1 STATE OF VERMONT SUPERIOR COURT — ENVIRONMENTAL DIVISION

{ In re Champlain Parkway Act 250 Permit { Docket No. 68-5-12 Vtec (Appeal from Act 250 Permit No. 4C0438-17) { {

Decision on Amended Motion for Party Status

The City of Burlington (the City) and the State of Vermont Agency of Transportation (VTrans) applied for an Act 250 permit for a projec t generally described as the completion and construction of the Champlain Parkway (the Parkway) in Burlington, Vermont. As proposed, the Parkway would connect Interstate I-189 to a new roadway extending to Lakeside Avenue and would require the reconstruction of Lakeside Av enue and resurfacing and other improvements to Pine Street between Lakeside Avenue and Main Street. On April 27, 2012, the District 4 Environmental Commission (the Commission ) issued Findings of Fact, Conclusions of Law, and an Order, which concluded that the project as proposed complies with all Act 250 criteria but criteria 1(B) (wastewater) and 4 (eros ion control). The Commission’s Conclusions of Law and Order directed the City and VTrans to submi t an application addressing these last two criteria once the project receives relevant stormwa ter permits. Several parties have appealed the Commission’s decision, including Vermont Railwa y, Inc. (VTR). VTR has also appealed the Commission’s determination to deny VTR party status under Act 250 criteria 1(E), 9(A), 9(K), and 10. Currently pending before this Court is VTR ’s amended motion for party status. In this proceeding, VTR is represented by Eric R. B enson, Esq. The City, which has opposed VTR’s motion for party status, is represent ed by Brian S. Dunkiel, Esq. and Elizabeth H. Catlin, Esq. The other parties that have appear ed in this matter have not filed pleadings concerning VTR’s motion.

Factual Background In order to put the pending motion into context, t he Court recites the following facts, which it understands to be undisputed unless otherw ise noted: 1. On April 15, 2011, the City and VTrans applied f or an Act 250 permit for construction of the Parkway, a proposed two-lane divided street con necting I-189 in South Burlington to2

Lakeside Avenue in Burlington, then following Lakes ide Avenue east to Pine Street, and continuing north to terminate at Main Street in Bur lington. 2. The Parkway as currently permitted is a substant ially modified version of the Southern Connector, first permitted by the Commission under Act 250 in 1981. 3. Under the original Act 250 permit granted in 198 1, the Southern Connector was permitted as a four-lane highway connecting I-189 a nd Shelburne Road to Battery and King Streets in Burlington. 4. Final plans for the first part of the Southern C onnector were approved by a permit amendment in 1985, and several changes to the final plans were approved by permit amendments in 1987. The first and southernmost por tion of the roadway was constructed in

the late 1980s. 5. The Commission approved final plans for the seco nd part of the Southern Connector in a permit amendment issued September 5, 1991. This portion of the Southern Connector was never built, however. Discovery of hazardous waste in the Pine Street Barge Canal and subsequent U.S. Environmental Protection Agency rem ediation efforts at the site halted further work on the project. 6. In the mid-2000s, a new project design emerged t hat significantly changed the Southern Connector as originally proposed. The design reduc ed the proposed roadway from four to two

lanes, abandoned the section that would have cut th rough the Pine Street Barge Canal, and added pedestrian and bicycle transportation feature s. This modified plan is now known as the Champlain Parkway. 7. Despite the significant differences between the Southern Connector as originally proposed and the Parkway, the Act 250 permit that t he City and VTrans currently seek for the Parkway is an amendment to the original permit gran ted in 1981. 8. The Commission granted VTR party status in the 1 981 proceeding regarding the initial permit under Act 250 criterion 9(K) (development af fecting public investments). 9. In response to the City and VTrans’ April 15, 20 11 application for an Act 250 permit for the current Parkway plan, the Commission held a pre hearing conference on May 19, 2011. At the conference, the Commission heard requests for p arty status in the application hearing, and it made preliminary party status decisions. The su bsequent Prehearing Conference Report and Order issued by the Commission shows that the Commi ssion granted VTR preliminary party3

status under Act 250 criteria 1(B), 1(E), 5, 8, 9(A ), and 10. (City Opp’n to VTR Party Status Mot., Attach. 1, filed July 2, 2012.) 10. On April 27, 2012, the Commission issued Findin gs of Fact, Conclusions of Law, and an Order, which concluded that the project as proposed complies with all but two Act 250 criteria.

