State of Vermont Superior Court - Environmental Division

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E N T R Y R E G A R D I N G M O T I O N

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

Title: Motion to Alter or Amend (Filing No. 7)

Filed: October 26, 2012

Filed By: Applicants/Appellees City of Burlington a nd Vermont Agency of Transportation

Response in Opposition filed on 11/8/12 by Cross-Ap pellant Vermont Railway, Inc.

___ Granted X Denied ___ Other

Currently before the Court is a motion by the City of Burlington (City) and the State of Vermont Agency of Transportation (collectively Appl icants) requesting that the Court alter or
amend our October 12, 2012 decision on Vermont Rail way’s (VTR) amended motion for party status. Applicants move this Court, under V.R.C.P. 54(b), to amend its decision to conclude that VTR does not have party status under Act 250 criter ia 1(E), 9(K), or 10.

V.R.C.P. 54(b) provides that in the absence of a fi nal judgment by this Court, any decision adjudicating fewer than all of the claims of fewer than all the parties in an action “is subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties.” In add ressing a motion to alter made pursuant to Rule 54(b), we apply the legal standard applicable to ru ling on a Rule 59(e) motion to alter or amend a final judgment. In re Bennington Wal-Mart Demoli tion/Const. Permit, No. 158-10-11 Vtec, slip op. at 4 (Vt. Sup. Ct. Envtl. Div. Aug. 17, 20 12) (Walsh, J.). It is ultimately within the Court ’s discretion whether to grant a Rule 59 motion, and w e have identified four principal reasons for doing so: (1) to correct manifest errors of law or fact; (2) to allow a party to provide “newly discovered or previously unavailable evidence”; (3) to “prevent manifest injustice”; and (4) to respond to an “intervening change in the controllin g law.” Lathrop Ltd. P’ship I, Nos. 122-7-04 Vtec, 210-9-08 Vtec, and 136-8-10 Vtec, slip op. at 10–11 (Vt. Super. Ct. Envtl. Div. Apr. 12, 2011) (Durkin, J.) (quoting 11 Wright, Miller & Kane, Fed eral Practice and Procedure: Civil 2d § 2810.1). Granting such a motion is viewed by thi s Court as an “extraordinary remedy.” Bennington Wal-Mart, No. 158-10-11 Vtec, slip op. a t 4 (Vt. Sup. Ct. Envtl. Div. Aug. 17, 2012).

I. VTR’s Procedural Standing to Seek Party Status unde r Criterion 9(K)

In moving this Court to alter or amend our October 12 decision, Applicants contend that

we misunderstood several relevant facts when we con cluded that VTR had procedural standing to seek party status for criterion 9(K) (developmen t affecting public investment) under 10 V.S.A.In re Champlain Parkway Act 250 Permit, No. 68-5-12 Vtec (E.O. on Mot. to Alter) (Nov. 14, 2012) Pg. 2 of 4.

§ 8504(d)(2)(B). 1 Applicants first claim that we inappropriately re lied upon the disputed fact of whether VTR offered testimony in the proceedings be low under criterion 9(K). In our decision, we stated that “the Commission appears to have allo wed VTR to submit testimony regarding criterion 9(K) during the permit hearing process.” In re Champlain Parkway Act 250 Permit, No. 68-5-12 Vtec, slip op. at 5 (Vt. Super. Ct. Env tl. Div. Oct. 12, 2012) (Walsh, J.). Applicants argue that the Commission never allowed VTR to do s o and challenge our perceived reliance on
this fact. In our decision, however, we noted that Applicants disputed whether VTR provided criterion 9(K) testimony, and we did not rely on th is disputed fact in reaching our conclusion. Rather, we mentioned the disputed testimony to high light the unusual circumstances that led the Commission to spend an entire paragraph in its Findings of Fact, Conclusions of Law and Order discussing VTR’s 9(K) party status. See Re: City of Burlington & VTrans, No. 4C0538-17, Findings of Fact, Concl. of Law and Order, at 3 (Di st. 4 Comm’n Apr. 27, 2012).

