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STATE OF VERMONT

SUPERIOR COURT ENVIRONMENTAL DIVISION

Vermont Unit Docket No. 106-7-14 Vtec

Natural Resources Board, 

 Petitioner 

 v. 

Stratton Corporation, 

 Respondent 

DECISION ON MOTION 

Decision on Motion for Partial Summary Judgment and Motion to Stay Discovery

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

Intrawest Stratton Development Corporation, and The Stratton Corporation (collectively, 

Stratton) received Act 250 Land Use Permit # 2W1142 (the Permit) from the District 2 

Environmental Commission (the Commission) for the development of 25 three-unit townhouse 

buildings near Stratton Mountain in the Town of Stratton, Vermont (the Project) on November 

18, 2002. Stratton failed to construct the project in accordance with the Permit and did not 

receive written approval for the alterations. Some of the alterations were to the stormwater 

management systems, which the Permit required be constructed in conformance with 

stormwater discharge permits previously granted to Stratton by the Agency of Natural 

Resources (ANR). On March 12, 2012, Stratton applied for an Act 250 permit amendment to 

remedy all violations and restore the Project site. On October 21, 2013, the Commission issued 

Land Use Permit Amendment # 2W1142-D to address the remediation and alterations (the 

Permit Amendment). This Permit Amendment was not appealed and is therefore final. 

 Stratton’s failure to receive advance approval of the alterations to the Project and their 

failure to construct the Project as permitted are violations of Act 250. The Natural Resources 

Board (NRB) and Stratton entered into an Assurance of Discontinuance on July 15, 2014 (the 

AOD) to resolve the Permit violations and address Stratton’s failure to obtain the Permit 

Amendment prior to altering the Project. The AOD requires Stratton to comply with the Permit 
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and the Permit Amendment, take certain actions to bring the project site into compliance with 

all permit conditions and regulations, pay a civil penalty, and reimburse the NRB and ANR for 

the cost of enforcement. 

 The Treetop at Stratton Condominium Association, Inc. (the Association), representing 

the interests of the owners of the Project’s townhouse condominium units, participated in the 

various Act 250 proceedings. The Association expresses an interest in ensuring that the Project 

infrastructure, especially the stormwater management system and erosion control elements, 

are constructed in conformance with the Permit, Permit Amendment, and all applicable 

regulations. 

 This Court, by its November 14, 2014 entry order, granted the Association’s motion to 

intervene in the enforcement proceeding pursuant to 10 V.S.A. § 8020. NRB v. Stratton Corp., 

No 106-7-14 Vtec, slip op. at 3 (Vt. Super. Ct. Envtl. Div. Nov. 14, 2014) (Walsh, J.). In a decision

dated April 10, 2015 the Court determined that the scope of the matter before the Court is 

limited to the violations contained in the AOD which are: 1) fire truck access, 2) retaining walls 

and tree clearing, and 3) the stormwater detention basin and conveyance system. NRB v. 

Stratton Corp., No 106-7-14 Vtec, slip op. at 4 (Vt. Super. Ct. Envtl. Div. Apr. 10, 2015) (Walsh, 

J.). The Court also determined, in a separate appeal related to the Permit Amendment, that 

because the Permit Amendment was not appealed, it was final and binding on all parties. The 

Court, in denying the Association post-judgment relief, also recognized that the issues raised by 

the Association in that appeal related to: 

[W]hat [the Association] allege[d] to be a fundamental failure of the Permit 

Amendment to ensure compliance with Act 250. As we noted in our prior 

decision, the Commission is statutorily required to make positive findings under 

all Act 250 Criteria before issuing a permit. 10 V.S.A. § 6086(a). By its plain 

language the Permit Amendment made these findings. 

In re Treetop Dev. Co. Act 250, No. 77-6-14 Vtec, slip op. at 2–3 (Vt. Super. Ct. Envtl. Div. Mar. 

25, 2015) (Walsh, J.). 

