                                   STATE OF VERMONT
SUPERIOR COURT                                              ENVIRONMENTAL DIVISION
Vermont Unit                                                  Docket No. 138-9-14 Vtec


Waterfront Park Act 250 Amendment                         DECISION ON MOTIONS



                      Decisions on Cross-Motions for Summary Judgment
       This matter relates to the Waterfront Park located along Lake Champlain in Downtown
Burlington, Vermont (the Park). The City of Burlington (the City) obtained an Act 250 Land Use
Permit for Waterfront Park in 1990 (Permit #4C0863). In 1994, the City applied for and
received an Act 250 Permit Amendment in order to host festivals and other public events at the
Park (Permit #4C0863-1). As a part of that Permit Amendment, the District # 4 Environmental
Commission (the Commission) imposed certain conditions related to noise levels and the
number, frequency, duration, and season for events at the Park. In November 2012 the City
filed an application to further amend the Act 250 Permit to modify those conditions and make
additional alterations to the lighting, location of the bike path that runs through the Park, water
and electrical utilities, and stormwater design. Neighboring property owner Allison Lockwood
(Appellant) opposes modification of the conditions imposed by the 1994 Permit Amendment
and appeals the Commission’s approval of the permit amendment.
       This decision considers cross-motions for summary judgment on Question 1 of
Appellant’s statement of Questions. Question 1 asks: “as a preliminary matter, is the City of
Burlington entitled to seek an amendment of Conditions #12, #14, #18, #19, and #20 of Act 250
Permit #4C0863-1 under the In re Stowe Club Highlands analysis and Rule 34(E) of the Natural
Resources Board Act 250 Rules?” Appellant is represented in this appeal by Hans G. Huessy,
Esq. and Liam L. Murphy, Esq.; the City of Burlington is represented by Elizabeth H. Catlin, Esq.,
Brian S. Dunkiel, Esq., and Geoffrey H. Hand, Esq.; and the Natural Resources Board is
represented by Gregory J. Boulbol, Esq.
       For the sole purpose of putting the pending motions into context the Court recites the
follow facts which are undisputed:
                                      Factual Background
1.     In 1990 the City obtained Land Use Permit # 4C0863 for Waterfront Park in the City of
       Burlington, Vermont.
2.     In the summer of 1993 the City held 13 events at Waterfront Park. A few additional
       events may have been held at the Park during the summers between 1990 and 1993.
3.     In December 1993, the City applied for an amendment to Land Use Permit # 4C0863 to
       allow for hosting festivals and other public events at the Park.
4.     In February 1994, the District # 4 Environmental Commission issues the amended
       permit, # 4C0863-1 (the 1994 Amended Permit).
5.     During the 1994 Amended Permit proceedings, the Commission considered the impacts
       on the neighboring residents caused by noise and traffic from the events.
6.     The Commission imposed 26 conditions on the 1994 Amended Permit, some of which
       were related to maximum sound levels caused by events at the Park, when and where
       to measure those sound levels, and the timing and number of events.
7.     The City recognized at the time that Waterfront Park was a dynamic area and that there
       would likely be an expansion in both residential and commercial development in the
       area in the future.
8.     Allison Lockwood purchased her residential property at 200 Lake Street # 2 in August
       2008. Ms. Lockwood knew of the permit conditions imposed by the 1994 Amended
       Permit and relied on the sound related conditions in deciding to purchase her property.
9.     Ms. Lockwood purchased her property knowing that festivals and other public events
       were held at Waterfront Park, but understood that 1994 Amended Permit placed
       limitations on the number, timing, and frequency of events.
10.    Both noise and traffic from events at Waterfront Park may impact Ms. Lockwood’s use
       and enjoyment of her property.




