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 STATE OF VERMONT 

SUPERIOR COURT — ENVIRONMENTAL DIVISION 

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In re Ashford Lane HOA A250 Application } Docket No. 69-5-13 Vtec 

(Appeal of Ashford Lane Homeowners) } 

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Decision on Cross-Motions for Summary Judgment

 This appeal arises from an application filed by Ashford Lane Homeowners (Appellants) 

with the District 5 Environmental Commission (the Commission) to amend Condition 21 of the 

1986 Act 250 Land Use Permit #5W0847 (LUP) approving the Ashford Lane subdivision and 

development. To minimize impacts on deer wintering habitat mapped primarily on 4 of the 

subdivision’s 17 lots, Condition 21 prohibits dogs in the subdivision. The Department of Fish 

and Wildlife (DFW) of the Agency of Natural Resources (ANR) participated in the 1986 

permitting process and opposed any development on the four lots in question. 

The Commission denied Appellants’ application to amend the LUP, finding that 

Appellants had failed to show any change in facts, law, or regulations, or any other factors 

favoring flexibility pursuant to Act 250 Rule 34(E). Appellants appeal this decision and move 

for summary judgment asking this Court to find as a matter of law that the permit amendment 

application is not barred by Act 250 Rule 34(E). ANR, joined by the Natural Resources Board 

(NRB), opposes Appellants’ motion for summary judgment and cross-moves for summary 

judgment in its favor. Appellants are represented by Paul Gillies, ANR is represented by 

Catherine Gjessing, and the NRB is represented by Gregory Boulbol. 

Factual Background

 For the purpose of putting the pending motions into context we recite the following facts 

which the parties stipulate are undisputed and material to the questions of law before the 

Court: 

1. Appellants manage a 17 lot subdivision in Waterbury, Vermont that received Act 250 

approval on February 26, 1986. 

2. Approximately 10 acres of the project tract are located within a larger, 1,900 acre 

mapped deer wintering range. 

3. DFW participated in the Act 250 permitting process, seeking to protect this deer habitat 

under Act 250 Criterion 8(A). 
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4. Initially, DFW identified nine lots that would potentially impact the deer habitat. Later, 

DFW narrowed this down to four lots where substantial impacts were likely. 

5. The Commission made the following findings of fact on Criterion 8(A): 

Approximately 10 acres of the habitat’s 1900 acres will be directly affected 

by this development or 0.5% of its total area. . . . Based on this evidence 

and cognizant of the burden of proof established in 10 VSA 6088(b), the 

Commission does not find that the project’s intrusion into the range will 

constitute a significant imperilment of the habitat. Nor will the 

development of the 4 critical lots result in the destruction of the habitat. 

Re: Neil Pendergast, No. 5W0847, Findings of Fact and Conclusions of Law and Order, 

at 7–8 (Vt. Dist. Envtl. Comm. 5 Feb. 25, 1986). 

6. After finding that the development would not cause destruction or imperilment of the 

deer habitat, the Commission stated that further conditions were “necessary to prevent 

secondary impacts on the habitat from certain land uses at the subdivision. 

Accordingly, the Commission . . . strengthen[ed] the restrictions in the proposed 

covenants so as to prohibit the keeping of any dog as a pet, leashed or otherwise, in the 

17 lot subdivision.” Id. at 8. 

7. Condition 21 in the LUP states in relevant part, “In order to minimize impacts on a deer 

wintering yard wildlife habitat which is partially located on this tract, no dogs shall be 

allowed within the subdivision.” 

8. DFW continued to oppose any development on the four critical lots even with Condition 

21 in place. 

9. No party appealed the permit and all current landowners in the subdivision were on 

notice of Condition 21 at the time they purchased their land. 

10. In 2000, DFW approved “Guidelines for the Review and Mitigation of Impacts to WhiteTailed Deer Winter Habitat in Vermont 1999” (the Guidelines). 

11. Although the Guidelines are not formal administrative rules, their purpose is to “make 

recommendations to Act 250 District Environmental Commissions and other local, state, 

and federal regulatory decision-makers for permit conditions, mitigation agreements, 

land conservation instruments (e.g., easements), and, if necessary, permit denials.” 

