In re Hinesburg Hannaford Act 250 Permit / In re Hinesburg Hannaford Site Plan Approval (Mary Beth Bowman, Appellants)

• Court: Vermont Superior Court
• Decided: November 9, 2017
• Docket: 2016-273 / 2016-274
• Status: Published

Opinion

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 by email at: JUD.Reporter@vermont.gov or by mail at: 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.

2017 VT 106

Nos. 2016-273 & 2016-274

In re Hinesburg Hannaford Act 250 Permit Supreme Court In re Hinesburg Hannaford Site Plan Approval (Mary Beth Bowman, et al., Appellants) On Appeal from Superior Court, Environmental Division

March Term, 2017

Thomas G. Walsh, J.

Allan R. Keyes of Ryan Smith & Carbine, LTD., Rutland, and James A. Dumont of Law Office of James A. Dumont, Esq., P.C., Bristol, for Appellants.

William H. Sorrell, Attorney General, and Kyle H. Landis-Marinello, Assistant Attorney General, Montpelier, for Appellee Vermont Natural Resources Board.

David W. Rugh of Stitzel, Page & Fletcher, P.C., Burlington, for Appellee/Cross-Appellant Town of Hinesburg.

Christopher D. Roy of Downs Rachlin Martin PLLC, Burlington, for Appellee/Cross-Appellant Martin’s Foods of South Burlington, LLC.

PRESENT: Dooley, Skoglund, Robinson and Eaton, JJ., and Wesley, Supr. J. (Ret.), Specially Assigned

¶ 1. ROBINSON, J. These two consolidated appeals challenge the Environmental

Division’s decisions concerning applications for site-plan approval and an Act 250 permit for the

proposed construction of a Hannaford’s supermarket in the Town of Hinesburg. We affirm in part,

reverse in part, and remand the matter for further proceedings consistent with this opinion. ¶ 2. Appellee/cross-appellant Martin’s Foods of South Burlington, LLC (Hannaford)

proposes to construct a 36,000-square-foot grocery store and pharmacy with an adjacent 128-space

parking lot on Lot 15 of the Commerce Park subdivision in Hinesburg. Lot 15, over four acres in

size, is the largest of the fifteen lots in the subdivision, for which municipal and Act 250 permits

were originally granted in 1987. The subdivision is located just north of the Hinesburg Village

center within a triangular space formed by Route 116, Patrick Brook, and Mechanicsville Road.

Route 116 runs north-south and is the main thoroughfare through Hinesburg. Mechanicsville Road

runs northeast from Route 116, from just south of the subdivision, to the east end of Commerce

Street. Commerce Street runs east-west parallel to Patrick Brook but within the subdivision north

of Lot 15, connecting Route 116 and Mechanicsville Road to form the hypotenuse of the triangle in

which most of the subdivision lies. Commerce Street Extension runs a short distance off Commerce

street south into the subdivision toward Lot 15.

Section of June 2014 Route 116 Corridor Study Map

¶ 3. Lot 15, the last lot in the subdivision to be developed, is a four-sided irregularly-

shaped lot bounded by existing development within the subdivision on two sides and by a canal and

adjoining sidewalk running parallel to Mechanicsville Road. The canal was constructed over a 2 century ago to provide water to a cheese factory. The relatively recently built sidewalk runs along

the canal on the side opposite Mechanicsville Road. Vehicular access to the proposed project on

Lot 15 would be by way of Commerce Street and then the Commerce Street Extension, which runs

between existing developments located on the southern side of Commerce Street.

General Plan Sheet from 1986 Subdivision Plat Plan

¶ 4. The proposed project is a permitted use in the Town’s Commercial Zoning District

within the Hinesburg Village Growth Area and is subject to site plan review and conditional use

approval under the Town’s 2009 zoning regulations. Hannaford initially applied for site-plan and

conditional use approval for the proposed project in November 2010. The Hinesburg Development

Review Board (DRB) reviewed the application several times before the public hearing on the project

was closed for the final time in October 2012. Following evidentiary hearings and site visits, the

DRB approved the application with conditions in a written decision in November 2012.

3 Appellants/cross-appellees, a group of Hinesburg residents that oppose the project (Neighbors),

appealed the DRB decision to the Environmental Division, and Hannaford cross-appealed.

¶ 5. In March 2013, Hannaford filed its Act 250 application with the District #4

Environmental Commission. Hannaford sought approval under all Act 250 criteria except Criterion

2, relating to the water supply, because the Town was in the process of upgrading its municipal well

system and did not have available capacity to support the project at the time of the application. In

June 2014, after conducting site visits and evidentiary hearings, the District Commission issued its

initial merits decision concluding that the project, with specified conditions, satisfied each Act 250

criterion except Criterion 2. The District Commission issued an amended set of findings and

conclusions on July 23, 2014. Neighbors appealed this decision to the Environmental Division.

¶ 6. The Environmental Division coordinated the site-plan and Act 250 appeals with other

appeals relating to the project. After deciding a series of pretrial motions regarding a wide variety

of issues, the trial court conducted a site visit and merits hearing from November 30 through

December 2, 2015. The parties stipulated to submit direct testimony and related exhibits to the court

in advance of the merits hearing through prefiled testimony. Cross-examination, re-direct

examination, and rebuttal testimony were then presented live at the trial. Among the numerous

matters contested at trial were issues relating to stormwater management, traffic, aesthetics, and

public investment in the canal sidewalk.

¶ 7. In April 2016, the trial court issued separate 23-page and 60-page decisions with

accompanying judgment orders, approving, respectively, Hannaford’s site-plan and Act 250

applications with conditions. In response to multiple post-trial motions regarding both decisions,

the court issued an amended Act 250 decision and indicated that it was making no changes to its

4 site-plan decision.1 Neighbors appealed both decisions, and Hannaford and the Town of Hinesburg

cross-appealed both. This Court consolidated the appeals for purposes of argument and decision.

¶ 8. In challenging the trial court’s site-plan approval, Neighbors argue that: (1) the trial

court erred in declining to enforce a setback limit reflected in the final plat plan for the subdivision

as approved in 1987; (2) Hannaford’s site-plan application violated “front yard” parking restrictions

set forth in the Town’s 2009 zoning regulations; (3) the east-west swale proposed in the site-plan

application will not control and treat stormwater as predicted by Hannaford’s expert; and

(4) Hannaford did not satisfy its burden regarding stormwater control because part of the discharge

system is proposed to be located on land outside of its control. In their cross-appeals, Hannaford

and the Town challenge the trial court’s condition requiring Hannaford to install a traffic signal at

the intersection of Route 116 and Mechanicsville Road before the project may be completed, and

the Town challenges the court’s elimination in its amended decision of a condition requiring

Hannaford to perform a post-development traffic study.

¶ 9. In challenging the trial court’s Act 250 decision, Neighbors argue that: (1) the trial

court erred in declining to enforce a provision in the original approved Act 250 master subdivision

permit that development in the subdivision would be “small scale”; (2) the trial court improperly

focused on the foreseeability of a commercial development on Lot 15 in determining whether the

proposed project would materially interfere with the public’s use and enjoyment of the canal path;

and (3) Hannaford failed to dispute the uncontradicted testimony of Neighbors’ expert that the east-

west swale would not function as claimed because of the area’s saturated soils. As in their site-plan

cross-appeals, Hannaford and the Town reiterate their opposition to a condition requiring a traffic

1 The Town argues that although the trial court indicated it was not amending its initial site- plan decision, it simultaneously suggested that it was eliminating the condition in that initial order that Hannaford perform a post-development traffic study. Because we reverse the site-plan determination on other grounds, we do not resolve the confusion concerning the effect of the trial court’s site-plan decision on the post-development traffic-study condition. 5 signal at the Route 116/Mechanicsville Road intersection. The Town also challenges the trial court’s

decision on reconsideration to eliminate the post-development traffic study requirement. The

Natural Resources Board (NRB) has filed a brief in the Act 250 appeal asking this Court to uphold

the condition that a traffic signal be placed at the Route 116/Mechanicsville Road intersection prior

to operation of the proposed project.

¶ 10. For the reasons stated below, we conclude, with respect to the site-plan appeal, that

Hannaford’s proposed site plan violates the setback limit in the final plat plan approved in 1987.

We conclude that Hannaford’s parking scheme does not violate the site-plan approval standards in

the applicable zoning regulations. We need not reach the issues raised in that appeal concerning the

east-west swale and traffic control. Accordingly, we reverse the Environmental Division’s approval

of the site plan.

¶ 11. Regarding the Act 250 appeal, we conclude that the project does not violate a

requirement in the original approved subdivision permit that development be primarily “small

scale,” and that the proposed project would not materially interfere with the public’s use and

enjoyment of the canal path. We remand for further development of evidence concerning the east-

west swale and traffic issues. Accordingly, we reverse the Environmental Division’s approval of

the Act 250 permit and remand the matter for further consideration.