In its Order, the Commission also made final determ inations regarding party status. The Commission granted final party status to VTR only u nder criteria 1(B) (wastewater); 5 (traffic); and 8 (aesthetics). The Commission denied VTR fina l party status under criteria 1(E) (streams); 9(A) (impact of growth); and 10 (conformance with l ocal or regional plan). Finally, according to the Commission, it did not grant VTR party status u nder (9)(K) “because VTR never requested it.” Re: City of Burlington & VTrans, No. 4C0438-1 7, Findings of Fact, Concl. of Law and Order, at 3 (Dist. 4 Comm’n Apr. 27, 2012). 11. VTR timely appealed the Commission’s decision t o this Court on May 25, 2012. 1

Discussion In its amended motion for party status, VTR asserts that it is entitled to party status under Act 250 criteria 1(E) (streams); 9(A) (impact of growth); 9(K) (development affecting public investment); and 10 (conformance with local or regional plan). In its opposition, the City contends that this Court should not grant VTR party status under any of these criteria. The City first argues that VTR does not have standing to see k party status before this Court under Act 250 criterion 9(K) because VTR failed to request pa rty status under that criterion from the Commission. Second, the City argues that even if t he Court overlooks VTR’s alleged procedural

failure, VTR cannot meet the substantive standards necessary to claim party status under criteria 1(E), 9(A), 9(K), or 10.

For the reasons detailed below, we conclude as a ma tter of law that, under 10 V.S.A. § 8504(d)(2)(B), VTR has standing to appeal the Com mission’s denial of its party status under

1 On June 13, 2012, VTR filed a motion requesting t hat the Court grant it party status under Act 250 criterion 9(K). The City responded by opposing VTR ’s motion and filing a motion requesting that this Court deny VTR party status under criteria 1(E), 9( A), and 10 and strike Questions relating to those criteria in VTR’s Statement of Questions. VTR subs equently filed a response in which it also moved to amend its motion for party status. Judge Thomas G. Walsh granted VTR’s motion to amend its motion for party status at a status conference held on Aug ust 6, 2012. On August 13, 2012, VTR filed an amen ded motion requesting that the Court grant it party sta tus under Act 250 criteria 1(E), 9(A), 9(K), and 10 . The City filed an opposition to VTR’s amended motion on August 27, 2010 and again requested that the Court strike those Questions posed by VTR related to crit eria 1(E), 9(A), 9(K), and 10.4

criterion 9(K). We also conclude that VTR is entit led to party status before this Court as to Act 250 criteria 1(E), 9(K), and 10, but is not entitle d to party status under criterion 9(A).

I. Standing to Appeal and Seek Party Status under Criterion 9(K) Any person aggrieved by an act or decision of a dis trict commission in a proceeding to review an Act 250 permit application may appeal tha t act or decision to this Court. Id. § 8504(a). Generally, however, that person must ha ve (1) been granted party status by the district commission, (2) participated in the procee dings before the district commission, and (3) retained party status at the end of the district co mmission proceedings. Id. § 8504(d)(1). The person may only appeal those issues under the Act 2 50 criteria to which that person was granted party status. Id. Notwithstanding these r estrictions, a person may also appeal a district

