1 STATE OF VERMONT ENVIRONMENTAL COURT

} } In re Big Spruce Road Act 250 Subdivision } Docke t No. 95-5-09 Vtec (Appeal of Grayson et al.) } } }

Decision on Multiple Motions Edward Grayson, Kevin Curran, and James Stewart, a s well as their homeowners association, Spruce Peak House Owners Association, Inc. (collectively, “Neighbors”), have appealed a decision of the District 5 Environmental Commission (“District Commission”), which denied Neighbors’ petition for party status and gra nted Spruce Peak Realty, LLC and Mount Mansfield Company, Inc. (collectively, “Applicants” ) an amendment to Act 250 Land Use Permit #5L1338(Altered). Neighbors are represented by Jeremy D. Hoff, Esq.; Applicants are represented by Christopher D. Roy, Esq.; the Natura l Resource Board has informational status through John H. Hasen, Esq. Currently pending before the Court are two motions filed by the principal parties to this litigation. Neighbors filed with their notice of a ppeal a motion for party status under Act 250 criterion 9(G), as is required by V.R.E.C.P. 5(d)(2 ). Applicants have responded in opposition with a motion for summary judgment. The two motion s are now ripe for review.

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. Applicants own and operate the Stowe Mountain Resor t off of Vermont Route 108 in the

Town of Stowe. The Resort is located between Mount Mansfield and Spruce Peak, and it includes development projects on both sides of the Resort.

2. Applicants’ development is subject to Act 250 Land Use Permit #5L1338(Altered) (hereinafter the “Permit”), which was first approve d on September 26, 2003, authorizing the master plan development of both the Mount Mansfield and Spruce Peak development projects. Since it was issued on September 26, 2003, the Perm it has been amended approximately thirty-2

six times. 1 These previously approved amendments authorized t he ongoing development of land within the master plan site.

3. On December 23, 2008, Applicants filed yet another application to amend the Permit, application #5L1338(Alt)-15 (hereinafter “the Amend ment Application”), which sought approval to subdivide the Spruce Peak side of the Resort int o thirty lots. Applicants characterized the Amendment Application as a “housekeeping” measure b ecause of its purported narrow scope. According to Applicants, the previous Permit amendm ents authorized multiple developments on these identified lots in the Spruce Peak portion of the Resort, but the prior Permit amendments did not explicitly approve their subdivision. Appl icants therefore assert that the Amendment Application was intended to serve a limited purpose : to ratify the subdivision of property implicitly approved during the previous Permit amen dments.

4. Big Spruce Road traverses the Spruce Peak portion o f the Resort, thereby providing access to the previously approved developments on t his portion of the Resort. Big Spruce Road also provides the sole means of access to Neighbors ’ properties, which adjoin the Spruce Peak side of the development. Big Spruce Road was denot ed in the Amendment Application as a separate lot: Lot 53.

5. The development of Big Spruce Road was previously a uthorized by a prior Permit amendment when Applicants received approval to alte r the Road’s original path to make way for a new golf course within the development. This pri or Permit amendment proceeding did not identify Big Spruce Road as a separate lot, but it did denote its existence and location.

6. The District Commission classified Applicants’ Amen dment Application as a “minor application,” pursuant to Act 250 Rule 51(A), after determining that the Amendment Application did not present new issues that would present a sig nificant adverse impact under any of the Act

250 criteria. 2 Act 250 Rule 51(A).

1 Amendments relating to the Mount Mansfield portio n of the Resort are denoted by sequential letters a t the end of the Act 250 Permit #5L13338(Alt); amendments relati ng to the Spruce Peak portion of the Resort are den oted by sequential numbers at the end of the Act 250 Permit #5L13338(Alt). The Mount Mansfield portion of the Resort is located on the westerly side of Vermont Route 108, which serves as an access road to the resort; the S pruce Peak portion of the Resort is located on the easterly si de of Route 108.

2 Under Rule 51, a minor application may be granted without a hearing or the issuance of findings of fa ct and conclusions of law. Act 250 Rule 51(A), (B)(3)(b). The District Commission need only convene a heari ng if, after publication of a proposed permit, a person eligible for party status convinces the district commission that the pending application will raise substantive issues o n an Act 250 criterion applicable to that proceedin g. Id . Rule 51(B)–(D).3

7. On January 21, 2009, Neighbors requested a hearing on the Amendment Application and petitioned for party status under Act 250 criterion 9(G). Although the Court has not been provided with Neighbors’ petition for party status, it appears from their filings that Neighbors raise three general concerns over the Amendment App lication.

