In re Champlain Parkway Act 250 Permit (Fortieth Burlington LLC, Appellant) , 200 Vt. 158 ( 2015 )

NOTICE: This opinion is subject to motions for reargument under V.R.A.P. 40 as well as formal
revision before publication in the Vermont Reports. Readers are requested to notify the Reporter
of Decisions by email at: JUD.Reporter@state.vt.us or by mail at: Vermont Supreme Court, 109
State Street, Montpelier, Vermont 05609-0801, of any errors in order that corrections may be
made before this opinion goes to press.
2015 VT 105
No. 2014-352
In re Champlain Parkway Act 250 Permit Supreme Court
(Fortieth Burlington, LLC, Appellant)
On Appeal from
Superior Court,
Environmental Division
March Term, 2015
Thomas G. Walsh, J.
Christina A. Jensen of Lisman Leckering, P.C., Burlington, for Appellant.
Brian S. Dunkiel, Geoffrey H. Hand, Elizabeth H. Catlin and Victoria M. Westgate of Dunkiel
Saunders Elliott Raubvogel & Hand, PLLC, Burlington, for Appellee City of Burlington.
PRESENT: Reiber, C.J., Dooley, Skoglund, Robinson and Eaton, JJ.
¶ 1. SKOGLUND J. The City of Burlington and the Vermont Agency of
Transportation (AOT) applied for an Act 250 permit amendment to complete a project known as
the Champlain Parkway, a roadway designed to route traffic more efficiently from Interstate 89
in South Burlington to the City of Burlington’s downtown area. The environmental court
concluded that the application complied with Act 250’s transportation criterion (Criterion 5)
subject to conditions requiring that applicants monitor and report on the project’s traffic-
congestion and safety impacts, and work with the opposing party in this proceeding, Fortieth
Burlington, LLC, to resolve any remaining issues. Fortieth has appealed, asserting that: (1) the
conditions imposed by the court were not supported by the evidence and findings, exceeded the
court’s authority, and were insufficient to mitigate the project’s adverse impacts; (2) the court
misapplied the burdens of production and proof; and (3) the court erred in rejecting Fortieth’s
proposed conditions. We affirm.
¶ 2. The facts may be summarized as follows. The Champlain Parkway is a
substantially modified version of the original Southern Connector project, a proposed four-lane
highway running from Interstate 89 in South Burlington to downtown Burlington that received
initial Act 250 approval in 1981. Although the first and southernmost phase of the project was
constructed in the late 1980s, the discovery of hazardous material along the project route and
subsequent remediation efforts halted further progress. The project subsequently evolved to its
current form as the Champlain Parkway, with a roadway reduced to two lanes, a new route
bypassing the contaminated area, and additional bicycle and pedestrian accommodations.
¶ 3. Applicants sought an Act 250 permit amendment for the redesigned project,
which was divided into three segments for planning and construction purposes; the first, running
from Interstate-189 to Home Avenue, had been previously approved and constructed; the second,
running from Home Avenue north to Lakeside Avenue, was previously approved but never
constructed; and the third, running from Lakeside Avenue east to Pine Street then north to
terminate at Main Street, had not been previously reviewed or approved. In April 2012, the
District No. 4 Environmental Commission issued an order finding that the project complied with
all but two Act 250 criteria, Criteria 1(B) and 4 relating to wastewater and erosion control, which
required approved stormwater permits.
¶ 4. Several parties appealed the ruling to the environmental court, although only
one—Fortieth Burlington, LLC—remained by the time of the hearing. The questions on appeal
related exclusively to the whether the project would “cause unreasonable congestion or unsafe
conditions with respect to use of highways . . . and other means of transportation existing or
proposed” under Criterion 5 of Act 250. 10 V.S.A. § 6086(a)(5).
2
¶ 5. Fortieth owns property on the north side of Lakeside Avenue, just west of the
intersection with the planned Parkway. Its neighbor to the east on Lakeside is a property owned
by the Burlington Department of Public Works (DPW). Fortieth’s property contains a large
commercial building with a number of tenants, including the Veterans Administration, a
pediatric practice group, the University of Vermont, and others. The property also contains a
parking lot with approximately 720 spaces located to the rear and west side of the building.
