2011 VT 104


In re SP Land Co., LLC, Act 250
Land Use Permit Amendment (Mountainside Properties, LLC) (2010-332)
 
2011 VT 104
 
[Filed 22-Sep-2011]
 
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, 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.
 
 

2011 VT 104

 

No. 2010-332

 

In re SP Land Company, LLC, et
  al. Act 250 
Land Use Permit Amendment


Supreme Court


(Mountainside Properties, LLC, Appellant) 


On Appeal from


 


Superior Court, 
Environmental Division


 


 


 


March Term, 2011


 


 


 


 


Thomas
  S. Durkin, J.


 

C. Daniel Hershenson and Amy Clarise Ashworth of Hershenson,
Carter, Scott & McGee, P.C., 
  Norwich, for Appellant.
 
Timothy Eustace and Ross Feldmann of Gravel and Shea,
Burlington, for Appellees.
 
 
PRESENT:  Reiber, C.J., Dooley, Johnson, Skoglund and
Burgess, JJ.
 
 
¶ 1.            
JOHNSON, J.   This appeal arises out of a dispute over
an administrative amendment to the master development plan for Killington Resort
Village granted to its co-applicants, the current owners of Killington Resort
Village and SP Land Company.  The District One Environmental Commission
originally granted this administrative amendment—authorizing the creation of
fifteen subdivided lots over approximately 368 acres of Killington Resort
Village for transfer to SP Land Company for “future development
purposes”—pursuant to Act 250 Rule 34(D).  Mountainside Properties, LLC,
an adjoining property owner, appeals the Environmental Court’s denial of its
motion to alter and amend a grant of summary judgment in favor of
co-applicants.  Mountainside argues that the Environmental Court erred
because: (1) administrative amendments under Rule 34(D) require an underlying
Act 250 land use permit, and (2) co-applicants’ fifteen-lot subdivision cannot
be approved without demonstrating compliance with all Act 250 criteria under 10
V.S.A. § 6086(a), as required by 10 V.S.A. § 6081(a).  We agree and
therefore reverse.
¶ 2.            
The relevant procedural history is as follows.  In 1998, the former
owners of Killington Resort Village applied to the District One Environmental
Commission (District Commission) for master plan review of the Killington
Resort Village Master Development Plan (“Killington master plan”) pursuant to
then-existing Environmental Board Rules 10(c) and 21 and Master Permit Policy
and Procedure for Partial Findings of Fact (master permit policy).  The
master permit policy allowed for review of specific Act 250 criteria under § 6086(a)
for complex development projects to streamline the review process and reduce
costs to applicants.  
¶ 3.            
In 1999, the District Commission issued partial findings of fact and
conclusions of law regarding the Killington master plan.  It made affirmative
findings for five criteria and subcriteria under § 6086(a) and issued a
“weather report” for each of the remaining criteria and subcriteria.  No
Act 250 land use master permit was issued.  Pursuant to the master permit
policy, the purpose of these partial findings was to assist the applicant and
parties by providing notice of factual deficiencies in the application that
resulted in a failure to achieve affirmative findings.  The five
affirmative findings were binding on all parties to the application for a
period of five years.   
¶ 4.            
The Vermont Natural Resources Council, a party to the master plan review
proceedings, and the former owners of Killington Resort Village appealed some
of the partial findings of fact and conclusions of law made by the District
Commission to the Environmental Board.  The Board determined that it had
appellate jurisdiction to review only those criteria and subcriteria for which
the District Commission had made affirmative findings, and therefore entered an
order regarding a limited number of the § 6086(a) subcriteria.  The
Board’s decision and order did not include an Act 250 land use permit.  
¶ 5.            
The partial findings of fact and conclusions of law for the Killington
master plan subsequently received two amendments prior to the administrative
amendment at issue here.  The first, an administrative amendment issued in
March 2004 pursuant to Rule 34(D), authorized the subdivision of approximately
470 acres of Killington Resort Village into nine lots.  The second, issued
in August 2004, renewed the District Commission’s 1999 partial findings of fact
and conclusions of law for another five-year period.  Neither amendment
included an Act 250 land use permit.  
¶ 6.            
