the integrity of [the] Act 250 decision-making [process] by preventing relitig ation of issues addressed in the original decision.” Sherman Hollow, Inc. , No. 4C0422-5R-1-EB, at 19. In effect, this preco ndition ensures that a reconsideration request sufficiently addresses the deficiencies already ruled upon, rather than requiring the applicant to submit a new application; in return for a limited proceeding, based only upon the original application’s shortcom ings, an applicant can avoid the expense and review of filing a new application, which would be subject to review under possibly revised criteria. See Re: The Van Sicklen Ltd. P’ship , No. 4C1013R-EB, Mem. of Decision, at 11–15 (June 8, 2001) (discussing collateral estoppel in t he context of reconsideration). In light of the narrow purpose of 10 V.S.A. § 6087( c), the sole issue presented in a request for reconsideration is whether an applicant has corrected the deficiencies identified in the original permit application. See, e.g., Gary Savoi e , No. 2W0911-EB, at 6. It is not a vehicle to relitigate issues that were already decided. Inste ad, it involves “accepting the denial and finding a way to meet its terms.” Re: Taft Corners Assocs. Inc. , No. 4C0696-11-EB (Remand), Mem. of Decision, at 9 (Vt. Envtl. Bd. May 5, 1995). In th is sense, reconsideration does not disturb the decision announced in the permit denial, and a fina l denial by the Supreme Court remains a final judgment. Furthermore, allowing an applicant to appeal the de nial to the Supreme Court before it seeks reconsideration under § 6087(c) adds legitima cy and certainty to the process. By appealing an Act 250 permit denial to the Supreme C ourt, an applicant can be certain that the deficiencies identified by the lower tribunal are l egitimate grounds for a permit denial. It allows our state’s highest authority to confirm the specif ic deficiencies that must be corrected on

reconsideration. The converse scenario facilitates an unjust result; foreclosing reconsideration under § 6087(c) after an appeal to the Supreme Cour t might compel an applicant to accept deficiencies named by a lower tribunal with which i t disagrees—deficiencies that may not be supported by the law or facts. The facts of this c ase nicely illustrate why it is preferable to allow appeal to the Supreme Court. In this instance, the Environmental Board identifie d three deficiencies with Applicant’s March 2004 application: failures to comply with cri teria 8, 9(B), and 10. However, the Supreme9

Court on appeal only upheld two of the deficiencies found by the Board (criteria 8 and 9(B)), concluding that ambiguous language in the Town Plan rendered the project compliant with criterion 10. Had Applicant accepted the Environme ntal Board’s denial and corrected all three deficiencies, Applicant would have been compelled t o meet a standard the Supreme Court deemed unenforceable. The Supreme Court’s decision therefore made a final determination as to

which deficiencies must be corrected in a reconside ration of the original application, providing legitimacy to the process. Finally, we find support in Environmental Board pre cedent for allowing Applicant to seek reconsideration pursuant to § 6087(c), even af ter appealing to the Supreme Court. 9 The Environmental Board has declared that “the running of the time in which to file for reconsideration is stayed by the filing of an appea l.” J. Philip Gerbode and Highland Development Corp. , No. 6F0396-EB, Prehearing Conference Report and O rder, at 1 n.1 (Vt. Envtl. Bd. Oct. 17, 1989) (calculating the six-mont h deadline from the date of the last Environmental Board decision). Therefore, the six- month window for reconsideration, under section 6087(c), commences when a final decision is issued, whether it is from the Environmental Board, this Court, or the Supreme Cou rt on appeal. The record currently before the Court indicates tha t Applicant sought reconsideration approximately five and one-half months after its Ac t 250 permit denial became final. We therefore conclude that Applicant timely filed its reconsideration request, and DENY the Planning Commission summary judgment on this issue. In light of this conclusion, we must now determine whether Applicant has met the standards for reconsideration and whether Applicant deserves an Act 250 permit for its proposed deli and gift shop as a matter of law, thereby addr essing the legal issues presented in the remaining summary judgment motions. On this issue, the NRB contends that summary judgme nt is warranted on its behalf because Applicant has not modified its March 2004 a pplication to correct the deficiencies regarding criterion 9(B). It argues that the Supre me Court concluded that Applicant’s March 2004 application failed to conform to criterion 9(B ) when it upheld the finding that Applicant’s proposal would disturb 1.9± of 2.8± acres of primar y agricultural soil on the project site. See In