Guidelines at 1. 

12. The Guidelines include model language for covenants in order to mitigate the impacts of 

residential development. Suggested language includes: 
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Each landowner is hereby put on notice that this development is in the 

immediate vicinity of a deer wintering area. Domestic dog activity 

seriously jeopardizes this critical habitat and the existence of the deer in 

this area. A person who owns a dog that is not leashed, kenneled or 

otherwise under the owner’s immediate control is subject to the penalties 

of 10 V.S.A. section 4748 (Dogs Pursuing Deer) and section 4514 

(Possession of Flesh of Game). 

Guidelines at 7. 

13. DFW is not aware of any Act 250 permit, other than the one in question, where a 

complete prohibition on dog ownership has been imposed in order to protect deer 

wintering habitat. 

14. In late 2012, Appellants filed an application to amend Condition 21 to allow leashed or 

kenneled dogs. 

15. As no current employee of DFW was involved in the 1986 permitting process, DFW 

conducted a site visit to the property on January 4, 2013. DFW sent the results of this 

site visit to the District 5 District Commissioner in a memorandum dated January 29, 

2013. DFW found that “the area continues to maintain the functions and values of deer 

wintering habitat.” 

16. DFW also noted in its memorandum that it found evidence of one potential dog track on 

the trail in the deer habitat area. This trail terminates at the neighboring Best Western 

motel. The parties agree that people staying at the Best Western may have used the 

trails to walk dogs but that dogs are currently not allowed at the Best Western. 

17. The streets that serve the subdivision, including Ashford Lane, Acorn Drive, and 

Kennedy Drive are all class 3 highways. 

Motions for Summary Judgment 

The court will grant summary judgment if a moving party demonstrates that “there is 

no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of 

law.” V.R.C.P. 56(a); V.R.E.C.P. 5(a)(2). When considering cross-motions for summary 

judgment, the court looks at each motion individually and gives the opposing party the benefit 

of all reasonable doubts and inferences. City of Burlington v. Fairpoint Commc’ns, Inc., 2009 

VT 59, ¶ 5, 186 Vt. 332. As noted above, the parties to this appeal have stipulated to the relevant 

facts as undisputed. 
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I. Act 250 Rule 34(E), the Stowe Club Highlands Analysis. 

The primary question presented in this appeal is whether Appellants are entitled to seek 

an amendment of Condition 21 of the LUP. Determining whether an applicant is entitled to 

seek an amendment requires a three-step analysis, originally discussed by our Supreme Court 

in In re Stowe Club Highlands and later codified as Rule 34(E) of the Natural Resources Board 

Act 250 Rules. 166 Vt. 33, 38–40 (1996); 16-5 Vt. Code R. § 200:34(E). First, the district 

commission, or this Court on appeal, must determine “whether the applicant proposes to 

amend a permit condition that was included to resolve an issue critical to the issuance of the 

permit. This determination shall be made on a case-by-case basis.” 16-5 Vt. Code R. § 

200:34(E)(1). If the condition was not included to resolve a critical issue, then the applicant is 

entitled to seek an amendment. 

Next, if the condition was critical to the issuance of the permit, we must then “consider 

whether the permittee is merely seeking to relitigate the permit condition or to undermine its 

purpose and intent.” Id. at § 200:34(E)(2). If the applicant is only seeking to relitigate or 

undermine the condition then the analysis ends and the applicant is not entitled to seek an 

amendment. 

Finally, if the applicant is not merely seeking to relitigate or undermine the condition 

then we must weigh the competing goals of finality and flexibility based on an enumerated list 

of factors. 

In balancing flexibility against finality, the district commission shall consider the 

following, among other relevant factors: 

(a) changes in facts, law or regulations beyond the permittee's control; 

(b) changes in technology, construction, or operations which necessitate 

the need for the amendment; 

(c) other factors including innovative or alternative design which 

provide for a more efficient or effective means to mitigate the impact 

addressed by the permit condition; 

(d) other important policy considerations, including the proposed 

amendment's furtherance of the goals and objectives of duly adopted 

municipal plans; 

(e) manifest error on the part of the district commission, the 

environmental board, or the environmental court in the issuance of 

the permit condition; and 

(f) the degree of reliance on prior permit conditions or material 

representations of the applicant in prior proceeding(s) by the district 

commission, the environmental board, the environmental court, 
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parties, or any other person who has a particularized interest 

protected by 10 V.S.A. Ch. 151 that may be affected by the proposed 

amendment. 