I. Standard of Review

¶ 12. Our general standard of review is not in doubt.2 “We will defer to the court’s factual

findings and uphold them unless, taking them in the light most favorable to the prevailing party, they

are clearly erroneous.” In re Wagner & Guay Permit, 2016 VT 96, ¶ 9, ___ Vt. ___, 153 A.3d 539

(quotation omitted). This is so because “the environmental court determines the credibility of

2 We discuss more fully below, in the context of our analysis of the trial court’s site-plan approval, our standard of review with respect to the trial court’s construction of municipal zoning regulations. 6 witnesses and weighs the persuasive effect of evidence.” In re Champlain Parkway Act 250 Permit,

2015 VT 105, ¶ 10, 200 Vt. 158, 129 A.3d 670. We review the court’s legal conclusions without

deference, but “we will uphold those conclusions if they are reasonably supported by the findings.”

Wagner & Guay Permit, 2016 VT 96, ¶ 9.

II. Site-Plan Appeal

A. Review of Zoning Regulations and Permit Conditions

¶ 13. The parties disagree about whether this Court owes any deference to the

Environmental Division’s interpretation of the Town’s zoning ordinance. Neighbors contend that

the interpretation of a zoning ordinance presents a legal issue that we review without deference to

the Environmental Division, while Hannaford asserts that the deference we give to the

Environmental Division with respect to findings of fact extends to its interpretation of zoning

ordinances. We need not resolve this dispute in this appeal because our resolution of the issues

raised by the parties would be the same under either proposed standard of review.

B. Setback Limits

¶ 14. On appeal from the DRB to the Environmental Division, Neighbors argued that

Hannaford’s site plan violated a setback condition of the 1987 subdivision approval and that

Hannaford had not sought a permit amendment from the Town. Specifically, Neighbors asserted

that the proposed project violates a setback, reflected in the 1986 final approved plat plan for the

subdivision, that is seventy-five feet from the canal running parallel to the southern side of the

subdivision. In response, Hannaford asserted that: (1) the court was without jurisdiction to consider

whether a subdivision permit amendment was required because it had not sought a permit

amendment from the Town; and (2) in any event, the building setbacks depicted on the plat plan

accompanying the 1987 subdivision approval did not establish enforceable conditions because they

are unclear and had not been enforced by the Town with respect to other permitted projects within

the subdivision.

7 ¶ 15. The trial court acknowledged that it had no jurisdiction to consider whether the 1987

subdivision approval should be amended, given that Hannaford had not sought a permit amendment

from the Town. The court determined, however, that although in 1987 the Town planning

commission approved the subdivision as depicted on the final plat plan accompanying the

subdivision application, the plat plan did not establish enforceable setbacks because: (1) the narrative

in the planning commission’s written decision approving the subdivision did not discuss or establish

any required setbacks for lots within the subdivision; (2) although the plat plan includes a legend

indicating various types of lines depicting setbacks, boundaries, waterways, and roads, it has no

inscriptions or notes—other than a notation indicating a one-inch-per-100-foot scale—identifying

any measured distances between the lines; and (3) the plat plan does not have an accompanying

document indicating an intent to impose a setback restriction. Relying on a recent decision by this

Court, the trial court concluded that the distances between the various lines on the 1986 plat plan

were not “sufficiently clear to constitute land-use restrictions.” In re Willowell Found. Conditional

Use Certificate of Occupancy, 2016 VT 12, ¶ 15, 201 Vt. 242, 140 A.3d 179.

¶ 16. On appeal to this Court, Neighbors argue that the trial court erred by concluding that

the seventy-five-foot building setback limit in the final approved plat plan for the original

subdivision application was unenforceable.3 According to Neighbors, the recorded plat

unambiguously provided reasonable notice of the setback requirement and, even assuming the plat

plan was ambiguous as to the setback requirement, the fact that the Town may have approved

buildings within the subdivision that violated the setback requirement, whether intentional or not,

was not persuasive evidence of the planning commission’s intent when it approved the subdivision.

For its part, Hannaford argues that the scant reference to setback lines on the general plan sheet of

3 Neighbors’ argument that the trial court erred in allowing Hannaford to collaterally attack the unappealed 1987 plat approval, in violation of 24 V.S.A. § 4472(d), misses the central issue. Hannaford is not seeking to set aside a condition of the plat approval; the issue in this case is whether that 1987 approval created an enforceable setback condition in the first place. 8 the plat was insufficient to establish an enforceable permit condition, as evidenced by the fact that

no such setback limit has been enforced in the three decades since the subdivision was approved.

¶ 17. The applicable legal standard is well established: if the approved plat plan clearly

includes the claimed seventy-five-foot setback, that setback is an enforceable condition. We have

recently reiterated that, because the function of a subdivision permit is to approve plats of land,

“recorded plats necessarily become subdivision permit conditions.” Wagner & Guay Permit, 2016

VT 96, ¶ 13 (quotation omitted); see also In re Stowe Club Highlands, 164 Vt. 272, 276, 668 A.2d

1271, 1275 (1995) (“[A]lthough we will not recognize implied permit conditions as subdivision

permits, recorded plats necessarily become subdivision permit conditions.”). To be enforceable,

subdivision permit conditions “must be specific enough to provide a landowner with notice that his

or her property rights are fettered.” Willowell, 2016 VT 12, ¶¶ 15, 18 (stating that “restrictions

should be explicit to provide notice of all conditions imposed because [otherwise] ‘subsequent

purchasers would lack notice of all restrictions running with the property’ ” (quoting In re

Kostenblatt, 161 Vt. 292, 298, 640 A.2d 39, 43 (1994))). “A violation of a condition of a subdivision

permit would be a violation of the zoning ordinance itself.” In re Robinson, 156 Vt. 199, 202, 591

A.2d 61, 62 (1991).

¶ 18. In this case, the building setback on the approved and recorded subdivision plat is

clear and unambiguous. The Hinesburg Planning Commission’s final plat approval for the

subdivision specifically incorporates by reference the plan prepared by Phelps Engineering, dated

September 9, 1986. The legend prominently displayed on the title sheet of that approved plat plan

indicates several types of lines, one of which represents “BUILDING SETBACK LIMITS.” In the

general approved plan, there is nothing unclear about the corresponding building setback line on lot

15. A scale of one inch for every 100 feet is indicated on the general plan sheet of the plat. Measured

9 to scale, the setback limit from the canal indicated on the general plan sheet is seventy-five feet.4

The plat plan and subdivision approval were recorded in the town clerk’s office.

¶ 19. The above undisputed facts demonstrate the existence of subdivision setback limits

explicit enough to provide clear notice of an enforceable condition, notwithstanding the various

claimed bases for finding ambiguity. The fact that the general plat plan relies on the clear setback

lines and the notated scale of the plat plan, rather than explicitly noting that the distance between the

canal and the setback line is seventy-five feet, does not negate that clarity. There is no dispute that

the approved plat plan, measured to scale, depicts a seventy-five-foot setback from the canal. Nor

is there ambiguity because the building setback limits are not reproduced in the more detailed pages

of the plat plan depicting septic and stormwater plans; in contrast to the general plan depicted in the

approved plat, those pages are focused narrowly on the septic and stormwater issues.

¶ 20. Likewise, the fact that buildings in the subdivision have been built within the setback

limits depicted in the recorded plat plan does not change the fact that the plat plan as approved

explicitly establishes the setbacks. For one thing, we have no occasion to consider this extrinsic

evidence where the requirements of the approved plat plan are clear and unambiguous. Cf. Wagner

& Guay Permit, 2016 VT 96, ¶¶ 11, 13 (noting that permit condition in approved plat plan is

reviewed “according to normal rules of statutory construction” and considering extrinsic evidence

in construing ambiguous notation on plat plan). Moreover, the parties stipulated that the permits for

those other buildings were unchallenged, and there was no evidence, other than the fact that some

4 Notably, this seventy-five-foot setback matches a condition in the approved Act 250 permit issued to the applicant in March 1987. If we concluded that the seventy-five-foot setback was ambiguous, this fact might be relevant to our examination of the extrinsic evidence, reinforcing our interpretation of the setback requirement in the municipal subdivision approval. Because we find the setback clear and unambiguous on its face, we need not resort to extrinsic evidence. See City of Newport v. Vill. of Derby Ctr., 2014 VT 108, ¶ 14, 197 Vt. 560, 109 A.3d 412 (stating that where parties’ intent as expressed in writing is unambiguous, there is no need to consider “the parties’ arguments regarding extrinsic evidence of the parties’ intent”). 10 buildings were built within the setback limits, that the Town considered the setback limits to be

unenforceable.