Access to the lot is via two driveways, one on the east side of the building, about 150 feet west of
the Parkway intersection, and another on the west side of the building. The eastern driveway is
approximately twenty-four feet wide, twelve to enter and twelve to exit, and provides the
primary access to the main parking area to the rear of the building. A third potential access point
is via a road at the north end of the lot running east to Pine Street through land owned by the
Burlington Electric Department. Access by way of this road has been blocked by the City, and it
is not currently in use.
¶ 6. As it approaches Lakeside Avenue from the south, the planned Parkway will have
a traffic signal and a left-turn/through lane for traffic turning left onto Lakeside Avenue or going
straight into the DPW access drive, as well as a right-turn lane for traffic travelling east on
Lakeside Avenue to Pine Street, where another traffic signal and left-turn lane will allow traffic
to continue northbound on the Parkway toward downtown Burlington. The traffic signal at the
intersection of the Parkway and Lakeside Avenue will include five separate dedicated phases for
traffic from each of the following approaches: the Parkway; eastbound Lakeside Avenue;
westbound Lakeside Avenue; DPW’s driveway; and Fortieth’s eastern driveway.
¶ 7. The court held a two-day evidentiary hearing in February 2014, and issued a
written decision on the merits, containing extensive findings and conclusions, in July 2014.
Applicants relied substantially on a detailed report and testimony by an experienced
transportation expert analyzing the predicted traffic and safety impacts of the Parkway. His
3
report stated, and the court found, that overall the Parkway “is not a traffic generating project”
but rather will “reassign[] traffic from the existing street network” and thereby “generally
decrease” congestion in the area. Traffic on Lakeside Avenue from the Parkway intersection to
Pine Street, however, was expected to increase. In particular, the traffic expert projected that the
Level of Service (LOS)—a standard measure of delays per vehicle at intersections—at Fortieth’s
eastern driveway for both the morning and afternoon “peak hours” would increase as a result of
the Parkway project from “LOS A” (little or no delay) to “LOS E” (very long delays) in the
morning and “LOS F” (extreme delays) in the afternoon, based on a traffic-light cycle of 120
seconds in the morning and 150 seconds in the afternoon. AOT’s policy is to maintain a rating
of “LOS C” (average delays) for this type of project, subject to exceptions on a case-by-case
basis. The result for vehicles exiting the eastern driveway could be lengthy backups and delays.
¶ 8. The expert’s report noted that its projections were based on future traffic
forecasts, or “predictive traffic models,” generated years earlier which assumed traffic growth of
approximately 2.5% annually along Pine Street, whereas actual growth rates had been much
lower, on average 0.25% annually. Thus, employing the “actual vehicle volume” on Lakeside
Avenue generated a “built-in reserve capacity” for the system to handle more traffic with fewer
delays than the model forecast.1
¶ 9. In light of the foregoing, the trial court concluded that, “if the[] predicted delays
are realized, the traffic attempting to exit Fortieth’s property may experience unreasonable
congestion” and, as a result, “may result in unsafe conditions” if frustrated drivers decided to
enter the intersection when lights are yellow or red. (Emphasis added). Based on the conditional
nature of the identified impacts, the trial court approved the project but determined to impose
1
The report did not, apparently, analyze the effect of the choice available to drivers of
using the western exit rather than the eastern exit to avoid the delay. A driver exiting the western
exit turning left onto Lakeside Avenue and then right for the Parkway could, arguably,
considerably shorten the wait period. This is another reason why the LOS estimate could be
inaccurate.