At the end of 2007, co-applicants (successors in title to the original
permittee) discussed with the District Commission’s district coordinator
options for obtaining a third amendment to the Killington master plan for
another proposed subdivision.  The district coordinator recommended applying
for an administrative amendment pursuant to Rule 34(D), which allows a district
coordinator “to amend a permit . . . when . . . necessary for record-keeping
purposes or to provide authorization for minor revisions to permitted projects
raising no likelihood of impacts under the criteria of [§ 6086(a)].”  6
Code of Vt. Rules 12 004 060-15, available at
http://www.michie.com/vermont.  The district coordinator suggested Rule
34(D) because at that time over fifty different Act 250 permit series covered Killington
Resort Village, the 1999 master plan review decision pertained to the entirety
of Killington Resort Village, and no construction element was included in the
proposed amendment.  
¶ 7.            
Thus, in April 2008, co-applicants applied under Rule 34(D) for a third
administrative amendment, despite not having an Act 250 land use permit. 
Co-applicants sought permission to realign the nine subdivided lots approved in
the first administrative amendment into fifteen subdivided lots for transfer to
SP Land for “future development purposes.”  The application listed
Mountainside as an adjoining property owner.  The district coordinator,
with approval of the District Commission, granted the administrative amendment
in May 2008 pursuant to Rule 34(D).  The amendment stated that no
development of the parcels was approved by the amendment and referred to itself
as a “permit.”        
¶ 8.            
Mountainside then filed a motion with the District Commission to alter
the third administrative amendment under Act 250 Rule 31(A).[1]  Mountainside’s motion questioned,
among other things, the propriety of using Rule 34(D) to authorize the
subdivision of 368 acres, arguing that the proposed subdivision likely involved
more than minor record-keeping or minor revisions to an existing project. 
The District Commission denied Mountainside’s motion to alter in October
2008.  
¶ 9.            
Mountainside filed an appeal with the Environmental Court in November
2008.  It submitted a list of fifteen questions for the court to address
on appeal, the majority of which related to the fifteen-lot subdivision. 
The parties filed cross-motions for summary judgment.  The Environmental
Court granted summary judgment in favor of co-applicants on all fifteen
questions, concluding that, under Rule 34(D), the fifteen-lot subdivision
authorized by the third administrative amendment would cause no impact to any
Act 250 criteria. 
¶ 10.        
Mountainside subsequently filed a motion to alter and amend the
Environmental Court’s grant of summary judgment pursuant to Vermont Rule of
Civil Procedure 59(e).  It presented arguments similar to those presented
here: absent an underlying Act 250 land use permit, no administrative amendment
can issue under Rule 34(D), and co-applicants’ fifteen-lot subdivision cannot
be authorized without full review of all the criteria and subcriteria of 
§ 6086(a).  
¶ 11.        
The Environmental Court sought guidance from the Natural Resources Board
Land Use Panel as to whether the absence of an Act 250 land use permit
precludes issuing a Rule 34(D) administrative amendment to a master plan. 
The Land Use Panel’s written response concluded that without an underlying
permit there could be no administrative amendment under Rule 34(D) because
there was nothing to amend under the process set out in that rule.  The
memorandum explained that the District Commission could issue Revised Master
Plan Findings and Conclusions but these would not be issued under Rule 34, as
Rule 34 addresses only permit amendments.    
¶ 12.        
The Environmental Court nonetheless denied Mountainside’s motion. 
The court reasoned that the third administrative amendment authorized only a
reconfiguration of subdivision boundaries and did not authorize any
development.  The court further explained that a subdivision of Killington
Resort Village had already been approved through the first administrative
amendment issued in 2004 and, while that determination may have been
“questionable,” it had become final because no party filed a timely challenge
to it.  The court concluded that the challenged third administrative
amendment merely authorized a realignment of the previously approved
subdivision of Killington Resort Village.  This appeal by Mountainside followed. 