¶ 21. Hannaford’s reliance on Willowell is unavailing. That case concerned two undefined

phrases used on the subdivision plat plan—“Agricultural Reserve” and “Building Envelope.” The

neighbors opposing the proposed project argued that the phrases were sufficiently explicit to impose

conditions setting aside land for agricultural use and restricting new buildings to certain areas. We

upheld the Environmental Division’s conclusion that the two two-word phrases, in the absence of

any definitions conveying the meaning the parties sought to ascribe to those phrases, were too

ambiguous to impose enforceable permit conditions. Willowell, 2016 VT 12, ¶¶ 19-20. In contrast,

the significance of the line demarcating a “building setback” in this case requires no further

elucidation; the meaning of “building setback” is well understood. See, e.g., Setback, Black’s Law

Dictionary (10th ed. 2014) (defining “setback” as “[t]he minimum amount of space required between

a lot line and a building line”). Accordingly, we reverse the Environmental Division’s conclusion

that the setback limit was not an enforceable condition.

¶ 22. Given that the setback requirement in the master subdivision permit is enforceable,

no party disputes that the proposed site plan violates the condition. The trial court found that at their

closest points, the edge of the building will be about sixty-five feet from the canal and that the

overhang of the roof will measure about forty-two feet from the edge of the canal. No party

challenges this finding. Thus, we reverse the court’s issuance of the site plan permit.

C. Front Yard Parking

¶ 23. Notwithstanding our reversal of the site-plan approval on the setback issue, we

address the front-yard-parking issue because, unlike the other issues in the site-plan appeal,5 it is

5 We do not assume that the evidence presented at a new site-plan hearing would present the same issues concerning the east-west swale, stormwater control, and traffic issues, and accordingly do not address those issues here. 11 likely to reoccur in the context of a new application for site-plan approval, regardless of whether

Hannaford amends its site plan or obtains a setback amendment. See In re Taft Corners Assocs.,

Inc., 160 Vt. 583, 593, 632 A.2d 649, 654-55 (1993) (in interest of judicial economy, court may

reach issues likely to occur on remand). Although we are not actually remanding the site plan matter,

it would not make sense to force Hannaford to redesign its project in connection with a new

application for site plan approval, if it chooses to do so, with continued uncertainty as to the effect

of the front-yard restriction on parking.

¶ 24. Neighbors argued below that the parking proposed in Hannaford’s site-plan

application violates the Town’s zoning regulations limiting “front yard” parking. The trial court

determined that the applicable regulations do not prohibit the parking proposed in the site plan based

on its conclusion that, pursuant to the definitions in those regulations, the front yard of the proposed

project is the side of the building facing roughly south parallel to Mechanicsville Road. We uphold

the trial court’s determination for the reasons stated below.

¶ 25. The zoning regulations require the DRB “to take into consideration” standards

specified therein, including conformance with § 5.6 of the regulations, “where [it] applies.” Town

of Hinesburg Zoning Regulations, § 4.34(9). Section 5.6.3 of the zoning regulations, in relevant

part, provides as follows:

Parking and loading areas: Parking and loading areas for any new structures shall be located in the side or rear yards of the structure. Where sufficient screening is provided, and with Development Review Board approval, up to 20% of the total number of parking spaces may be located in the front yard of the structure.

The regulations define front, side, and rear yards as follows:

Yard, Front: A yard on the same lot with a principal building, extending the full width of the lot and situated between the centerline of the street or right-of-way and the front line of the building extending to the side lines of the lot.

Yard, Side: A yard situated between the principal building and a side line and extending from the front yard to the rear yard. The distance

12 between the principal building and the side line shall be measured from the building to the nearest point on the side line along a line parallel to the front lot line.

Yard, Rear: A yard on the same lot with a principal building between the rear line of the building and the rear line of the lot extending the full length of the lot. No lot shall have more than 1 rear yard with regard to setback requirements. For lots with multiple front yards, the rear yard shall be opposite the front yard that provides the primary access to the lot.

¶ 26. The regulations do not define the phrase “front line of the building” contained in the

definition of “front yard.” Hannaford’s site plan proposes 128 parking spaces, most of which are

located on the sides of the proposed building facing roughly north and east and parallel to Commerce

Street as it arcs from Route 116 to Mechanicsville Road. Neighbors argue that the front yard must

be in front of the east-facing side of the building, where more than half of the proposed parking

spaces are located, because: (1) consistent with common English usage, the front line of a grocery

store is the side that contains the public entrance and the store’s name, which in this case is the east

wall of the building; and (2) the rear yard must be the area in front of the south-facing wall of the

building located parallel to Mechanicsville Road because there are multiple front yards in front of

the north and east walls running parallel to the arcing Commerce Street, which provides the only

vehicle access to parking via the Commerce Street extension.

¶ 27. We note at the outset that the front yard parking restrictions and the corresponding

definitions of “front,” “side,” and “rear” yards in the municipal ordinance cannot be neatly applied

to this lot and this project for several reasons. First, a narrow right-of-way provides access from

Commerce Street to Lot 15; the lot has no frontage on Commerce Street itself. Second, the lot abuts

Mechanicsville Road, but is not accessible from that road. Third, the shape of this lot, the orientation

of the building on the lot, and the fact that Commerce Street and Mechanicsville Road are not parallel

but in fact converge beyond the northeasterly boundary of Lot 15, make it difficult to apply the

definitions in the ordinance. The irregular shape of the lot does not exempt it from the requirements

13 of an otherwise clear zoning ordinance, Bennett v. Zelinsky, 878 A.2d 670, 678 (Md. Ct. Spec. App.

2005), but the shape does make it more difficult to construe and apply unclear requirements. To the

extent that the touchstone in the definition of “front yard” is the “centerline of the street or right of

way,” there are two streets potentially in play: Commerce Street, which provides access to Lot 15

but is separated from that lot by other lots and buildings, and Mechanicsville Road, which is

significantly closer to the building and parking lot, but does not provide road access to Lot 15. And

because of its arcing course, the centerline of Commerce Street itself is roughly parallel to two

different sides of the proposed building at two different points on Commerce Street. We recognize

that the definition of “rear yard” contemplates the possibility of more than one front yard, but we do

not believe the parking restriction, which provides for parking in the side or rear yards, and limited

parking in the front yard, purports to limit parking on three sides of this building.

¶ 28. Instead, we conclude that the regulation restricting front yard parking evinces the

Town’s preference for placing commercial buildings closer to streets, with parking in back, rather

than having large parking areas located between streets and buildings. In this case, the proposed

building adjoins Mechanicsville Road and is accessed from Commerce Street. The only yard that is

situated immediately between the centerline of a road and a wall of the proposed building is the one

facing Mechanicsville Road. In contrast, Lot 15 and Commerce Street are separated by several

developed properties. Nothing in the text of the parking ordinance requires that the front yard be

defined with reference to the road from which the building is accessed. In this case the purpose of

the parking regulation would not be furthered by labeling the north and east walls of the proposed

building as front yards.

¶ 29. We likewise reject Neighbors’ suggestion that the location of the front yard turns on

the orientation of the building entrance. To the extent the ordinance defines “front yard” at all, it

does so with reference to adjoining streets rather than the main entrance of the building. Although

the ordinance may reflect an assumption that in most cases the main entrance to a business will face

14 a road, nothing in the ordinance requires that. Accordingly, we reject Neighbors’ argument that the

proposed site plan violates the Town’s parking regulations.

III. Act 250 Appeal

A. “Small Scale” Development

¶ 30. We affirm the Environmental Division’s conclusion that the project does not run

afoul of a requirement of the Act 250 master subdivision permit that development in the subdivision

be “small scale.”

¶ 31. The original Act 250 permit application included a project narrative with a three-

paragraph general description and a preliminary outline addressing the Act 250 criteria. The third

paragraph of the general description states as follows:

The subdivision is designed as a “Commercial Industrial Park” intended for primarily local small scale and start-up businesses which are appropriate to the local scale of development. Certain lots will be designated for uses appropriate to their location on the site. Lot sizes range from 1 to 3 acres though it is expected that in some cases more than one lot may be combined. Businesses expected to locate in the project might range from “High-Tech” research and development firms supporting other Chittenden County industries to retail outlets for local agricultural or manufactured products.

The 1987 Act 250 permit requires the permittees and their successors to complete, maintain, and

operate the project in accordance with the plans and exhibits stamped “Approved” and on file with

the District Environmental Commission. The application containing the project narrative noted

above is among the plans and exhibits thereby incorporated by reference into the 1987 Act 250

permit.

¶ 32. The Environmental Division rejected Neighbors’ argument that the reference to

“small scale” in the project narrative of the original permit application should be considered a permit

condition. The court ruled that reference to small-scale businesses offered “a generalized

aspirational goal that by its terms is not a prerequisite for development.” In the court’s view,

15 although “the goal that the subdivision should primarily be comprised of small-scale local businesses

may be commendable, it does not provide an express permit condition.”