4
conditions focused on “monitoring and reporting, as well as a right of action” if further evidence
substantiated “that the Parkway is creating unreasonable traffic congestion and unsafe traffic
conditions.” Accordingly, the court ordered applicants to “perform traffic studies and signal
warrant analysis” at specified intersections, including Lakeside Avenue and the Parkway, semi-
annually for the first year of operation and annually for years two and three; to submit written
reports of the monitoring results to the District Commission and Fortieth; and to “work in good
faith” with Fortieth to “resolve any traffic congestion and safety issues.” If these efforts failed
to achieve resolution, the court provided that Fortieth could petition the Commission “to reopen
its consideration of the application currently before the Court” within sixty days of receipt of the
final traffic report. The court thereupon remanded the matter to the District Commission;
applicants submitted the required stormwater discharge permits; and the Commission issued an
Act 250 permit, in October 2014, incorporating the conditions imposed by the trial court.2 This
appeal followed.
¶ 10. Under our standard of review, the environmental court determines the credibility
of witnesses and weighs the persuasive effect of evidence, and we will not overturn its factual
findings unless, taking them in the light most favorable to the prevailing party, they are clearly
erroneous. In re Vill. Assocs. Act 250 Land Use Permit, 2010 VT 42A, ¶ 7, 188 Vt. 113, 998
A.2d 712. Thus, the court’s findings “will not be disturbed merely because they are contradicted
by substantial evidence” but only where the party challenging them demonstrates that “there is
no credible evidence to support them.” In re Eastview at Middlebury, Inc., 2009 VT 98, ¶ 10,
187 Vt. 208, 992 A.2d 1014 (quotations omitted). We review issues of law or statutory
interpretation de novo. In re Vill. Assocs., 2010 VT 42A, ¶ 7.
2
The court issued a formal judgment order based on its findings and conclusions on July
30, 2014, and denied a motion to alter or amend the judgment the following month.
5
¶ 11. Fortieth maintains that the conditions of approval imposed by the trial court here
were not supported by the evidence and findings, exceeded the court’s authority, and were
insufficient to mitigate the project’s traffic and safety impacts. The argument is predicated
substantially on Fortieth’s assertion that the court found unequivocally “that the Parkway as
proposed will cause unreasonable congestion” and “will result in deterioration of the LOS
experienced by Fortieth’s users from the current A . . . to the E and F unacceptable even under”
AOT’s traffic standards. Thus, Fortieth asserts that the conditions requiring mere monitoring
and reporting were inadequate to mitigate the Parkway’s adverse traffic and safety impacts. See
10 V.S.A. § 6087(b) (providing that, while a permit “may not be denied solely for the reasons set
forth” under Criterion 5, “reasonable conditions and requirements . . . may be attached to
alleviate the burdens created”).
¶ 12. As noted, however, the trial court’s findings under Criterion 5 were conditional; it
did not find that the project “will” but rather “may” cause unreasonable traffic congestion or
unsafe conditions if the forecasts in the expert’s report were realized, a result rendered uncertain
by the inflated numbers in the traffic-growth model on which it relied. Thus, the court’s
conditions—requiring future monitoring and reporting and authorizing a renewed challenge by
Fortieth if necessary to mitigate unreasonable congestion—were appropriately tailored to the
evidence and findings.3
3
In view of our holding that the conditions imposed by the trial court here were
supported by the evidence and findings, we need not address the City’s claim that, even if the
court had found actual “unreasonable congestion or unsafe conditions” it was not required to
impose any mitigating measures as a condition of approval because the statute specifically
provides that “[a] permit may not be denied solely for the reasons set forth” under Criterion 5, 10
V.S.A. § 6087(b), and makes the imposition of conditions discretionary. See id. (providing that
“reasonable conditions and requirements . . . may be attached to alleviate the burdens created” by
the project (emphasis added)). Furthermore, inasmuch as applicants have not challenged the
conditions imposed, we need not consider the court’s authority to impose conditions in the
absence of an actual finding that the project will “cause unreasonable congestion or unsafe
conditions” under § 6086(a)(5).