¶ 13.        
Mountainside argues that the Environmental Court erred in its grant of
summary judgment to co-applicants because: (1) administrative amendments under
Rule 34(D) require an underlying Act 250 land use permit, and (2)
co-applicants’ fifteen-lot subdivision cannot be approved without demonstrating
compliance with all Act 250 criteria under 10 V.S.A. § 6086(a) as required
by 10 V.S.A. § 6081(a).  We employ our typical de novo standard for
questions of law.[2] 
In re Village Assocs. Act 250 Land Use Permit, 2010 VT 42A, ¶ 7 n.2, 188
Vt. 113, 998 A.2d 712 (“[W]here the outcome of the matter turns not on findings
of fact, but on interpretation of a statutory term, and where we are not
reviewing a decision by an agency charged with promulgating and interpreting
its own rules, we employ the familiar de novo standard of review for matters of
law.”)
¶ 14.        
As a preliminary matter, we address co-applicants’ claim that
Mountainside did not obtain party status for these issues and should have been
precluded from raising them before the Environmental Court.  They contend
that Mountainside was granted party status only on the question of whether it
should be joined as a co-applicant and point to the language of 10 V.S.A. §
8504(d)(1), which states that a person appealing an act or decision made by a
district commission “may only appeal those issues under the criteria with
respect to which the person was granted party status.”  Co-applicants
argue that Mountainside’s limited party status and the statute’s limitation
prevent Mountainside from raising issues relating to Rule 34(D) and the lack of
review of the proposed subdivision with respect to all Act 250 criteria. 
Co-applicants fail to note, however, that the District Commission also granted
Mountainside party status because it had a particularized interest in
co-applicants’ application.  Given Mountainside’s party status in this
regard, we do not read 10 V.S.A. § 8504(d)(1) to prevent Mountainside
from appealing procedural matters relating to the use of Rule 34(D) to grant an
administrative amendment absent an underlying Act 250 land use permit or the
authorization of the subdivision absent full review of the project under all
Act 250 criteria.
¶ 15.        
Nor are we persuaded that Mountainside waived its argument concerning
the applicability of Rule 34(D).  Co-applicants contend that this argument
was improperly raised for the first time in Mountainside’s Rule 59(e) motion to
alter or amend and should not have been addressed by the Environmental
Court.  We disagree.  Whether or not this issue was expressed for the
first time in Mountainside’s Rule 59(e) motion, it was a question of law
intrinsic to the Environmental Court’s summary judgment ruling and therefore
well within the court’s discretion to reconsider on Mountainside’s Rule 59(e)
motion.     
¶ 16.        
Contrary to the dissent’s narrow interpretation, Rule 59(e) “gives the
court broad power to alter or amend a judgment.”  Reporter’s Notes,
V.R.C.P. 59.  We have stated that Rule 59(e), largely identical to Federal
Rule of Civil Procedure 59(e), is “invoked ‘to support reconsideration of
matters properly encompassed in a decision on the merits.’ ”  In
re Robinson/Keir P’ship, 154 Vt. 50, 54, 573 A.2d 1188, 1190 (1990)
(quoting White v. N. H. Dep’t of Emp’t Sec., 455 U.S. 445, 451
(1982)).  Under this rule, “the court may reconsider issues previously
before it, and generally may examine the correctness of the judgment itself.” Id.
(quotation omitted).  That is, Rule 59(e) “codified the trial court’s
inherent power to open and correct, modify, or vacate its judgments.”  Drumheller
v. Drumheller, 2009 VT 23, ¶ 28, 185 Vt. 417, 972 A.2d 176; see
11 C. Wright et al., Federal Practice and Procedure § 2810.1, at 124-25
(2d ed. 1995) (describing correction of manifest error of law upon which
judgment is based as one of four basic grounds upon which Federal Rule of Civil
Procedure 59(e) motion may be granted).  The trial court enjoys
considerable discretion in deciding whether to grant such a motion to amend or
alter.  11 Wright, supra, §2810.1, at 124.
¶ 17.        
Indeed, we have held that the court’s power on a Rule 59(e) motion even
extends to issues not raised in the motion.  In Drumheller, we
ruled that the trial court did not exceed its authority under Rule 59 when it
considered an issue not raised in the party’s Rule 59(e) motion.  2009 VT
23, ¶ 34.  We found persuasive the approach taken by the majority of
United States Courts of Appeal, recognizing that once a Rule 59(e) motion is
filed, the trial court has the power to make an appropriate modification or
amendment, including issues not raised in the Rule 59(e) motion.  Id.
¶¶ 30-32.  We explained that this approach struck “an appropriate
balance between reconsideration and finality.”  Id. ¶ 33. 
  
