                          Environmental Court of Vermont
                                 State of Vermont

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                   E N T R Y R E G A R D I N G M O T I O N
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In re: Edward E. Buttolph Revocable Trust              Docket No. 19-2-09 Vtec
       (Appeal from Act 250 District Commission denial of abandonment petition)

Title:        Motion to Alter

Filed:        October 13, 2009

Filed By:     John H. Hasen, Attorney for Appellee Land Use Panel of the Vermont
              Natural Resources Board

Response:     In opposition, filed on October 26, 2009, by Donald R. Powers,
              Attorney for Applicant-Appellant Edward E. Buttolph Revocable Trust


___ Granted                 _X_ Denied                 ___ Other


      The Land Use Panel of the Vermont Natural Resources Board (“NRB”) has
requested that this Court alter its Decision of October 1, 2009, granting
Applicant-Appellant summary judgment upon its Act 250 abandonment petition.
For the reasons detailed below, we DENY Appellee’s motion to alter that prior
judgment.
      On May 6, 1999, Appellants applied for Act 250 approval of a twelve-lot
subdivision. While the District Commission was considering Appellant’s initial
Act 250 application, Appellants caused improvements to be made to Town Highway
44 (“TH #44”). The road improvements were made in the hope of securing an Act
250 permit for Appellant’s proposed multi-lot subdivision, but the District
Commission denied Appellant’s initial Act 250 permit application.        After
proposing in 2001 to complete further road improvements to TH #44, Appellant’s
revised application was also denied.    As a result, Appellant did not obtain
Act 250 approval until a third application was submitted in 2003.
      Since its initial Act 250 application was denied in 2000, Appellant has
not caused any construction or improvements on either the approved subdivision
or TH #44.   In February 2007, Appellant petitioned to have its 2003 Act 250
permit declared abandoned, due to non-use. This Court granted that petition by
entry of summary judgment on October 1, 2009. It is that Decision that the NRB
now seeks to convince this Court to alter.
      A motion to reconsider under Vermont Rule of Civil Procedure 59(e) gives
a trial court the opportunity “to respond to an intervening change in
controlling law, the availability of new evidence not previously available, or
the need to correct a clear error of law or to prevent manifest injustice.”
Appeal of Van Nostrand, Nos. 209-11-04 & 101-5-05 Vtec, slip op. at 4 (Vt.
Envtl. Ct. Dec. 11, 2006) (Durkin, J.). Rule 59(e) provides an “extraordinary
remedy that should be used sparingly.”      Id.   It should “not be used to
relitigate old matters, or raise arguments or present evidence that [was or]
could have been raised prior to entry of the judgment.” Id. Granting relief
is within the trial court’s discretion; motions to reconsider are typically
denied. Id.
In re: Edward E. Buttolph Revocable Trust A250 Abandonment Petition, No19-2-09 Vtec   Page 2 of 3



