1 

### STATE OF VERMONT SUPERIOR COURT ENVIRONMENTAL DIVISION Vermont Unit Docket No. 103-8-13 Vtec

B&M Realty A250 Applic. 

### DECISION ON THE MERITS

B&M Realty, LLP (Applicant) seeks to develop an are a consisting of 167.7 acres on three separately deeded lots located between Woodstock Ro ad (U.S. Route 4) and Old Quechee Road near the I-89 southbound exit ramps in the Town of Hartford, Vermont (Town). 1 In 2005, Applicant and then-landowners David and Ernest Punt requested an amendment to the Hartford Zoning Regulations on and around lot 8-196 (the Punt property) to accommodate future development of the area. The Town of Hartfor d Planning Commission (the Planning Commission) voted to approve the zoning amendment o n September 26, 2005, and the Town Selectboard held a public hearing on the matter in November of that year. Six years later, on May 18, 2012, Applicant filed a n application with the Planning Commission for a zoning permit, as required by the applicable provisions of the Town of Hartford Zoning Regulations, to develop the three l ots into a mixed commercial and residential use development to be known as the Quechee Highland s project (the Project). The Planning commission granted the application in a written dec ision dated October 17, 2012. Applicant subsequently filed an application for an Act 250 pe rmit as required by 10 V.S.A. § 6081. District Environmental Commission #3 (the District Commissio n) denied the application in a written decision dated July 3, 2013, and Applicant filed a timely appeal in this Court. Applicant raises fourteen questions for our review, all addressing the Project’s compliance with three of the ten Criteria for Act 2 50 permit review in 10 V.S.A. § 6086. The first

1 Two lots are located on Woodstock Road (U.S. Route 4) and one, lot 8-196, is located on Old Quechee R oad.2

two questions address the project’s compliance with Criteria 5 and 9(k). The remaining twelve questions address the Project’s compliance with the Two Rivers-Ottauquechee Regional Plan (Criterion 10). In our October 7, 2014 decision, in response to App licant’s motion for partial summary judgment, we concluded that the 2007 version of the Two Rivers-Ottauquechee Regional Plan would be relevant to our Act 250 Criterion 10 analy sis. In reaching this conclusion, we answered Applicant’s Questions 6 and 10. Prior to our merits hearing Applicant withdrew Applicant’s Question 11. The Court held a merits hearing on March 17, 2015. The Planning Commission and the Vermont Natural Resources Board (NRB) participated as Appellees. Interested parties David, Carol, and Charles Rataj (the Ratajs) also particip ated. Applicant is represented by Paul Gillies, Esq., the Planning Commission is represented by Rob ert E. Woolmington, Esq., and Melanie Kehne, Esq. represents the Natural Resources Board. The Ratajs are self-represented in this

matter. Before turning to our findings of fact and decision on the merits, we address the Ratajs’ post-hearing motion to re-open the evidence.

**Motion for New Trial**

On April 14, 2015, the Ratajs filed a motion to reo pen the evidence from the March 17, 2015 merits hearing and asked the Court to accept t wo additional exhibits and allow them to call a rebuttal witness. The Ratajs claim their pro posed exhibits contradict the accuracy of evidence and testimony offered by Applicant’s traff ic expert, Mr. Saladino, concerning vehicle accident numbers and road safety. Further, the Rata js argue that late disclosure of Mr. Saladino’s revised memorandum warrants an opportuni ty to recall Mr. Saladino and offer a rebuttal witness. At the March 17, 2015 hearing, through Mr. Saladino , Applicant offered traffic accident data from the Vermont Agency of Transportation (VTr ans) reporting that between 2006 and 2010, there were ninety-eight accidents along U.S. Route 4, with an additional thirty-three accidents along U.S. Route 5. Mr. Saladino testifie d that a crash must result in over one thousand dollars of property damage or in serious i njury or death for the accident to be reported by VTrans. Additionally, Mr. Saladino test ified that, based on his 2012 report,3

Applicant’s proposal to add several traffic turning lanes and a traffic control light, as well as its recommendation to reduce the posted speed limit, wo uld adequately address road safety concerns associated with the proposed development. Applicant also offered Mr. Saladino’s revised report, Exhibit 1006, which incorporated tr affic data made available since Mr. Saladino’s previous 2012 report. The revised report concludes that the existing conditions on the northbound I-89 exit along U.S. Route 4 should be downgraded from a service level of E to
F. At the hearing, the Regional Planning Commission an d the Ratajs objected to the admission of Exhibit 1006 because the revised repor t had not been disclosed until ten days before trial. Applicant admitted that the updated r eport had only been produced ten days before trial but offered that, although the updated report included more recent traffic numbers, the only revision to Mr. Saladino’s substa ntive conclusions was to downgrade the level of service he had previously determined for t he northbound exit. Applicant further argued that, since its proposed mitigation would raise the service level to B—far better than the existing congestion level—the conclusion that conge stion had worsened since the 2012 report, was not material. In order to have the most recent information before it, the Court admitted the exhibit, but explained that it would leave the record open for three weeks until April 7, 2015 for the parties to file any responses or to po ssibly recall Mr. Saladino concerning Exhibit
1006. In their April 15, 2015 motion, the Ratajs ask the Court to consider two exhibits as rebuttal to Mr. Saladino’s testimony and revised re port. The Ratajs also request that they be permitted to recall Mr. Saladino and to offer their own rebuttal witness in order to challenge the information provided in the untimely disclosure of Exhibit 1006. The Ratajs’ Exhibit A, a printout from the Hartford Police Department, shows the number of accidents recorded by the Hartford Police along U.S. Route 4 to be about doub le the figure recorded by VTrans for the same period. The Ratajs’ Exhibit B is meeting notes from the Vermont Highway Safety Alliance discussing the tendency of drivers to drive 4-7 mil es per hour above the posted limit along U.S. Route 4 in the area of the proposed development. In its response filed on April 30, 2015, Applicant opposes the Ratajs’ request to reopen the evidence. Applicant argues that the Ratajs were afforded a full opportunity to participate at the hearing and should not now be permitted to file documents and present arguments that4