¶ 33. On appeal, Neighbors argue that the statement in the approved project narrative

indicating that the subdivision would be comprised primarily of small-scale businesses is an

enforceable permit condition that was expressly incorporated by reference into the 1987 Act 250

¶ 34. We conclude that, even assuming the general project description in the approved

project narrative may be an enforceable part of the permit condition, the project does not run afoul

of a specific and enforceable requirement that all projects in the subdivision be “small scale.” We

reach this conclusion for several reasons. The project narrative does not require that development

within the subdivision be exclusively small-scale development. It contemplates that the subdivision

will consist “primarily” of local small-scale and start-up businesses. This qualifier suggests an

expectation that the project may well include some development that does not fit that description.

Notably, the proposed project is situated in the lot that is by far the biggest of the subdivision, and

thus the most likely site for a larger business. Similarly, the general description of the kinds of

businesses expected to locate in the project indicates that they “might range” from certain kinds of

high-tech research and development firms to retail outlets for local agriculture or manufactured

products. The description does not purport to limit development to those particular types of

businesses.

¶ 35. Finally, the approved permit nowhere defines “small scale” development. It does,

however, include objective metrics regulating the number of parking spaces, gallons per day of water

and wastewater, daily and peak-hour vehicle trips, and electricity usage. We infer that the District

Commission relied on these more specific limitations to regulate the scale of development in the

subdivision and did not intend the statement that the “Commercial Industrial Park” was “primarily”

for “local small scale and start-up businesses” to be an independent qualitative restriction on

16 development in the subdivision. See Sec’y, Vt. Agency of Nat. Res. v. Handy., 163 Vt. 476, 482,

660 A.2d 309, 312-13 (1995) (stating that Act 250 permit conditions “must be expressed with

sufficient clarity to give notice of the limitations on the use of the land” (quotation omitted)).

¶ 36. Neighbors’ reliance on In re Duncan, 155 Vt. 402, 584 A.2d 1140 (1990), and In re

Denio, 158 Vt. 230, 608 A.2d 1166 (1992), is misplaced. In Duncan, the neighbors appealing a

zoning permit for a homeless shelter argued, in relevant part, that the trial court’s order was not

sufficiently specific to establish operating rules for the shelter. The trial court’s order generally

described the proposal and approved the application pursuant to the plans and specifications

admitted into evidence. This Court understood the trial court’s order to mean that it was approving

the project as proposed by the applicant and concluded that the order was “sufficiently specific to

ascertain what has been approved.” Duncan, 155 Vt. at 410, 584 A.2d at 1145. In Denio, the

applicants challenged a permit condition requiring them “to complete the project consistent with the

Board’s findings and conclusions and the approved plans and exhibits,” arguing that the condition

“create[d] an unreasonable restriction on their title because of the inability to easily follow the

findings, conclusions and plans and because they are vague.” 158 Vt. at 241, 608 A.2d at 1172.

We rejected that argument, noting that permits, including their conditions, must be recorded in land

records, and that “[p]ersons coming upon this permit will know that they have to also look at the

findings, conclusions and plans.” Id. These cases do not undermine our conclusion that the term

“small scale,” in the broader context of this subdivision project narrative, did not constitute an

independent limitation on development in the subdivision.

B. Public’s Use and Enjoyment of Canal Path

¶ 37. We affirm the Environmental Division’s conclusion that the proposed project did not

materially jeopardize or interfere with the public’s use or enjoyment of the path that runs along the

canal near the Mechanicsville Road side of Lot 15, in violation of Act 250 Criterion 9(K).

¶ 38. In relevant part, Criterion 9(K) provides that:

17 A permit will be granted for the development or subdivision of lands adjacent to governmental and public utility facilities, services, and lands, . . . when it is demonstrated that, in addition to all other applicable criteria, the development or subdivision will not unnecessarily or unreasonably endanger the public or quasi-public investment in the facility, service, or lands, or materially jeopardize or interfere with the function, efficiency, or safety of, or the public’s use or enjoyment of or access to the facility, service, or lands.

10 V.S.A. § 6086(a)(9)(K).

¶ 39. In the 1990s, the Town of Hinesburg received over $100,000 in federal and state

funds for the Hinesburg Streetscape Project to improve sidewalk infrastructure, to construct a paved

walkway along the canal, and to install a footbridge near the southwestern corner of Lot 15. The

canal path was built on an easement within the subdivision. Neighbors argued before the

Environmental Division that the proposed project would unnecessarily or unreasonably endanger

the public investment in the canal path and would materially jeopardize or interfere with the function,

safety, and the public’s use and enjoyment of the path and associated facilities.

¶ 40. The trial court concluded that the project would not increase the cost of maintaining

the path or interfere with public access to the path. It also rejected Neighbors’ assertion that the

project would materially interfere with the public’s use and enjoyment of the path because users of

the path would see the side of a store building and a parking lot instead of an undeveloped field.

The court recognized that the view from the canal path might be less scenic after the development

of Lot 15, but noted that Lot 15 is one lot within a commercial development established before the

canal path was built and that, although pedestrians on the path currently view an open field on Lot

15, there are multiple commercial buildings immediately beyond the open field. The court rejected

Neighbors’ argument on the grounds that the canal path is located in a commercial setting and was

constructed “with the full understanding that commercial development would likely occur in the

immediate vicinity” of the path and that the proposed project calls for substantial landscaping and

18 screening along the path as well as a nonstandard building designed by a local architecture firm to

be compatible with its surroundings.

¶ 41. In a motion to alter or amend the judgment, Neighbors argued, among other things,

that the court had erroneously considered the foreseeability of a commercial development on Lot 15

in determining whether the proposed project materially interfered with the public’s use and

enjoyment of the canal path. In response, the court agreed that Criterion 9(K) could be violated in

instances where future development was possible, but concluded that, in considering whether a

development materially interfered with the use and enjoyment of a public facility, it could not ignore

that development on Lot 15 was predictable at the time of the public investment in the path.

¶ 42. On appeal, Neighbors argue that the trial court misapplied Criterion 9(K) by

considering the foreseeability of commercial development on Lot 15 and that, in any event, the court

erred in concluding that a commercial development of the scale and intrusiveness of the proposed

project was foreseeable to public officials who developed the canal path. Regarding the first part of

this argument, Neighbors acknowledge that the foreseeability of the development on Lot 15 was

only part of the court’s rationale in rejecting their Criterion 9(K) argument, but they contend that, as

a matter of law, foreseeability is not part of the analysis under Criterion 9(K) and that we cannot

determine how the court would have ruled had it not relied upon this impermissible factor.

According to Neighbors, the court read Criterion 9(K) as if it included the words “unforeseeably or

unduly” before the word “interfere” and, as a result, did not consider whether the actual impact of

the proposed project on the canal path was material and entitled to protection.

¶ 43. While we agree that foreseeability per se is not a component of the analysis under

Criterion 9(K), we do not agree that the court failed to address the materiality of the alleged

interference with the public’s use and enjoyment of the path. The distinction in this case is subtle.

The gist of the court’s decision, when read in its entirety, is that the proposed project would not

materially interfere with the public’s use and enjoyment of the canal path because of the commercial

19 setting of the path and the “substantial landscaping and screening along the path.” Cf. In re

McShinsky, 153 Vt. 586, 593, 572 A.2d 916, 921 (1990) (upholding Environmental Board’s

conclusion that applicants’ proposed RV campground would interfere with public’s use and

enjoyment of river extensively used for various recreational pursuits). In short, in concluding that

the proposed project would not materially interfere with the public’s use and enjoyment of the canal

path, the court considered the context of the public investment—a paved walkway on an easement

along a commercial development and a former industrial canal. The court did not err in doing so.

¶ 44. Nor do we find persuasive Neighbors’ contention that, even assuming the

Environmental Division could properly consider the foreseeability of the development, the scale and

intrusiveness of the proposed project was not foreseeable. As noted above, the foreseeability of the

scope of the particular proposed project is not the legally determinative factor. Nonetheless, the

location of the canal path near the fringes of a “Commercial Industrial Park” with existing and

planned commercial development is a significant fact for consideration in the analysis. In

determining whether the proposed project would materially interfere with the use and enjoyment of

the canal path, the court assessed the current and proposed views from the canal path, noting in

particular that Hannaford had proposed to spend substantial sums for landscaping and screening,

including significant amounts directed specifically at the canal path, and had hired a local

architecture firm to design a nonstandard building that would be compatible with its surroundings.

These findings and conclusions support the court’s decision regarding Criterion 9(K).

C. Grass Stormwater Swale

¶ 45. We agree with Neighbors that the Environmental Division failed to address the

evidence and make findings on whether the proposed stormwater grass swale would function

properly, and instead relied upon assumptions and subsequent enforcement to satisfy Act 250 water

quality criteria.