8. First, Neighbors are concerned that the Amendment A pplication, if granted, would impact the future integrity of Big Spruce Road. Ne ighbors have a deeded right-of-way over the Road, 3 and they contend that the Amendment Application co uld materially affect the way the Road is owned, maintained, and the extent to which it can be used in the future. Neighbors have not provided the Court with a sworn affidavit or an y other evidentiary material to support their concerns over the future quality of Big Spruce Road

. 9. Neighbors’ second set of concerns relate to the pas t construction and development of Big Spruce Road, and they have filed with the Court an affidavit in support, alleging that Applicants have not honored certain representations made durin g the Permit proceedings that previously authorized the development of Big Spruce Road. App licants allegedly represented that a portion of Big Spruce Road would be partially paved and the remaining portion would be gravel. Neighbors contend that “the road has not been paved as Applicant represented it would be, nor has an adequate gravel road been constructed.” Cur ran Aff. ¶ 5. Neighbors further contend that the “road system is not complete nor is it being pr operly maintained.” Id . at ¶ 9.

10. Finally, Neighbors allege in the affidavit that App licants have not made the assurances necessary to satisfy Act 250 criterion 9(G). Accor ding to the master plan Findings of Fact underlying the Permit, Applicants are required to “ assure the District Commission in future proceedings that [the network of roadways and parki ng areas] will be properly maintained by a clear assignment of such responsibilities and dutie s which will include both reporting obligations . . . as well as actual implementation.” Re: Mt. M ansfield Co., d/b/a Stowe Mtn. Resort , No. 5L1338, Findings of Fact, Conclusions of Law and Or der, at 113 (Dist. 5 Envtl. Comm’n Sept. 26, 2003). Neighbors allege that the “[a]ctual imp lementation and assignment of responsibilities for [Big Spruce Road and other infrastructure] have not been addressed by the Applicant[s] and remain open issues.” Curran Aff. ¶ 12. Neighbors request that this Court remand the Amendment Application back to the District Commissi on, so that the Commission may review

3 According to the deed, Applicants have assumed re sponsibility for the maintenance, repair, and repla cement of Big Spruce Road, and they are obligated to keep it in safe condition, free of ice and snow.4

Applicants’ development to consider imposing condit ions to minimize the impact on Neighbors’ properties and interests.

11. On April 24, 2009, the District Commission issued a decision denying Neighbors’ January 21 petition for party status and request fo r a hearing on the application. The District Commission determined that Neighbors were not entit led to party status under criterion 9(G) because they neither had a particularized interest that may be affected by the subdivision sought in Applicants’ Amendment Application, nor had they raised any substantive issues to warrant a hearing. Generally speaking, the District Commissi on determined that Neighbors’ concerns were beyond the scope of the Amendment Application, which was limited to a request to denote the subdivision of the Spruce Peak portion of the R esort, which had previously received permit amendment authority to develop the individual compo nents of that portion of the Resort.

12. By its April 24 decision, the District Commission a lso approved the Amendment Application and authorized the subdivision of the S pruce Peak portion of the Resort into thirty

lots.

13. On May 26, 2009, Neighbors timely filed a notice of appeal with this Court, requesting that we grant Neighbors a de novo hearing on their petition for party status, vacate the District Commission’s decision, and remand the matter to the District Commission for a hearing on the Amendment Application.

Discussion In the pending appeal, Neighbors seek party status under criterion 9(G) and request that a hearing be held on Applicants’ Amendment Applicatio n. Neighbors are concerned about the condition of Big Spruce Road, and they maintain tha t the subdivision sought in the Amendment Application will materially affect the way Big Spru ce Road is owned, maintained, and the extent to which it can be used in the future. Neighbors a lso claim that Applicants have not complied with the terms of the previous Permit amendment tha t authorized the original development of Big Spruce Road, alleging not only that Applicants have neither constructed nor maintained the Road as represented, but also that Applicants have not made adequate assurances related to the assignment of responsibilities for maintaining Big Spruce Road in the future. Applicants oppose Neighbors’ request for party stat us; they have filed a motion for summary judgment requesting that we deny Neighbors party status and grant the Amendment Application. Applicants contend that Neighbors are attempting to litigate their private easement5