should have and could have been presented at the he aring. Further, Applicant contends that the Ratajs’ request to reopen the evidence is untim ely as the deadline for all post-trial filings has passed. Moreover, Applicant argues the evidence submitted is irrelevant because the mitigation steps Applicant proposes would raise the level of service from either an E or an F to a B, and thus there is no need to challenge Mr. Salad ino’s conclusion in his revised report. A motion to reopen the evidence will be treated as a motion for a new trial under V.R.C.P. 59(a). See In re Petition of Twenty-Four V t. Utilities, 159 Vt. 339, 356–57 (1992). Rule 59(a) provides that, after a bench trial, “on a mot ion for a new trial . . . , the court before which the action has been tried may open the judgment if one has been entered, take additional testimony, amend findings of fact and conclusions o f law or make new findings and conclusions, and direct the entry of a new judgment.” V.R.C.P. 5 9(a); see also V.R.E.C.P. 5(a)(2) (providing that the Vermont Rules of Civil Procedure apply to appeals from decisions of a district commission in Act 250 proceedings “so far as applic able”). It is within the trial court’s discretion whether to admit further evidence after the close o f testimony. In re Bjerke Zoning Permit Denial, 2014 VT 13, ¶ 16, 195 Vt. 586. Among severa l factors, the court may consider the necessity of the offered evidence to reach a just d etermination, the reason the evidence was not offered earlier, and the prejudice to the non-m oving party. See V.R.C.P. 59(a); V.R.E.C.P. 4(a)(2); see also Town of Georgia v. King, No. 105- 6-10 Vtec, slip. op. at 2 (Vt. Super. Ct. Envtl. Div. Oct. 19, 2011) (Durkin, J.). Turning first to the Ratajs’ exhibits, the Court i s concerned that the Ratajs should have and could have presented this information at trial. Exhibits A and B appear to challenge Applicant’s offer of VTrans accident data and Appli cant’s contention that adding turning lanes and an actuated traffic light and reducing the spee d limit along U.S. Route 4 will adequately address the safety concerns from additional traffic caused by the Project. Applicant’s position concerning this information was known and available well before March 17, 2015. While the Court recognizes the difficulty self-represented li tigants like the Ratajs face at trial and acknowledges their wish to contest the evidence pre sented by Applicant, their choice to proceed without an attorney does not absolve them o f their obligation to make timely discovery requests and to be prepared to present th eir full case at trial. See V.R.C.P. 26. The Ratajs were afforded a full and fair opportunity to challenge any and all evidence at the hearing and to present their own rebuttal evidence. Neverth eless, because the Court strives to consider5

all relevant evidence in reaching its decision and because we see no prejudice to Applicant in our consideration of the late offered evidence, the Court will admit the Ratajs’ Exhibits A and B. The Court, however, rejects the Ratajs’ request to recall Mr. Saladino and to present a rebuttal witness. The Ratajs have failed to make an y proffer of the need to recall Mr. Saladino and have given no indication of what their unidenti fied rebuttal witness will offer. See S. Burlington School District v. Calcagni-Frazier-Zajc howski Architects, Inc., 138 Vt. 33, 52 (1980) (“Where, as here, the reasons stated [for recalling a witness] are general and no offer is made as to what will be adduced, it is within the trial court's discretion to refuse to allow the recall.”)

. The Court’s decision to admit the Rataj’s exhibits does not give the Ratajs license to re-examine Applicant’s expert about any matter. As was discuss ed at the trial, the only substantive change in Mr. Saladino’s revised report was his conclusion that, based on the most recent traffic data, the level of service for the I-89 Northbound exit o ff U.S. Route 4 should be downgraded from an E to an F. Mr. Saladino’s proposed mitigation remai ned consistent, as did his conclusions on the traffic safety impact of the project. Therefore, th e Court finds the Ratajs’ blanket assertion that they should be permitted to recall Mr. Saladino and offer a rebuttal witness, without any proffer as to need or scope, does not warrant prolo nging this matter further. The Court **GRANTS** in part and **DENIES** in part the Ratajs’ motion to reopen the evidence. The Court admits the Ratajs’ Exhibits A a nd B, but denies the Ratajs’ request to recall Mr. Saladino and to offer a rebuttal witness. We now turn to our decision on the merits, and base d upon the evidence presented at trial as well as the recent addition of the Ratajs’ Exhibits A and B, the Court renders the following Findings of Fact and Conclusions of Law.

**Findings of Fact**

1. Applicant B&M Realty, LLC owns 167.7 acres consisti ng of three parcels on U.S. Route 4 in Hartford, Vermont (the Property).
2. The Property is mostly undeveloped; however, it doe s presently contain a single-family dwelling and garage and a 2,433 square foot commerc ial building.
3. The Property has frontage on U.S. Route 4 and Old Q uechee Road.
4. The Property is located in Hartford’s Quechee Inter state Interchange (QII) and Rural Lands Five (RL-5) Zoning Districts.6

5. The Property is approximately two miles from the Qu echee Gorge, two miles from Quechee Village, and five miles from White River Ju nction.
6. The area south of the Property on U.S. Route 4 incl udes a former Century 21 real estate office, a country store with an upstairs apartment, a construction equipment sales business, and miscellaneous scattered businesses.
7. A convenience store/gas station is located south of the Property and adjacent to U.S. Route 4 opposite the I-89 southbound ramp and U.S. Route 4 intersection.
8. The area north of the Property on U.S. Route 4 does not have much development.
9. Both the north and southbound exits from I-89 are i n the Project area and are located about one-half mile apart.
10. Applicant proposes a phased-development project on the Property, designed as a mixed-use business park including office, retail, r estaurant and residential uses. There will be no “big box” stores.
11. Phase 1 of the Project entails approximately 15.5 a cres for a clustered mixed-use development located in the QII Zoning District. Pha se 1 includes more than 115,000 square feet of new construction to be completed in three construction cycles.
12. Phase 1A consists of 18,142 square feet of office s pace, 18,142 square feet of retail space, and a 5,667-square-foot restaurant.
13. Phase 1B consists of 15,110 square feet of office s pace, 15,110 square feet of retail space, and nine residential units.
14. Phase 1C consists of 33,000 square feet of office s pace. 15. Phase 2 is proposed as fifty residential units.
16. Approximately 2,700 linear feet of internal roadway designed more or less as a loop will be constructed for Phase 1 buildout.
17. The Project has a “center,” which mimics a small ve rsion of the Church Street Marketplace in Burlington, Vermont.
18. Access to the Property will be via a single curb cu t on U.S. Route 4 approximately 525 feet north of the I-89 southbound ramps. This acces s will have an island separating entering and exiting traffic.
19. Applicant retained RSG, Inc. to conduct a traffic i mpact study for the Project area. GSG, Inc. issued its report in May 2012; compiled a traf fic overview for the District 37