20 ¶ 46. The proposed project includes a stormwater management system designed to

accommodate stormwater runoff from the 2.88 acres of impervious surface that would result from

the project. The system is designed to collect stormwater through a series of catch basins and convey

the water for on-site treatment and detention, with eventual discharge into a nearby brook through a

detention pond and outlet structure located between Lots 2 and 3 of the subdivision. During the

proceedings before the Environmental Division, Hannaford modified its stormwater design by

relocating its proposed grass stormwater swale entirely within Lot 15, running in an east-west

direction. Because the relocated swale had not been approved by the Agency of Natural Resources

(ANR), there was no presumption of compliance with Act 250.

¶ 47. The purpose of the swale is to treat stormwater and provide for groundwater recharge,

in part, by detaining water for an expected period of time. At a December 1, 2015 hearing,

Hannaford’s expert, a civil engineer, testified that “we’ve designed a system that we think meets the

rules” and, more specifically, that the east-west grass stormwater swale was designed “to meet the

water quality and the recharge requirements of the rules.” The expert explained that the 210-foot-

long grass swale would have an eight-foot-wide dipped bottom to handle storm events as required

by the ANR rules. The expert acknowledged that Hannaford would have to demonstrate that the

swale would be able to handle the water flow coming from its property and other properties as

indicated in its design.

¶ 48. On the same hearing date, Neighbors’ expert, also a civil engineer, summarized his

prefiled testimony by opining that the relocated grass stormwater swale was “unlikely to function as

planned” because it was located in an area that was regularly inundated with water. The expert

stated that each time he had visited the site he noticed tall grass and cattails growing in saturated

ground and that just the previous day the area was ponded up to six inches deep. He “fully expect[ed]

the channel to be saturated after construction, and instead of being a groundwater discharge feature,

in addition to a water quality treatment feature, it will likely take in groundwater” such that

21 “groundwater will infiltrate into the channel, rather than exfiltrate out of the channel.”

Consequently, the expert explained, the channel would be a perennially wet breeding ground for

mosquitoes and occupied by wetland plants that would not permit it to meet the functional

requirements of a grass channel for purposes of water quality treatment. Hannaford’s expert did not

respond to this testimony.

¶ 49. In considering whether the proposed project met Act 250 water quality standards as

set forth in Criterion 1 of 10 V.S.A. § 6086(a), the trial court stated that the east-west stormwater

swale was “designed according to ANR’s specifications and functional requirements” and that

Neighbors’ arguments were insufficient to establish that the swale would not function as proposed.

Addressing Neighbors’ claim that stagnant water would always be present in the grass swale, the

court stated that Hannaford “propose[d] to construct a grass treatment swale according to ANR’s

standards,” and “[a]s proposed, the swale will not have standing water and will pose no risk to human

health.” The court stated further that “[i]f, post-development, the grass swale does not function

properly, [Hannaford] will be obligated to remedy the issue.” In response to Neighbors’ argument

in their motion to amend that they presented uncontradicted evidence that the east-west grass

stormwater swale would not function properly, the court stated that it had made a “credibility

determination between two or more opposing expert opinions” and that its approval was based on

Hannaford’s “evidence and representations, and, therefore, to comply with its permit, [Hannaford]

must install and operate a grass swale that conforms to the evidence presented.”

¶ 50. On appeal, Neighbors argue that the trial court failed to evaluate their expert’s

uncontradicted testimony that the proposed grass stormwater swale would not function as claimed.

According to Neighbors, the court’s approval of the system was not based on findings and

conclusions as to whether the system will actually function as claimed; rather, the court relied upon

unsupported assumptions that were undermined by uncontradicted expert testimony and

inappropriately deferred to future enforcement procedures for compliance.

22 ¶ 51. We agree. The Environmental Division may rely upon modeling in determining the

likelihood of a system meeting Act 250 criteria. Moreover, it has “broad discretion to assess the

credibility of the witnesses and the persuasive value of the evidence.” In re Costco Stormwater

Discharge Permit, 2016 VT 86, ¶ 14, ___ Vt. ___, 151 A.3d 320. But these principles are not

controlling in this case. Hannaford had the burden of proving compliance with Criterion 1. 10

V.S.A. § 6088(a). To that end, Hannaford’s expert testified simply that the relocated stormwater

swale was designed to meet the applicable ANR standards—a conclusory assertion that

acknowledged the governing standards. The expert did not testify that the system would likely work

as designed. Nor did he address the uncontradicted testimony of Neighbors’ expert that the swale

would not function as designed and thus would not meet those standards for very specific reasons—

the area was perennially wet, saturated with water, and populated by wetlands plants that would not

hold water as designed. The trial court made no findings or conclusions regarding the uncontradicted

testimony of Neighbor’s expert, but instead summarily stated that, “[a]s proposed,” the swale would

not have standing water and thus would comply with the applicable standards, and, if it did not,

Hannaford would be obligated to remedy the situation in enforcement proceedings. The finding that

the swale would not have any standing water was not supported by any testimony.

¶ 52. In short, in the face of specific unchallenged evidence that the system would not work

as intended, the court relied upon Hannaford’s conclusory representations that the system was

designed according to governing standards, without making any findings or conclusions regarding

the contrary evidence, and without any testimony addressing the likely effectiveness of the system.

That was error. The court was required to “make affirmative findings under all ten statutory criteria

before issuing a permit.” In re Treetop Dev. Co., 2016 VT 20, ¶ 11, 201 Vt. 532, 143 A.3d 1086;

see In re SP Land Co., 2011 VT 104, ¶ 25, 190 Vt. 418, 35 A.3d 1007 (stating that Act 250 rules

“mandate[] that a permit may issue only when positive findings of fact and conclusions of law have

been made under all criteria” before issuing permit). And the court’s findings must be supported by

23 competent evidence. See Trombly Plumbing & Heating v. Quinn, 2011 VT 70, ¶ 10, 190 Vt. 552,

25 A.3d 565 (mem.) (“The trial court’s findings will stand if there is reasonable and credible

evidence to support them.”). In light of the uncontradicted evidence presented by Neighbor’s expert,

the court was obligated to make findings and conclusions on the functionality of the proposed

relocated swale and not rely solely on Hannaford’s expectation that the swale would meet the

applicable standards and on an inference that it would actually work.

¶ 53. In the absence of evidence that the proposed swale would likely work as intended,

the court’s reliance on enforcement proceedings to assure the functionality of the swale would shift

to those proceedings questions that should be addressed at the permitting stage. That would

significantly impact Neighbors’ rights. Although interested parties may participate in enforcement

proceedings, they have no right “to initiate such proceedings or raise additional violations.” Treetop,

2016 VT 20, ¶ 13 n.4; see 10 V.S.A. § 6027(g) (assigning to NRB discretion to initiate enforcement

on matters related to land use permits). Thus, the trial court’s reliance on enforcement proceedings,

in the absence of evidence supporting the trial court’s finding that the swale would likely work,

deprives Neighbors of their only certain opportunity to present evidence demonstrating that the

system would not function as designed because of the particularities of its location.

¶ 54. Accordingly, the matter must be remanded for the trial court to make findings and

conclusions on the functionality of the swale in its proposed location, assuming that Hannaford does

not submit a revised stormwater design. The court may take additional evidence on this question.

D. Cross-Appeals—Traffic Issues

¶ 55. The traffic issues on appeal relate to two proposed conditions—one ordered by the

trial court and one declined by the trial court—designed to mitigate traffic congestion and safety

issues arising from the project. Criterion 5 of Act 250 requires that a development “not cause

unreasonable congestion or unsafe conditions with respect to use of the highways.” 10 V.S.A.

§ 6086(a)(5). An Act 250 permit may not be denied solely for reasons set forth in § 6086(a)(5), but

24 “reasonable conditions” may be imposed “to alleviate the burdens created.” Id. § 6087(b). The

party opposing the applicant has the ultimate burden of persuasion with respect to Criterion 5, id.

§ 6088(b), but the applicant has the initial burden of production regarding that criterion, see

Champlain Parkway, 2015 VT 105, ¶ 15.

¶ 56. When a proposed development will exacerbate already unreasonable congestion or

unsafe conditions, courts must decide on a case-by-case basis whether to impose mitigating

conditions and which conditions to impose. Compare In re Pilgrim P’ship, 153 Vt. 594, 595-98, 572

A.2d 909, 910-11 (1990) (noting that Criterion 5 “does not require that proposed development be

the principal cause or original source of traffic problems” and upholding Environmental Board’s

determination that development did not meet Criterion 5 based on evidence that project would result

in five-percent increase in traffic in area that was already “unreasonably congested and unsafe”) with

Costco Stormwater Discharge Permit, 2016 VT 86, ¶¶ 16-17 (affirming trial court’s determination

that near-term mitigation measures were sufficient to mitigate project’s contribution to existing

congestion where project would increase traffic at already congested intersection).