¶ 18.        
Here, the Environmental Court reconsidered an issue of legal
interpretation  “properly encompassed in a decision on the merits,” which
in no way offended the interests of finality.  In re Robinson/Keir
P’ship, 154 Vt. at 54, 573 A.2d at 1190 (quotation omitted).  Whether
Rule 34(D) can be used to amend a master plan absent affirmative findings on
all Act 250 criteria was a matter of law integral to “the correctness of the
judgment itself.”  Id. (quotation omitted).  Indeed, the issue
of whether a Rule 34(D) administrative amendment may be used to authorize a
fifteen-lot subdivision absent positive findings on all Act 250 criteria is at
the core of this case. [3] 
For example, Mountainside questioned the applicability of Rule 34(D) in a
motion to alter submitted to the District Commission in May 2008. 
Specifically, Mountainside “request[ed] clarification regarding the
applicability of Rule 34(D) to an application ostensibly authorizing the
subdivision of 368.03 acres in[to] 15 lots of various acreage,” stating that it
was “unlikely that the subdivision as described involve[d] only minor
record-keeping or minor revisions to an existing project.”  Contrary to
the dissent’s interpretation of this motion as “assum[ing] that [Rule 34]
applied,” post, ¶ 31, the motion questioned whether Rule 34(D) was
applicable in these circumstances.  Question 15 of Mountainside’s
statement of questions before the Environmental Court asked the court to
consider “[w]hether or not a permit can be issued for the subdivision of 368.03
acres into 15 parcels absent positive findings of fact and conclusions of law
demonstrating the subdivision meets and complies with all criteria of Act 250.” 
Given the procedural history of this case, this question forced the
Environmental Court to determine whether a Rule 34(D) administrative amendment
could be used as an Act 250 land use permit to create a fifteen-lot subdivision
when the subdivision had not received positive findings of fact on all Act 250
criteria.[4] 
And, indeed, the Environmental Court’s December 2009 decision on the
cross-motions for summary judgment concluded that the Rule 34(D) administrative
amendment properly authorized the proposed subdivision in the absence of an Act
250 land use permit because no development was authorized.[5]  It was thus well within the
Environmental Court’s discretion to fully reconsider this question of law on
the merits upon Mountainside’s Rule 59(e) motion.  See Osborn v. Osborn,
147 Vt. 432, 433, 519 A.2d 1161, 1162-63 (1986) (explaining that Rule 59(e)
motion allows trial court to revise initial judgment if necessary to relieve
party of unjust operation of record resulting from mistake of court).  
¶ 19.        
The dissent ignores the fact that the Environmental Court fully
addressed on the merits the issue concerning the court’s interpretation of
governing law, and overlooks our longstanding view that Rule 59(e) affords
trial courts the broad power to generally examine the correctness of a judgment
itself.  Drumheller, 2009 VT 23, ¶ 29; In re Robinson/Keir
P’ship, 154 Vt. at 54, 573 A.2d at 1190.  It focuses instead on our
statement in Northern Security Insurance Company v. Mitec Electronics, Ltd.
that a Rule 59(e) motion may not be used to raise arguments that could have
been raised prior to the entry of judgment.  2008 VT 96, ¶ 44, 184
Vt. 303, 965 A.2d 447.  That case is entirely distinguishable.  Northern
Security involved an additional claim for relief, in contrast to the
interpretation of law at issue here.  There, we reversed a trial court
that considered a reimbursement claim raised for the first time in a Rule 59(e)
motion.  Id. ¶¶ 44-46.  The insurance company could have
but did not, by its own admission, raise this particular claim for relief in
its initial complaint; the company argued that it was not compelled to do so
prior to the resolution of its claim that it was not obligated to bear the
expenses for which it sought reimbursement.  It was in this context
that we stated that Rule 59(e) may not be used to raise arguments that could
have been raised prior to the entry of judgment.  Id.
¶ 44.  In the case at hand, by contrast, the Rule 34(D) question is a
matter of governing law intrinsic to the correctness of the Environmental
Court’s judgment, not an additional claim for relief.  Indeed, we
expressed in Northern Security itself that the goal of Rule 59(e) is to
“make clear that the [trial] court possesses the power to rectify its own
mistakes in the period immediately following the entry of judgment.”  Id.
¶ 41 (quotation omitted).  The Environmental Court properly exercised
precisely this power when it reconsidered its interpretation of the
applicability of Rule 34(D) to a master plan lacking affirmative findings on
all Act 250 criteria.  
¶ 20.        
Because the applicability of Rule 34(D) in these circumstances was fully
considered on the merits by the Environmental Court, neither our preservation
rule nor Rule 59(e) prevents us from considering it here.  See In re
Barry, 2011 VT 7, ¶ 29, ___ Vt. ___, 16 A.3d 613 (recalling that
primary purpose of our rules on preservation is to give original forum
opportunity to consider matter prior to our review); Vt. Built, Inc. v.
Krolick, 2008 VT 131, ¶ 10, 185 Vt. 139, 969 A.2d 80 (stating that
preservation rule was satisfied when trial court had fair opportunity to
consider, evaluate, and rule upon question raised on appeal).  We
therefore conclude that Mountainside did not waive this argument and that it is
appropriate for our review.    
¶ 21.        
Mountainside first contends that the Environmental Court erred in
approving co-applicants’ third administrative amendment under Rule 34(D) because
it is undisputed that there was no underlying Act 250 land use permit. 
Mountainside argues that the plain language of Rule 34(D) requires an Act 250
land use permit before an administrative amendment can issue under the
rule.  As described above, at no point was an Act 250 land use permit
issued for this subdivision.  Rather, the former owners of Killington
Resort Village received partial findings of fact and conclusions of law on a
master plan, resulting in affirmative findings for only five criteria and
subcriteria under § 6086(a), which were binding for a specified period of
time.  It was this master plan that was amended through Rule 34(D).  
¶ 22.        
Co-applicants do not contest that Rule 34(D) uses the word
“permit.”  Rather, they point out that “permit” is not defined under
either the Act 250 rules or the Act itself.  Co-applicants therefore
contend that “permit” in Rule 34(D) should be read to include partial findings
of fact and conclusions of law because, they argue, such partial findings and
conclusions, which are binding on applicants and parties, create vested rights
and thus have the same “force and effect” as an Act 250 land use permit. 
We thus turn to the meaning of “permit” as used in Rule
34(D).     
¶ 23.        
We apply the same principles of construction to the rules governing Act
250 that we do to other statutes.  See In re CVPS/Verizon Act 250 Land
Use Permit Numbers 7C1252 and 760677-2, 2009 VT 71, ¶ 14, 186 Vt. 289, 9980
A.2d 256.  This includes the presumption that the drafters of the rules
intended the plain and ordinary meaning of the language used in the
rules.  Id.  Furthermore, words that have not been
specifically defined should be accorded their plain and commonly accepted
meanings.  Carter v. Gugliuzzi, 168 Vt. 48, 52, 716 A.2d 17, 21
(1998).
¶ 24.        
In relevant part, Rule 34(D) states:
  A district
commission may authorize a district coordinator to amend a permit without
notice or hearing when an amendment is necessary for record-keeping purposes or
to provide authorization for minor revisions to permitted projects raising no
likelihood of impacts under the criteria of the Act.  
 