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11.    In the more than 20 years since the 1994 Amended Permit there has been significant
       additional development in the area surrounding Waterfront Park. This includes both
       residential and commercial development.
12.    A number of signature events held at Waterfront Park, particularly the Burlington
       Discover Jazz Festival, the KeyBank Vermont City Marathon, the Vermont Brewer’s
       Festival, the Dragon Boat Festival, and other events have been extremely successful and
       have become central elements of City and regional cultural life. These events and
       others held at Waterfront Park attract over 185,000 visitors to downtown Burlington
       each year and create significant economic activity.
13.    In 2013, the City Council of Burlington adopted a planning document titled “PlanBTV”
       establishing the City’s development goals for downtown Burlington and the Waterfront.
       PlanBTV includes goals of increasing the use of Waterfront Park for civic and cultural
       events   and    festivals   while   minimizing    impacts   on   surrounding   residential
       neighborhoods.
14.    The City’s 2014 Municipal Development Plan also mentions the signature events held at
       Waterfront Park and encourages efforts to support arts and entertainment within the
       City.
15.    The City now seeks to amend Conditions 12–20 of the 1994 Amended Permit to allow
       for events to be held at Waterfront Park year round, to update the maximum sound
       levels, monitoring procedures, and alter the limitations on the duration, frequency, and
       timing of events.
                                            Analysis
       The sole legal issue raised in the cross-motions for summary judgment is whether the
City is barred from seeking a permit amendment to alter Conditions 12, 19, and 20 of the 1994
Amended Permit.       Appellant argues that Rule 34(E) precludes the amendment of those
conditions and ask for judgment in her favor.           The City opposes summary judgment in
Appellant’s favor. The NRB has cross-moved for summary judgment arguing that based on the
undisputed facts, the City is entitled to seek the amendment, and therefore, Question 1 should
be answered in the City’s favor allowing this matter to proceed to the merits of the amendment


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application. The NRB also argues that Appellant is precluded from arguing that the City is not
entitled to a permit amendment based on a settlement agreement, entered as a judicial order
by this Court, in a related matter. The City has filed a memorandum in support of the NRB’s
cross-motion. We first address the NRB’s preclusion argument, and then undertake the Rule
34(E) analysis.
I.     Whether Appellant is Precluded from Challenging the City’s Ability to Seek a Permit
       Amendment
       Claim preclusion, also called res judicata, “bars litigation of a claim or defense if there
exists a final judgment in former litigation in which the parties, subject matter, and causes of
action are identical or substantially identical.” Kellner v. Kellner, 2004 VT 1, ¶ 8, 176 Vt. 571
(quoting Lamb v. Geovjian, 165 Vt. 375, 379–80 (1996). Specifically within the context of a
stipulated settlement, the Vermont Supreme Court has recognized that settlement agreements
“save the judicial system valuable time and money by freeing trial judges to focus on those
disputes that litigants are unable to resolve themselves. They also permit litigants greater
control over the disposition of their cases because they represent the result of the bargaining
process.” Id. at ¶ 10. As such, the Court disapproved a collateral attack on a stipulated
settlement, noting that allowing such an attack would deter use of stipulated settlement orders
“out of fear that they will not be given the preclusive effect of judgments drafted exclusively by
the trial court. Furthermore, litigants could settle cases in bad faith with the knowledge that
they could wait to deploy any legal arguments against the settlement until such time as the
other party attempts to enforce its terms.” Id.
       In the pending matter, the City and Appellant were both involved in an appeal before
this Court of an Act 250 jurisdictional opinion involving property adjacent to Waterfront Park, In
re Moran Plant Act 250 Jurisdictional Opinion #4-228, No 34-2-12 Vtec. That matter related to
Act 250 jurisdiction over a parcel of land immediately north of Waterfront Park that came
under City ownership and control after the Waterfront Park Act 250 permit had been issued.
The parties to that appeal are the same as are now before the Court: Appellant Allison
Lockwood, the City of Burlington, and the Natural Resources Board. To resolve the case, the
parties signed and submitted a Stipulation, Findings of Fact, Conclusions of Law, and Judgment
Order, which this Court signed and entered as a Court Order on September 17, 2014.