Id. at § 200:34(E)(4). The Court will thus determine, on a case by case basis, whether flexibility 

in the permitting process is warranted or whether finality is needed. 

II. Whether the Condition 21 was critical to the issuance of the permit.

The parties agree generally that Condition 21 was included to address an issue that was 

critical to the Commission’s analysis under Criterion 8(A). Specifically, the condition is meant 

to address impacts on deer wintering habitat protected by that Criterion. Although it found 

that the project as proposed would not destroy or imperil deer habitat, the Commission also 

found it necessary to impose conditions in order to prevent secondary impacts of the 

development on the mapped habitat. As such, Condition 21 was critical to the issuance of the 

permit. 

III. Whether applicant is merely seeking to relitigate or undermine Condition 21. 

The next inquiry is whether under the circumstances the applicant is seeking merely to 

relitigate the permit condition. ANR and the NRB argue that Appellants are simply seeking to 

relitigate the Condition in the hopes of obtaining a less restrictive condition without showing 

any change in circumstances warranting amendment. As the Environmental Board noted, 

however, “Act 250 permits are written on paper, not carved in stone, and the relitigation 

concepts embodied in EBR 34(E)(2) cannot be considered to be unconditionally ironclad, as, in 

some sense, every permit amendment application is a relitigation of an initial permit condition.” 

Re: Dr. Anthony Lapinsky and Dr. Colleen Smith, Nos. 5L1018-4 and 5L0426-9-EB, Findings of 

Fact, Conclusions of Law, and Order, at 18 (Vt. Envtl. Bd. Oct. 3, 2003). We must therefore 

consider whether the motivation for seeking an amendment is to relitigate a condition or 

whether the applicant has presented some reasonable justification for the amendment 

application. Appellants point to an alleged change in regulatory behavior evidenced by the 

Guidelines and other Act 250 permit conditions as a basis for seeking the amendment. Under 

these circumstances, this alleged change is sufficient to convince the Court that Appellants are 

not merely seeking to relitigate or undermine Condition 21. We must therefore balance the 

competing interests of finality and flexibility considering the factors listed in Rule 34(E)(4). 
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IV. Balancing finality and flexibility.

The first factor we consider in weighing finality and flexibility is whether there have 

been sufficient changes in fact, law, or regulations outside of the control of the applicant to 

warrant flexibility. “Even where the [Court] finds such a change, there are certain situations 

where an amendment may not be justified, for instance where the change was reasonably 

foreseeable at the time of permit application. ‘Otherwise, the initial permitting process would 

be merely a prologue to continued applications for permit amendments.’” In re Nehemiah 

Assocs., Inc., 168 Vt. 288, 294 (1998) (quoting In re Stowe Club Highlands, 166 Vt. 33, 39 (1996)). 

Appellants argue for flexibility based on the Guidelines which represent a change in 

facts, law, or regulations sufficient to allow for the amendment application to be considered. 

They argue that the Guidelines are meant to be used by district commissions to mitigate 

impacts on deer habitat and that although the Guidelines leave discretion to the district 

commission, ANR cannot argue that they have no bearing on the Act 250 permitting process. 

ANR and the NRB argue that because the Guidelines did not go through formal notice 

and comment rulemaking, they are not formal administrative rules. They also argue that 

because the Guidelines are meant only to make recommendations on a case by case basis to 

district commissions, they are not a change in law. Lastly, ANR and the NRB argue that 

because the Guidelines are not enforceable or mandatory they cannot be grounds for seeking an 

amendment. As the Vermont Supreme Court noted in Stowe Club Highlands, however, we 

should not let “hypertechnical argument[s] obscure[] the basic concern: whether allowing the 

permit amendment is appropriate under the circumstances.” 166 Vt. at 40. Rule 34(E)(4)(a) 

allows for changes in facts, law, or regulations to weigh in favor of flexibility. This language 

indicates the intent that the district commission or this Court consider more than just changes to 

particular laws or administrative rules. 