Environmental Commission in January 2013; and updat ed its traffic analysis with a March 4, 2015 memo.
20. RSG, Inc. evaluated U.S. Route 4 and its intersecti ons, including I-89 northbound and southbound ramps, in the area of the Project.
21. No background traffic growth is projected for the P roject area.
22. U.S. Route 4 is an east-west arterial across the mi ddle of Vermont. U.S. Route 4 is mostly a two-lane road that parallels the Ottauquechee Riv er valley.
23. U.S. Route 4 is part of the national highway system and is part of Vermont’s tractor truck network. Thus, mobility and safety issues rel ating to U.S. Route 4 are significant.
24. U.S. Route 4 in the area of the Property’s curb cut has a speed limit of 45 miles per hour.
25. The required stop distance for traffic on U.S. Rout e 4 in the Project area is 360 feet. The corner sight distance for vehicles exiting the Proj ect access is 500 feet. The Project exceeds these standards.
26. Roadside vegetation will be cut back along the insi de curve of U.S. Route 4 east of the Project access road and between I-89 northbound and southbound ramps. This work will improve sight distances.
27. Costello Road intersects with U.S. Route 4 between I-89 northbound and southbound ramps. Costello Road leads to Old Quechee Road.
28. The Rataj residence is located on Old Quechee Road. The Ratajs use Old Quechee Road and Costello Road to access U.S. Route 4.
29. Traffic congestion is related to delay experienced by vehicles traveling on roadways and through intersections.
30. The Vermont Department of Transportation (VTrans) u ses Levels of Service (LOS) to measure vehicle delay for signalized and un-signali zed intersections. Vtrans’s Highway Capacity manual defines LOS as the quantitative str atification of a performance measure or measures that represents quality of service. LOS is not a measure of safety.
31. VTrans classifies LOS’s as follows:
LOS Characteristics Unsignalized Total Delay (Sec) Signalized Total Delay (Sec) A Little or no delay ≤ 10.0 ≤ 10.08 B Short delay 10.0 – 15.0 10.1

– 20.0
C Average delay 15.1 – 25.0 20.1

– 35.0
D Long delay 25.1 – 35.0 35.1

– 55.0
E Very long delay 35.1 – 50.0 55.1

– 80.0
F Extreme delays > 50.0 > 80.0

32. The LOS or the amount of delay that is considered r easonable varies depending on the location or context of the travel area. A rural are a will accept less delay than an urban

area. 33. Roadways are not typically designed to provide LOS A; rather, a balance is struck between cost, environmental impact, and travelers’ and society’s desires.
34. The a.m. (7:30 to 8:30) and p.m. (4:30 to 5:30) pea k hour for traffic are the 60 minutes in the morning and evening with the most commuting traffic at an intersection. The traffic design hour is the thirtieth highest traffi c volume for a given hour at a specific location in a year.
35. VTrans’s policy is to design roadways and highways to maintain an LOS C for the prescribed design period, although for two-way-stop -controlled intersection approaches, an LOS D is an acceptable level of serv ice.
36. Generally, longer delays increase driver frustratio n, and result in a corresponding increase in accidents.
37. Except for the U.S. Route 4/I-89 northbound off-ram p during the p.m. peak hour, all intersections have LOS’s that exceed LOS C with or without Project buildout. The U.S. Route 4/I-89 northbound off-ramp during p.m. peak h ours has a projected LOS F if the project is not built. Without any mitigating measur es, the intersection would have an LOS F if the Project were built. Thus, if the Proje ct is built, intersections either maintain present delay levels or experience relatively minor increases in vehicle delays.
38. Installing an actuated traffic signal at the U.S. R oute 4/I-89 northbound ramp intersection would bring the LOS at the intersectio n to a B for both a.m. and p.m. peak hours.9

39. There are four high-crash locations (HCL) in the Pr oject area. Both the I-89 northbound and southbound ramp intersections are HCLs. The two other HCLs are on U.S. Route 4 west of the I-89 ramps.
40. The neighboring convenience store/gas station has t wo curb cuts off U.S. Route 4, the nearest being approximately 450 feet south of the P roject access road. This area is a high crash site.
41. Tractor trailer trucks park from time to time betwe en the convenience store/gas station curb cuts and obstruct sight distances for vehicles exiting and entering the station.
42. VTrans recommends the following traffic mitigation measures for the Project:

a. The Applicant shall request a formal speed study to examine lowering the posted speed limit on U.S. Route 4 from the I-89 southboun d ramp to the I-89 northbound ramp from 45 mph to 40 mph after complet ion of each phase of development. b. Prior to completion of Phase 1A, Applicant shall co nstruct a westbound left turn lane at the U.S. Route 4/I-89 southbound ramp inter section for traffic entering I89 Southbound.

c. Prior to completion of Phase 1B, Applicant shall co nstruct a westbound right turn lane on U.S. Route 4 into the Project site. d. Prior to completion of Phase 2, Applicant shall con struct an eastbound left turn land on U.S. Route 4 into the Project site.

e. Applicant shall pay its proportional share of mitig ation measures for existing adverse traffic and safety condition on U.S. Route 4 including the installation of a signal at the U.S. Route 4/I-89 northbound ramp.
43. Construction of the westbound left turn lane at the U.S. Route 4/I-89 southbound ramp intersection for traffic entering I-89 southbound w ould narrow the shoulder of the roadway in the area of the convenience store/gas st ation thereby reducing the ability of tractor trailers to park on the roadside between th e convenience store/gas station curb

cuts.
44. Construction of the additional turning lanes recomm ended by VTrans is projected to reduce the rate of traffic accidents by 20 to 25 pe rcent.10

45. Installation of a signal at the U.S. Route 4/I-89 n orthbound ramp is projected to reduce the rate of traffic accidents by approximately 50 p ercent.
46. The Town of Hartford has a duly adopted municipal p lan (Municipal Plan).
47. In 2003, the Two Rivers-Ottauquechee Regional Commi ssion adopted the 2003 Two Rivers-Ottauquechee Regional Plan (the 2003 Regiona l Plan). Because the Town was not a member of the Two Rivers-Ottauquechee Regional Co mmission in 2003, the 2003 Regional Plan does not recognize or address the Tow n of Hartford.
48. On January 9, 2004, the Town discontinued its relat ionship with the Upper Valley Lake Sunapee Regional Planning Commission and joined the Two-Rivers Ottauquechee Regional Commission (the Regional Commission). As p art of the new association, the Town adopted the 2003 Regional Plan.
49. On July 11, 2005, Scott Milne, acting on behalf of B&M Realty, and David and Ernest Punt, owners of the Punt property at the time, file d an application with the Planning Commission requesting an amendment to the Hartford Zoning Regulations to expand the commercially developable acreage of the Punt pr operty by 300 percent. The application requested the conversion of 10± acres o n the northwest side of the Punt property from RL-5 to RL-3 and 35± acres on the eas t side of the lot from RL-3, RL-5, and RC-2 to a new zoning district, the Quechee Intersta te Interchange (QII).
50. On September 26, 2005, the Hartford Planning Commis sion approved the proposed amendments to the Hartford Zoning regulations affec ting the Punt property.
51. Applicant subsequently purchased the Punt property.
52. In 2006, acting on behalf of Applicant, Scott Milne presented the Planning Commission and professional staff with a site plan for the Pro ject.
53. In 2007, the Regional Commission adopted the 2007 T wo Rivers-Ottauquechee Regional Plan (the 2007 Regional Plan), which replaced the 2 003 Regional Plan.
54. On May 18, 2012, Applicant filed an application wit h the Planning Commission for the zoning permits necessary to develop the Project.
55. The Planning Commission granted preliminary approva l of the Project on June 25, 2012 and final approval of the Project on October 17, 20 12.11

56. On December 20, 2012, Applicant filed an Act 250 pe rmit application, which the District Commission denied in a written decision dated July 3, 2013. Applicant timely appealed the denial of its application to this Court.

