                                       State of Vermont
                            Superior Court - Environmental Division

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                   ENTRY REGARDING MOTION
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In re Champlain Parkway Act 250 Permit                                 Docket No. 68-5-12 Vtec
(Appeal from Act 250 Permit No. 4C0438-17)

Title: Motion to Alter or Amend (Filing No. 7)
Filed: October 26, 2012
Filed By: Applicants/Appellees City of Burlington and Vermont Agency of Transportation
Response in Opposition filed on 11/8/12 by Cross-Appellant Vermont Railway, Inc.


___ Granted                     X Denied                       ___ Other

        Currently before the Court is a motion by the City of Burlington (City) and the State of
Vermont Agency of Transportation (collectively Applicants) requesting that the Court alter or
amend our October 12, 2012 decision on Vermont Railway’s (VTR) amended motion for party
status. Applicants move this Court, under V.R.C.P. 54(b), to amend its decision to conclude that
VTR does not have party status under Act 250 criteria 1(E), 9(K), or 10.
        V.R.C.P. 54(b) provides that in the absence of a final judgment by this Court, any
decision adjudicating fewer than all of the claims of fewer than all the parties in an action “is
subject to revision at any time before the entry of judgment adjudicating all the claims and the
rights and liabilities of all the parties.” In addressing a motion to alter made pursuant to Rule
54(b), we apply the legal standard applicable to ruling on a Rule 59(e) motion to alter or amend
a final judgment. In re Bennington Wal-Mart Demolition/Const. Permit, No. 158-10-11 Vtec,
slip op. at 4 (Vt. Sup. Ct. Envtl. Div. Aug. 17, 2012) (Walsh, J.). It is ultimately within the Court’s
discretion whether to grant a Rule 59 motion, and we have identified four principal reasons for
doing so: (1) to correct manifest errors of law or fact; (2) to allow a party to provide “newly
discovered or previously unavailable evidence”; (3) to “prevent manifest injustice”; and (4) to
respond to an “intervening change in the controlling law.” Lathrop Ltd. P’ship I, Nos. 122-7-04
Vtec, 210-9-08 Vtec, and 136-8-10 Vtec, slip op. at 10–11 (Vt. Super. Ct. Envtl. Div. Apr. 12, 2011)
(Durkin, J.) (quoting 11 Wright, Miller & Kane, Federal Practice and Procedure: Civil 2d
§ 2810.1). Granting such a motion is viewed by this Court as an “extraordinary remedy.”
Bennington Wal-Mart, No. 158-10-11 Vtec, slip op. at 4 (Vt. Sup. Ct. Envtl. Div. Aug. 17, 2012).
I.     VTR’s Procedural Standing to Seek Party Status under Criterion 9(K)
        In moving this Court to alter or amend our October 12 decision, Applicants contend that
we misunderstood several relevant facts when we concluded that VTR had procedural standing
to seek party status for criterion 9(K) (development affecting public investment) under 10 V.S.A.
In re Champlain Parkway Act 250 Permit, No. 68-5-12 Vtec (E.O. on Mot. to Alter) (Nov. 14, 2012)   Pg. 2 of 4.