¶ 57. In this case, there was no dispute that the project would exacerbate existing

congestion. Based on testimony from Hannaford’s own expert, the trial court found that the project

would generate 386 end trips per hour during the weekday evening commute hour, which is the peak

hour. The trial court found that even without these added trips from the project, several areas near

and along Route 116 currently see significant traffic congestion and delays and several high crash

locations (HCLs) have been identified within the project impact area, including three between the

area just north of the Commerce Street intersection and the Charlotte Road intersection. 6 The

Vermont Agency of Transportation (VTrans) measures traffic congestion and traffic delays at high-

traffic times through a level-of-service (LOS) rating system that assigns grades from A to F, with F

6 An HCL indicates five or more accidents over a five-year period within a 0.3-mile stretch of road. 25 being the worst. The trial court found that even without the project, the Route 116/Mechanicsville

Road intersection and the Route 116/Charlotte Road intersection, south of Mechanicsville Road, are

LOS F. The court concluded that with many of these intersections already experiencing congestion

and safety concerns without the project, the addition of 386 peak-hour trips in the early evening

would “certainly exacerbate existing conditions.” On appeal, nobody challenges this conclusion.

¶ 58. At issue in this appeal are the necessity and reasonableness of two proposed

conditions: one requiring the installation of a traffic light at the intersection of Route 116 and

Mechanicsville Road, and one calling for a post-approval traffic study of the southbound left-turn

lane on Route 116 at the Commerce Street intersection.

1. Traffic Signal at Route 116/Mechanicsville Road Intersection

¶ 59. We conclude that the record does not support the Environmental Division’s

requirement conditioning Hannaford’s permit on the installation of a traffic signal at the intersection

of Mechanicsville Road and Route 116.

¶ 60. At trial, Hannaford proposed several mitigation measures, with a focus on the Route

116/Commerce Street intersection because Commerce Street would provide primary access to the

proposed project. Hannaford’s proposed mitigation measures included increasing from 75 feet to

185 feet the length of the Route 116 southbound left-turn lane at Commerce Street; extending by

190 feet the westbound right-turn lane on Commerce Street; increasing the Route 116 north/south

green signal time at the Route 116/Charlotte Road intersection; installing sidewalks along

Commerce Street to the intersection with Route 116 and within the project area to allow pedestrian

access from Mechanicsville Road and Commerce Street; and restricting the time of and entry route

for truck deliveries.

¶ 61. Hannaford also offered to pay $25,000 as its contribution to the traffic-signal

mitigation at the Route 116/Mechanicsville intersection. That sum represented the percentage of the

estimated cost of a signal attributable to the project’s expected nine-percent increase in peak-hour

26 traffic at the intersection. The court asked Hannaford’s expert what that meant in the absence of any

specific proposal to address further adverse impacts at the intersection, and the expert explained that

the funds would be available should the Town or the State decide to install a signal at that

intersection. When asked whether the traffic signal at that intersection was necessary, the expert

observed that “the warrants for the signal at that location have been met for many, many years,” but

the Town and the State have not pursued installing one.

¶ 62. Neighbors’ expert testified that Hannaford’s proposed mitigation did not adequately

address the Route 116/Mechanicsville Road intersection and that the post-build status of the

intersection as an LOS F was unacceptable. The expert testified that it was incumbent upon

Hannaford, as well as required in the VTrans Traffic Impact Study Guidelines, to study and propose

the mitigation needed to remedy an LOS of F that would result from the project, including studying

the costs to implement the mitigation measures. The expert testified that Hannaford had not done

this. He opined, “A potential mitigation will consist of signalizing the Mechanicsville Road

intersection and coordinating it with the Commerce St. and Charlotte Road intersections,” and

indicated that the signal would need to be operational when Hannaford opens. Asked whether there

was any downside to including a traffic light at that intersection, the expert said he could not think

of any.

¶ 63. In its decision, the court found all of the mitigation measures proposed by Hannaford

to be necessary but not sufficient for Act 250 approval. With respect to the Route

116/Mechanicsville Road intersection, the trial court concluded that although the proposed project

was not the sole cause of traffic issues at the intersection, “a traffic signal is necessary before the

Project is operational to prevent further degradation of unacceptable traffic conditions.” In addition

to addressing the added traffic congestion associated with the project, the court concluded that the

mitigation measures, including installation of a traffic light at the Route 116/Mechanicsville Road

intersection, would satisfy the safety concerns in Criterion 5. Specifically, the court stated that

27 installing a signal at the intersection “and coordinating it with the signals to the north and south will

achieve a smoother and more consistent flow of traffic” and “coordinating the traffic lights will

improve congestion and reduce the need and opportunity for risky behavior often accompanying

long delays and frustrated drivers.”

¶ 64. With respect to the payment for the required traffic signal, the court noted recent

legislation empowering an Act 250 District Commission or VTrans (and therefore the

Environmental Division when considering an appeal) to assess a transportation impact fee to fund

capital improvements necessary to mitigate transportation impacts of proposed developments. See

10 V.S.A. §§ 6101-6111.7 The court noted that neither VTrans nor the NRB had enacted rules

implementing this statute and that the parties did not address the legislation at trial. Accordingly,

the court ordered generally that Hannaford pay its proportional share of this mitigating measure, but

left it to the parties to work through the financing details.

¶ 65. Various parties filed motions to alter or amend the judgment concerning the traffic

issues. The Town asked the court to recognize that VTrans controls whether changes to Route 116

are made and to require Hannaford to pay the full cost of any mitigation measures at the Route

116/Mechanicsville Road intersection. Neighbors also requested that Hannaford be required to bear

the full cost of the required traffic signal. For its part, Hannaford asked the court to confirm that it

need only escrow its proportional share of the cost of any required signal at the intersection and to

7 This legislation, enacted pursuant to 2013, No. 145 (Adj. Sess.), § 2, authorizes the assessment of a proportional transportation impact fee on proposed developments subject to Act 250. The purpose of the legislation “is to provide a mechanism to allocate the costs to mitigate the impacts of land use projects to the transportation system in a manner that is equitable and that supports the planning goals of 24 V.S.A. § 4302.” 10 V.S.A. § 6101. Among other things, § 4302 encourages economic growth in locally designated growth areas, 24 V.S.A. § 4302(c)(1)(B). In its findings accompanying the statute, the Legislature indicated that the mechanism provided is intended to be an alternative to the “last-one-in” approach that tended to require applicants to bear the entire burden of installing mitigation measures benefiting not only the proposed project but also existing and future projects. 2013, No. 145 (Adj. Sess.), § 1(b)(1). Whether this 2013 legislation, with an effective date of July 1, 2014, applies to the March 2013 permit application at issue in this case was and is disputed. 28 allow the project to go forward if the Town and VTrans decided not to install a signal at the

intersection. In the course of the briefing on these issues, the Town noted that its “enthusiasm for a

traffic signal at the Mechanicville Road intersection is questionable” and that the Town “suspects

that other parties are similarly unenthused.” The NRB was more explicit, asserting that VTrans had

informed the NRB that it had no projects in its capital program for the intersection in question and

would not participate financially in any upgrades required by the Court.

¶ 66. In response to those motions, the trial court noted “uncontradicted evidence that the

Mechanicsville Road and Route 116 intersection experiences significant delays and congestion and

that the additional traffic from the Project will exacerbate those unacceptable conditions.” The court

concluded that because a traffic signal was the only proposed mitigation for addressing the

conditions at that intersection, the “signal must be installed and coordinated before the Project may

be completed.” The court expressed frustration that the only proposed mitigation for the Route

116/Mechanicsville Road intersection offered at trial was a traffic light, yet no party could point to

evidence in the record that the Town and VTrans would not support a traffic signal. The court

declined to alter its decision.

¶ 67. Hannaford argues in its cross-appeal to this Court that the trial court exceeded its

authority by purporting to require the Town and VTrans to install and fund a traffic signal at the

Route 116/Mechanicsville Road intersection even though neither governmental entity had agreed to

such a signal. In Hannaford’s view, considering that neither the Town nor VTrans has any plans for

a signal at the intersection despite the intersection’s LOS F rating, the condition requiring the

installation of a signal before the proposed project becomes operational amounts to a “functional

veto” of the project, in violation of 10 V.S.A. § 6087(b). Hannaford requests that this Court modify

the trial court’s traffic-signal condition to require Hannaford to escrow $25,000 before commencing

construction, with the escrowed funds being available for five years after the project begins operation

29 to contribute to the cost of any required traffic congestion improvements at the Route

116/Mechanicsville intersection.