commission decision if this Court determines that t he appeal falls under certain exceptions, including when the decision being appealed is the d istrict commission’s grant or denial of party status. Id. § 8504(d)(2)(B). In its opposition to VTR’s amended motion for party status under criterion 9(K), the City argues that VTR failed to meet the procedural requi rements outlined in 10 V.S.A. § 8504(d)(1). Specifically, the City claims that VTR “never reque sted or was granted criterion 9(K) party status before the District Commission.” (City Opp’ n to VTR Am. Party Status Mot. 5, filed Aug. 27, 2012.) The City provides several documents in support of this assertion, including conference reports and orders issued by the Commiss ion during the permit application review process and VTR’s own proposed findings of fact and conclusions of law, which indicate that VTR did not have preliminary party status under cri terion 9(K). (City Opp’n to VTR Party Status Mot., Attach. 1–4, filed July 2, 2012.) Whi le VTR disagrees with the claim that it never requested party status under criterion 9(K), it app ears from the record that, at the least, VTR did not seek preliminary party status from the Commissi on under criterion 9(K) in the same manner in which it sought party status under criteria 1(B) , 1(E), 5, 8, 9(A), and 10. VTR notes in its amended motion for party status th at it was admitted as a party under criterion 9(K) by the Commission during the 1981 pe rmit application review process for the Northern and Southern Connector. The Parkway proje ct as currently proposed is the successor to the Northern and Southern Connector, and the per mit under review is technically an amendment to the original permit. The fact that VT R was once a party under criterion 9(K) does not, however, automatically grant it party sta tus under that criterion in the review of a5

permit amendment. 2 Confusion over this issue may have contributed to VTR’s failure to request party status from the Commission under crit erion 9(K) in the same manner in which it sought party status under criteria 1(B), 1(E), 5, 8 , 9(A), and 10. (See VTR Reply to City Opp’n to VTR Party Status Mot. 1–2, filed July 11, 2012.) In any case, the Commission appears to have allowed VTR to submit testimony regarding criterion 9(K) during the permit hearing process 3 and took the unusual step of denying VTR final party status under 9(K), despite the fact that, in the words of the Commission, “VTR never requested it.” Re: City of Burlington & VTrans, No. 4C0438-17, Findings of Fact, Concl. of Law and Order, at 3 (Di st. 4 Comm’n Apr. 27, 2012). Under 10 V.S.A. § 8504(d)(2)(B), a person may appeal a decision of a district commission notwithstanding § 8504(d)(1) if the appeal is of the commission’s d enial of party status to that person. Irrespective of whether or when VTR properly reques ted preliminary party status under criterion 9(K) from the Commission, the Commission explicitly denied VTR final party status

under that criterion. 4 In Question 12 of its amended Statement of Questi ons, filed on August 30, 2012, VTR asks whether it should have party status under criteria 1(E), 9(A), 9(K), and 10. Accordingly, we find that VTR does have standing to appeal, and therefore, seek party status before this Court for criterion 9(K) interests unde r 10 V.S.A. § 8504(d)(2)(B).

2 Under Act 250 Rule 34(C), which governs permit am endments that represent material changes to permitted projects or existing permits, a permit am endment may be “subject to a new application proces s including the notice and hearing provisions of 10 V .S.A. Sections 6083, 6083a, 6084 and 6085 .” 16-5 Vt. Code R. § 200:34(C) (2009) (emphasis added). 10 V. S.A. § 6085(c) establishes who may seek party statu s in an Act 250 permit review process.

3 Regarding VTR’s final party status under criterio n 9(K), the Commission wrote, “Testimony under 9(K) – traffic related issues, was heard concurrently wi th testimony given under Criterion 5. That fact do es not automatically grant party status under Criterio n 9(K).” Re: City of Burlington & VTrans, No. 4C04 38- 17, Findings of Fact, Concl. of Law and Order, at 3 (Dist. 4 Comm’n Apr. 27, 2012). We interpret this statement as suggesting that the Commission viewed at least some of VTR’s testimony during that hearing as falling under criterion 9(K). However, in its opposition to VTR’s amended motion for party status, the City argues that, while testimony under criterion 9(K) was heard by the Commission concurrent with testimony under criterion 5, VTR’s testimony during that particular hearing fell under criterion 5.