§ 8504(d)(2)(B).1 Applicants first claim that we inappropriately relied upon the disputed fact of
whether VTR offered testimony in the proceedings below under criterion 9(K). In our decision,
we stated that “the Commission appears to have allowed VTR to submit testimony regarding
criterion 9(K) during the permit hearing process.” In re Champlain Parkway Act 250 Permit,
No. 68-5-12 Vtec, slip op. at 5 (Vt. Super. Ct. Envtl. Div. Oct. 12, 2012) (Walsh, J.). Applicants
argue that the Commission never allowed VTR to do so and challenge our perceived reliance on
this fact. In our decision, however, we noted that Applicants disputed whether VTR provided
criterion 9(K) testimony, and we did not rely on this disputed fact in reaching our conclusion.
Rather, we mentioned the disputed testimony to highlight the unusual circumstances that led
the Commission to spend an entire paragraph in its Findings of Fact, Conclusions of Law and
Order discussing VTR’s 9(K) party status. See Re: City of Burlington & VTrans, No. 4C0538-17,
Findings of Fact, Concl. of Law and Order, at 3 (Dist. 4 Comm’n Apr. 27, 2012).
        In determining that VTR met the statutory requirements for seeking criterion 9(K) party
status before this Court, we relied exclusively on the language used by the Commission in its
Findings of Fact, Conclusions of Law and Order. In that document, the Commission clearly
indicated that, over the course of the proceedings below, a dispute existed as to whether VTR
held party status under criterion 9(K). The Commission resolved that dispute by explicitly “not
grant[ing] VTR party status under Criterion 9 (K)”—a step it did not take for any other criteria
for which VTR or the other parties failed to request party status. Id. at 2–7. There is no
appreciable difference between the Commission “not grant[ing]” VTR 9(K) party status in this
case and the Commission denying VTR party status for criteria 1(E), 9(A), and 10. See id.
Because the Commission effectively denied VTR party status under criterion 9(K), and because
VTR appealed that denial in its amended Statement of Questions, VTR has procedural standing
to seek party status for criterion 9(K) before this Court pursuant to 10 V.S.A. § 8504(d)(2)(B).
II.     VTR’s Party Status under Criteria 1(E) and 10
        Applicants next contend that this Court erred in granting VTR party status under
criteria 1(E) (streams) and 10 (compliance with town or regional plan). Applicants assert that
VTR’s claim of a causal link between the proposed project and harm to VTR’s particularized
interest under criterion 1(E) was inadequate. Applicants also argue that the language in the
City of Burlington Municipal Development Plan (MDP) cited by VTR as potentially violated by
the proposed project is not protected under criterion 10.
        This Court decides party status as a preliminary issue of standing before we review the
merits of an appeal of a district commission decision. In re Pion Sand & Gravel Pit, No. 245-12-
09 Vtec, slip op. at 6 (Vt. Super. Ct. Envtl. Div. July 2, 2012) (Durkin, J.) (citing 10 V.S.A.
§ 8504(a)). In granting party status to a litigant, we ensure that the litigant meets certain
requirements, including demonstrating a causal link between a decision on a proposed project
and an alleged harm to the litigant’s particularized interests. See In re Granville Mfg. Co., No.
2-1-11 Vtec, slip op. at 6 (Vt. Super. Ct. Envtl. Div. July 1, 2011) (Durkin, J.). This showing need
only indicate a “reasonable possibility” of harm. In re Bennington Wal-Mart, No. 158-10-11
Vtec, slip op. at 9–10 (Vt. Super Ct. Envtl. Div. Apr. 24, 2012) (Walsh, J.) (citing Granville Mfg.
Co., No. 2-1-11 Vtec, slip op. at 6). While a sufficient showing cannot be purely speculative, id.,
a litigant seeking party status must simply meet a minimum threshold to satisfy its showing

1 Section 8504(d)(2)(B) allows an aggrieved person to appeal the decision of a district commission to deny
that person party status under a particular Act 250 criterion.
In re Champlain Parkway Act 250 Permit, No. 68-5-12 Vtec (E.O. on Mot. to Alter) (Nov. 14, 2012)   Pg. 3 of 4.