¶ 68. The Town joins Hannaford in opposing the trial court’s condition that a traffic signal

be installed at the Route 116/Mechanicsville intersection before the proposed project becomes

operational, stating that it “lacks enthusiasm” for a signal at the intersection. Like Hannaford, the

Town argues that the condition effectively denies the project based on Criterion 5, in violation of 10

V.S.A. § 6087(b), because neither Hannaford nor the Town can install a traffic signal without the

participation of VTrans, which is statutorily authorized to “[e]rect and maintain appropriate traffic

control devices on state highways,” 19 V.S.A. § 10(7), but was not a party in the Environmental

Division proceeding. The Town notes that, under VTrans’ Traffic Impact Study Guidelines, if

“installation of signals is proposed, a signal warrant analysis should be performed,” and “[i]f a signal

is warranted, an assessment of the need for and design of pedestrian phases should be included.”

Vermont Agency of Transportation, Traffic Impact Study Guidelines at 23 (Oct. 2008), available at

http://vtrans.vermont.gov/sites/aot/files/planning/documents/trafficresearch/VTransTISguidelines

Oct2008.pdf (Dec. 8, 2016) [https://perma.cc/S57A-E6EA]. The guidelines further state that “if a

traffic signal is found to be warranted at any intersection analyzed, . . . and the developer proposes

to install a traffic signal, then [VTrans] strongly recommends that a roundabout also be analyzed for

installation at the same locations.” Id. at 24; see 2002, No. 141 (Adj. Sess.), § 37 (finding that

roundabouts have proven to be cost-efficient way of dealing with dangerous intersections and

directing VTrans “to carefully examine and pursue the opportunities for construction of roundabouts

at intersections determined to pose safety hazards for motorists”). Accordingly, the Town maintains

that the traffic-signal condition should be struck and that Hannaford should be required to perform

a signal warrant analysis and to consider alternative measures to mitigate the project’s impact on

traffic at the intersection. In the alternative, the Town proposes that the matter could be remanded

30 to the District Commission, where VTrans was a party, with instructions that a signal warrant

analysis for the intersection be performed.

¶ 69. Both Neighbors and the NRB urge this Court to uphold the trial court’s condition

requiring installation of the traffic signal before the project becomes operational. Neighbors argue

that Hannaford failed to preserve in the proceedings below its objection to a condition requiring

installation of a traffic signal at the Route 116/Mechanicsville intersection, that the condition is

supported by the record, and that any difficulty in implementing the condition is not a basis for

striking it. The NRB argues that Hannaford failed to preserve its “functional veto” argument and

that, even if the argument was preserved, the court acted well within its authority in imposing the

condition because it is reasonable and supported by the evidence. The NRB agrees with Hannaford

and the Town that the trial court cannot order the Town or VTrans to pay for any portion of the

traffic signal, regardless of whether they are a party, and thus argues that there is no basis to remand

the matter to make VTrans a party before the Environmental Division. According to the NRB, as

long as Hannaford offers to pay the entire costs of the traffic signal up front, there is no reason to

believe that either the Town or VTrans would prevent Hannaford from satisfying the traffic-signal

condition.

¶ 70. We conclude that the court’s condition requiring the installation of a traffic signal at

the Route 116/Mechanicsville Road intersection is not supported by the evidence. We reach this

conclusion for two main reasons, operating in concert: the testimony of Neighbors’ expert does not

support the traffic light requirement, and Neighbors did not offer sufficient evidence that the

condition was reasonable in the sense that it was likely to be attainable. If it is not, then the condition

would operate as an insurmountable obstacle to the project, in violation of the Legislature’s direction

that Act 250 permits not be denied on the basis of Criterion 5. 10 V.S.A. § 6087(b).8

We are not persuaded by Neighbors’ argument that Hannaford failed to preserve this point 8

below. We do not rest our decision on the claim that the condition at issue constituted a functional 31 ¶ 71. First, Neighbors’ expert did not purport to have conducted the necessary analysis to

support the requirement of a signal at the Route 116/Mechanicsville Road intersection. In his

prefiled direct testimony, Neighbors’ expert opined that Hannaford had to do something to address

the unacceptable delays the project would exacerbate at the Route 116/Mechanicsville Road

intersection. He emphasized that the congestion at the intersection would be unacceptable, and

stated:

[I]n my opinion it is incumbent upon [Hannaford], as well as required in the VTrans Traffic Study Guidelines, to propose and study the mitigation needed to remedy a LOS of F that would result from the applicant’s project, including study of the costs to implement the mitigation measures. [Hannaford] has not done this.

The expert identified signalizing the intersection as “a potential mitigation” and opined that the

signal would need to be operational when Hannaford opens in order to mitigate the unacceptable

congestion the project would cause. His live testimony at the hearing focused largely on his critique

of Hannaford’s traffic expert’s estimate of the increased traffic the project would generate. He did

opine at one point that a signal at the Mechanicsville Road intersection was “an appropriate

solution.” But when asked directly whether, under current conditions, a traffic light was warranted,

Neighbors’ expert said, “I did not do a traffic light analysis at that location.” He proceeded to explain

why he thought a traffic light would improve traffic flow, and that he believed the additional traffic

from the project would warrant a signal, coordinated with the other signals on Route 116. He did

not, however, offer any specific design or specifications, testify that he had analyzed the feasibility

of coordinating the proposed light with the other lights in the corridor to achieve the predicted

results, point to a signal warrant analysis supporting the installation of a light, identify any analysis

veto of the project; for the reasons set forth below, we conclude that there is insufficient evidence in the record to support or disprove Hannaford’s suggestion that it will not be able to comply with the traffic light requirement due to VTrans’s and the Town’s opposition. 32 of alternatives such as a roundabout, or provide a quantitative assessment of the impact of a light in

mitigating the congestion at the intersection and associated safety issues.

¶ 72. We do not understand Neighbors’ expert to have offered a specific traffic signal

proposal based on appropriate traffic light analysis and a consideration of the effectiveness and

desirability of other alternatives. The trial court understandably took up the traffic light suggestion

because, general as it was, it was the only mitigation specifically directed at the Route

116/Mechanicsville Road intersection that was offered by any party, and the court rightly concluded

that the project would exacerbate already unacceptable congestion at that intersection. But we

understand the expert testimony to support only the more modest assertions that: (1) in the face of

the unacceptable congestion exacerbated by the project, Hannaford was required to propose and

study the mitigation needed to remedy the congestion—in essence, to conduct a signal warrant

analysis as described in the VTrans guidelines; and (2) a traffic signal is a potential mitigation

measure at the intersection.

¶ 73. Second, Neighbors did not meet their burden of demonstrating that the traffic light

condition was reasonable, in the sense that it was attainable. A traffic light at the intersection might

be a great idea, but if VTrans (a non-party to the proceedings before the Environmental Division)

and the Town oppose it, and the project therefore has little chance of ever being built, it cannot be

deemed a reasonable mitigating measure that is a precondition to implementation of the permit. See

10 V.S.A. § 6087(b) (providing that permit may not be denied solely on basis of Criterion 5, but

authorizing “reasonable conditions and requirements” to alleviate burdens on traffic congestion and

safety). In fact, as Hannaford and the Town now argue, if VTrans and the Town oppose installation

of a traffic light, and it accordingly does not happen, then the permit condition requiring a traffic

light would be tantamount to a denial of the permit, in violation of the provision that a permit may

not be denied solely on the basis of Criterion 5. See id. Neighbors bore the burden of establishing

the reasonableness of their proposed condition. See Champlain Parkway Act 250 Permit, 2015 VT

33 105, ¶ 16 (explaining that opposing party’s burden under § 6088(b) “includes the duty to demonstrate

the availability of reasonable mitigating steps, including reasonable alternatives”) (quotation

omitted). In this case, the absence of record evidence as to the practical feasibility of the traffic light

proposal in light of VTrans’s and the Town’s own positions on the subject operates to Neighbors’

detriment.

¶ 74. We do not mean to suggest that parties proposing mitigating measures must

proactively establish in every case that the relevant state agencies will support or cooperate in the

implementation of their proposed conditions. But in this case, the proposed mitigating measure

called for significant action by VTrans, which was not even a party or witness in the proceeding

before the Environmental Division. There was no evidence that VTrans or the Town had initiated

any steps toward installing a traffic signal at the intersection. Hannaford introduced into evidence a

June 2014 corridor planning study prepared by an engineering consulting firm for the Chittenden

County Regional Planning Commission. See 19 V.S.A. § 10i(b) (requiring VTrans to “develop

transportation corridor studies as needed,” identifying problems and ranking them “according to

their criticality and severity”). In relevant part, the study identified priority short-, medium-, and

long-term projects for the Route 116 corridor near the Hinesburg town center. The study did not

include a traffic signal at the Route 116/Mechanicsville Road intersection, notwithstanding the

evidence of existing unacceptable levels of congestion during peak hours. When asked by the court

what would happen if the court made a signal a condition of approval but the Town continued not

to want a signal at the intersection, Neighbors’ expert responded, “I can’t answer that question.” In

this case, the parties and court were on notice of the substantial possibility that VTrans would not

support a traffic signal at that intersection. Insofar as Neighbors proffered the traffic light as a

mitigating measure, the burden fell to Neighbors to demonstrate the feasibility of the project. They

did not meet that burden in this case.