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Paragraph 32 of that Order states: “Within 60 days of the Court’s entry of this Judgment Order,
Burlington shall apply for an amendment to the existing Waterfront Park permit (LUP #4C0863)
concerning the uses and management of the Waterfront Park.” The amendment application
required by the Court’s September 17, 2014 Order is the application now before the Court.
       The NRB argues that because Appellant signed the stipulated settlement order requiring
that the City apply for a permit amendment, Appellant cannot now argue that such an
amendment application is barred. In response Appellant argues that “the issue litigated in the
prior matter has nothing to do with the issue presently before the Court” and that “[p]aragraph
32 of the JO Order merely stated that the City would apply for an amendment to the Permit. It
did not state that Ms. Lockwood could not contest the proposed amendment, and it did not
state that the proposed amendment would be exempt from Rule 34(E).” (Appellant’s Reply in
Support of Mot. for Summ. J. at 13–14, filed Jan. 9, 2015).
       In reviewing the pleadings, we find that material facts are in dispute as to whether the
amendment application required by the parties’ stipulated settlement order was specifically
related to the conditions at issue in this appeal and whether the settlement contemplated that
Rule 34(E) would not apply. Based on the limited evidence, we are inclined to agree with the
NRB. It would be akin to the bad faith negotiation alluded to by the Supreme Court in Kellner
to allow Appellant to argue that the City is legally prohibited from seeking a permit amendment
if Appellant signed a stipulated settlement order providing that the City must apply for that
same amendment. We need not resolve this issue, however, as we conclude below that Rule
34(E) does not preclude the City from seeking an amendment to the conditions contained in Act
250 Permit 4C0863-1.
II.    Rule 34(E) Analysis
       Under Act 250 Rule 34(E), which codified the Vermont Supreme Court’s analysis in In re
Stowe Club Highlands, an applicant may be precluded from amending conditions in a final and
binding Act 250 land use permit. 166 Vt. 33, 38–40 (1996); 16-5 Vt. Code R. § 200:34(E). One
goal of limiting the ability to seek permit amendments is to ensure that the grant of an Act 250
permit is not “merely a prologue to continued applications for permit amendments.” Stowe
Club Highlands, 166 Vt. at 39.      Where, however, justification exists for the amendment


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application, the Commission, and this Court on appeal, must consider whether the
amendments comply with Act 250. As the Environmental Board noted, “Act 250 permits are
written on paper, not carved in stone, and the relitigation concepts embodied in [Rule] 34(E)(2)
cannot be considered to be unconditionally ironclad, as, in some sense, every permit
amendment application is a relitigation of an initial permit condition.”         Re: Dr. Anthony
Lapinsky and Dr. Colleen Smith, Nos. 5L1018-4 and 5L0426-9-EB, Findings of Fact, Conclusions
of Law, and Order, at 18 (Vt. Envtl. Bd. Oct. 3, 2003).
       Determining whether an applicant is entitled to seek an amendment requires a three-
step analysis. The first step in the analysis focuses on the nature of the permit condition at
issue, specifically “whether the applicant proposes to amend a permit condition that was
included to resolve an issue critical to the issuance of the permit. This determination shall be
made on a case-by-case basis.” 16-5 Vt. Code R. § 200:34(E)(1). If the condition was not
included to resolve a critical issue, then the applicant is entitled to seek an amendment.
       Next, if the condition was critical to the issuance of the permit, we must “consider
whether the permittee is merely seeking to relitigate the permit condition or to undermine its
purpose and intent.” Id. at § 200:34(E)(2). If the applicant is only seeking to relitigate or
undermine the condition, the analysis ends and the applicant is not entitled to seek an
amendment.
       Finally, in determining whether an applicant may seek a permit amendment, the Court
must weigh the competing goals of finality and flexibility based on an enumerated list of
factors.
       In balancing flexibility against finality, the district commission shall consider the
       following, among other relevant factors:
       (a) changes in facts, law or regulations beyond the permittee's control;
       (b) changes in technology, construction, or operations which necessitate the
           need for the amendment;
       (c) other factors including innovative or alternative design which provide for a
           more efficient or effective means to mitigate the impact addressed by the
           permit condition;
       (d) other important policy considerations, including the proposed amendment's
           furtherance of the goals and objectives of duly adopted municipal plans;