4 Although the Commission does not use the word “de ny” in its Findings of Fact, Conclusions of Law and Order in reference to VTR’s final party status under criterion 9(K), it does devote an entire para graph to that status, which concludes with the sentence: “Accordingly, the Commission does not grant VTR party status under Criterion 9 (K).” Re: City of Burlingt on & VTrans, No. 4C0438-17, Findings of Fact, Concl . of Law and Order, at 3 (Dist. 4 Comm’n Apr. 27, 2012) (emphasis added).6

II. Party Status under Criteria 1(E), 9(A), 9(K), and 10 In its opposition to VTR’s amended motion for party status, the City does not challenge VTR’s standing on procedural grounds to seek party status before this Court under criteria 1(E), 9(A), and 10. Thus, having determined that VTR has procedural standing to seek party status under criterion 9(K), we will consider the merits o f VTR’s motion for party status under all four

criteria. VTR seeks party status under 10 V.S.A. § 6085(c)(1 )E), under which “[a]ny adjoining property owner or other person who has a particular ized interest protected by [Act 250] that may be affected by an act or decision by a district commission” is entitled to party status. VTR may qualify for party status under this subsection if it shows (1) that it has a particularized interest; (2) that the interest is protected by the Act 250 criteria for which it is seeking party status; and (3) that this interest may be affected by the Commission’s issuance of the land use permit currently under appeal. In re Granville Mfg . Co., No. 2-1-11 Vtec, slip op. at 6 (Vt. Super. Ct. Envtl. Div. July 1, 2011) (Durkin, J.). VTR must demonstrate that its particularized interests are not general policy concerns shared wi th the general public. In re Pion Sand & Gravel Pit, No. 245-12-09 Vtec, slip op. at 7 (July 2, 2010) (Durkin, J.); see also Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992) (in federal c ases, a plaintiff must allege a “concrete and particularized” injury to have standing); Parker v. Town of Milton, 169 Vt. 74, 77–78 (1998) (adopting the federal standing requirements). Finally, VTR must show a causal connection between the Commission’s decision to approve the Parkway permit and any potential impact s to its particularized interests. Pion, No. 245-12-09 Vtec, slip op. at 7; see also Granville, No. 2-1-11 Vtec, slip op. at 6. In demonstrating this causal connection, VTR need only provide an “o ffer of proof” that the Project may affect its interests. Pion, No. 245-12-09 Vtec, slip op. at 7 . (quoting In re Costco Act 250 Permit Amendment, No. 143-7-09 Vtec, slip op. at 1 (Dec. 4 , 2009) (Durkin J.)). The offer of proof must be more than mere speculation and theory, and VTR c annot adequately demonstrate a causal connection with “unsupported assertions that vaguel y defined interests” may be affected by the Parkway project. Id. (quoting Re: Vill. of Ludlow, No. 2S0839-2-EB, Mem. of Decision, at 4 (Vt. Envtl. Bd. May 28, 2003); see also Lujan, 504 U.S. at 560 (a plaintiff must allege an “actual or imminent, not conjectural or hypothetical” injury t o have standing and show a “causal connection between the injury and the conduct compl ained of” (citations omitted)). Thus, for7

this Court to grant VTR party status under a partic ular Act 250 criterion, VTR must make a showing “that there is a reasonable possibility” th at its particularized interests may be affected by a decision on the Parkway project. In re Bennin gton Wal-Mart, No. 158-10-11 Vtec, slip op. at 9–10 (Vt. Super. Ct. Envtl. Div. Apr. 24, 2012) (Walsh, J.). In light of these requirements, we analyze the pot ential impacts that granting an Act 250 permit will have on VTR’s particularized interests under Act 250 criteria 1(E), 9(A), 9(K), and 10.