34 ¶ 75. For the above reasons, we remand the matter for further proceedings concerning

mitigation.9 On remand, any party advocating a traffic signal at the Route 116/Mechanicsville Road

intersection, or construction of a roundabout in the state highway, as reasonable mitigation should

have the opportunity to join VTrans as a necessary party. Insofar as the proposed traffic signal

impacts VTrans’s statutory and regulatory duties regarding state highways, the agency’s

participation is a necessary precursor to any ruling requiring such a condition. See 19 V.S.A. § 10(7)

(providing that VTrans shall “[e]rect and maintain appropriate traffic control devices on state

highways”). On remand, the trial court may on the basis of the existing record require Hannaford to

conduct a traffic signal study pursuant to VTrans guidelines, including consideration of alternatives

such as a roundabout, or may reopen the evidence on mitigation as it sees fit.

2. Traffic Study

¶ 76. We remand the issues surrounding the trial court’s elimination of a post-approval

traffic study requirement focusing on the Route 116/Commerce Street intersection so that the trial

court can consider the Town’s arguments in the first instance.

¶ 77. At trial, Neighbors’ traffic expert testified that the southbound left-turn lane on Route

116 at Commerce Street should be extended to 200 feet in length rather than 185 as proposed by

Hannaford. The fifteen-foot differential was significant because the added length pursuant to the

Neighbors’ proposal would have required replacement of the culvert over Patrick Brook—a

substantially more involved process. The trial court found that the 185-foot left-turn lane was

adequate, and no widening of Route 116 beyond that proposed by Hannaford was necessary. The

court noted, however, that because much of the evidence before the court was based upon predictive

traffic models, there was no certainty that the 185-foot left turn lane would be sufficient to mitigate

increased traffic from the project. The court therefore imposed a condition that, post-construction,

9 Because we conclude that the record does not support the traffic light condition, we need not address the issues concerning Hannaford’s responsibility for paying for the improvement. 35 Hannaford and the Town should conduct a post-development traffic study of the left-turn lane from

Route 116 southbound onto Commerce Street “to confirm that the 185-foot lane length is adequate.”

The court explained that if the lane length proved inadequate, Hannaford should obtain a further

amendment to the Act 250 permit for any necessary mitigation.

¶ 78. Neighbors moved to amend this aspect of the court’s order, arguing that, as framed,

the condition deprived them of their statutory right to participate in the determination of whether the

turn lane is adequate because they were not afforded a role in the post-development study and

subsequent proceedings. Neither Neighbors, nor any other party, sought wholesale elimination of

the post-development traffic study requirement.

¶ 79. In response, the court explained that there was compelling evidence that Hannaford’s

traffic mitigation measures for the Route 116/Commerce Street intersection adequately dealt with

the projected traffic conditions, but it had initially included the post-development traffic study to

accommodate Neighbors’ concerns that the 185-foot left-turn lane was not long enough. Upon

further review, and in light of the participation concerns raised by Neighbors, the court struck the

post-development traffic-study condition altogether. The court reiterated its conclusion that the

credible evidence establishes that the project satisfies Criterion 5 with the improvements proposed

by Hannaford, and that no further traffic studies are necessary.

¶ 80. On appeal, the Town argues that, without the traffic-study condition, it will be

impossible to determine whether Hannaford’s predictive traffic impact analysis accurately forecasts

the level of traffic that will be generated by the proposed project and whether the project will cause

unreasonable traffic congestion. According to the Town, the court’s factual findings do not support

elimination of the condition. The Town emphasizes that no party on appeal opposes the condition

and that, throughout these proceedings, Hannaford itself agreed that a post-development traffic study

is needed to ensure that no unreasonable congestion results from the project at the Route

116/Commerce Street intersection. The Town proposes a condition similar to the one VTrans

36 suggested to the District Commission. The Town’s proposed condition would require Hannaford to

perform traffic monitoring studies of all intersections studied by Hannaford within six months to a

year after the project is open to the public. The proposed condition would also allow the District

Commission to reopen the docket and make further findings and conclusions regarding appropriate

mitigation measures in the event that the results of the monitoring demonstrated more congestion or

unsafe conditions than predicted in Hannaford’s traffic-impact analysis. Further, the Town’s

proposed condition would require necessary mitigation measures if the post-development

monitoring demonstrated that Hannaford’s proposed 185-foot left-turn lane on Route 116 at

Commerce Street was inadequate to handle the traffic impacts from the project.

¶ 81. We conclude that the trial court exceeded its discretion in striking the traffic-study

condition concerning the southbound left-turn lane of the Route 116/Commerce Street intersection

for two reasons. In striking the condition, the court relied on the same predictive-model evidence

that led it to impose the condition in the first place, but failed to explain why the post-project

monitoring was no longer necessary. Moreover, because all parties to the proceedings before the

trial court had agreed to some form of the post-development study condition, and the trial court

removed the condition on its own initiative in response to a motion to reconsider that did not suggest

elimination of the condition, the Town’s opportunity to present to the trial court its arguments in

favor of keeping the study has been circumscribed. A second post-judgment motion would not have

been practicable. See Fagnant v. Foss, 2013 VT 16A, ¶ 10, 194 Vt. 405, 82 A.3d 570 (holding that

untimely successive post-judgment motion does not toll the running of the appeal period). At a

minimum, on remand the Town must have an opportunity to present its arguments in favor of

retaining the post-development traffic-study condition in some form.

¶ 82. We note, however, that the all-encompassing study proposed by the Town, which

would allow the District Commission to reopen the docket depending on the results of the post-

permit traffic study, would directly violate our recent decision in Treetop. In Treetop, the District

37 Commission imposed a permit condition that reserved its right to continue to review stormwater

mitigation measures “and to evaluate and impose additional conditions as needed.” 2016 VT 20,

¶ 6. The Commission indicated that it was retaining jurisdiction to ensure that the mitigation

measures proposed by the applicant would be effective and in compliance with Act 250. We upheld

the Environmental Division’s rejection of the condition, stating that, by reserving continuing

jurisdiction over the stormwater system, the Commission was effectively creating a mechanism for

it “to continuously amend the permit as necessary to redress future Act 250 violations,” which not

only expropriated the NRB’s enforcement authority but also prevented finality in the land-use

permitting process. Treetop, 2016 VT 20, ¶ 14. We concluded that such an open-ended condition

was “an invalid condition subsequent.” Id.

¶ 83. We emphasized, however, that:

Permissible conditions include those with prospective application that are intended to alleviate adverse impacts that either are or would otherwise be caused or created by a project, or those necessary to ensure that the development is completed as approved, such as those requiring permittees to take specific action when triggered by certain events, incorporating a schedule of actions necessary for continued compliance with Act 250 criteria, and requiring future compliance related filings, including affidavits of compliance with respect to certain permit conditions.

Id. ¶ 12.

¶ 84. Thus, our decision in Treetop does not preclude a condition requiring a permit

applicant to perform a post-development study of traffic conditions to assure that specific, evidence-

based performance standards are met. The Environmental Division must, in the first instance,

determine based on sufficient evidence that particular permit conditions will likely satisfy the

statutory requirements. Having so concluded, the court may require the permittee to take pre-

determined specific actions as a result of the failure to meet the performance standards. Whether or

not a permit includes such pre-determined follow-up actions, in the absence of a permit amendment,

see Act 250 Rules, Rule 34, Code of Vermont Rules, 12 004 060, available at

38 https://www.lexisnexis.com/hottopics/codeofvermontrules, the permittee’s failure to meet the

performance standards outlined in the permit conditions becomes a matter for enforcement

proceedings.

¶ 85. On remand, we direct that the trial court in the first instance to consider the Town’s

objection to its elimination of the post-development traffic study relating to the Route

116/Commerce Street intersection. The court shall take additional evidence and make further

findings regarding the propriety of a post-development traffic study given the evidence before it.

We caution, however, that any condition the court imposes on remand must be consistent with our

holding in Treetop, as discussed above.

The Environmental Division’s site-plan decisions and judgment entered on April 12, 2016 and July 7, 2016 are reversed. The Environmental Division’s Act 250 decisions and judgment entered on July 7, 2016 are affirmed in part and reversed in part, and the matter is remanded for further consideration consistent with this opinion.

FOR THE COURT:

Associate Justice