1 

### Diverging Diamond Interchange SW Permit

ENTRY REGARDING MOTION

Count 1, ANR Storm Water Permit (50-6-16 Vtec)

Title: Motion for Reconsideration (Motion 15) Filer: R.L. Vallee, Inc. Attorney: Jon T. Anderson Filed Date: February 23, 2018

Response in Opposition filed on 02/28/2018 by Attor ney Justin E. Kolber for Appellee Agency of Transportation Opposition

The motion is DENIED.

R.L. Vallee, Inc. (Vallee) asks the Court to recons ider a portion of its February 8, 2018 decision on the Vermont Agency of Transportation (V Trans) and Natural Resources Board (NRB) motions to dismiss Vallee’s questions.

I. Standard of Review

As we explained in a recent decision on a separate motion to reconsider filed by Vallee in
these matters:

[W]e may grant [a motion to reconsider] for any of the following reasons: (1) to correct manifest errors of law or fact upon which t he judgment is based; (2) to allow a moving party to present newly discovered or previously unavailable evidence; (3) to prevent manifest injustice; and (4 ) to respond to an intervening change in the controlling law.”

Diverging Diamond Interchange SW and Act 250 Permit , Nos. 50-6-16, 169-12-16 Vtec, slip op. at 1–2 (Vt. Super. Ct. Envtl. Div. Nov. 22, 2017) (Wal sh, J.) (quotations and citations omitted).

In considering the underlying motion to dismiss, we “take the factual allegations [of the nonmoving party] as true, and consider whether it a ppears beyond doubt that there exist no facts or circumstances that would entitle the [nonmoving party] to relief.” Colby v. Umbrella, Inc., 2008 VT 20, ¶ 5, 184 Vt. 1 (citations omitted). 1

1 Because an appellant in the Environmental Division files a statement of questions, rather than a comp laint, we depart from the civil practice of focusing on fa ctual allegations made in the complaint , and instead look to factual allegations as made more broadly. See, e.g., R.L. Vallee, Inc., et al. MS4, No. 122-10-16 Vtec, slip op at 1 n.2 (Vt. Super. Ct. Envtl. Div. May 2, 2017) (Walsh, J.). 

## S TATE OF 

## V ERMONT

SUPERIOR COURT ENVIRONMENTAL DIVISION Docket No. 50-6-16 Vtec2

II. Procedural History

Vallee’s original Question 11 in the Act 250 appeal (169-12-16 Vtec), filed on January 10, 2017, asked whether the proposed project complies w ith Criterion 10. VTrans and Vallee subsequently filed cross-motions for summary judgme nt on this question. In their summary judgment pleadings the parties briefed the issue of whether the relevant plans require a sidewalk or multi-use path along the length of Route 2/7. V allee cited various sections of the Colchester Town Plan and Chittenden County Regional Plan which , it argued, mandate sidewalks or paths.

Upon reviewing these passages and the record before us, we denied both motions. Diverging Diamond Interchange SW and Act 250 Permit , Nos. 50-6-16, 169-12-16 Vtec, slip op. at 30–36 (Vt. Super. Ct. Envtl. Div. Oct. 11, 2017) (W alsh, J.). We concluded that Vallee had failed to identify any part of the Town or Regional Plan t hat would require sidewalks on the contested section of roadway. We also denied VTrans’ motion, noting that there could be other provisions in the 100-page Town Plan or 200-page Regional Plan that might require sidewalks. We also noted that because the scope of Question 11 was so broad, there could be other provisions of the Town or Regional Plan with which the project fa ils to comply.

Given the broad nature of Question 11, we subsequen tly ordered Vallee to clarify the question. On December 11, 2017, Vallee submitted i ts amended and clarified Question 6(a), which asks: “[b]y failing to provide a sidewalk and or multi-use path north of Mountain View Drive does the Project fail to conform to” the Colchester Town Plan, Regional Plan, and other plans and policies under Criterion 10?

On December 29, 2017, VTrans and the NRB moved to d ismiss Question 6(a), arguing in part that Vallee had failed to identify the part or parts of the Town or Regional Plans with which the project fails to conform. Vallee opposed the m otion, again highlighting parts of the Town Plan which, it argued, mandate sidewalks in certain parts of the project.

In a February 8, 2018 decision, we concluded that V allee had identified a single mandatory Town Plan provision, but that provision does not ap ply to the proposed project. Diverging Diamond Interchange SW and Act 250 Permit, Nos. 50- 6-16, 169-12-16 Vtec, slip op. at 12–14 (Vt. Super. Ct. Envtl. Div. Feb. 8, 2018) (Walsh, J .). We subsequently dismissed Question 6(a).

III. Discussion

Vallee asks the Court to reconsider our dismissal o f Question 6(a) insofar as it raises the issue of compliance with the Town Plan. 2 Vallee now contends the proposed project fails to conform with another provision of the Town Plan, wh ich reads:

The Official map delineates future transportation n etwork improvements and other facilities. Developments, road projects, and all other plans shall take into consideration the Official Map and should implement the proposed improvements to the greatest extent possible.

