                                 STATE OF VERMONT
SUPERIOR COURT                                                ENVIRONMENTAL DIVISION
Vermont Unit                                                    Docket No. 106-7-14 Vtec

                              NRB v. Stratton Corporation

                            ENTRY REGARDING MOTION

Title:        Motion for Interlocutory Appeal (Motion 7)
Filer:        Treetop at Stratton Condo Association
Attorney:     A. Jay Kenlan
Filed Date:   July 27, 2015

Response in opposition filed on 07/30/2015 by Attorney Lisa B. Shelkrot for Respondent
Stratton Corporation
Response in Opposition filed on 08/05/2015 by Attorney Peter J. Gill for Petitioner Natural
Resources Board

The motion is DENIED.
        This matter is an enforcement action brought by the Vermont Natural Resources Board
(NRB) against Treetop Development Company, LLC, Treetop Three Development Company, LLC,
Intrawest Stratton Development Corporation, and The Stratton Corporation (collectively
Stratton) for the failure to construct a development consisting of 25 three-unit townhouse
buildings near Stratton Mountain in the Town of Stratton, Vermont (the Project) in accordance
with the Act 250 Permit granted to the Project and without receiving written approval for the
alterations. Some of the deviations from the Act 250 Permit involved 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.
       Subsequent to the Permit Amendment, this matter was initiated by the NRB to resolve
Stratton’s Act 250 violations. The 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 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 Natural Resources Board and the Agency of Natural Resources for
the cost of enforcement. In a decision dated November 14, 2014, the Court granted the
Treetop at Stratton Condominium Association, Inc.’s (the Association) motion to intervene in
this enforcement action pursuant to 10 V.S.A. § 8020, recognizing that the intervention was
limited to the issue of whether the terms of the AOD were insufficient to carry out the purposes
of the enforcement statutes.
        Following the Court’s grant of intervention, the parties disputed the scope of the matter
before the Court. The Association argued that it could present evidence regarding any and all
violations it believed existed at the Project. Stratton, on the other hand, argued that the Court
should only look to the violations described in the AOD, which related to the violations which
existed prior to issuance of the Permit Amendment. The Court, by decision dated April 10,
2015, agreed with Stratton and concluded that the statutory framework provided that,
although the Association had the right to participate in the NRB’s enforcement action, it did not
have the right to expand the scope of the enforcement action to violations not alleged in the
AOD. The Court reasoned that any further alleged violations should be addressed through
subsequent additional enforcement actions related to the Permit Amendment.
        After issuance of the April 10 decision, Stratton moved for partial summary judgment
arguing that because the Permit Amendment addressed all remedial measures necessary to
bring the project into compliance with applicable law, this enforcement action should be
limited to a determination of the appropriate administrative penalty. The Association opposed
the motion arguing that the Permit Amendment did not address all of Stratton’s violations, and
therefore, further injunctive relief may be appropriate. The Court, by decision dated July 13,
2015, granted Stratton’s motion and determined that the unappealed Permit Amendment
precluded arguments that Stratton had failed to remedy the violations existing prior to the
issuance of that permit. The Association now moves for permission of this Court to take an
interlocutory appeal to the Vermont Supreme Court of this decision.
         Under Vermont Rule of Appellate Procedure (V.R.A.P.) 5(b) a party may move to appeal
an interlocutory order by permission of the Superior Court. Such a motion must be filed within
10 days after entry of the order or ruling appealed from. The Court must grant a party
permission to appeal upon reaching three conclusions: (1) the order “involves a controlling
question of law;” (2) the question of law is one about which “there exists substantial ground for
difference of opinion;” and (3) “an immediate appeal may materially advance the termination
of the litigation.” V.R.A.P. 5(b)(1).
       The “controlling question of law” that the Association seeks to appeal is framed by the
Association as follows:

       [W]hether, as a matter of fundamental Environmental Court jurisdiction in an
       enforcement action the Environmental Court is limited in its authority to review
       only events and circumstances occurring on or before the date of the AOD, or is
       the Court’s jurisdiction under the relevant provisions of Title 10, Chapter 201
       broad enough to encompass and address Stratton Corporation’s continuing
       violations through and including the date of a hearing on the merits.