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       (e) manifest error on the part of the district commission, the environmental
           board, or the environmental court in the issuance of the permit condition;
           and
       (f) the degree of reliance on prior permit conditions or material representations
           of the applicant in prior proceeding(s) by the district commission, the
           environmental board, the environmental court, parties, or any other person
           who has a particularized interest protected by 10 V.S.A. Ch. 151 that may be
           affected by the proposed amendment.
Id. at § 200:34(E)(4). The Court will thus determine, on a case by case basis, whether flexibility
in the permitting process is warranted or whether finality is needed.
       i.      Condition 12
       The first condition raised in Appellant’s Statement of Questions and Motion for
Summary Judgment is Condition 12. Condition 12 of the 1994 Permit Amendment states:
       The Parks and Recreation Commission shall create an Advisory Event Selection
       Committee that shall include representatives of the Parks and Recreation
       Commission, the Parks and Recreation Department, event producers, a
       representative of the 216 Lake Street building, and one other resident or
       business owner in the Lake Street area. The role of the Event Selection
       Committee shall be to consider and recommend specific events and schedules
       for events to mitigate the impact of large events and amplified music on the
       residential neighbors, by spacing the schedule of the larger Class I events,
       identifying the location of tents and ensuring that during events where amplified
       music will be occurring lasting longer than 6 hours there will be scheduled breaks
       so that there are quiet periods. The Event Selection Committee shall
       recommend events based on the rules for waterfront park use adopted by the
       Parks and Recreation Commission.
(Land Use Permit 4C0863-1 at 3, filed Nov. 21, 2014 as Exhibit 2). This condition merely reflects
a policy procedure for selection of events. Although Condition 12 discusses consideration of
mitigating impact in the selection process, it does not set any specific requirements related to
any of the 10 Act 250 Criteria. We therefore conclude that Condition 12 was not critical to the
issuance of the 1994 Permit Amendment and therefore the City is free to seek an amendment
to that condition.




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          ii.     Condition 19
          Condition 19 is the primary condition at issue in these motions and this appeal. It
states:
          The following rules shall apply to events held in the park, unless the Permittee
          secures written permission from the District Commission to change these rules.1
          a) The park can be used for events for up to 27 days between May 27 and
             September 15.
          b) A maximum of 22 days may involve amplified music. Amplified music does
             not include music from acoustic instruments which is subsequently amplified.
          c) No more than 18 of the 27 days may be Saturdays and Sundays.
          d) Events may occur on no more than three consecutive weekends.
          e) Sound will not exceed 85 decibels, measured at the perimeter of the park
             nearest the source of the sound. Sound may not exceed 75 decibels
             measured at the eastern edge of Lake Street adjacent to any residential or
             commercial property.
          f) The cutoff time for amplified music will be 9:45 PM Sunday through Thursday
             and 10:45 PM on Friday and Saturday.
(Land Use Permit 4C0863-1 at 5, filed Nov. 21, 2014 as Exhibit 2). This condition sets specific
standards on the number, timing, and nature of events and maximum noise levels. There can
be little question that Condition 19 was included to ensure compliance with Act 250 criteria and
was critical to the issuance of the permit.
          Based upon the above findings of fact, especially facts 11 through 14, the City made a
sufficient showing that the amendment application is due to changes in circumstances
regarding the use of Waterfront Park and the City’s development plans that have occurred over
the past 20+ years since the conditions were put in place. Appellant argues that these changes
were foreseeable and were fully litigated during the 1994 proceedings. This is insufficient to
establish that the City is merely trying to undermine or relitigate the conditions. The City is not
seeking to abandon the conditions in their entirety and avoid the requirement that events at

1
  The language used by the Commission in establishing Condition 19 indicates that an amendment to the Condition
was contemplated at the time it was imposed. That the Commission specifically mentioned the possibility of
written permission to change Condition 19 weights strongly in favor of allowing for flexibility. This Court has, in
dicta, stated that where a permit condition specifically contemplates a permit amendment Rule 34(E) may be
inapplicable. See In re Zaremba Group Act 250 Permit, No 3-36-13 Vtec, slip op. at 12–13 (Vt. Super. Ct. Envtl. Div.
Feb. 14, 2014) (Walsh, J.). The Court need not determine, however, whether the language used by the
Commission in Condition 19 makes Rule 34(E) wholly inapplicable as the language of the condition in addition to all
the factors enumerated in Rule 34(E) all support a finding that flexibility outweighs finality and the City may seek a
permit amendment in this case.