interests to the common use of Big Spruce Road in t hese Permit amendment proceedings, which Applicants claim is improper and beyond the scope o f this Court’s jurisdiction in these proceedings. As we have often stated, and feel required to repea t here, summary judgment is only appropriate when, “giving the benefit of all reason able doubts and inferences to the nonmoving party, [the trial court concludes that] there are n o genuine issues of material fact and the moving party is entitled to judgment as a matter of law.” Gade v. Chittenden Solid Waste Dist. , 2009 VT 107, ¶ 7 (citing Mooney v. Town of Stowe , 2008 VT 19, ¶ 5, 183 Vt. 600 (mem.)); V.R.C.P. 56(c). To survive a motion for summary judgment, t he opposing party may not rest on mere allegations; it must set forth specific facts by af fidavit or other evidentiary material showing that there is a genuine issue for trial. V.R.C.P. 56(e) . We apply these standards in determining whether Neighbors are entitled to party status on t he Amendment Application, and if so, whether they have raised substantive issues to warrant a he aring on the pending application. In order to secure party status in an Act 250 proce eding, an individual must demonstrate that they are an “adjoining property owner or other person who has a particularized interest protected by this chapter that may be affected by a n act or decision by a district commission.” 10 V.S.A. § 6085(c)(1)(E). An interest protected by A ct 250 is sufficiently particularized if it is not a general policy concern shared by the public. See , e.g., In re Champlain Marina, Inc. Dock Expansion , No. 28-2-09 Vtec, slip op. at 5–6 (July 31, 2009) (Durkin, J.). To obtain party status under criterion 9(G), Neighbors must therefore demo nstrate that a decision on the pending Amendment Application may have a direct effect on a particularized interest of theirs that is protected by Act 250 criterion 9(G). Despite its focus on utility services, criterion 9( G) protects the interests of individuals to be served by those utilities and the municipality t hat may ultimately assume responsibility for maintaining those utilities. Criterion 9(G) requir es an applicant to do one of two things: (1) demonstrate that any privately owned utility servic es or roads serving the proposed project conform to the host municipality’s capital program or town plan or (2) provide adequate surety to protect the municipality in the event that the m unicipality is required to assume the responsibility for the privately-owned infrastructu re. 10 V.S.A. § 6086(a)(9)(G). Criterion 9(G) therefore serves two protective functions: it prote cts a municipality from incurring unnecessary6

costs when it is required to assume responsibility for a substandard road or utility and it protects the individual beneficiaries of the privately owned utilities or roads from subpar infrastructure. We conclude that Neighbors fall within the ambit of those whose particularized interests are protected by criterion 9(G). Their properties are accessed solely by Big Spruce Road, which is currently a privately owned road within the Spru ce Peak development project. Thus, Neighbors have a particularized interest in ensurin g that Big Spruce Road does not fall into disrepair. 4 Their concern is sufficiently particularized beca use it is specific to the individuals who benefit from the access provided by Big Spruce Road; it is not a generalized grievance that is shared with the public at large. However, our analysis does not end here; we must st ill determine whether these Permit amendment proceedings are likely to have an effect on Neighbors’ identified interests. For the reasons stated below, we conclude that the current Permit amendment proceedings will not have an impact upon Neighbors’ particularized interest a nd, as a consequence, Neighbors are not entitled to party status in these Permit amendment proceedings. To obtain party status under criterion 9(G), Neighb ors must demonstrate that the particularized interest they seek to protect “may b e affected by an act or decision by a district commission.” 10 V.S.A. § 6085(c)(1)(E) (emphasis a dded). Neighbors are therefore required to present evidence of some causal connection between Applicants’ Permit amendment application for subdivision approval and an impact upon their i nterests that may be protected by criterion 9(G) in these proceedings. We regard this showing as an “offer of proof.” Nei ghbors need not prove that they will prevail at trial; they need only demonstrate that t heir interests “may be affected” by the Amendment Application. In re Costco Act 250 Permit Amendment , No. 143-7-09 Vtec, slip op. at 1 (Dec. 4, 2009) (Durkin, J.) (entry order). At the summary judgment stage of these proceedings, however, Neighbors must prove some sup port with affidavits and other evidentiary materials; they may not rely on the mere allegation s of counsel. Progressive Ins. Co. v. Wasoka

, 2005 VT 76, ¶ 25, 178 Vt. 337 (citations omitted). Neighbors have failed to make this showing.