      An Act 250 permit is abandoned if it is not “used” for a period of three
years after issuance.    10 V.S.A. §6091(b).   A permit is considered “used” if
the   permittee   has   made  “substantial   progress   toward  completion”  of
construction.   Id.   Act 250 Rule 38(A) provides that “any person who was a
party to the application proceedings” may petition the applicable district
commission “to declare a permit void for non-use.” Act 250 Rule 38(A)(1).
      In its motion to reconsider, Appellee repeats its contention that
Appellant does not enjoy a right to petition for abandonment under Rule 38(A).
We rejected this argument in our October 1, 2009 Decision. Even though the NRB
has presented no new legal arguments and therefore has failed to fulfill its
obligation under V.R.C.P. 59(e), we have again reviewed the applicable Rule and
case law.    Our subsequent review has not presented any support for NRB’s
interpretation of Act 250 Rule 38(A). In particular, we cannot discern how a
permittee can be stripped of the right to petition for abandonment, when the
Rule clearly provides that “any person who was a party to the application
proceedings” has such a right.    The NRB has provided no legal foundation for
its claim, leaving us to wonder how an applicant can be stripped of a right
enjoyed by all other parties to an Act 250 permit proceeding. We decline NRB’s
invitation to alter the October 1st Decision, since no legal support has been
presented for such an alteration.
      NRB also takes issue with this Court’s “unfortunate” decision to not
“address” the Supreme Court decision in In re Rusin, 162 Vt. 185 (1994), even
though the NRB had “directed” this Court to the Rusin decision. Our decision
to not rely upon Rusin was purposeful because the facts in Rusin are inapposite
to the case at bar. We are not aware of a trial court’s obligation to address
all case law that a party cites, only that which may guide its decision.
Nonetheless, in light of NRB’s repeated protestations, a brief review of Rusin
has become appropriate.
      In Rusin, after the applicant obtained an Act 250 permit, he commenced
construction on his subdivided property, including completely constructing over
1,100 feet of roadway, clearing land, constructing two ponds, and completely
constructing his own residence.    Id. at 187, 191.   After completing all this
work, Mr. Rusin petitioned for abandonment, arguing that “he never used the
permit” because the construction ultimately performed departed from the
original plan, such that Act 250 jurisdiction would not have attached to his
“as built” project.    Id. at 191.    The Supreme Court rejected this argument,
holding that petitioner had “used” his permit after its issuance by relying on
it for the authority to commence and complete the construction actually
performed.   Id.  In affirming the former Environmental Board’s denial of Mr.
Rusin’s “voluntary” abandonment petition, the Supreme Court referenced the
language of Rule 38(A), holding that where “construction significant in light
of the project contemplated” had been completed, abandonment of an Act 250
permit has not occurred. Id.
      None of the facts that led the Supreme Court to affirm the denial of an
abandonment petition in Rusin appear in the record before us in this appeal.
The legal standard from Rusin is a repetition of the standard established in
Act 250 Rule 38(A): that an abandonment petition, including a “voluntary” one
filed by a permittee, may not be granted where the permittee has taken
“significant steps to realize his project.” Id. It was clear to the Supreme
Court that the record before it in Rusin revealed that significant steps had
been taken towards completion of the project envisioned by the Act 250 permit.
To equate the insufficient, partial road improvements completed by Appellant
here with the substantial construction completed in Rusin defies logic and
reason.
In re: Edward E. Buttolph Revocable Trust A250 Abandonment Petition, No19-2-09 Vtec   Page 3 of 3



      The NRB correctly contends that an Act 250 permit is deemed to have been
“used” when a permittee takes significant steps toward project completion,
including substantial construction that occurs before an Act 250 permit is
issued.   However, the NRB confuses the test employed to trigger Act 250
jurisdiction (i.e., a “substantial change” analysis) with the test employed in
a petition for abandonment (i.e.,        a “substantial   construction toward
completion” of the project analysis).
      Act 250 jurisdiction is triggered when construction results in a
significant impact on the interests protected by Act 250; but a permit is
deemed to have been “used” only when a project is substantially completed under
the authority of a permit.     We know of no authority that links these two
separate legal questions and cannot assume that actions that satisfy the
jurisdictional analysis must always be deemed sufficient to argue against
abandonment.   Ironically, were we to adopt the logic propounded by NRB, we
could envision a permittee defending against a claim of abandonment by merely
doing a little road work, thereby effecting an indefinite life to its Act 250
permit. We cannot envision that such a result was intended when Rule 38(A) was
crafted and cannot imagine that such an outcome is desired by NRB.
      In the matter before this Court, Appellant triggered Act 250 jurisdiction
by proposing a multi-lot subdivision of his property.    Since Appellant caused
certain road improvements to be performed in 1999 solely for the purpose of
supporting its proposed subdivision, those road improvements came under the
jurisdictional authority of the District Commission considering Appellant’s Act
250 application.   However, the jurisdictional authority over Appellant’s past
and future road improvements does not end our current abandonment analysis. A
jurisdictional analysis does not equate to an abandonment analysis; they are
different processes.
      The facts before us, even when viewed in the light most favorable to NRB,
cannot support a legal conclusion that the 1999 road improvements evidenced
“substantial progress toward completion” of the project contemplated under
Appellant’s Act 250 permit. Our October 1st Decision remains the only logical
legal conclusion, based on the record before us. We must therefore DENY NRB’s
motion to alter our prior Decision.




___________________________________________      _______October 29, 2009______
         Thomas S. Durkin, Judge                            Date
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Date copies sent to: ____________               Clerk's Initials _______
Copies sent to:
    Donald R. Powers, Attorney for Appellant E.E. Buttolph Rev. Trust
    John H. Hasen, Attorney for Appellee Natural Resources Board/LU Panel
    Judith L. Dillon, Attorney for Agency of Natural Resources (FYI only)