requirement. See In re RCC Atl., Inc., No. 163-7-08 Vtec, slip op. at 8 (Vt. Envtl Ct. May 8, 2009)
(Durkin, J.) (litigants seeking party status “must at least state [that] their fears and concerns
have some factual basis and are not based solely on speculation”). An adequate threshold
showing must describe the evidence or testimony to be introduced at the merits hearing and
must be sufficiently concrete for the Court to understand the “materiality” of the evidence or
testimony. RCC Atlantic, No. 163-7-08 Vtec, slip op. at 8–9 (quoting R.E. Bean Constr. Co. v.
Middlebury Assocs., 142 Vt. 1, 7 (1982)).
         Under these standards, VTR met its burden in seeking party status under criterion 1(E).
In its amended motion for party status, VTR claimed, “Common sense dictates that if the project
facilitates a flow of water in the Englesby Brook that is greater than the carrying capacity of the
existing culvert under Appellant-VTR’s rail line, the rail bed will act as an impoundment during
high water events, . . . thereby risking the . . . washout of the rail line.” (Appellant’s Am. Mot.
for Party Status 7, filed Aug. 12, 2012). VTR supported this claim with a threshold showing,
including exhibits and the proposed testimony of three employees, which VTR specifically
outlined.
        Applicants contend that VTR’s allegation of harm was inappropriately couched in
conditional language and that VTR’s threshold showing of a causal link between its
particularized interests and the alleged harm was insufficient. Applicants’ arguments,
however, are unpersuasive. In seeking party status, a litigant need only demonstrate that a
decision on a proposed project may harm its particularized interests. See Bennington Wal-Mart,
No. 158-10-11, slip op. at 9 (Vt. Super Ct. Envtl. Div. Apr. 24, 2012) (internal citations omitted).
Thus, the conditional language used by VTR in alleging the possibility of harm to its main rail
line from the construction of Applicants’ proposed project was appropriate and sufficient for
the purposes of a motion for party status. Furthermore, Applicants overstate the burden borne
by VTR in demonstrating its standing at this preliminary stage of the appeal. In this case, VTR’s
threshold showing, including a map and the prospective testimony of three employees,
sufficiently indicates the further testimony or evidence to be introduced in the merits hearing
and describes the matter to be proved. See RCC Atlantic, No. 163-7-08 Vtec, slip op. at 8–9.
VTR accordingly met its burden seeking party status for criterion 1(E). 2
        Similarly, VTR met its burden in seeking party status for criterion 10. Applicants state
that this Court “incorrectly presumed that the sentence fragments that VTR cited from the MDP
are protected under Act 250,” even though “the cited statements are too broad, generalized, or
irrelevant to meet the well-established standards for Criterion 10-protected provisions of a
municipal development plan.” (Applicants’ Mot. to Alter or Amend 11–12, filed Oct. 26, 2012).
Applicants devote a significant portion of their motion analyzing the language cited by VTR,
including the context of that language within the MDP, to prove that it is not enforceable under
Act 250. Applicants contend that we should have conducted the same analysis in reviewing

2 Applicants also note that VTR’s amended Statement of Questions makes no mention of Englesby Brook
or the effect of the Parkway culvert on VTR’s rail line. In an appeal of a decision by a district commission,
the scope of our review of the merits of the case is limited to the issues raised in an appellant’s statement
of questions. V.R.E.C.P. 5(f). The fact that a litigant does not raise an issue in its statement of questions
does not, however, preclude it from seeking party status under the Act 250 criterion associated with that
issue. A litigant may seek to offer testimony under a criterion that has been raised in another party’s
statement of questions, or a litigant may later attempt to amend its statement of questions to raise an
issue for which we have granted it party status.
In re Champlain Parkway Act 250 Permit, No. 68-5-12 Vtec (E.O. on Mot. to Alter) (Nov. 14, 2012)    Pg. 4 of 4.


VTR’s motion for party status. Essentially, Applicants argue that this Court should have
weighed VTR’s claim, entailing a review of the merits, that the cited provisions are enforceable
against Applicants’ argument that the provisions are not.
        Once again, Applicants incorrectly describe VTR’s burden in seeking party status in an
appeal of a district commission decision before this Court. By demonstrating a particularized
interest in the enforcement of City Plan provisions related to railways, specifically citing such
provisions, and alleging the possibility of harm to its interest in the enforcement of those
provisions as a result of Applicants’ proposed project, VTR made an adequate threshold
showing of party status. Whether or not VTR’s cited provisions are actually enforceable goes to
the merits of VTR’s claim, not VTR’s standing to bring the claim, and is therefore not justiciable
by the Court at this stage of the appeal.
       Accordingly, we DENY Applicants’ request to alter or amend our Decision in this
appeal pursuant to V.R.C.P. 59(e). We decline to alter or amend our October 12, 2012 Decision.




___________________________________________                                          November 14, 2012
       Thomas G. Walsh, Judge                                                             Date
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Date copies sent to: ____________                         Clerk's Initials _______
Copies sent to:
  Attorneys Brian S. Dunkiel & Elizabeth H. Catlin for Interested Person City of Burlington
  Attorney Daniel D. Dutcher for Interested Person Vermont Agency of Transportation
  Attorney Eric R. Benson for Cross Appellant Vermont Railway, Inc.
  Attorney Liam L. Murphy for Appellant Fortieth Burlington, LLC and Cross Appellant GP Burlington South, LLC
  Attorney Catherin Gjessing for Agency of Natural Resources (informational purposes only)
  Natural Resources Board/LU Panel (informational purposes only)