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Waterfront Park have no undue adverse impacts on the surrounding neighborhood. Rather,
the City seeks to alter the conditions to better meet the changing needs of the City and the
community. Based on the undisputed facts, the Court concludes that the City is not motivated
by a desire to relitigate or undermine the 1994 Permit Amendment conditions. We therefore
consider whether finality outweighs flexibility with regard to Condition 19.
        The first three factors of Rule 34(E)(4) all relate to intervening changes between the
time the condition was imposed and the time the permit amendment is sought. Factor (a)
relates to “changes in facts, law or regulations beyond the permittee's control,” factor (b)
relates to “changes in technology, construction, or operations which necessitate the need for
the amendment,” and factor (c) relates to “other factors including innovative or alternative
design which provide for a more efficient or effective means to mitigate the impact addressed
by the permit condition.” 16-5 Vt. Code R. § 200:34(E). All three of these factors weigh in favor
of flexibility.
        First, while the relevant law and regulations, Act 250 and the NRB’s Act 250 Rules, have
not changed regarding noise impacts under Act 250 Criterion 8, conditions mitigating noise
impacts have advanced considerably since the 1994 Permit Amendment was issued. Condition
19 refers to noise not exceeding “75 decibels” without reference to how this limit is to be
measured. The Environmental Board, this Court, and the Vermont Supreme Court have all
recognized that there are multiple ways to measure sound level and the impacts of sound on
the surrounding area. See In re Application of Lathrop Ltd. P’ship, 2015 VT 49, ¶ 77, available at
http://info.libraries.vermont.gov/supct/current/op2013-444.html. In 2000, the Environmental
Board first used the Lmax standard for measuring and limiting the maximum noise at property
lines and areas of frequent human use. Re: Barre Granite Quarries, LLC, No. 7C1079(Revised)-
EB, Findings of Fact, Conclusions of Law, and Order at 80–81 (Vt. Envtl. Bd. Dec. 8, 2000).
Furthermore, the City points to the Guidelines for Community Noise published in 2000 by the
World Health Organization, based on research published and developed between 1995 and
1999, which informs how noise should be regulated based on the adverse health impacts noise
can cause. These changes to the regulatory framework for addressing noise impacts weigh in
favor of revisiting Condition 19 in light of modern noise regulation.


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       There have also been changes in the City’s use of Waterfront Park in the past 20+ years.
It is undisputed that in 1994 the City had just begun to host events at Waterfront Park.
Significant funds have been expended between 1996 and the present to improve Waterfront
Park. The events held at Waterfront Park have become an important element of the City’s
cultural life and are a major economic benefit to City businesses. The number and location of
residential and commercial structures in the neighborhood surrounding Waterfront Park has
also changed significantly since the 1994 Permit Amendment was issued. Given these changes,
it is appropriate to revisit whether or not Condition 19 is the most effective way to mitigate any
adverse impacts events at the Park may cause. This is a primary purpose of allowing for
amendment of permit conditions. As the Supreme Court has noted, “[i]f existing permit
conditions are no longer the most useful or cost-effective way to lessen the impact of
development, the permitting process should be flexible enough to respond to the changed
conditions.” Stowe Club Highlands, 166 Vt. at 38.
       Appellant argues that all of the changes in the use of Waterfront Park were foreseeable
at the time of the 1994 Permit. While it is true that a change in fact or law may not always
justify an amendment, especially “where the change was reasonably foreseeable at the time of
permit application,” our primary concern is “whether allowing the permit amendment is
appropriate under the circumstances.” In re Nehemiah Assocs., Inc., 168 Vt. 288, 294 (1998);
Stowe Club Highlands, 166 Vt. at 40. The City may have been able to predict that demand for
events at Waterfront Park would grow in the 20 years following the first use of the Park for that
purpose. In fact, the City most likely hoped that this would be the case. Foresight alone does
not overcome the conclusion that the changes in circumstances since the 1994 Permit
Amendment justify consideration of whether Condition 19 is the most efficient and cost-
effective way to minimize any adverse impacts caused by the City’s use of Waterfront Park.
       Subsection (d) of Rule34(E)(4) requires consideration of “other important policy
considerations, including the proposed amendment's furtherance of the goals and objectives of
duly adopted municipal plans.” This factor weighs in favor of flexibility. The 2014 City
Municipal Development Plan supports consideration of ways to increase use of Waterfront Park
while minimizing impacts on neighboring property owners. It states that the City should make