**Discussion**

Applicant has raised fourteen questions in this app eal, all related to three of the ten Criteria for permit approval under Act 250. See 10 V.S.A. § 6086. The first two questions address the Project’s compliance with Criteria 5 (t raffic) and 9(K) (public investment). The remaining twelve questions address the Project’s co mpliance with the Regional Plan under
Criterion 10.

**I. Criterion 5 – Traffic:** 
**Whether the Project will cause unreasonable congest ion or unsafe conditions with**  **respect to transportation?** Act 250 Criterion 5 requires that a development “[w ]ill not cause unreasonable congestion or unsafe conditions with respect to use of the highways, waterways, railways, airports and airways, and other means of transporta tion existing or proposed.” 10 V.S.A. § 6086(a)(5). We cannot deny a permit “for a project that creates unsafe conditions within the meaning of [C]riterion 5, but permit conditions can be imposed to remedy those conditions.” In re Agency of Transp., 157 Vt. 203, 207 (1991) (citi ng 10 V.S.A. § 6087(b)). While an opponent to a proposed development carries the burden of persua sion under Criterion 5 to show that the proposed development will cause “an unreasonable or adverse effect,” 10 V.S.A. § 6088(b), the applicant must produce sufficient evidence for the Court to make positive findings. See In re Route 103 Quarry

**,** No. 205-10-05 Vtec, slip op. at 8 (Vt. Envtl. Ct. Nov. 22, 2006) (Durkin, J.) (stating that section 6088(b) pertains only to the burden of persuasion and that the “applicant always carries the initial burden of production”). In reviewing a project under Criterion 5, we consid er its impact on the use of highways, including whether the project may exacerbate alread y congested or unsafe traffic conditions. In re Pilgrim Partnership, 153 Vt. 594, 596–97 (1990). When a project creates unreasonable congestion or unsafe conditions or exacerbates pree xisting unreasonable congestion or unsafe conditions, we may impose conditions to alleviate t he congestion and unsafe conditions. Id.12

“[An] LOS below C is generally inconsistent with Cr iterion 5.” Re: Okemo Ltd. Liability Co., et al., No. 2S0351-34-EB, Findings of Fact, Co nclusions of Law, and Order, at 10 (Vt. Envtl. Bd. Sept. 8, 2005). 2 For two-way-stop-controlled intersections, however , VTrans’s LOS Policy is to maintain an LOS D, or better

**.** Moreover, VTrans’s policy is to design roadways an d highways to maintain an LOS C for the prescribed design peri od, although lower levels of service may be permitted on a case-by-case basis. At the time of our merits hearing, the parties had mostly resolved traffic issues through proposed traffic mitigation measures. The Ratajs, however, remain concerned with traffic generated by the Project. The Ratajs reside off of Old Quechee Road and use Costello Road to access U.S. Route 4. The Ratajs raise traffic safet y and congestion issues on U.S. Route 4 in the area of their residence. The Ratajs offer evidence of higher numbers of crashes and higher driving speeds than the VTrans numbers offered by A pplicant. The Ratajs also challenge whether adding turning lanes will improve safety an d congestion issues. With the exception of one intersection, all interse ctions involved in the project will maintain acceptable traffic conditions if the proje ct is built. The one exception is the U.S. Route 4/I-89 northbound off-ramp which has an unacceptabl e LOS of F. An LOS F in either the build or no-build scenarios is an unreasonable level of congestion. To be clear, Applicant and this Project have not cr eated the existing unreasonable congestion or unsafe conditions at the U.S. Route 4/I-89 northbou nd off-ramp. If the Project is approved and constructed, however, the traffic conditions for th e U.S. Route 4/I-89 northbound off-ramp will degrade further. Installing an actuated traffic sig nal at the U.S. Route 4/I-89 northbound ramp intersection is projected to accommodate the Projec t build scenario traffic volumes with LOS B for both a.m. and p.m. peak hours. There are four high-crash locations (HCLs) in the P roject area. Both the I-89 northbound and southbound ramp intersections are HCLs. The two other HCLs are on U.S. Route 4 west of the I-89 ramps. Adding turn lanes, removing roadsi de vegetation and eliminating tractor trailer roadside parking, and reviewing and potentially red ucing speed limits will mitigate these safety

concerns.

2 Prior decisions of the Environmental Board serve a s precedent in this Court. 10 V.S.A. § 8504(m).13

Based upon the credible, and largely unrefuted, evi dence before the Court, we impose the following conditions to mitigate traffic concer ns. The conditions were recommended by VTrans and offered by Applicant:

a. The Applicant shall request a formal speed study to examine lowering the posted speed limit on U.S. Route 4 from the I-89 southboun d ramp to the I-89 northbound ramp from 45 mph to 40 mph after complet ion of each phase of development. b. Prior to completion of Phase 1A, Applicant shall construct a westbound left turn lane at the U.S. Route 4/I-89 southbound ramp inter section for traffic entering I89 southbound. This work shall include reducing the width of the shoulder along U.S. Route 4 in the area of the convenience store/g as station to eliminate tractor trailer parking in this area. Roadside vegetation s hall be cut back along the inside curve of U.S. Route 4 east of the Project access ro ad and between I-89 northbound and southbound ramps. c. Prior to completion of Phase 1A, an actuated tra ffic signal shall be installed at the U.S. Route 4/I-89 northbound ramp. Applicant sh all pay its proportional share of mitigation measures for this existing adve rse traffic and safety condition. d. Prior to completion of Phase 1B, Applicant shall construct a westbound right turn lane on U.S. Route 4 into the Project site. e. Prior to completion of Phase 1C, Applicant shall construct an eastbound left turn lane on U.S. Route 4 into the Project site. 3
Recent Vermont legislation empowers an Act 250 Dis trict Commission or the Agency of Transportation (and therefore this Court when consi dering an appeal) to assess a transportation impact fee to fund capital improveme nts necessary to mitigate transportation impacts of proposed developments. 10 V.S.A. §§ 6101 –6111. The statute contemplates implementation through rules to be adopted by the N atural Resources Board or the Agency of Transportation. See 10 V.S.A. § 6111. We are not aw are of the rules having been adopted. At trial, the parties did not specifically address thi s legislation; however, they do cite to it in their post-trial briefs.