9 This Court is directed to give the decisions of th e Environmental Board “the same weight and consider ation as prior decisions” of this Court. 10 V.S.A. § 8504(m ).10

re Times & Seasons, LLC , 2008 VT 7, ¶ 16, 183 Vt. 336. Accordingly, this is the law of the case, which should control the outcome of Applicant ’s reconsideration request absent a demonstration that the March 2004 application has b een sufficiently modified. See Coty v. Ramsey Assocs., Inc. , 154 Vt. 168, 171 (1990) (explaining that a decisi on by the Supreme Court is the law of the case “on the points presented thr oughout all the subsequent proceedings therein, and no question then necessarily involved and decid ed will be reconsidered by the Court in the same case on a state of facts not different in lega l effect” (quoting Perkins v. Vermont HydroElectric Corp. , 106 Vt. 367, 415–16 (1934))). In response, Applicant concedes that it has not rev ised its March 2004 application to bring the project into compliance with criterion 9( B). Instead, Applicant asserts that a change in law since its original application renders modifica tion unnecessary to meet criterion 9(B). On July 1, 2006, while Applicant’s Act 250 permit appl ication was on appeal to the Supreme Court, the Legislature amended the definition of “primary agricultural soils.” See 10 V.S.A. § 6001(15) (2006). According to Applicant, the soils on the p roject site do not fit the amended definition of “primary agricultural soils.” As a result, Applica nt argues that the project proposed in March 2004 will not impact any protected soils; an Act 25 0 permit should issue because the original project now meets the current requirements of crite rion 9(B). For reasons more fully discussed below, we conclude that Applicant cannot take advan tage of the amended definition of primary agricultural soils in a proceeding to reconsider it s original application. Therefore, we conclude that Applicant’s revised Act 250 application fails to conform to the applicable version of criterion 9(B) as a matter of law. As a starting point, it is well settled in Vermont that an Act 250 permit application is governed by the law in effect at the time a complet ed permit application is filed. In re Jolley

Assocs. , 2006 VT 132, ¶ 11, 181 Vt. 190 (citing Smith v. W inhall Planning Comm’n , 140 Vt. 178, 181–82 (1981)). It is also established that s eeking reconsideration “does not constitute the submission of a new application;” it instead “const itute[s] the review of the original, albeit modified, application.” Re: Barre City Sch. Dist. , No. 5W1160-Reconsideration-EB, Findings of Fact, Conclusions of Law, and Order, at 14 (Vt. Envtl. Bd. Jan. 30, 1995) (citing Sherman Hollow, Inc. , No. 4CO422-SR-l-EB, at 17–19). Based upon this p recedent, we conclude that the controlling law in this case is the definition of p rimary agricultural soils that was in effect when Applicant filed its original Act 250 permit applica tion in March 2004.11

Applicant responds by arguing that it can take adva ntage of beneficial changes in law that occur while an Act 250 permit application is pendin g. In support, Applicant points to a line of decisions from the Environmental Board that applied changes in law to pending applications when the change “benefit[ed] the applicant or [had] the effect of making [Act 250 requirements] less onerous or restrictive.” See, e.g., Re: Okemo Ltd. Liability Co. , No. 2S0351-24B-EB, Mem. of Decision, at 5 (Vt. Envtl. Bd. May 10, 2004); Re : Dr. Anthony Lapinsky and Dr. Colleen