Act 250 Rule 34(D)(1), 6 Vt. Code
of Rules 13 004 060-14-15, available at http://www.michie.com/vermont.  Based
on a reading of Act 250 and the rules promulgated to implement it, we conclude
that “permit” has a specific and accepted meaning in the Act 250 context, and
it is this “permit” to which Rule 34(D) refers.  Generally speaking, the
Act prohibits parties from subdividing land or commencing development without a
permit, and it delineates the circumstances in which a permit may issue. 
10 V.S.A. §§ 6081(a), 6086(a); In re CVPS/Verizon Act 250 Land Use Permit,
2009 VT 71, ¶ 15.  Section 6081 introduces the concept of the Act 250 land
use permit and specifies that “[n]o person shall sell or offer for sale any
interest in any subdivision located in this state, or commence construction on
a subdivision or development, or commence development without a permit.” 
Section 6086(a) forbids the issuance of such a permit absent a full substantive
review of all ten statutory criteria under the Act.  See In re Woodford
Packers, Inc., 2003 VT 60, ¶ 22, 175 Vt. 579, 830 A.2d 100 (mem.) (“Act 250
mandates that before granting a permit, the board or district commission shall
find that the subdivision or development meets all ten criteria under 10
V.S.A. § 6086.” (quotation omitted)).       