In determining that VTR met the statutory requireme nts for seeking criterion 9(K) party status before this Court, we relied exclusively on the language used by the Commission in its Findings of Fact, Conclusions of Law and Order. In that document, the Commission clearly indicated that, over the course of the proceedings below, a dispute existed as to whether VTR held party status under criterion 9(K). The Commis sion resolved that dispute by explicitly “not grant[ing] VTR party status under Criterion 9 (K)”— a step it did not take for any other criteria for which VTR or the other parties failed to reques t party status. Id. at 2–7. There is no appreciable difference between the Commission “not grant[ing]” VTR 9(K) party status in this case and the Commission denying VTR party status fo r criteria 1(E), 9(A), and 10. See id. Because the Commission effectively denied VTR party status under criterion 9(K), and because VTR appealed that denial in its amended Statement o f Questions, VTR has procedural standing to seek party status for criterion 9(K) before this Court pursuant to 10 V.S.A. § 8504(d)(2)(B).

II. VTR’s Party Status under Criteria 1(E) and 10

Applicants next contend that this Court erred in gr anting VTR party status under criteria 1(E) (streams) and 10 (compliance with tow n or regional plan). Applicants assert that VTR’s claim of a causal link between the proposed p roject and harm to VTR’s particularized interest under criterion 1(E) was inadequate. Appl icants also argue that the language in the City of Burlington Municipal Development Plan (MDP) cited by VTR as potentially violated by the proposed project is not protected under criteri on 10.

This Court decides party status as a preliminary is sue of standing before we review the merits of an appeal of a district commission decisi on. In re Pion Sand & Gravel Pit, No. 245-12- 09 Vtec, slip op. at 6 (Vt. Super. Ct. Envtl. Div. July 2, 2012) (Durkin, J.) (citing 10 V.S.A. § 8504(a)). In granting party status to a litigant , we ensure that the litigant meets certain requirements, including demonstrating a causal link between a decision on a proposed project and an alleged harm to the litigant’s particularize d interests. See In re Granville Mfg. Co., No. 2-1-11 Vtec, slip op. at 6 (Vt. Super. Ct. Envtl. D iv. July 1, 2011) (Durkin, J.). This showing need only indicate a “reasonable possibility” of harm. In re Bennington Wal-Mart, No. 158-10-11 Vtec, slip op. at 9–10 (Vt. Super Ct. Envtl. Div. A pr. 24, 2012) (Walsh, J.) (citing Granville Mfg. Co., No. 2-1-11 Vtec, slip op. at 6). While a suff icient showing cannot be purely speculative, id., a litigant seeking party status must simply meet a minimum threshold to satisfy its showing

1 Section 8504(d)(2)(B) allows an aggrieved person to appeal the decision of a district commission to deny that person party status under a particular Act 250 criterion.In re Champlain Parkway Act 250 Permit, No. 68-5-12 Vtec (E.O. on Mot. to Alter) (Nov. 14, 2012) Pg. 3 of 4.

requirement. See In re RCC Atl., Inc., No. 163-7-0 8 Vtec, slip op. at 8 (Vt. Envtl Ct. May 8, 2009) (Durkin, J.) (litigants seeking party status “must at least state [that] their fears and concerns have some factual basis and are not based solely on speculation”). An adequate threshold showing must describe the evidence or testimony to be introduced at the merits hearing and must be sufficiently concrete for the Court to unde rstand the “materiality” of the evidence or testimony. RCC Atlantic, No. 163-7-08 Vtec, slip o p. at 8–9 (quoting R.E. Bean Constr. Co. v. Middlebury Assocs., 142 Vt. 1, 7 (1982)).

Under these standards, VTR met its burden in seekin g party status under criterion 1(E). In its amended motion for party status, VTR claimed , “Common sense dictates that if the project facilitates a flow of water in the Englesby Brook t hat is greater than the carrying capacity of the existing culvert under Appellant-VTR’s rail line, t he rail bed will act as an impoundment during high water events, . . . thereby risking the . . . washout of the rail line.” (Appellant’s Am. Mot. for Party Status 7, filed Aug. 12, 2012). VTR supp orted this claim with a threshold showing, including exhibits and the proposed testimony of th ree employees, which VTR specifically

outlined.

