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Treetop Development Company Act 250 Application 

ENTRY REGARDING MOTION

 

Title: Motion to Dismiss Appellant’s Statement of Questions 

Filer: The Stratton Corporation et al. 

Attorney: Lisa B. Shelkrot 

Filed Date: July 9, 2014 

Response in Opposition filed on 07/29/2014 by Attorney A. Jay Kenlan for Appellant Treetop at 

Stratton Condo Association 

Reply filed on 08/08/2014 by Attorney Lisa B. Shelkrot for The Stratton Corporation, et al. 

The motion is GRANTED. 

Treetop Development Company, LLC, Treetop Three Development Company, LLC, 

Intrawest Stratton Development Corporation, and The Stratton Corporation (collectively 

Stratton) received Act 250 approval for the development of 25 three-unit townhouse 

condominiums near Stratton Mountain in the Town of Stratton, Vermont (the Project) from the 

District 2 Environmental Commission (the Commission) on November 18, 2002. Stratton failed 

to construct the Project in accordance with the terms of its Land Use Permit 2W1142 (the 

Permit) and did not seek written approval for its deviations from the terms therein. Some of 

Stratton’s deviations from the Project as permitted were to the stormwater management 

systems, which the Permit required to be constructed in conformance with Stratton’s 

stormwater discharge permits, which had been granted by the Agency of Natural Resources. 

On March 12, 2012, after construction had been completed, Stratton applied for an Act 

250 permit amendment to reflect any deviations from the initial Permit. The application 

included a plan to remedy all violations under the initial Permit and for remediation of the 

Project site. On October 21, 2013 the Commission issued Land Use Permit Amendment 

2W1142-D to address the remediation and changes (the Permit Amendment). This Permit 

Amendment was not appealed. 

The Permit Amendment included a condition (Condition 14) stating: “The Commission 

reserves the right to review erosion, the ability of the land to hold water, stormwater 

management and revegetation issues outlined in these proceedings and to evaluate and 

impose additional conditions as needed.” No party appealed this permit condition. In response 

to additional information provided by both Stratton and the Treetop at Stratton Condominium 

STATE OF VERMONT

SUPERIOR COURT ENVIRONMENTAL DIVISION

Vermont Unit Docket No. 77-6-14 Vtec
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Association, Inc. (Association), the Commission warned and held an additional hearing on 

March 17, 2014 to consider whether to impose additional conditions pursuant to Condition 14. 

The Commission, in a Memorandum of Decision issued May 16, 2014, decided not to impose 

any additional conditions. 

The Association timely appealed that decision to this Court. The Association represents 

the interests of the owners of the Project’s townhouse condominium units. The Association has 

participated in the various Act 250 proceedings and expressed an interest in ensuring that the 

Project’s infrastructure, especially the stormwater management system and erosion control 

elements, be constructed in conformance with the Permit, Permit Amendment, and all 

applicable regulations. Stratton now moves to dismiss all of the Questions raised in the 

Association’s Statement of Questions as being either collateral attacks on the Permit 

Amendment or as outside the scope of the Court’s de novo review. 

As a primary matter, a number of the Association’s Questions relate to the taking of 

evidence, burdens of proof, and presumptions within the Commission’s proceedings. These 

questions are not relevant in this de novo appeal. See Chioffi v. Winooski Zoning Bd., 151 Vt. 9, 

11 (1989) (“A de novo trial ‘is one where the case is heard as though no action whatever has 

been held prior thereto.’” (quoting In re Poole, 136 Vt. 242, 245 (1978))). Furthermore, these 

types of alleged errors by the Commission are cured by a de novo hearing in this Court. See In 

re JLD Props. of St. Albans, LLC, 2011 VT 87, ¶ 12, 190 Vt. 259. The remaining Questions ask 

whether the Commission erred in deciding or failing to decide certain elements. We consider 

these Questions as asking whether or not this Court should make certain findings or impose 

additional conditions on appeal. 