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efforts to continue to support arts and entertainment and lauds the success of the signature
events held at Waterfront Park and the positive impact those events have on the City and the
region. Allowing consideration of the permit amendment the City now seeks furthers these
policy goals. The proposed amendment also furthers the policy and goals of the PlanBTV
planning document adopted by the City Council. That Plan includes the following:
       Waterfront Park has been wildly successful as a place to host important cultural,
       civic, and athletic events that bring thousands of people to Burlington’s
       waterfront each year. These events celebrate our community and lakefront,
       expose new people to the city, and generate millions of dollars for the local
       economy. The continued evolution of Burlington’s waterfront into a mixed-use
       area that is active year-round will require a careful balance of competing
       demands. Waterfront businesses and residents need to embrace the important
       community role played by the park and its many events, while waterfront event
       planners and organizers need to be sensitive to the impacts that event noise,
       lighting, and traffic congestion has on their neighbors.
(PlanBTV at 59, filed Dec. 22, 2014 as Attachment A to City’s Exhibit 2). The Plan goes on to
include that one way this goal can be accomplished is to “ensure noise levels stay in compliance
with City ordinances and permits.” Id. The most effective way to accomplish this goal is not
precluding the City from seeking a permit amendment to facilitate the “continued evolution of
Burlington’s waterfront into a mixed-use area that is active year-round,” but rather to consider
through the Act 250 process whether such a goal can be implemented without undue adverse
impacts on neighboring residents and what the best methods are, based on present-day
circumstances, to mitigate impacts. This factor, therefore, weighs heavily in favor of flexibility.
       Finally, Appellant argues that she reasonably relied on Condition 19 in purchasing her
property on Lake Street, and therefore, factor (f) of Rule 34(E)(4) weighs in favor of finality. As
noted above, Condition 19 specifically contemplates the opportunity for it being amended.
Appellant’s position that she relied on Condition 19 is therefore not reasonable.
       For the reasons detailed above and considering the language of Condition 19 and all of
the factors enumerated in Rule 34(E)(4), the Court concludes that flexibility is warranted under
the circumstances and the City is free to seek an amendment to Condition 19.




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        iii.   Condition 20
        Condition 20 of the 1994 Amended Permit relates to sound monitoring to ensure that
Condition 19 is complied with. It states:
        The Parks and Recreation department shall enforce noise related rules by
        monitoring sound levels at the park at the park perimeter nearest to the site of
        festival tents where music is performed and at the perimeter of the park
        adjacent to any residential structures on an hourly basis during public events
        involving music performances. On a monthly basis, the sound monitoring logs
        shall be sent for review to the City Health Officer. The sound monitoring logs
        shall be sent on an annual basis to the Parks and Recreation Commission prior to
        the annual fall public hearing to review the Waterfront Park public events rules.
With regards to the portion of Condition 20 related to the location of noise monitoring, we
conclude that flexibility is appropriate here for all the reasons stated above relating to
Condition 19. As the appropriate limitations on noise caused by events at Waterfront Park are
considered, the appropriate location and timing for monitoring that noise should be also. With
regards to the requirements that monitoring logs be sent to the City Health Officer or the Parks
and Recreation Commission, these conditions do not mitigate impacts on interests protected by
Act 250 and thus were not critical to the issuance of the amended permit. The City is therefore
free to seek an amendment of Condition 20.
                                             Conclusion
        Waterfront Park is an important attribute of the City of Burlington and the surrounding
region. Impacts on surrounding residential neighbors, including Appellant, must be considered
and mitigated if the City wishes to alter its permitted use of Waterfront Park for festivals and
other events. The City is not, however, precluded from seeking a permit amendment in this
case.
        Given the changes in facts, technology, and how this Court, the Environmental Board,
and the Supreme Court have assessed what limitations should be placed on noise-creating
developments, it is appropriate to reconsider whether the permit conditions in the 1994
Amended Permit are the most appropriate and cost-effective way to mitigate impacts. The
language of the most important and substantive of those conditions indicates the possibility
that it could be altered in the future, and therefore, flexibility is warranted in this case.



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       For all these reasons, Appellant’s motion on her Question 1 is DENIED and the NRB’s
cross-motion for summary judgment on Appellant’s Question 1 is GRANTED. Act 250 Rule
34(E), also known as the Stowe Club Highlands doctrine, does not preclude the City from
seeking an amendment to the conditions contained in Act 250 Permit 4C0863-1.




       Electronically signed on May 08, 2015 at 09:18 AM pursuant to V.R.E.F. 7(d).




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




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