Smith , Nos. 5L1018-4 & 5L0426-9-EB, Findings of Fact, Co nclusions of Law, and Order, at 24 (Vt. Envtl. Bd. Oct. 3, 2003); Re: Swedish Ski Club of Vermont Land Trust , Declaratory Ruling #411, Findings of Fact, Conclusions of Law, and Ord er, at 7 (Vt. Envtl. Bd. Jan. 16, 2003); Re: Juster Development Co. , No. 1R0048-8-EB, Findings of Fact, Conclusions of Law and Order, at 33 (Vt. Envtl. Bd. Dec. 19, 1988). Applicant conte nds that the amended definition of primary agricultural soils creates less onerous requirement s for an applicant under criterion 9(B) and therefore should be applied to its pending applicat ion. Although the cases cited by Applicant appear to sup port the position that an applicant can take advantage of certain changes in the governing laws, none of Applicant’s proffered authorities involve the retroactive application of a statutory amendment. Instead, these cases involved amendments to Act 250 Rules, zoning regula tions, or town plans. See, e.g., Okemo.

LLC , No. 2S0351-24B-EB, at 5 (applying amended Act 250 Rule 14); Dr. Anthony Lapinsky

, Nos. 5L1018-4 & 5L0426-9-EB, at 24 (applying amende d Act 250 Rule 34); Swedish Ski Club

, Declaratory Ruling #411, at 7 (applying the amended Act 250 Rule 2); Juster Development

, No. 1R0048-8-EB (addressing amendments to the town plan); see also Re: Fred and Laura

Viens , No. 5W1410-EB, Mem. of Decision, at 4 (Vt. Envtl. Bd. Sep. 3, 2003) (applying an amended town plan). As the Supreme Court recently explained, the effect of a statutory amendment on pending litigation is governed by 1 V.S.A. § 214. In re Eu stance Jurisdictional Opinion , 2009 VT 16, ¶ 26. Section 214 states that a statutory amendmen t shall not:

Affect any suit, remedy or proceeding to enforce or give effect to any right, privilege, obligation or liability acquired, incurr ed or accrued under the amended or repealed provision prior to the effective date o f the amendment or repeal; and the suit, remedy or proceeding may be instituted, p rosecuted or continued as if the act or provision had not been repealed or amended.12

1 V.S.A. § 214(b)(4). Interpreting this language, the Supreme Court concluded that a statutory amendment can “only” be applied to pending litigati on if it “will not affect any right, privilege, obligation, or liability acquired prior to the stat ute’s effective date.” Eustance , 2009 VT 16, ¶ 27 (quoting Sanz v. Douglas Collins Construction , 2006 VT 102, ¶ 7, 180 Vt. 619 (mem.)). In fact,

in one case where a statute was amended while an Ac t 250 application was pending, our Supreme Court noted that the “correct version of Cr iterion 9(B), for purposes of evaluating [a pending application], was that in effect in 2005” w hen the application was first submitted, and

not the version amended in 2007. In re Eastview at Mi ddlebury, Inc. , 2009 VT 98, ¶ 8. Thus, the definition of primary agricultural soils in eff ect in March 2004 controls Applicant’s pending application unless the amended definition does not affect Applicant’s rights or obligations. Applicant contends that the definitional change doe s not affect any of its prior legal obligations: it must still secure an Act 250 permit , and it must continue to comply with criterion 9(B). This argument lacks credibility. Under the former definition of primary agricultural soils, Applicant was foreclosed from proceeding with the p roposed project because it would significantly reduce the agricultural potential of the primary agricultural soils on the project site. See In re Times & Seasons, LLC , 2008 VT 7, ¶ 16. The Supreme Court ruling made a final determination of how the applicable provision of cr iterion 9(B) should be interpreted when applied to the pending application; it became the l aw of this application. Applicant thus had an obligation not to disturb the site’s primary agricu ltural soils. Applicant now seeks to avoid that obligation, argui ng that the amended statute removes the subject soils from the definition of primary ag ricultural soils and regulation under Act 250 criterion 9(B). If we were to accept Applicant’s a rgument, the definitional change would void the Supreme Court’s ruling upon Applicant’s pending application. Since a statutory amendment will only be applied to pending litigation if it will not affect any obligations previously acquired, Applicant cann ot rely on the amended definition of primary agricultural soils when asking for its prior applic ation to be reconsidered. The version in effect in 2004 is the version applicable to the pending ap plication, and the law of the case is that Applicant’s application fails to comply with that v ersion of criterion 9(B) because it will adversely impact 1.9± of 2.8± acres of primary agri cultural soil on the project site. Id