¶ 25.        
Even Act 250 Rule 21, which sets forth the procedure for review of projects
under specified criteria or subcriteria, distinguishes between partial findings
of fact and conclusions of law and “permit.”  Pursuant to this rule, a
district commission may issue partial findings of fact and conclusions of law
under the Act’s criteria and subcriteria in order to minimize costs and
inconvenience to applicants.  Rule 21(F) clearly states that “[a] permit
shall not be granted under this rule until the applicant has fully complied
with all criteria and positive findings of fact and conclusions of law have
been made by the district commission as required by the Act.”  Act 250
Rules, 6 Vt. Code of Rules 12 004 060-12, available at
http://www.michie.com/vermont.  With regard to master plan applications,
it clarifies further that the district commission “may issue a master permit to
the extent that the district commission has made positive findings of fact and
conclusions of law under all criteria for any element or phase approved for
construction.”  Id.  In either context, Rule 21 mandates that
a permit may issue only when positive findings of fact and conclusions of law
have been made under all criteria and subcriteria.  It follows,
therefore, that findings of fact and conclusions of law on only some
criteria—but not all—are not equivalent to a permit.  Accordingly, we hold
that Rule 34(D) applies solely to the Act 250 land use permit issued after full
substantive review of all ten statutory criteria under 10 V.S.A. § 6086(a) and
cannot apply to findings of fact and conclusions of law on fewer than all of
the Act 250 criteria for a master plan.[6] 

¶ 26.        
We now turn to Mountainside’s argument—seemingly ignored by the dissent—
that the Environmental Court erred by approving co-applicants’ fifteen-lot subdivision
without comprehensive review under all Act 250 criteria per § 6081(a). 
Looking to the statute, Mountainside asserts that such a subdivision requires
an Act 250 land use permit, which, in turn, requires review of all criteria and
subcriteria and positive findings on each.  See 10 V.S.A. §§ 6081(a),
6086(a).  Co-applicants dodge the statute.  They offer no rebuttal to
this interpretation of Act 250’s strictures.  Instead, co-applicants rely
on Rule 34(D) to claim that using an administrative amendment to redraw lot
lines on the master plan—without any proposed development—was a proper exercise
of the District Commission’s discretion.  Co-applicants suggest that
“[t]here is no reason an applicant should be forced to obtain an actual permit
simply to make a technical amendment to a master plan.”  As already
stated, Rule 34(D) cannot be used to amend a master plan absent the full review
of all criteria necessary to obtain an Act 250 land use permit.  Rule
34(D) notwithstanding, § 6081(a) and § 6086(a) prevent creation of the
proposed subdivision absent full review of all criteria.  This so-called
“technical amendment”—which reconfigures a nine-lot subdivision into a
fifteen-lot subdivision for transfer to another company for future
development—triggers the subdivision jurisdiction of Act 250, requiring a
permit and the full review necessary to obtain
one.       
¶ 27.        
We turn to the statute.  The Legislature has expressed its intent
to require, in general, an Act 250 land use permit for both the subdivision and
development of land.  See In re CVPS/Verizon Act 250 Land Use Permit,
2009 VT 71, ¶ 15 (recognizing that Act 250 prohibits parties from subdividing
land or commencing development without a permit); In re Agency of Admin.,
State Bldgs. Div., 141 Vt. 68, 78, 444 A.2d 1349, 1353 (1982) (citing
testimony by drafters of amendment to Act 250 definitions that permit
requirement controls subdivisions and developments); see generally In re
Hinsdale Farm, 2004 VT 72, ¶ 5, 177 Vt. 115, 858 A.2d 249 (recalling that
our principal objective when interpreting statute is to implement legislative
intent).  Section 6081(a) specifically applies the permit requirement—the
key to Act 250’s compromise between conservation and development—to both
subdivisions and development.  See 10 V.S.A. § 6081(a) (“No person shall
sell or offer for sale any interest in any subdivision located in this state,
or commence construction on a subdivision or development, or commence
development without a permit.”); see also In re Village Assocs., 2010 VT
42A, ¶ 17,  (describing balance between conservation goals of Act 250 and
economic necessity of development).  Title 10 section 6001(19) defines
“subdivision” for purposes of Act 250 as “a tract or tracts of land, owned or
controlled by a person, which the person has partitioned or divided for the
purpose of resale into 10 or more lots within a radius of five miles of any
point on any lot, or within the jurisdictional area of the same district
commission, within any continuous period of five years.”  
¶ 28.        
Co-applicants’ proposed fifteen-lot subdivision, which the current
owners of Killington Resort Village seek to transfer to SP Land for future
development, plainly falls under Act 250’s permit requirement for
subdivisions.  See 10 V.S.A. §§ 6081(a), 6001(19).  Thus, it is
irrelevant that the master plan decision and the administrative amendment at
issue here required further review under the remaining Act 250 criteria and
subcriteria before any development could take place or that other Act 250
permit series cover Killington Resort Village for other purposes.[7]  The Legislature’s intent—as
evidenced by the terms of Act 250—contradicts co-applicants’ claim that the
proposed subdivision was a “minor change” and that full Act 250 review would be
a “meaningless exercise.”  Rather, the statute makes clear that the
Legislature intended full review under all Act 250 criteria and subcriteria for
just this kind of substantial subdivision.[8]  
Reversed and remanded to the
Environmental Division for further proceedings consistent with this opinion.
 