3 The application before the Court seeks approval of only Phase 1 of the proposed development. We note that Applicant’s traffic study evaluated impacts as sociated with all Project development phases and co ncluded that an eastbound left turn land on U.S. Route 4 into th e Project site was not warranted until completion o f Phase 2. VTrans appears to adopt these conclusions. Applicant ’s May 2012 traffic study, however, conservatively indicated that the construction of an eastbound left turn lan d on U.S. Route 4 into the Project site is first wa rranted with Phase 1C buildout. See Exhibit 20, pages 35 - 36. T he Court requires the more conservative approach.14

Our implementation of Act 250 is a continual balanc e between competing interests. See In re Village Associates, 2010 VT 42A, ¶ 17, 188 Vt . 113 (noting that the “goals of Act 250 have always been balanced against the economic necessity of development . . . [resulting in] a practical approach to regulation.”). In this matter , we must balance a development proposal and its associated additional traffic with an alrea dy existing traffic problem. The Court concludes that traffic mitigation measure are requi red. We leave it to the parties, however, to work through the financing details for the required actuated traffic signal to be installed at the U.S. Route 4/I-89 northbound ramp. To be clear, we conclude that Applicant shall pay its proportional share of this mitigation measure for t he adverse traffic and safety condition at the U.S. Route 4/I-89 northbound ramp. As Applicant sug gests, one potential option is for the developer to pay for the signal and then be reimbur sed by future development that adds traffic to the U.S. Route 4/I-89 northbound ramp.

**II. Criterion 9(K) – Public Facilities** 
**Whether the Project will unnecessarily or unreasona bly endanger the public or quasi**  **public investment in or materially jeopardize or in terfere with the function, efficiency, or**  **safety of, or the public’s use or enjoyment of or a ccess to adjacent public facilities?**  Criterion 9(K) directs the grant of a permit for a development on or adjacent to public lands if the Applicant demonstrates that the develo pment “will not unnecessarily or unreasonably endanger the public or quasi-public in vestment” in those lands or “materially jeopardize or interfere with the function, efficien cy, or safety of, or the public’s use or enjoyment of or access to” those lands. 10 V.S.A. § 6086(a)(9)(K). This Criterion “seeks to protect state and local governments from adverse fi scal impacts on public facilities and investments that are adjacent to the proposed proje ct.” Re: St. Albans Grp. & Wal-Mart Stores, Inc., No. 6F0471-EB, Mem. of Decision, at 9 (Vt. En vtl. Bd. Apr. 15, 1994). Our analysis under Criterion 9(K) is succinct, as w e have already conducted a similar review under Criterion 5. The former Environmental Board held that when considering the impact upon a state or local highway, as a public i nvestment, review can be similar under Criteria 5 and 9(K). Re: Pittsford Enters., No. 1R0 877-EB, Findings of Fact, Conclusions of Law and Order, at 36 (Vt. Envtl. Bd. Dec. 31, 2002). Th e Board in Pittsford Enterprises did recognize, however, that there are important differences betwe en the analysis under Criteria 5 and 9(K);15

specifically the standard under Criterion 9(K) is h igher than under Criterion 5, as Criterion 9(K) requires “material jeopardy or material interferenc e.” Id. Except for the U.S. Route 4/I-89 northbound off-ram p during the p.m. peak hour, all intersections have acceptable LOS with or without P roject buildout. The U.S. Route 4/I-89 northbound off-ramp during p.m. peak hours projects LOS F in both the no-build and build scenarios. If the Project is built, all intersectio ns either maintain present delay levels or experience relatively minor increases in vehicle de lays. Installing an actuated traffic signal at the U.S. Route 4/I-89 northbound ramp intersection is projected to accommodate the Project build scenario traffic volumes with LOS B for both a.m. and p.m. peak hours. As stated above, there are four high-crash locations (HCLs) in the P roject area. Both the I-89 northbound and southbound ramp intersections are HCLs. The two oth er HCLs are on U.S. Route 4 west of the I89 ramps. Adding turn lanes, removing roadside vege tation and eliminating tractor trailer roadside parking, and reviewing and potentially red ucing speed limits will mitigate these safety

concerns. As conditioned above in our Criterion 5 analysis, w e conclude that the Project will not unnecessarily or unreasonably endanger the public o r quasi-public investment in or materially jeopardize or interfere with the function, efficien cy, or safety of, or the public’s use or enjoyment of or access to adjacent public facilitie s.

**III. Criterion 10 – Regional Plan**  **Whether the Project conforms with any duly adopted local or regional plan?** 

The remainder of Applicant’s questions address the requirement of Act 250 Criterion 10 that the project proponent show that its proposal i s in conformance with any duly adopted local or regional plan or capital program under 24 V.S.A. Chapter 117. 10 V.S.A. § 6086(a)(10). The burden of proof under Criterion 10 is on the ap plicant to show conformance. 10 V.S.A. §
6088. In order for a plan’s provisions to be binding on a project, the provisions must be mandatory in nature and not merely aspirational. I n re Rivers Dev., LLC, Nos. 7-1-05 Vtec and 68-3-07 Vtec, slip op. at 9 (Vt. Envtl. Ct. Jan. 8, 2008) (Durkin, J.). If the plan language is intended only to establish broad goals and not mand atory standards, the inquiry ends and a16

project cannot be denied under Criterion 10, based upon that language alone. Id. In other words, a finding of nonconformity must be “based on a ‘specific policy’ set forth in the plan . . . and stated in language that ‘is clear and unqualifi ed, and creates no ambiguity.’” In re John A. Russell Corp., 2003 VT 93, ¶ 16, 176 Vt. 520 (quoti ng In re Green Peak Estates, 154 Vt. 363, 369 (1990); In re MLB Assocs., 166 Vt. 606, 607 (1997) (internal citations omitted)). Applicant’s Question 3 asks, in general terms, whet her the Project complies with the 2007 Regional Plan. 4 This question necessarily entails two sub-issues: (1) should the applicable plan be given effect in this case (Questions 4, 5, 7, 8, and 9); and (2) if so, does the Project satisfy all mandatory provisions of the applicable plan (Questions 12, 13, and 14).

a. Does the Regional Plan Apply? (Applicant’s question s 4, 5, 7, 8, 9) The Regional Commission argues that Applicant’s Pro ject does not comply with certain provisions of the 2007 Regional Plan. Applicant arg ues that these provisions cannot be the basis of a finding of non-conformity because these provis ions do not apply to its Project under 24 V.S.A. § 4348(h) because the Municipal and Regional Plans do not conflict and the Project will not have a substantial regional impact. 24 V.S.A. § 4348(h) delineates two situations where provisions of the regional plan shall apply: first, the provisions of a regional plan sha ll be given effect to the extent they do not conflict with the provisions of a duly adopted muni cipal plan, § 4348(h)(1); second, if a conflict does exists, then the regional plan shall apply if it is demonstrated that the project will have a substantial regional impact. § 4348(h)(2). In other words, if the provisions of a regional plan do not conflict with the municipal plan, only those ma ndatory provisions of a regional plan will apply to the proposed project. If the regional plan does conflict with the municipal plan, however, mandatory provisions of the regional plan will only apply to the project if it is first determined that the project will have a substantial regional impact. Therefore, in the case of no conflict, or where there is a conflict and a substa ntial regional impact exist, we must determine