The Guidelines were adopted more than a decade after the original 1986 LUP was 

granted with Condition 21. The Guidelines were outside of Appellants’ control and were 

unforeseeable. While the mere existence of the Guidelines is insufficient to trigger 

reconsideration of an Act 250 condition related to deer habitat, we find that under the 

circumstances of this case, taken with Appellants’ other allegations, the adoption of the 

Guidelines amounts to a change in circumstances warranting flexibility. 
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The passing of more than two decades between the initial condition and the amendment 

application and evidence that no other subdivision has been so restrictively conditioned are also 

relevant. In 1986, it was reasonable for Appellants to believe that the Commission’s prohibition 

on the keeping of any dogs was the most effective and reasonable way to protect the deer 

wintering habitat within the subdivision. As far as the parties are aware, in the 27 years since 

the condition was imposed, the same prohibition has not been applied to any other subdivision. 

Furthermore, in those intervening years, DFW has, on its own accord, adopted the Guidelines 

indicating that a less restrictive condition is appropriate. ANR has presented no evidence as to 

how this particular subdivision is unique or why applying the Guidelines would not be equally 

effective in protecting this habitat. “If existing permit conditions are no longer the most useful 

or cost-effective way to lessen the impact of development, the permitting process should be 

flexible enough to respond to the changed conditions.” Stowe Club Highlands, 166 Vt. at 38. If, 

as here, an applicant shows that over a long period of time a less restrictive condition has been 

exclusively imposed to address the same problem under the same or similar circumstances, and 

that administrative guidelines now encourage application of that less restrictive condition, they 

have met the burden of showing that the existing condition may not be the most useful way to 

lessen the impacts of the development. Under the facts and circumstances of this case, we 

therefore find sufficient changes in circumstances to weigh in favor of flexibility. 

ANR and the NRB argue that these changes in circumstances are not the “driving force” 

behind the amendment application and therefore cannot support finding that flexibility is 

warranted. They point simply to the lapse in time between the adoption of the Guidelines and 

the amendment application. We cannot, however, say that the amendment application was not 

motivated by the changes in circumstances. Regardless of the timing, Appellants point to the 

less restrictive condition suggested in the Guidelines. Furthermore, both parties acknowledge 

that less restrictive conditions have been imposed on other projects. These changes are directly 

related to the permit amendment they seek. This is not a case where an applicant attempts to 

undermine a condition by pointing to some change in technology that is unrelated to the 

purpose for seeking the amendment. See Re: Town and Country Honda, No. 5W0773-2-EB, 

Findings of Fact, Conclusions of Law, and Order, at 17 (Vt. Envtl. Bd. Feb. 15, 2001) (rejecting 

argument based on changes in technology that had “essentially nothing to do with” the desired 

amendment). 
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ANR and the NRB also argue that even if there has been a sufficient change to weigh in 

favor of flexibility, this change cannot overcome the reliance by the Commission and ANR on 

the permit condition. Apart from noting that the deer habitat still exists and that DFW opposed 

the development on the four critical lots and continues to oppose the amendment, ANR and the 

NRB fail to show how DFW acted reasonably in reliance on the condition. While the 

Commission can be said to have “relied upon” any critical condition in the issuance of the 

permit, this alone cannot require finality as it would preclude any amendment of a critical 

condition. As the other considerations under Rule 34(E)(4) are not relevant we find that 

flexibility is warranted under the facts and circumstances of this case. 

Conclusion 

Our conclusion that flexibility is warranted does not mean Appellants are necessarily 

entitled to amend Condition 21 to the less restrictive condition. Appellants must still show that 

the application, with the requested amendment to Condition 21, conforms to all relevant Act 

250 criteria, specifically Criterion 8(A). 

We DENY ANR/NRB’s Motion and GRANT Appellant’s Motion for Summary 

Judgment and REMAND this matter to the District Commission to conduct a specific review of 

the merits of Appellant’s permit amendment application without employing the Rule 34(E) 

Stowe Club Highlands analysis. 

This completes the current proceedings before this Court.

 

Done at Berlin, Vermont this 6th day of December, 2013. 

 

 Thomas G. Walsh, Environmental Judge