4 In this sense, Neighbors are not attempting, as a rgued by Applicants, to litigate a private property right in the pending proceedings. Indeed, the parties do not di spute that Neighbors have a deeded right-of-way ove r Big Spruce Road. In this regard, Neighbors are merely attempt ing to assure that their recognized easement intere st will not be adversely impacted. Our remaining analysis focuses on whether these Permit amendment proceedings are the proper legal forum for Neighbors to raise such issu es.7

Neighbors argue that Big Spruce Road may fall into disrepair if the Amendment Application is granted because it may affect the wa y Big Spruce Road is owned, constructed, and maintained in the future. Neighbors provide no evi dentiary materials to support this contention. The single affidavit submitted on behalf of Neighbo rs does not address the prospective effect of the Amendment Application; it pertains primarily to past events. It alleges that Applicants have neither constructed Big Spruce Road in accordance w ith representations made during the prior Permit amendment proceedings, nor assured the assig nment of responsibilities for the implementation and maintenance of Big Spruce Road n ecessary to satisfy the prior Permit conditions or comply with the Findings of Fact from the original Permit proceeding. Curran Aff. ¶¶ 5, 9, 12. As is explained below, any allegations concerning A pplicants’ previous development of Big Spruce Road is beyond the scope of these procee dings. The narrow issue in this appeal concerns the potential impact of the Amendment Appl ication on Neighbors’ interests, and whether an analysis of criterion 9(G) in this Permi t amendment proceeding will impact their particularized interests. The fact that a previous Permit authorized the development of Big Spruce Road does not vest a person in a subsequent amendment proceeding with the authority to challenge all prior impacts. In re Taft Corners As socs., Inc. , 160 Vt. 583, 593 (1993) (holding that issues decided under an umbrella permit could not be reopened and attacked in a subsequent application proceeding because those issues were fi nal and not subject to review). Neighbors have therefore failed to present evidenti ary support for their argument that the Amendment Application may affect the future mainten ance and ownership of Big Spruce Road. We must therefore conclude that, even when viewing the facts in a light most favorable to them, Neighbors are not entitled to party status as a mat ter of law. Neighbors have not demonstrated that their interests may be impacted by a decision on the Amendment Application. Further evidence of Neighbors’ concerns for Big Spr uce Road would not cure the shortcomings of their party status request; what Ne ighbors lack is any showing that this Amendment Application proposes to impact their inte rests in any manner. There is no indication that the Amendment Application, if granted, would c hange the way Big Spruce Road is owned or maintained. The Amendment Application seeks to ach ieve the narrow purpose of securing approval to subdivide the Spruce Peak development i nto thirty smaller segments. The Permit amendment that Applicant currently seeks does not i mplicate the past, present, or future8

ownership or maintenance of Big Spruce Road and doe s not authorize any development. Thus,

we are unable to discern how a decision on the Amen dment Application could affect Neighbors’ criterion 9(G) interests. The Amendment Application does not seek to alter th e way Big Spruce Road is to be maintained and does not alter any of the Road oblig ations imposed in the prior Permit proceedings. In fact, the alteration and maintenan ce of Big Spruce Road was the subject of the original master plan proceedings. See Re: Mt. Mans field Co., d/b/a Stowe Mtn. Resort , No. 5L1338, Findings of Fact, Conclusions of Law and Or der at 113 (Dist. 5 Envtl. Comm’n Sept. 26, 2003). The current amendment proceedings do no t modify those obligations; Applicants seek to merely set out the boundaries for the Road and the other developments already approved in the original Permit or separate amendments. To allow Neighbors to re-litigate the alterations and maintenance of Big Spruce Road in the current a mendment proceedings, proceedings in which the Permit amendment applicant is not proposi ng any changes to the alignment or maintenance of the Road, would violate concepts of finality, “would severely undermine the orderly governance of development[,] and would upse t reasonable reliance on the process.” Taft

Corners , 160 Vt. at 593 (quoting Levy v. Town of St. Alban s Zoning Bd. of Adjustment , 152 Vt. 139, 143 (1989)). Neighbors also contend that the Amendment Applicati on, if approved in these proceedings, will negatively impact their interests in Big Spruce Road because responsibility over the Road and related infrastructure may be tra nsferred. In fact, Applicants have confirmed

that some of the water and sewer infrastructure ins talled under Big Spruce Road has been transferred to and accepted by the Town, even thoug h the Road itself has yet to be transferred and accepted. However, Neighbors’ argument here is misplaced. Rights and obligations under Act 250 permits run with the land; permit condition s remain in full force and effect, even when land transfers occur. In re Estate of Swinington , 169 Vt. 583, 585 (1999) (mem.) (explaining that Act 250 permits run with the land); In re Quec hee Lakes Corp. , 154 Vt. 543, 550 n.5 (1990) (noting that successors are bound by permit conditi ons). The Amendment Application does not seek to modify o r amend any of the prior Permit conditions or obligations concerning Big Spruce Roa d; it merely seeks to subdivide property that prior Permit proceedings have authorized for develo pment. Considering in these proceedings whether a future transfer might occur, and might ha ve consequences that affect Neighbors’9

interests would be inappropriate speculation on our part. Any decision in that regard would constitute an improper advisory opinion. In re 232 511 Investments, Ltd. , 2006 VT ¶ 19, 179 Vt.