 


 
 


FOR THE COURT:


 


 


 


 


 


 


 


 


 


 


 


Associate
  Justice

 

 


 

¶ 29.        
REIBER, C.J., dissenting.    Although I am concerned
that the majority opinion should not be interpreted as affecting the master
plan rules, reducing their use by applicants, I dissent on a more fundamental
ground.  The issue the majority decides was not raised below in a timely
and proper manner and therefore should not be reviewable on appeal.  I do
not necessarily disagree with the majority’s holding that an administrative
amendment under Act 250 Rule 34 may be inappropriate where, as here, a master
plan application does not result in affirmative findings on all of the Act 250
criteria and a master plan permit.  I would emphasize, however, that under
the Master Permit Policy and Procedure a fully approved master plan application
may well support a later administrative amendment where it would not materially
affect any Act 250 criteria.  
¶ 30.        
Even with that understanding, however, I am compelled to conclude that
the majority opinion is advisory because the question it addresses—whether an
administrative amendment under Rule 34 requires an underlying Act 250
permit—was not raised with the trial court before the entry of judgment but
only later in a Rule 59(e) motion to alter or amend.  Nor was there a
challenge to the subdivision alignment of the very same acreage allowed by the
first administrative amendment in March 2004.  As the majority
acknowledges, it is well settled that a “ ‘Rule 59(e) motion may not be used .
. . to raise arguments . . . that could have been raised prior to the entry of
judgment.”  N. Sec. Ins. Co. v. Miotec Elec., Ltd., 2008 VT 96, ¶
44, 184 Vt. 303, 965 A.2d 447 (quoting 11 C. Wright et al., Federal Practice
and Procedure § 28101.1, at 127-28 (2d ed. 1995)).  
¶ 31.        
The majority acknowledges that the question it decides was not expressly
raised with the trial court before entry of judgment, but asserts nevertheless
that it was “at the core” of the case.  Ante, ¶ 18.  This is a
stretch, considering that the only filing the majority references in this regard
was a motion to alter submitted to the district commission questioning whether
the proposed fifteen-lot subdivision qualified as a “record-keeping” or “minor
revision” to an existing project under Rule 34(D).  Far from challenging
the fundamental applicability of Rule 34, therefore, the motion assumed that it
applied but questioned whether it met the requisite criteria as a minor
revision.   
¶ 32.        
Mountainside avers that the question of whether an administrative
amendment requires an underlying Act 250 permit was intrinsic to three of the
fifteen issues set forth in its statement of questions, specifically Questions
1, 4, and 15.  Question 1, however, merely asked whether Killington had
filed a “complete application.”  Question 4 asked whether the application
for administrative amendment required a preliminary evaluation under rule
34(E), which sets forth a balancing test, weighing the interests of flexibility
and finality.  Thus, it assumed the applicability of Rule 34 and merely
questioned whether its balancing requirements had been met.  Question 15
arguably comes closer but again simply asked whether the proposed fifteen-lot
subdivision was proper without a review of the Act 250 criteria; it essentially
questioned whether the proposed amendment was a material change under Rule 34
without challenging the Rule’s fundamental applicability absent an underlying
Act 250 permit.    
¶ 33.        
It is well settled that Rule 59(e) “does not provide a vehicle for a
party to undo its own procedural failures, and it certainly does not allow a
party to introduce new evidence or advance arguments that could and should have
been presented to the [trial] court prior to the judgment.”  Moro v.
Shell Oil Co., 91 F.3d 872, 876 (7th Cir. 1996); accord Vallejo v.
Santini-Padilla, 607 F.3d 1, 7 n.4 (1st Cir. 2010) (noting that
“[a]rguments that could have been raised before may not be raised for the first
time in a motion for reconsideration” (quotation omitted)); Rosenzweig v.
Azurix Corp., 332 F.3d 854, 863 (5th Cir. 2003) (stating that Rule 59(e)
“cannot be used to raise arguments which could, and should, have been made
before the judgment issued” (quotation omitted)); Kona Enters., Inc. v.
Estate of Bishop, 229 F.3d 877, 890 (9th Cir. 2000) (observing that Rule
59(e) should be “used sparingly in the interests of finality and conservation
of judicial resources” and “may not be used to raise arguments . . . for
the first time when they could reasonably have been raised earlier in the
litigation” (quotation omitted)).  Mountainside plainly waived the issue
the majority decides by failing to raise it either explicitly or implicitly
throughout the lengthy litigation process that preceded the trial court’s entry
of judgment.  Accordingly, on this basis I would affirm the judgment.

