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 Attorney Justin E. Kolber for Appellee Agency of 

Transportation 

 Opposition 

The motion is DENIED. 

R.L. Vallee, Inc. (Vallee) asks the Court to reconsider a portion of its February 8, 2018 

decision on the Vermont Agency of Transportation (VTrans) 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 the 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) (Walsh, 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 appears 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 complaint, 

we depart from the civil practice of focusing on factual 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.). 

STATE OF VERMONT

SUPERIOR COURT ENVIRONMENTAL DIVISION

Docket No. 50-6-16 Vtec
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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 with Criterion 10. VTrans and Vallee 

subsequently filed cross-motions for summary judgment 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. Vallee 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) (Walsh, J.). We concluded that Vallee had failed 

to identify any part of the Town or Regional Plan that 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 fails to comply. 

Given the broad nature of Question 11, we subsequently ordered Vallee to clarify the 

question. On December 11, 2017, Vallee submitted its 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 dismiss 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 motion, 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 Vallee had identified a single mandatory 

Town Plan provision, but that provision does not apply 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 of 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, which reads: 

The Official map delineates future transportation network 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 with 

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 review to that issue. 
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a. Whether we look to the zoning regulations to determine if this provision is 

enforceable. 

 Under 10 V.S.A. § 6086(a)(10), the Court must consider any ambiguous Town Plan 

provisions in light of the zoning ordinances.3 Vallee appears to argue that if there is ambiguity 

regarding whether this Town Plan provision is mandatory or advisory, that ambiguity can be 

resolved by consulting the Colchester zoning ordinance, 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 inquiry. 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 Estate & 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 “general in nature or ambiguous.” Id. at 12. If 

the provision is ambiguous, then we can refer to the 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 considered, however, at the first step to determine 

whether a Town Plan provision is mandatory or merely advisory. 

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

enforceable provision. 

Vallee next argues that even without considering the zoning ordinances, this section of 

the Town Plan is mandatory. In making this argument, 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 standards. 

Vallee focuses on the use of “shall” in the provision (“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 114, ¶ 35 (Oct. 21, 2016), Vallee submits that 

the provision requires road projects to at least consider 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 with “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 . . . should implement the proposed 

improvements to the greatest extent possible”), Vallee 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 shall 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 District Commission finds applicable provisions of 

the town plan to be ambiguous, the District Commission, 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. 
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(Vt. Envtl. Bd. Nov. 4, 2005) (in which the town plan stated that: “[w]here feasible, commercial 

development shall be located within or close to” the village). Vallee fails to note, however, that 

the Supreme Court subsequently reversed this decision, holding that: 

[T]he provision at issue here is too ambiguous to be enforced against applicant. . . . 

Even if we give the words “where feasible” their plain and ordinary meaning, it 

remains uncertain if the drafters of the town plan intended this phrase to refer to 

economic feasibility, physical feasibility, some combination of both, or perhaps 

some other measure of feasibility altogether. We agree . . . 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 Estates, 154 Vt. 363, 368–69 (1990); Re: Herbert 

and Patricia Clark, No. 1R0785-EB, slip op. at 40–41, (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 enforceable 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, especially 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 mandatory. 

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 plans require. The need for sidewalks is 

particularly important on roads carrying heavy traffic 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 specific requirements. . . These passages 

therefore do not require VTrans to include sidewalks 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.) (citing 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. The passage effectively states that if there is a 

requirement in the Town or Regional Plan that requires sidewalks, that requirement should be 

complied with. If such a requirement exists, it might be a standalone enforceable provision. The 

passage here, however, simply points to such a hypothetical mandatory requirement and does 

not by itself create an enforceable provision. 
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d. Whether Question 6(a) satisfies the basic requirement 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 Dev., 2017 VT 16, ¶ 14 (Mar. 17, 2017) (citations 

omitted). Where a question fails to meet this standard, the Court may order the appellant to 

clarify the question. Id. 

Here, in attempting to clarify its Criterion 10 question, 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 identify one or more such provisions in its summary 

judgment motion and pleadings, in its response to VTrans’ 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 put 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 would 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 NRB’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 portion of the Town Plan the Court has not yet considered.” 
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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 Co-counsel 

Gregory J. Boulbol (ERN 1712), Attorney for For Informational Purposes Only Natural Resources 

Board 

Mark G. Hall (ERN 2537), Attorney for Intervenor Costco Wholesale Corp. 

Peter J. Gill (ERN 4158), Attorney for For Informational Purposes Only Natural Resources Board 

Jenny Ronis (ERN 9185), Attorney for party 5 Co-counsel 

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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