 Stratton now moves for partial summary judgment in this matter, arguing that based on 

the unappealed Permit Amendment and the prior decisions of this Court, it is entitled to 

judgment as a matter of law regarding any remedial measures necessary to bring the project 

into compliance as that issue was fully resolved by the Permit Amendment. The Association 
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opposes the motion and argues that the Court is still legally authorized to review the alleged 

violations. The Association asserts the following:

Stratton Corporation has continued to resist making a good faith and 

comprehensive attempt to cure its permit violations and instead has filed 

incomplete and inadequate plans and specifications with the District 2 

Environmental Commission, conducted its work to correct the permit violations 

in a deficient and defective manner, and attempted to avoid responsibility for 

permit and regulatory compliance by claiming that the vague and inconclusive 

decision of the District 2 Environmental Commission in issuing Act 250 Permit 

#2W1142-D [the Permit Amendment] prevents the Environmental Division from 

conducting a thorough and comprehensive review of Stratton Corporation’s 

violations or requiring Stratton Corporation to do all work necessary to correct 

all of its violations. 

(Response to Stratton’s Mot. for Partial Summ J. at 8, filed May 28, 2015). Here, again, the 

Association misconstrues the legal effect of the Permit Amendment, the scope of the AOD, and 

the issues remaining in this appeal. 

 While the Association continues to assert that the Permit Amendment failed to 

adequately address the deficiencies in the construction of the project following the original 

permit, the fact remains that the Association did not appeal the Permit Amendment, which 

renders it final and binding. As noted above, this Court has already determined that the Permit 

Amendment brings the project into compliance with Act 250. Treetop Dev. Co. Act 250, No. 77-

6-14 Vtec, slip op. at 2–3. As final adjudications of this issue, involving the same parties, and 

throughout which all parties have had ample opportunity to litigate the issue, both the Permit 

Amendment and this Court’s decisions in Docket No. 77-6-14 Vtec preclude relitigation of the 

issue in this appeal. See In re Cent. Vt. Pub. Serv. Corp., 172 Vt. 14, 20 (2001) (citing State v. 

Dann, 167 Vt. 119, 126 (1997)) (setting out elements of collateral estoppel). 

 The scope of the AOD is limited to the violations that pre-date the Permit Amendment. 

Furthermore, by its plain terms the AOD requires Stratton to comply with all requirements of 

the Permit Amendment and to submit plans to ANR indicating compliance. While the 

Association raises issues of compliance with the Permit Amendment in its opposition to 

Stratton’s motion for partial summary judgment, that issue is not before the Court. It is within 

the sole authority of the NRB to enforce the Permit Amendment. If the work required by both 
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the Permit Amendment and the AOD is not completed, it will be up to the NRB to enforce those 

directives. This is outside the scope of this enforcement action. 

 For the above stated reasons, Stratton’s motion for partial summary judgment is 

GRANTED. The sole issue remaining in this matter is a determination of whether the AOD is 

sufficient to carry out the purposes of the Vermont environmental enforcement statutes with 

respect to administrative penalties, considering the factors set out in 10 V.S.A. § 8010. See 10 

V.S.A. § 8020(h) (establishing the scope of intervention in an administrative enforcement 

action). 

Motion to Stay Discovery and Scheduling Order

 Stratton and the NRB have also filed a joint motion to stay discovery and this Court’s 

scheduling order pending resolution of the motion for summary judgment. As the Court hereby 

grants Stratton’s motion for summary judgment, the motion to stay discovery is DENIED. 

Stratton and the NRB both must timely respond to any discovery requests by the Association 

with the understanding that such discovery must be limited to the issues that remain in this 

matter as a result of this decision. 

Conclusion

 For the reasons stated in greater detail above, the issue of whether the remedial 

measures required by the Permit Amendment resolve the violations contained in the AOD has 

been fully litigated and adjudicated in Stratton’s favor. Stratton’s motion for partial summary 

judgment is therefore GRANTED. The joint motion to stay discovery is DENIED and any 

discovery necessary to allow the parties to prepare for final adjudication of the issues left 

unresolved by this decision must proceed promptly. 

As the issues remaining for trial are limited to the penalty factors set out in 10 V.S.A. 

§ 8010, the Court sets this matter for a single day of trial per the enclosed notice. 

Electronically signed on July 13, 2015 at 12:23 PM pursuant to V.R.E.F. 7(d). 

_________________________________________ 

Thomas G. Walsh, Judge 

Superior Court, Environmental Division