. Based on the foregoing, and because Applicant has n ot offered any remedies to the deficiencies in its original application, we conclu de that Applicant has not satisfied the13

requirements necessary to obtain approval of its pe nding Act 250 application through reconsideration pursuant to 10 V.S.A. § 6087(c). A pplicant cannot rely on a statutory amendment in seeking reconsideration, and Applicant has presented no evidence that it corrected the deficiencies in the original Act 250 permit app lication concerning criterion 9(B). There is no dispute that Applicant has not proposed any modific ations that would bring the proposed project into compliance with the applicable version of crit erion 9(B). As a result, the Supreme Court’s previous determination on this issue is the law of the case. We therefore DENY Applicant’s Act 250 permit application and GRANT the NRB summary judgment, concluding that Applican t’s original application, even as revised, cannot as a matter of law satisfy the applicable version of Act 250 criterion 9(B). 10 We note in closing that Applicant is not foreclosed from arguing that the 2.8± acres of subject soils on the project site no longer constit ute primary agricultural soils under the amended definition. To do so, Applicant need only submit a new Act 250 application while the amended definition is in effect. This of course “requires the payment of a new fee . . . [and] . . . that th e new application be substantially different from pri or applications.” Re: Berlin Assocs.

, No. 5W0584-14-EB, Mem. of Decision, at 6 (Vt. Envtl . Bd. Jan. 10, 1992). This necessarily preserves the finality of the Supreme Court determi nation on Applicant’s original application that is fundamental to our judicial system, and it allows Applicant to pursue permit approval under the applicable laws now in effect.

Conclusion For all the reasons more fully discussed above, we DENY the Planning Commission’s motion for summary judgment, concluding that Applic ant timely filed its request for reconsideration pursuant to 10 V.S.A. § 6087(c). W e also conclude that Applicant has failed to correct the deficiencies in its original Act 250 pe rmit application concerning criterion 9(B) and that, in seeking reconsideration of that applicatio n, Applicant cannot avail itself of the definition of primary agricultural soils, amended during the c ourse of its litigation, to secure compliance with criterion 9(B). As a result, we GRANT the NRB summary judgment on those issues. Applicant’s pending Act 250 permit application to c onstruct a deli and a gift shop, with related

10 In light of this conclusion, we need not address t he remaining arguments raised in the pending motion s for summary judgment, including Applicant’s argument th at the undisputed facts indicate that the soils on the property do not constitute primary agricultural soils under the amended definition. We similarly decline to ad dress the NRB’s pending motions to strike portions of Appella nt’s pleadings.14

improvements, is therefore DENIED . In light of our determinations here, we do not a ddress the remaining arguments presented by Applicant. We als o conclude that the NRB’s pending

motions to strike must be DENIED as moot. A Judgment Order accompanies this Decision. This c ompletes the current proceedings before this Court. As a consequence, the pretrial conference currently rescheduled for this appeal on Thursday, April 1, 2010, as well as the m erits hearing scheduled for April 13–14, 2010, are hereby CANCELLED

.

Done at Berlin, Vermont, this 29th day of March 201 0.

___________________________________ Thomas S. Durkin, Environmental Judge