In Act 250 appeals, this Court, “applying the substantive standards that were applicable 

before the tribunal appealed from, shall hold a de novo hearing on those issues which have 

been appealed . . . .” 10 V.S.A. § 8504(h). Thus, before considering the Association’s Questions 

and Stratton’s objections to those Questions, we must determine what decision is being 

appealed and what standards were applicable before the Commission. 

The decision at issue on appeal is the Commission’s May 16, 2014 Memorandum of 

Decision. This decision resulted from the Commission’s express retention of jurisdiction over 

stormwater management, erosion control, and related issues contained in Condition 14 of the 

Permit Amendment. The standards applicable under Act 250 require that the Commission 

make positive findings under all 10 Act 250 Criteria “[b]efore granting a permit.” 10 V.S.A. § 

6086(a). In an Act 250 permit, the Commission is authorized to include “conditions as are 

allowable proper exercise of the police power and which are appropriate within the respect to 

[the 10 Act 250 Criteria] . . . .” 10 V.S.A. § 6086(c). A district commission may therefore use 

permit conditions to retain jurisdiction over and impose additional conditions on a project, but 

cannot “establish future obligations that are completely unknown.” In re Kevin L. Rogers, Inc., 

No. 88-5-09 Vtec, slip op. at 9 (Vt. Envtl. Ct. Nov. 4, 2009) (Wright, J.). 

Like all permit conditions, conditions that retain jurisdiction must be expressed with 

sufficient clarity to apprise a landowner of the limitations placed on the use of his or her land. 

In re Eustance Act 250 Jurisdictional Opinion, 2009 VT 16, ¶ 41, 185 Vt. 447 (citing Agency of 

Natural Resources v. Handy Family Enters., 163 Vt. 476 (1995)). Furthermore, where 
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compliance is based on estimates or projected impacts, the Commission may likewise utilize 

permit conditions to retain jurisdiction over that matter. If retained via conditions, the 

Commission can use its jurisdiction to ensure that post-development realities conform to 

estimates, or if they do not, to impose additional conditions. Where jurisdiction is retained by 

condition, however, the intent of the retained jurisdiction must be clear and must make the 

potential future obligations known to the applicant. See Eustance, 2009 VT 16 at ¶ 41. 

The sole purpose of Condition 14 is to ensure compliance with the initial Permit and 

Permit Amendment. This authority does not belong to the Commission. Rather, it rests with 

the Natural Resources Board‘s authority to ensure compliance with an Act 250 Permit and its 

conditions through its enforcement powers. 10 V.S.A. § 6027(g). Further, the Association 

cannot use Condition 14 to privately enforce the Permit or Permit Amendment. The proper 

avenue to ensure compliance with the Permit and Permit Amendment is within the related and 

ongoing enforcement action by the Natural Resources Board and the Agency of Natural 

Resources, NRB v. Stratton Corporation, No. 106-7-14 Vtec. 

For these reasons, Stratton’s Motion to Dismiss the Association’s Statement of 

Questions is GRANTED in its entirety and the Association’s appeal is DISMISSED. 

A judgment order accompanies this decision. This concludes the matter before the 

Court. 

Electronically signed on November 14, 2014 at 02:20 PM pursuant to V.R.E.F. 7(d). 

_________________________________________ 

Thomas G. Walsh, Judge 

Superior Court, Environmental Division 

Notifications: 

A. Jay Kenlan (ERN 3775), Attorney for Appellant Treetop at Stratton Condo Assn 

Lisa B. Shelkrot (ERN 2441), Attorney for Appellee The Stratton Corporation 

Lisa B. Shelkrot (ERN 2441), Attorney for Appellee Intrawest Stratton Developmt Cor 

Lisa B. Shelkrot (ERN 2441), Attorney for Appellee Treetop Development Co., LLC 

Lisa B. Shelkrot (ERN 2441), Attorney for Appellee Treetop Three Developmt Co, LLC 

Jon Groveman (ERN 5336), Attorney for Interested Person Agency of Natural Resources 

Melanie Kehne (ERN 2561), Attorney for Interested Person Natural Resources Board 

Peter Gill (ERN 4158), Attorney for party 10 Co-counsel 

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