4 Prior to trial, we determined that the 2007 Region al Plan should be applied in reviewing the Project under Criterion 10, thus answering Applicant’s Ques tions 6 and 10. In re B&M Realty Act 250 Applic., No. 103-8-13 Vtec, slip op. at 7 (Vt. Super. Ct. Envtl. Div. Oct. 7, 2014) (Walsh, J.).17

whether there are mandatory, not merely aspirationa l, provisions of the regional plan that prohibit the project. Here, neither Applicant nor Appellees have provided enough evidence for the Court to determine whether the provisions of the Regional Pl an are in conflict with the Municipal Plan. Because we find it is Applicant’s burden to show th at the provisions of the plan do not conflict, we proceed as if provisions of the Regional Plan ar e in conflict with the Municipal Plan. We therefore turn to the question of whether the Proje ct will have a substantial regional impact. Applicant argues that the Regional Commission’s def inition of “substantial regional impact” is not justified as a matter of law, and th us the 2007 Regional Plan is unenforceable and should not govern (Question 5). Applicant gives thr ee reasons for this assertion. First, Applicant argues that 24 V.S.A. § 4345a delegates unguided di scretion to the Regional Commission in violation of constitutional nondelegation principle s. Second, Applicant argues that the definition of “substantial regional impact” in the Regional Plan is arbitrary and standardless, and therefore violates due process. Third, Applican t argues that the Regional Plan improperly attempts to amend Act 250 Criterion 5. We address t hese arguments in turn, and, for the following reasons, find that Applicant’s arguments are unpersuasive. 5 Turning to Applicant’s first point, Applicant argue s that, because 24 V.S.A. § 4345a (defining the duties of the regional planning commi ssions) directs the Regional Commission to define “substantial regional impact” without provid ing any specific standards, the statute improperly gives unconstrained discretion to the Re gional Commission. See 24 V.S.A. § 4345(a)(17) (“As part of its regional plan, [a regi onal planning commission shall] define a substantial regional impact, as the term may be use d with respect to its region.”). It is well established that the delegation of legislative auth ority to zoning bodies cannot be

5 Related to Applicant’s argument that the Regional Plan should not apply, Applicant’s Question 8 asks, “Should the regional plan be given effect if the ap plicable planning commission has not met its obliga tions to review and consult with the host municipality regar ding the municipality’s planning efforts pursuant t o 24 V.S.A. § 4350?” Applicant has provided no evidence that the regional planning commission failed to consult with the host municipality as directed by 24 V.S.A. § 4350. Furthe rmore, there is nothing in 24 V.S.A. § 4350 that sug gests a regional plan is unenforceable if the regional plan ning commission does not adhere to the meeting and consultation requirements of Section 4350. Moreover , there is a two year statute of limitations from t he date the plan took effect to challenge procedural defects of a regional plan. See 24 V.S.A. § 4483. Therefore, A pplicant’s claim is ultimately barred.18

“unrestrained and arbitrary.” See Vincent v. Vt. St ate Retirement Bd., 148 Vt. 531, 535 (1987) (quoting State v. Chambers, 144 Vt. 234, 239 (1984) ); In re Handy, 171 Vt. 336, 345–47 (2000) (noting the applicability of the nondelegation doct rine to local zoning boards). While the structure of the regional planning commis sions’ enabling statute does give us some concern in that it allows the regional plannin g commissions to define the scope of their own authority, see 24 V.S.A. § 4348(h)(2), we concl ude that Section 4345a, in combination with the entirety of Chapter 117 of Title 24, does provi de guidance to the regional planning commissions by specifying the scope of their duties as well as the requirements for their regional plans. See 24 V.S.A. §§ 4345a–4348(b). Fur thermore, substantial regional impact is necessarily a region-specific concept that is likel y best determined on a regional level. Ultimately, however, we need not reach the delegati on issue as it is unnecessary for our holding here, since we ultimately determine that Ap plicant does satisfy Criterion 10. See State v. Bauder, 2007 VT 16, ¶ 28, 181 Vt. 392 (“It is, o f course, a fundamental tenet of judicial restraint that courts will not address constitution al claims—least of all novel or unresolved constitutional claims—when adequate or lesser groun ds are available.”). Regarding Applicant’s second point, the Court rejec ts Applicant’s argument that the definition of substantial regional impact does not provide a clear and applicable standard. Like the delegation of legislative authority, zoning sta ndards must be sufficiently clear and definitive to prevent arbitrary application and to provide ade quate notice. See In re Appeal of JAM Golf, LLC, 2008 VT 110, ¶ 13, 185 Vt. 201. The 2007 Regio nal Plan defines substantial regional impact as any development that meets one or more of eight criteria. The relevant criteria for the proposed development are as follows:

(2) A development that may significantly affect exi sting capacity of regional public facilities by:
(a) contributing to a reduction in the peak hour Le vel of Service (LOS) from D to E or from E to F; (b) contributing five percent or more to the peak h our Level of Service (LOS) D on a regionally significant local or State highway in or immediately adjacent to regional growth areas or LO S C on regionally significant local or State highways in rural areas;

. . .19 (d) necessitating substantive capital improvements, such as widening or signalization of regionally significant local or St ate highways;

. . . (5) A development which impairs the continued funct ion of significant regional facilities, including, but not limited to, Inters tate highway systems, waterways, educational institutions, hospitals, r ecreational facilities, bridges, dams, airports and trails.
(6) A development exceeding the following threshold s:

. . . (b) commercial or industrial construction involving 20,000 square feet or more of gross floor area.
(Two Rivers—Ottauquechee Regional Plan at 269, adop ted May 30, 2007) [hereinafter 2007 Regional Plan]. These criteria are not vague o r standardless, but rather are sufficiently clear to prevent discriminatory application and to adequately inform landowners of what types of projects will result in a substantial regional i mpact. See JAM Golf, 2008 VT 110, ¶ 13. We therefore reject Applicant’s claim that the definit ion of substantial regional impact is vague or otherwise infirm. Finally, Applicant takes issue with the Regional C ommission’s definition of substantial regional impact and claims that, by defining substa ntial regional impact to include projects that decrease the LOS, the Regional Plan creates an end- run around the rule that an Act 250 permit cannot be denied for failing to comply with Criteri on 5’s traffic requirements. See Re: Pittsford Enters., No. 1R0877-EB, Findings of Fact, Conclusio ns of Law and Order, at 36 (Vt. Envtl. Bd. Dec. 31, 2002) (noting that permits cannot be denie d for failing to be satisfy Criterion 5, they may only be conditioned on traffic mitigation measu res). The Court rejects this argument. Defining substantial regional impact as a project t hat “contributes to a reduction in the peak hour Level of Service (LOS) from D to E or from E t o F,” does not improperly circumvent Criterion 5 to defeat a project on traffic impact g rounds. The Regional Commission has been delegated the authority to define substantial regio nal impact, and so long as that definition is sufficiently particular, the Regional Commission is not precluded from employing a definition merely because it has some overlap with issues addr essed under Criterion 5. Moreover, under the 2007 Regional Plan, the fact that a project wil l have a substantial regional impact due to its20