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(Mot. for Permission to Appeal at 24, filed July 27, 2015). Both Stratton and the NRB suggest
that this question was resolved not by our most recent July 13 decision but by the April 10
decision and therefore the motion to take an interlocutory appeal is untimely filed. We agree;
the decision on motion for summary judgment resolved the issue of injunctive relief as it relates
to the violations contained in the AOD. The decision regarding the Court’s authority to consider
additional violations was issued on April 10. Rule 5(b)(5) makes clear that “[t]he motions must
be filed within 10 days after entry of the order or ruling appealed from. . . .” Because the
present motion was not timely filed, it is DENIED.
        We do note, however, that the motion would be denied even if we were to consider the
merits. The issue decided is not one over which there exists substantial grounds for difference
of opinion and granting the motion would not materially advance termination of the litigation.
        The question that the Association poses, whether this Court may “review only events
and circumstances occurring on or before the date of the AOD,” is significantly broader than the
issues actually raised to and decided by this Court in our prior decisions. The Court determined
that only those violations that are contained within the AOD are before the Court in an
enforcement action. It is established that the Court may consider “events and circumstances”
occurring after the issuance of the AOD only as they relate to the violations before the Court.
See, e.g. City of St. Albans v. Hayford, 2008 VT 36, ¶ 17, 183 Vt. 596 (mem.) (concluding that the
Court had “the discretion to determine the amount of [the] fine, and, in doing so, to balance
any continuing violation against the cost of compliance and to consider other relevant
factors. . .”). For example the Court may consider the length of time a violation exists, which
may include a period of time after issuance of the AOD. See 10 V.S.A. § 8010(b)(8). This does
not include additional violations arising after the issuance of the AOD.
        The Association asks the Court to determine that additional violations exist apart from
those included in the AOD. In doing so, the Association continues to ignore the important legal
effect of the Permit Amendment. In granting the Permit Amendment the District Commission
determined that the Project under review complies with Act 250. The Commission is not legally
authorized to grant an Act 250 Permit without making positive findings. The Association did not
appeal the Permit Amendment, despite the fact that the Association participated in the
hearings on the Permit Amendment and had an opportunity to do so. The Permit Amendment
is therefore final and binding on all parties. Thus, if the Project is still alleged to be in violation
of Act 250 after issuance of the Permit Amendment this would be a new violation beyond those
violations that are the subject of the AOD.
       As we noted in several of our past decisions, it is the NRB that has the authority to
enforce Act 250 and the land use permits issued thereunder. See 10 V.S.A. § 6027(g) (“The
Natural Resources Board . . . may initiate enforcement on related matters, under the provisions
of chapters 201 and 211 of this title. . . .”). Neither the Association, nor this Court, has the
authority to determine that new violations exist and exercise the discretion granted to the NRB
to enforce the Act. The Court cannot find any legal support for the Association’s position that
the Court can simply add violations to an ongoing enforcement action, especially within the
context of the statutorily limited review of an AOD. If this motion were timely filed we would


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conclude that there are not substantial grounds for difference of opinion on the question the
Association presents.
        The Court further notes that this matter is set for trial in September in order to conduct
a limited hearing as to whether the AOD is sufficient to carry out the purposes of Title 10,
Chapter 201, and more specifically the appropriate penalties in light of the violations. As the
Court has already set the hearing date and determined the scope of the hearing, delaying that
hearing in order to proceed to the Supreme Court on the issue raised would not advance
termination of the litigation.
        For the reasons stated above, the Association’s motion for permission to take an
interlocutory appeal to the Vermont Supreme Court is DENIED as that motion was not timely
filed; and even if it was timely filed we would conclude that the motion must be denied
because an interlocutory appeal of the issues raised does not meet the high standards for
granting such a motion set out in V.R.A.P. 5(b).

Electronically signed on August 11, 2015 at 09:30 AM pursuant to V.R.E.F. 7(d).



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



Notifications:
Peter J. Gill (ERN 4158), Attorney for Petitioner Natural Resources Board
Lisa B. Shelkrot (ERN 2441), Attorney for Respondent Stratton Corporation
A. Jay Kenlan (ERN 3775), Attorney for Intervenor Treetop at Stratton Condo Assn
Elizabeth B. McDonald (ERN 5715), Attorney for Interested Person Agency of Natural Resources

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