Applicants contend that VTR’s allegation of harm wa s inappropriately couched in conditional language and that VTR’s threshold showi ng of a causal link between its particularized interests and the alleged harm was i nsufficient. Applicants’ arguments, however, are unpersuasive. In seeking party status , a litigant need only demonstrate that a decision on a proposed project may harm its particularized interests. See Bennington Wal-Mart, No. 158-10-11, slip op. at 9 (Vt. Super Ct. Envtl. Div. Apr. 24, 2012) (internal citations omitted). Thus, the conditional language used by VTR in alleg ing the possibility of harm to its main rail line from the construction of Applicants’ proposed project was appropriate and sufficient for the purposes of a motion for party status. Further more, Applicants overstate the burden borne by VTR in demonstrating its standing at this prelim inary stage of the appeal. In this case, VTR’s threshold showing, including a map and the prospect ive testimony of three employees, sufficiently indicates the further testimony or evi dence to be introduced in the merits hearing and describes the matter to be proved. See RCC Atl antic, No. 163-7-08 Vtec, slip op. at 8–9. VTR accordingly met its burden seeking party status for criterion 1(E). 2

Similarly, VTR met its burden in seeking party stat us for criterion 10. Applicants state that this Court “incorrectly presumed that the sent ence fragments that VTR cited from the MDP are protected under Act 250,” even though “the cite d statements are too broad, generalized, or

irrelevant to meet the well-established standards f or Criterion 10-protected provisions of a municipal development plan.” (Applicants’ Mot. to Alter or Amend 11–12, filed Oct. 26, 2012). Applicants devote a significant portion of their mo tion analyzing the language cited by VTR, including the context of that language within the M DP, to prove that it is not enforceable under Act 250. Applicants contend that we should have co nducted the same analysis in reviewing

2 Applicants also note that VTR’s amended Statement of Questions makes no mention of Englesby Brook or the effect of the Parkway culvert on VTR’s rail line. In an appeal of a decision by a district com mission, the scope of our review of the merits of the case i s limited to the issues raised in an appellant’s st atement of questions. V.R.E.C.P. 5(f). The fact that a li tigant does not raise an issue in its statement of questions does not, however, preclude it from seeking party s tatus under the Act 250 criterion associated with t hat issue. A litigant may seek to offer testimony unde r a criterion that has been raised in another party ’s statement of questions, or a litigant may later att empt to amend its statement of questions to raise a n issue for which we have granted it party status.In re Champlain Parkway Act 250 Permit, No. 68-5-12 Vtec (E.O. on Mot. to Alter) (Nov. 14, 2012) Pg. 4 of 4.

VTR’s motion for party status. Essentially, Applic ants argue that this Court should have weighed VTR’s claim, entailing a review of the meri ts, that the cited provisions are enforceable against Applicants’ argument that the provisions ar e not.

Once again, Applicants incorrectly describe VTR’s b urden in seeking party status in an appeal of a district commission decision before thi s Court. By demonstrating a particularized interest in the enforcement of City Plan provisions related to railways, specifically citing such provisions, and alleging the possibility of harm to its interest in the enforcement of those provisions as a result of Applicants’ proposed proj ect, VTR made an adequate threshold showing of party status. Whether or not VTR’s cite d provisions are actually enforceable goes to the merits of VTR’s claim, not VTR’s standing to br ing the claim, and is therefore not justiciable by the Court at this stage of the appeal.

Accordingly, we DENY Applicants’ request to alter or amend our Decision in this appeal pursuant to V.R.C.P. 59(e). We decline to a lter or amend our October 12, 2012 Decision.

___________________________________________ November 14, 2012 Thomas G. Walsh, Judge Date

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Date copies sent to: ____________ Cler k's Initials _______

Copies sent to:

Attorneys Brian S. Dunkiel & Elizabeth H. Catl in for Interested Person City of Burlington

Attorney Daniel D. Dutcher for Interested Pers on Vermont Agency of Transportation

Attorney Eric R. Benson for Cross Appellant Ver mont Railway, Inc.

Attorney Liam L. Murphy for Appellant Fortieth Burlington, LLC and Cross Appellant GP Burlington South, LLC

Attorney Catherin Gjessing for Agency of Natur al Resources (informational purposes only)

Natural Resources Board/LU Panel (informational purposes only)