 


 


 


 


 


 


 


 


 


 


 


Chief Justice

 







[1] 
The third administrative amendment specifically states that “[p]rior to any
appeal of this Administrative Amendment to the Environmental Court, the
applicant or a party must file a Motion to Alter with the District Commission
within 15 days from the date of this Administrative Amendment, pursuant to Act
250 Rule 34.”  See Act 250 Rule 34(D)(2), 6 Code of Vt. Rules 12 004
060-15, available at http://www.michie.com/vermont.    Motions
to alter are covered by Rule 31(A), which requires that a moving party request
alteration only on a “proposed reconsideration of the record,” and that each
requested alteration be numbered separately and be accompanied by a supporting
memorandum of law.  Act 250 Rule 31(A)(1), (2), 6 Code of Vt. Rules 12 004
060-12-13, available at http://www.michie.com/vermont.


[2] 
Co-applicants urge us to afford the Environmental Court’s interpretation of
Rule 34(D) the same high level of deference we gave the former Environmental
Board.  See In re Wal-Mart Stores, Inc., 167 Vt. 75, 79, 702 A.2d
397, 400 (1997) (“Absent compelling indications of error, we will sustain [the
Environmental Board’s] interpretations [of its own rules] on appeal.”). 
This is not a case, however, where we are dealing with an agency’s
interpretations of its own rules, see In re Nehemiah Assocs., 168 Vt.
288, 292, 719 A.2d 34, 36 (1998), but rather one where we are reviewing a
decision from a part of the judicial branch.  Thus, separation-of-powers
concerns do not require deferential review here.  In re Albert,
2008 VT 30, ¶ 6, 183 Vt. 637, 954 A.2d 1281 (mem.).


[3] 
Although the dissent appears to place weight on the fact that there was no
challenge to the first administrative amendment authorizing the subdivision of
the same acreage, this has no bearing on the resolution of this issue.  We
do not reach back to the previous amendment when we resolve the issue before us
of the third administrative amendment.  We note, too, that the previous
amendment authorized a nine-lot subdivision, and 10 V.S.A. § 6001(19)
defines “subdivision” for purposes of Act 250 jurisdiction to include
subdivisions of ten or more lots.    
 


[4] 
The dissent agrees that question 15 asked whether the proposed fifteen-lot
subdivision was proper without a review of the Act 250 criteria, but it
mischaracterizes the crux of the question when it concludes that this
“essentially question[s] whether the proposed amendment was a material change
under Rule 34 without challenging the Rule’s fundamental applicability absent
an underlying Act 250 permit.”  Post, ¶ 32. 
 


[5] 
Only after the Environmental Court concluded in this decision that no Act 250
land use permit existed but that the lack of authorized development created an
exception to Act 250’s required compliance with all criteria could Mountainside
articulate its question regarding the court’s legal interpretation of Rule
34(D) with the precision and clarity found in its Rule 59(e) motion; it was
not, however, a new issue in the case.  


[6] 
Because we agree that the plain language of Rule 34(D) requires an Act 250 land
use permit for the rule to apply, we do not reach Mountainside’s additional
argument that the Natural Resources Board Land Use Panel’s interpretation of
its own rule requires an Act 250 land use permit for an administrative
amendment to issue under the rule.
 


[7] 
We note that the District Commission’s 1999 partial findings of fact and
conclusions of law on the master plan have expired by their own terms; the
second administrative amendment, issued in August 2004, renewed them for only
another five years.  
   


[8] 
Given our holding, we do not reach Mountainside’s argument that the
Environmental Court was statutorily required to consider Environmental Board
precedent requiring a permit—and full Act 250 review—for similar subdivisions.
 