Town Plan at 82.

2 The original Question 6(a), which we dismissed in its entirety, asked whether the project complies wi th the Town Plan, Regional Plan, and other documents. Vallee now challenges only our dismissal of whether the project complies with the Town Plan, and so we limit our re view to that issue.3 a. Whether we look to the zoning regulations to determ ine if this provision is
enforceable.

Under 10 V.S.A. § 6086(a)(10), the Court must cons ider any ambiguous Town Plan provisions in light of the zoning ordinances. 3 Vallee appears to argue that if there is ambiguit y regarding whether this Town Plan provision is manda tory or advisory, that ambiguity can be resolved by consulting the Colchester zoning ordina nce, including the Official Map that is appended to the ordinance.

This is a misapplication of 10 V.S.A. § 6086(a)(10 ). Determining whether a project conforms with a municipal plan is a two-step inquir y. First, the Court must determine whether language is “mandatory rather than aspirational.” In re Twin Pines Hous. Trust & Dismas of Vermont Conditional Use, Nos. 95-7-11, 96-7-11 Vtec , slip op. at 11 (Vt. Super. Ct. Envtl. Div. Sep. 20, 2012) (Walsh, J.) (citing In re John J. Flynn E state & Keystone Dev. Corp., #4C0790-2-EB, slip op. at 27-28 (Vt. Envtl. Bd. May 4, 2004)). If the language is mandatory, the Court then determines whether the provision is specific, or “g eneral in nature or ambiguous.” Id. at 12. If the provision is ambiguous, then we can refer to th e zoning ordinances to resolve that ambiguity. In re Rivers Dev., LLC, Nos. 7-1-05, 68-3-07 Vtec, slip op. at 9–10 (Vt. Envtl. Ct. Jan. 8, 2008) (Durkin, J.). The zoning ordinances are not consid ered, however, at the first step to determine whether a Town Plan provision is mandatory or merel y advisory.

b. Whether the language of this provision, considered alone, creates an enforceable provision.

Vallee next argues that even without considering th e zoning ordinances, this section of the Town Plan is mandatory. In making this argumen t, Vallee proposes that there are two elements that make town plan language enforceable ( i.e. mandatory): (1) a mandatory verb, which (2) directs the application of clear standard s.
Vallee focuses on the use of “shall” in the provisi on (“road projects . . . shall take into consideration the Official Map”). Because “shall” “sets forth a requirement rather than a recommendation,” In re B & M Realty, LLC, 2016 VT 1 14, ¶ 35 (Oct. 21, 2016), Vallee submits that the provision requires road projects to at least co nsider the improvements proposed in the Official Map.

In applying the first step of the two-step inquiry outlined above, we agree that “shall” typically sets out a requirement. When coupled wit h “take into consideration,” however, the provision becomes general in nature or advisory, as opposed to mandatory, because it is not clear what action is required by “take into consideration .” Rivers Dev., Nos. 7-1-05, 68-3-07 Vtec, slip op. at 9–10 (Jan. 8, 2008).

Looking to the next clause (“road projects . . . sh ould implement the proposed improvements to the greatest extent possible”), Val lee compares the phrase “to the greatest extent possible” to the use of the word “feasible,” which the Environmental Board found to be enforceable in Re: Times & Seasons, LLC and Hubert K. Benoit, No. 3W0839-2-EB, slip op. at 27

3 10 V.S.A. § 6086(a)(10) reads:
Before granting a permit, the District Commission s hall find that the subdivision or development . . . Is in conformance with any duly adopted local or regional plan or capital program under 24 V.S.A. chapter 117. In making this finding, if the D istrict Commission finds applicable provisions of the town plan to be ambiguous, the District Commiss ion, for interpretive purposes, shall consider bylaws, but only to the extent that they implement and are consistent with those provisions, and need not consider any other evidence.4

(Vt. Envtl. Bd. Nov. 4, 2005) (in which the town pl an stated that: “[w]here feasible, commercial development shall be located within or close to” th e village). Vallee fails to note, however, that the Supreme Court subsequently reversed this decisi on, holding that:

[T]he provision at issue here is too ambiguous to b e enforced against applicant. . . . Even if we give the words “where feasible” their pl ain and ordinary meaning, it remains uncertain if the drafters of the town plan intended this phrase to refer to economic feasibility, physical feasibility, some co mbination of both, or perhaps some other measure of feasibility altogether. We ag ree . . . that such ambiguity and uncertainty renders the words meaningless, and therefore unenforceable
under Criterion 10.

In re Times & Seasons, LLC, 2008 VT 7, ¶ 23, 183 Vt . 336.

We find the same deficiency in the phrase “to the greatest extent possible.”