409. Finally, the Amendment Application does not seek ap proval to develop any of the newly created lots. Any future additional development of Lot 53, which consists of Big Spruce Road, or any other lot that may affect the quality of Big Spruce Road, requires prior approval from the District Commission, which must be preceded by noti ce to and an opportunity to be heard by all interested persons whose interests may be impacted. 10 V.S.A. § 6084(a)–(c). All prior permits

and amendments thereto make clear that no further s ubdivision, alteration, or development is permitted without the prior written approval of the District Commission. Neighbors have failed to provide a factual foundati on for how the Amendment Application, if granted, will affect an interest of theirs that may be protected in these proceedings under Act 250 criterion 9(G). The Amendment Applic ation does not change the way Big Spruce Road will be maintained in the future; any realignm ent or developmental impacts upon the Road and Neighbors’ interests in it must first be disclo sed and authorized in a future permit amendment proceeding. For these reasons, we conclu de that Neighbors are not entitled to party status; they have not demonstrated that interests p rotected by criterion 9(G) may be affected by a decision on this Amendment Application. To the extent that Neighbors’ affidavit makes alleg ations concerning the substandard construction and maintenance of Big Spruce Road and the failure to assign maintenance responsibilities, these argument raise issues beyon d the scope of these proceedings. In this de

novo proceeding, we stand in the place of the District Commission and review anew the application presented below as if no proceeding had previously occurred. In re Killington, Ltd.

, 159 Vt. 206, 214 (1992) (citing In re Green Peak Es tates , 154 Vt. 363, 372 (1990)); see also V.R.E.C.P. 5(g). Our authority to grant relief “is as broad as the power[] of the [District Commission], but it is not broader.” In re Torres , 154 Vt. 233, 236 (1990). In other words, our jurisdictional authority is limited to those issues presented by the Amendment Application. In re Route 103 Quarry , No. 205-10-05 Vtec, slip op. at 6 (Vt. Envtl. Ct. Nov. 22, 2006) (Durkin, J.),

aff’d , 2008 VT 88. To respect these jurisdictional cons traints, we must restrict our review to the narrow issue on appeal: the impact, if any, that th is Amendment Application may have on10

Neighbors’ interests protected by criterion 9(G). We conclude that there has been no showing of such an impact. Accordingly, we cannot consider in this proceeding whether Applicants have constructed and maintained Big Spruce Road as represented in th e previous proceedings. These allegations involve issues of compliance with the underlying Pe rmit and any previous amendment authorizing development of Big Spruce Road. As a r esult, they raise issues that are beyond the scope of the pending Amendment Application. Moreov er, as is discussed above, the prior Permit conditions remain in place and continue to bind App licants and their successors; the requested permit amendment will not impact these conditions a nd obligations. Equally beyond the scope of these proceedings is an y request by Neighbors to review the impact of Applicants’ development as a whole to det ermine whether additional conditions are appropriate to minimize the impact on Neighbors’ pr operties or interests. In an application to amend a previous permit, our review must be limited to the issues raised in the amendment application itself and not to issues beyond it or d ecided in prior permit proceedings. Quechee Lakes Corp. , 154 Vt. at 557. Thus, we are without the jurisdi ctional authority to examine whether adequate construction standards were impose d in the original proceedings that authorized the development of Big Spruce Road. Based on the foregoing, we conclude that Neighbors lack party status in these proceedings. Even when viewing the material facts in a light most favorable to Neighbors, we conclude that Neighbors have failed to demonstrate that any interest that could be protected under Act 250 criterion 9(G) will be affected by a decision on the pending Amendment Application. We therefore conclude that Neighbors’ motion for party status must be DENIED

. Because Neighbors lack party status, we need not ad dress whether a hearing should be conducted on the Amendment Application. Since no p erson appearing in these proceedings is eligible for party status in this appeal, we conclu de that the Amendment Application, as well as Applicants’ motion for summary judgment, must be GRANTED as a matter of law.

Conclusion For all the reasons more fully discussed above, we conclude that Neighbors have not demonstrated that any of their interests protected under Act 250 criterion 9(G) may be affected by any decision on Applicants’ Amendment Applicatio n. We therefore DENY Neighbors’11

motion for party status in these proceedings and GRANT Applicants’ motion for summary judgment and, by so doing, AFFIRM Permit Amendment #5L1338(Alt)-15. A Judgment Order accompanies this Decision. This c ompletes the current proceedings

before this Court. Done at Newfane, Vermont, this 21st day of April 20 10.

___________________________________ Thomas S. Durkin, Environmental Judge