A. Criterion 1(E) Criterion 1(E) requires that the development or subdivision of lands on or adjac ent to the banks of a stream will, whenever feasible, maintain the natural condi tion of the stream, and will not endanger the health, safety, or welfare of the public or of adjoining landowners. 10 V.S.A. § 6086(a)(1)(E). VTR argues that it has a particularized interest un der criterion 1(E) that would be affected by the proposed project. Specifically, VT R alleges that the proposed creation of a culvert carrying Englesby Brook under the Parkway c ould increase the flow of the brook and cause the failure of a preexisting downstream culve rt that carries the brook under VTR’s main rail line. In support of its argument, VTR offers exhibits, including a map of Englesby Brook and a 1981 agreement between VTR, the City, and the State of Vermont that notes VTR’s

concerns about the effect on VTR’s main rail line o f a large culvert under the then-proposed Southern Connector. (VTR Am. Party Status Mot., Ex s. C & FF, filed Aug. 13, 2012.) VTR also states that it will present the testimony of severa l VTR employees regarding the possibility of rail bank failure and train derailment—dangers to t he public that could be caused by the proposed Englesby Brook culvert under the Parkway. We first conclude that VTR has a sufficiently parti cularized interest under criterion 1(E). VTR’s rail line crosses Englesby Brook a short dist ance downstream of the Parkway’s proposed culvert. (See VTR Am. Party Status Mot., Ex. FF, f iled Aug. 13, 2012.) VTR’s interest in the integrity of the culvert under its tracks is partic ular to VTR and not simply a general policy concern shared with the public. VTR has also provi ded a sufficiently specific and concrete offer of proof to demonstrate that construction of the Pa rkway may affect its interest in maintaining its rail line. VTR offers a map showing the downst ream proximity of VTR’s rail line and the existing culvert to the proposed culvert under the Parkway. Id. VTR also offers to provide the testimony of three VTR employees regarding the Proj ect’s potential to create “a hazardous8

flooding of a rail bank on Englesby Brook.” (VTR A m. Party Status Mot. 6, 9–13, filed Aug. 13, 2012.) By detailing the names of these witnesses, the addresses at which they can be reached, and the scope and content of their testimony, VTR h as made a concrete offer of proof for the purposes of seeking Act 250 party status before thi s Court. See Pion, No. 245-12-09 Vtec, slip op. at 7 (quoting In re RCC Atl., Inc

., No. 163-7-08 Vtec, slip op. at 9 (Vt. Envtl. Ct. M ay 8, 2009) (Durkin, J.)). In light of this evidence, VTR has sufficiently all eged a reasonable possibility of injury to its particularized interests protected under criter ion 1(E). Accordingly, VTR is entitled to party status under 10 V.S.A. § 6085(c)(1)(E) with respect to criterion 1(E).

B. Criterion 9(A) Criterion 9(A) requires a district commission, in d eciding on a permit, to take into consideration the growth in population ex perienced by the town and region in question and whether or not the proposed development would significantly affect their existing and potential f inancial capacity to reasonably accommodate both the total growth and the rate of g rowth otherwise expected for the town and region and the total growth and ra te of growth which would result from the development if approved. 10 V.S.A. § 6086(a)(9)(A). The plain language of c riterion 9(A) requires a district commission to consider the growth caused by the project, the proj ected costs to the town and region, and the financial capacity of the town and region to accomm odate the growth. In Re Wal-Mart Stores, Inc., 167 Vt. 75, 82 (1997). Under criterion 9(A), growth is interpreted to include economic growth as well as population growth. Id. at 85. F inally, the statute directs a district commission, in approving a permit, to ensure that t here is no “undue burden upon the town and region in accommodating growth caused by the pr oposed development or subdivision.” 10 V.S.A. § 6086(a)(9)(A). VTR argues that it has a particularized interest u nder criterion 9(A) that will be adversely affected by construction of the Parkway a s proposed. In its amended motion for party status, VTR claims that three aspects of the Parkway project could or will harm rail services in Burlington: (1) the possibility of dama ge to the main rail line at Englesby Brook due to the proposed Parkway culvert; (2) the eliminatio n of two rail spurs that would foreclose the possibility of installing “a Wye track” necessary f or bringing Amtrak passenger rail services to Burlington; and (3) the elimination of “at least si x (6) private properties[’] rail access and critica l car storage for existing rail operations.” (VTR Am . Party Status Mot. 8, filed Aug. 13, 2012.)9