traffic congestion impact does not, as Applicant su ggests, result in an immediate denial of the project, but rather merely triggers further review. See 24 V.S.A. § 4348(h)(2). Finding that the 2007 Regional Plan’s definition of substantial regional impact is not infirm, we must next address whether the Project me ets the definition (Question 9). It is uncontested that the Project as proposed will be gr eater than 20,000 square feet and will require substantial capital improvements of a local or State highway. Phase 1 of the Project is over 100,000 square feet of office, retail, and res idential space, and as conditioned above, the Project will require Applicant to install a traffic light and turning lanes in order to mitigate Act
250 Criterion 5 concerns. 6 Either of these facts would meet one or more of th e eight criteria in the 2007 Regional Plan’s definition of substantial regional impact. Therefore, because the Project will result in a substantial regional impac t, the 2007 Regional Plan applies. 7

b. Does the Plan Prohibit the Project? (Applicant’s Qu estions 12, 13, 14) Finding the 2007 Regional Plan applies, we must con sider whether the 2007 Regional Plan prohibits the Project (Questions 12, 13, and 1 4). The Regional Commission argues that the Project violates five provisions of the 2007 Region al Plan. In considering the 2007 Regional Plan provisions cited by the Regional Commission, we con clude that each provision is either an unenforceable policy aspiration or provides restric tions inapplicable to the Project. We address each of these provisions. We have been cautioned against denying an Act 250 p ermit based on nonconformance with “nonregulatory abstractions” in a municipal or regional plan. In re Molgano, 163 Vt. 25, 31 (1994). As we stated earlier, a determination of n onconformity requires that the relevant plan provisions are mandatory and not merely aspirationa l, and “stated in language that ‘is clear and

6 The District Commission also found a substantial r egional impact because the Project would contribute to a reduction in the peak hour LOS from D to E or from E to F. See In re B&M Realty, LLC, Findings of Fact & Conclusions of Law & Order, at 33–34 (Dist. Envtl. Commission, July 3, 2013). At trial, however, it wa s revealed that the level of service is currently an F, and the pro posed traffic measures—a traffic control light and turning lanes— will improve the LOS to a B; thus there is no subst antial regional impact on the basis of the Project’ s contribution to the LOS.

7 Applicant’s Question 7 asks, “Which party has the burden to demonstrate that a project has a “substantial regional impact?” We begin with the pr inciple that the applicant always has the burden of producing sufficient evidence to enable the Court to make the requisite positive findings on all of the criteria . Ultimately, however, the answer is not critical to our discussi on here, as the parties have produced sufficient ev idence for the Court to determine whether the Project has a substa ntial regional impact.21

unqualified, and creates no ambiguity.’” In re Joh n A. Russell Corp., 2003 VT 93, ¶ 16, 176 Vt. 520 (quoting In re Green Peak Estates, 154 Vt. 363, 369 (1990); In re MLB Assocs., 166 Vt. 606, 607 (1997) (mem.) (internal citations omitted)). F urthermore, a provision of a regional plan that fails to provide adequate guidance and allows the unbridled discretion of the regional planning commission is unenforceable. See JAM Golf, 2008 VT 110, ¶ 13 (“We will not uphold a statute that “fail[s] to provide adequate guidance, ” thus leading to “unbridled discrimination” by the court and the planning board charged with it s interpretation.”); see also In re Application of Lathrop Ltd. Partnership I, 2015 VT 49, ¶ 29, 12 1 A.3d 630 (noting that ambiguous regulations risk arbitrary enforcement, and that co urts will therefore construe zoning regulations strictly and in favor of the property o wner); In re Kisiel, 172 Vt. 124, 140 (2000) (holding that Town plan must have “some objective m easure to guide enforcement” of a stated prohibition on development). The primary focus of the Regional Commission’s opp osition to the Project is that “[p]rincipal retail establishments must be located in Town Centers, Designated Downtowns, or Designated Growth Centers to minimize the blighting effects of sprawl and strip development along major highways and to maintain rural characte r.” 2007 Regional Plan at 33. The Regional Commission asserts that the “principal retail estab lishment” (PRE) provision provides a clear and mandatory bar to the Project. The 2007 Regional Plan, however, does not define the term “principal retail establishment.” The Regional Comm ission argues that the PRE provision, when read in combination with the other requirements of the 2007 Regional Plan, is sufficiently clear to find it mandatory and enforceable. While the PRE provision may use mandatory language, it is not clear that the provision applies to the Proj ect. Accordingly, we must first determine the meaning of “principal retail establishment,” before we can conclude whether the PRE provision acts as a bar to the Project. When interpreting a provision of a regional plan, we are directed to “construe[] [the terms] according to the ordinary rules of statutory construction.” In re MBL Associates, 166 Vt. 606, 607 (1997). Therefore, we will interpret the p hrase “principal retail establishment” according to the ordinary meaning of the words and refer to dictionary definitions when necessary. See Franks v. Town of Essex, 2013 VT 84, ¶ 8, 194 Vt. 595 (“Words that are not defined within a statute are given their plain and ordinary meaning, which may be obtained by resorting to dictionary definitions.”). Black’s Law Dictionary defines the term “principal” to22

mean “chief; primary; most important.” Black’s Law Dictionary, principal (10th ed. 2014) (WL). Thus, the phrase “principal retail establishment” m eans a project where retail is the chief, leading, or most important use. Applying that definition here, we find that the Pro ject’s uses do not make it a principal retail establishment. Phase 1 of the Project includ es 115,000 square feet of commercial, residential, and retail space. Of the 115,000 squar e feet, less than 40,000 are proposed as retail space. The majority of the square footage, more tha n 66,000 square feet, will be devoted to office space. The remaining space is residential. T he Court finds that retail is not the primary or chief use of the Project, and thus, the Project doe s not constitute a “principal retail establishment” pursuant to the 2007 Regional Plan. 8 The (PRE) provision does not, therefore, apply to the Project. We next consider the provision in the 2007 Regional Plan stating that “[the] existing settlement pattern . . . [provides] a system of cen ters both efficient and economical for the conduct of business enterprise and for the provisio n of social and community facilities and services. This pattern must be protected and enhanc ed and is supported by state planning law.” 2007 Regional Plan at 26. While this provision di rects that existing settlement patterns must be protected, it provides no clear guide or criteri a to be met in order to protect the existing settlement pattern. Instead of a mandatory requirem ent, this provision is more appropriately considered an overarching theme for the Regional Pl an. Indeed, the provision appears under the subsection labeled “Goals-The Future Pattern of Settlement,” 2007 Regional Plan at 26, confirming its merely advisory nature. We conclud e that this provision does not bar the Project because it is merely an aspirational policy statement. Similarly, the provision stating that “[a]ny develo pment planned for interchange development must be constructed to . . . discourage creation or establishment of uses deemed