Vallee finally points to a line of cases in which provisions using the word “should” were found to be mandatory. See In re Green Peak Estate s, 154 Vt. 363, 368–69 (1990); Re: Herbert and Patricia Clark, No. 1R0785-EB, slip op. at 40–4 1, (Vt. Envtl. Bd. Apr. 3, 1997); Swain Dev. Corp., No. 3W0445-2-EB, slip op. at 37 (Vt. Env. Bd. Aug. 10, 1990). Vallee cites these to argue that the use of “should” in the clause “road projects . . . should implement the proposed improvements to the greatest extent possible” creates an enforce able provision. The cases Vallee cites are distinguishable, however, because they each couple “should” with clear directives regarding what is required or prohibited. The phrase here, e specially with the qualifier “to the greatest extent possible,” is much less clear. See Times & Seasons, 2008 VT 7, ¶ 23.

We conclude that the language cited by Vallee does not create an enforceable provision. We therefore need not move on to the second step of our two-step analysis.

c. Whether an alternative Town Plan provision is manda tory.

In our October 11, 2017 decision, we looked at the part of the Town Plan which reads: “[s]idewalks should be implemented as land use plan s require. The need for sidewalks is particularly important on roads carrying heavy traf fic volumes through developed areas including
Exit 16.” Town Plan at 82. We concluded that this and other sections are “non-mandatory, because they state general objectives rather than s pecific requirements. . . These passages therefore do not require VTrans to include sidewalk s on any part of the Project.” Diverging Diamond Interchange SW and Act 250 Permit, Nos. 50- 6-16, 169-12-16 Vtec, slip op. at 1–2 (Vt. Super. Ct. Envtl. Div. Oct 11, 2017) (Walsh, J.) (c iting B & M Realty, 2016 VT 114, ¶ 35).

Without explicitly asking the Court to reconsider this ruling, Vallee questions whether we found this provision to be unenforceable because it lacks a mandatory verb, or whether it lacks
clear standards.

This passage fails on both counts. With “should,” it lacks a mandatory verb. With “as land use plans require,” it lacks any clear standard. T he passage effectively states that if there is a requirement in the Town or Regional Plan that requi res sidewalks, that requirement should be complied with. If such a requirement exists, it mi ght be a standalone enforceable provision. The passage here, however, simply points to such a hypo thetical mandatory requirement and does not by itself create an enforceable provision.5 d. Whether Question 6(a) satisfies the basic requireme nt of notifying the parties and the Court of the issues on appeal

A Statement of Questions must be specific enough to notify the parties and the Court of the issues on appeal. In re Atwood Planned Unit De v., 2017 VT 16, ¶ 14 (Mar. 17, 2017) (citations omitted). Where a question fails to meet this stan dard, the Court may order the appellant to clarify the question. Id.

Here, in attempting to clarify its Criterion 10 que stion, Vallee failed to identify a single mandatory provision in the Town Plan with which the proposed project might not comply. This is not for lack of effort—Vallee attempted to ident ify one or more such provisions in its summary judgment motion and pleadings, in its response to V Trans’ and NRB’s motions to dismiss Question 6(a), and now in its motion to reconsider. Without having identified any specific mandatory provisions, all that remains to support Question 6( a) is Vallee’s allusion that it might identify one or more mandatory provisions at trial. 4 This assertion lacks specificity and fails to pu t the other parties and the Court on notice as to the issues to be litigated.

Despite Vallee’s attempts to clarify Question 6(a), we conclude that the question continues to be overly broad and vague.

IV. Conclusion

Vallee has failed to meet any of the grounds that w ould justify granting a motion to reconsider. Vallee does not allege a change in law or manifest injustice. If Vallee intended to present the Town Plan provision discussed above as newly-discovered evidence, that attempt is unavailing because the provision is not mandatory. Vallee also fails to identify any error of law or fact in our underlying decision on Vtrans’ and N RB’s motions to dismiss. For these reasons, the
motion to reconsider is DENIED

.
So ordered.

Electronically signed on March 15, 2018 at 10:37 AM pursuant to V.R.E.F. 7(d).

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

Notifications: Jon T. Anderson (ERN 1856), Attorney for Appellant R.L. Vallee, Inc. Alexander J. LaRosa (ERN 5814), Attorney for party 2 Co-counsel Justin E. Kolber (ERN 4303), Attorney for Appellee Agency of Transportation

4 Vallee submits in its motion that the Court should not dismiss Question 6(a) because at trial it would draw the Court’s attention to “at least one other portio n of the Town Plan the Court has not yet considered .”6

David L. Grayck (ERN 4510), Attorney for Interested Person Timberlake Associates, LLP Elena M. Mihaly (ERN 8101), Attorney for Intervenor Conservation Law Foundation John K. Dunleavy (ERN 1949), Attorney for party 5 C o-counsel Gregory J. Boulbol (ERN 1712), Attorney for For Inf ormational Purposes Only Natural Resources
Board Mark G. Hall (ERN 2537), Attorney for Intervenor Co stco Wholesale Corp. Peter J. Gill (ERN 4158), Attorney for For Informat ional Purposes Only Natural Resources Board Jenny Ronis (ERN 9185), Attorney for party 5 Co-cou nsel Kane H. Smart (ERN 4770), Attorney for party 17 Co- counsel Hannah W. Smith (ERN 6759), Attorney for Interested Person Agency of Natural Resources

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