Because “[e]conomic growth in Burlington depends in part upon having a viable fully functioning railroad transportation system,” VTR co ntends that the Parkway as proposed would negatively impact economic growth in the City . Id. As a provider of commercial rail services in Burlington, VTR has a particularized in terest in the ability of the City and region to accommodate any economic and population growth caus ed by the Parkway that may impact City rail services. VTR fails, however, to provide an offer of proof t hat the Parkway will affect the ability of the City or region to reasonably accommodate eit her economic or population growth caused by the Parkway. See 10 V.S.A. § 6086(a)(9)(A). VT R never ties the alleged and undefined harm the Project will cause to Burlington’s economic gro wth to the ability of the City or region to accommodate such growth. VTR does imply that the P roject, by inhibiting future development of commercial rail in the City, could one day lead to unchecked road traffic that the City could not reasonably accommodate. VTR fails to support t his claim, though, with any offer of proof. Without making some tangible connection between the Parkway’s alleged potential to harm rail services and the ability of the City or region to r easonably accommodate growth, VTR does not raise a reasonable possibility that its particulari zed interests under 9(A) will be affected by a decision on the Parkway permit. Accordingly, VTR h as failed to demonstrate that it is entitled to party status under 10 V.S.A. § 6085(c)(1)(E) wit h respect to criterion 9(A).

C. Criterion 9(K) Criterion 9(K) allows an Act 250 permit to be grant ed for development adjacent to governmental and public utility facilit ies, services, and lands . . . when it is demonstrated that . . . the development . . . will not unnecessarily or unreasonably endanger the public or quasi-public in vestment in the facility, service, or lands, or materially jeopardize or inte rfere with the function, efficiency, or safety of, or the public’s use or en joyment of or access to the facility, service, or lands. 10 V.S.A. § 6086(a)(9)(K). This criterion “seeks t o protect state and local governments from adverse fiscal impacts on public facilities and inv estments that are adjacent to the proposed project.” In re St. Albans Grp. & Wal-Mart Stores, Inc., No. 6F0471-EB, Mem. of Decision, at 9 (Vt. Envtl. Bd. Apr. 15, 1994). VTR argues that it has a particularized interest p rotected under criterion 9(K) that would be affected by construction of the Parkway as propo sed. VTR alleges that the elimination of “approximately 2000 feet of railroad siding tracks used by [VTR] in its railroad traffic10

operations” as called for by the Parkway project wi ll endanger public investment in railroad infrastructure and limit accessibility to rail serv ice. (VTR Am. Party Status Mot. 2, 9–12 filed Aug. 13, 2012.) VTR also claims that proposed “adj ustments to the active warning devices that the railroad uses and maintains at an at grade high way railroad crossing,” made without a full railroad crossing diagnostic and necessary upgrades to the crossings, will threaten public safety. Id. We conclude that VTR, as the operator of the r ail line that may be affected by construction of the Parkway, has a sufficiently particularized i nterest in these potential threats to public investment in and the public safety of the rail lin es and rail crossings. VTR has also made a sufficiently concrete offer of proof that the two above actions may impact VTR’s particularized interests under criteri on 9(K). First, VTR claims that the railroad grade crossings and signalization of VTR’s main rai l line at Home Avenue, Flynn Avenue, Maple Street, and King Street have not undergone pr e-construction “comprehensive diagnostic review,” which represents a significant threat to p ublic safety. (VTR Am. Party Status Mot. 4, filed Aug. 13, 2012.) Furthermore, according to VT R, “the state of Vermont has spent millions of taxpayer dollars maintaining and improving the r ailroad line” operated by VTR. Id. at 2. VTR claims that this significant public investment would be jeopardized by the Parkway as proposed, which requires the removal of two rail sp urs “integrally connected to [VTR’s] existing active railroad infrastructure.” Id. In support of these claims, VTR offers to provide the specific testimony of a number of employees and one or more unnamed property owners along the two railroad sidings that would be remove d in construction of the Parkway. In light of this offer of evidence, VTR has suffici ently alleged a reasonable possibility of injury to its particularized interests protected un der criterion 9(K). Accordingly, VTR is entitled to party status under 10 V.S.A. § 6085(c)(1)(E) wit h respect to criterion 9(K).