8 Question 12 asks, “Can a regional plan permissibly restrict ‘principal retail establishments’ to only Town Centers, Designated Downtowns, or Designated Growth Center or is such zoning function reserved to municipalities?” (Applicant’s SOQ 12). Applicant po ints to no case law or authority, and the Court is not aware of any, that prohibits a regional commission from limi ting principal retail establishments to town center s, designated downtowns, or designate growth centers. 24 V.S.A. §§ 4345–50 and Act 250 Criterion 10 clearly envision that the regional plan may conflict with the municipal plan, and often, the regional plan is given superiority. See 24 V.S.A. § 4350(b)(1) (“The Commission shall approve a plan if it finds that the plan . . . is compatible with it s regional plan.”). Ultimately, however, we need not answer this questi on as the Court concludes that the Project is not a principal retail establishment.23

more appropriate to regional growth areas,” Id. at 46–47, is unclear and leaves unbridled discretion with the Regional Commission. Again, whi le this statement may evince a worthy aspiration, it fails to establish clear and mandato ry criteria, but instead leaves the decision of what is “appropriate” to the Regional Commission. T hus, this provision is unenforceable as it fails to provide adequate guidance and allows the u nbridled discretion of the regional planning commission. See JAM Golf, 2008 VT 110, ¶ 13 The Regional Commission also points to a provision under the subsection, “Goals-The Future Pattern of Settlement,” which states, “Major growth or investments must be channeled into or adjacent to existing or planned settlement centers and to areas where adequate public facilities and services are available.” Id. at 27. While this statement appears to create a mandatory standard, the critical words are undefine d and subject to interpretation, rendering the Court unable to “discern a specific policy” or prohibition of the Project from this statement. See In re John A. Russell Corp., 2003 VT 93, ¶ 19 ( holding that where a plan fails to convey a specific policy preventing the proposed development , the boards interpretation of the plan is not grounds to deny the project). The 2007 Regional Plan does not define the term “major growth or investment,” and its meaning is subject t o a wide degree of interpretation. Therefore, this standard gives unfettered discretio n to the Regional Commission, and thus, cannot be grounds for denying a proposed developmen t. See JAM Golf, 2008 VT 110, ¶ 13. Similarly, the provision requires that major develo pment must be located in a planned settlement area, yet the term “planned settlement a rea” is also undefined. While the Regional Commission argues that the terms “major growth” and “planned settlement area” are sufficiently clear to provide mandatory and applica ble standards, and that the Project is certainly major development outside of any planned settlement area, these conclusion are not clear from the Regional Plan itself. See Re: EPE Re alty Corporation and Fergessen Management, Ltd., No. #3W0865-EB, Findings of Fact, Conclusion of Law, and Order, at 40 (Vt. Envtl. Bd. Nov. 24, 2004) (noting that the plan speaks for itself a nd the court must make its own judgment on whether a project conforms to the plan). Because we find this provision fails to establish a clear, unqualified, and unambiguous standard, the C ourt cannot deny the Project on the grounds that it constitutes major growth outside of a planned settlement area. See In re John A. Russell Corp., 2003 VT 93, ¶ 16.24

Lastly, the Regional Commission focuses on the prov ision of the 2007 Regional Plan that concludes that Exit 1 is not an appropriate locatio n for a growth center. 2007 Regional Plan at 27. The Plan designates two types of growth cente rs; Regional Growth Centers and Designated Growth Centers. Regional Growth Centers are “the tr aditional developed areas in the region.” Id. Designated Growth Centers are areas that a muni cipality seeks designation for based on a number of criteria and that must receive approval f rom the Vermont Downtown Board before the designation may take effect. Id. at 28. While t he prohibition of growth centers from Exit 1 appears clear and unambiguous, it is inapplicable t o the Project. The Project is not located in an area where traditional development has occurred, an d no party is seeking to have the Project receive a growth center designation. Therefore, the 2007 Regional Plan’s limitation on growth centers at Exit 1 does not prohibit the Project. As we find that there are no applicable mandatory a nd unambiguous provisions of the 2007 Regional Plan that prohibit the Project, we co nclude that the Project conforms to the Regional Plan, and thus, complies with Act 250 Crit erion 10. 9

**Conclusion**

Regarding the post hearing motion, the Court **GRANTS** in part and **DENIES** in part the Ratajs’ motion to reopen the evidence. The Court ad mits the Ratajs’ Exhibits A and B, but denies the Ratajs’ request to recall Mr. Saladino a nd to offer a rebuttal witness. On the merits, the Court concludes, for the above r easons, that the Project complies with Act 250 Criterion 5 with the imposition of the following conditions to mitigate traffic

concerns. a. The Applicant shall request a formal speed study to examine lowering the posted

speed limit on U.S. Route 4 from the I-89 southboun d ramp to the I-89 northbound ramp from 45 mph to 40 mph after complet ion of each phase of development. b. Prior to completion of Phase 1A, Applicant shall construct a westbound left turn lane at the U.S. Route 4/I-89 southbound ramp inter section for traffic entering I89 southbound. This work shall include reducing the width of the shoulder along U.S. Route 4 in the area of the convenience store/g as station to eliminate tractor

9 We note that our conclusion would have been the sa me if we had found that the Municipal and Regional Plans did not conflict.25 trailer parking in this area. Roadside vegetation s hall be cut back along the inside curve of U.S. Route 4 east of the Project access ro ad and between I-89 northbound and southbound ramps. c. Prior to completion of Phase 1A, an actuated tra ffic signal shall be installed at the U.S. Route 4/I-89 northbound ramp. Applicant sh all pay its proportional share of mitigation measures for this existing adve rse traffic and safety condition. d. Prior to completion of Phase 1B, Applicant shall construct a westbound right turn lane on U.S. Route 4 into the Project site. e. Prior to completion of Phase 1C, Applicant shall construct an eastbound left turn lane on U.S. Route 4 into the Project site.
The Court imposes these traffic mitigation measures ; however, we leave it to the parties to work through the financing details for the required actuated traffic signal to be installed at the U.S. Route 4/I-89 northbound ramp. As conditioned, we also conclude that the Project will not unnecessarily or unreasonably endanger the public or quasi-public investment in o r materially jeopardize or interfere with the function, efficiency, or safety of, or the public’s use or enjoyment of or access to adjacent public facilities, and therefore, complies with Act 250 Cr iterion 9(k). Lastly, we conclude that there are no applicable mandatory and unambiguous provisions of the 2007 Regional Plan that prohibit the Project. Thus, the Project conforms to the Regi onal Plan and complies with Act 250
Criterion 10. This matter is remanded to the District Environmen tal Commission #3 for the ministerial act of issuing an Act 250 Land Use Permit consisten t with this merits decision and the unappealed portions of the Commission’s July 3, 201 3 decision. This concludes this matter.

Electronically signed on November 12, 2015 at 1:31 PM pursuant to V.R.E.F. 7(d).

_________________________________________ Thomas G. Walsh, Judge Superior Court, Environmental Division