6
¶ 13. Fortieth further asserts that the trial court “exceeded its authority” by imposing a
condition on a non-party to the application. More specifically, Fortieth asserts that, by directing
the parties “to work in good faith to resolve any traffic congestion and safety issues,” the court
necessarily required that Fortieth “alter the use of its property to alleviate the unreasonable
congestion which will result from the Parkway.” We discern no impediment, however, to a court
generally directing the parties in a proceeding before it to proceed in good faith. See, e.g.,
V.R.C.P. 11(b) (attorneys and nonrepresented parties impliedly certify that pleadings are not for
any improper purpose); V.R.C.P. 26(h) (counsel are obligated to “make good faith efforts” to
resolve or reduce differences relating to discovery). Moreover, nothing in the trial court’s order
suggests that Fortieth may be required to make any particular use of its property in connection
with the application; indeed, the court specifically rejected the City’s suggestion that Fortieth be
required to use its western driveway to alleviate traffic congestion on the ground that it lacked
authority “to impose a condition on property which is not under [a]pplicants’ control absent an
agreement from the party that owns or controls that other property (here, Fortieth).”
Accordingly, we find no error.
¶ 14. Fortieth next asserts that the trial court misallocated the evidentiary burdens in
conditionally approving the permit. Fortieth acknowledges that, by statute, the “burden shall be
on any party opposing” an application on the basis of Criteria 5 or 8 “to show an unreasonable or
adverse effect.” 10 V.S.A. § 6088(b). Fortieth maintains, nevertheless, that applicants retained
the initial burden of production for the court “to make an affirmative finding” under Criterion 5,
and that they failed in this regard because their own evidence showed that the Parkway would
cause unreasonable congestion and unsafe conditions. As noted, based on applicants’ evidence
regarding the existing and expected traffic conditions, the detailed traffic and safety report, and
the testimony of the experienced traffic engineer who authored the report, the court here
concluded that applicants had satisfied their burden of production under Criterion 5.
7
¶ 15. In response to this argument by Fortieth, applicants respond that their burden of
production was merely to “to provide enough evidence for the court to rule on what the project’s
impacts are,” thereby allowing the court to impose any mitigating conditions it deemed
appropriate. Applicants understate the initial evidentiary burden under Criterion 5. See State v.
Baker, 154 Vt. 411, 414, 579 A.2d 479, 488 (1990) (noting that “burden of production” is
generally carried by establishing “prima facie case on each of the elements”). Nevertheless, we
agree with the trial court that applicants met the burden of production here, as the detailed
traffic-study report coupled with the evidence showing that its traffic projections were
dramatically overstated in material respects with respect to the Parkway project and Lakeside
Avenue location, were sufficient to establish prima facie compliance with Criterion 5.
¶ 16. Finally, Fortieth claims that the trial court improperly “shifted the burden to
Fortieth to show that congestion would be reduced by alternative design of the
Parkway/Lakeside Avenue/Eastern Access intersection,” and in so doing erroneously rejected the
alternatives proffered by Fortieth. Again the claim is unpersuasive, as we have clearly held that
the opposing party’s burden under § 6088(b) “includes the duty to demonstrate the availability of
reasonable mitigating steps,” including reasonable alternatives. In re Goddard Coll. Conditional
Use, 2014 VT 124, ¶ 12, ___ Vt. ___, 111 A.3d 1285. Furthermore, while Fortieth offered a
number of alternative-design proposals at trial, it focuses here on only one, claiming that the trial
court erred in rejecting its proposal to change the proposed “five-way intersection” into a “four-
way intersection” by aligning the Parkway/Lakeside intersection with Fortieth’s eastern
driveway.
¶ 17. Fortieth overstates the record evidence in this regard, which consisted largely of a
general concession by applicants’ traffic expert that “some of th[e] congestion issue with the
Fortieth . . . driveway would be alleviated if the . . . driveway were aligned [with] the Champlain
Parkway . . . to make a four-way intersection.” Fortieth’s claims to the contrary notwithstanding,
8
the expert did not acknowledge that the alternative design would be substantially safer or less
confusing, and Fortieth introduced no evidence showing how this redesigned alternative would
be engineered, its environmental effects, impact on other components of the Parkway project,
and estimated quantitative reduction in traffic congestion and delays. Accordingly, we discern
no basis to disturb the trial court’s finding that Fortieth failed to provide sufficient “details of
[the alleged] improvement or the corresponding impacts on traffic,” and no ground to disturb the
judgment.
Affirmed.
FOR THE COURT:
Associate Justice
9