D. Criterion 10 Criterion 10 requires that a development permitted under Act 250 be in conformance with “any duly adopted local or regional plan.” 10 V.S.A. § 6086(a)(10). As a corporation providing commercial rail services in the City, VTR has an interest, distinct from that of the general public, in ensuring that a proposed project requiring an Act 250 permit conforms to provisions in duly-adopted City or regional plans, to the extent that the plans address rail services. Thus, VTR has a particularized interest under criterion 10 in ensuring that the Project11

does not come into conflict with rail-related provi sions of the City’s 2011 Municipal Development Plan (MDP). In its amended motion for party status, VTR cites t o three sections of the MDP. Specifically, VTR emphasizes statements in the MDP that call for “maintaining remnants of the property’s [waterfront urban reserve] railroad and industrial heritage”; making infrastructure investments that reserve “some capacity to load and unload freight by rail”; embracing “[g]reater use of rail for freight” as a “means of removing trucks from neighborhood streets”; and “[s]upporting improvements to the western corri dor rail infrastructure and expansion of passenger rail services.” (VTR Am. Party Status Mo t. 5, filed Aug. 13, 2012.) VTR claims that the Parkway as permitted will, in violation of the MDP, eliminate historic railroad facilities in Burlington, prevent the development of Amtrak passe nger rail service to the City, and inhibit the City’s existing commercial rail services. VTR offers the testimony of a number of employees in support of its claims. We conclude that VTR has alleged a reasonable possi bility of injury to its particularized interests protected under criterion 10. VTR has ci ted specific language from a duly adopted municipal plan and offered to provide witness testi mony indicating that the Parkway as proposed may not comply with the MDP. A decision b y the Commission or this Court to grant a permit for the Parkway would affect VTR’s interes ts because construction of the Parkway could result in noncompliance with the MDP. Thus, VTR is entitled to party status under 10 V.S.A. § 6085(c)(1)(E) with respect to criterion 10

.

Conclusion For the reasons detailed above, we GRANT in part and DENY in part VTR’s motion for party status, concluding that VTR is entitled to pa rty status under Act 250 criteria 1(E), 9(K), and 10, but that VTR is not entitled to party statu s under Act 250 criterion 9(A). Accordingly, and in response to the City’s request that this Court strike those Questions from VTR’s Statement of Questions that refer to Act 250 criteria under which VTR does not have standing to appeal the Commission’s decision, we DISMISS VTR’s amended Question 8, insofar as it raises a Question under criterion 9(A ). To the extent that Question 8 also refers to issues related to criterion 10, we interpret VTR’s amended Question 10 as fully raising any claim VTR may have under Act 250 criterion 10.12

Lastly, we note that the City’s motion to strike o r clarify certain of VTR’s Statement of Questions is not fully resolved by this decision. Accordingly, the Court will hold a status conference to discuss whether the City wishes to pu rsue its pending motion. Parties should also be prepared to provide the Court with an updat e on new events in this matter and how best to move this matter to resolution. A hearing notice accompanies this decision.

Done at Berlin, Vermont this 12th day of October, 2012.

Thomas G. Walsh, Environmental Judge