STATE OF VERMONT
SUPERIOR COURT ENVIRONMENTAL DIVISION
Vermont Unit Docket No. 106-7-14 Vtec
Natural Resources Board,
Petitioner
v. DECISION ON MOTION
Stratton Corporation,
Respondent
Decision on Motion for Partial Summary Judgment and Motion to Stay Discovery
Treetop Development Company, LLC, Treetop Three Development Company, LLC,
Intrawest Stratton Development Corporation, and The Stratton Corporation (collectively,
Stratton) received Act 250 Land Use Permit # 2W1142 (the Permit) from the District 2
Environmental Commission (the Commission) for the development of 25 three-unit townhouse
buildings near Stratton Mountain in the Town of Stratton, Vermont (the Project) on November
18, 2002. Stratton failed to construct the project in accordance with the Permit and did not
receive written approval for the alterations. Some of the alterations were to the stormwater
management systems, which the Permit required be constructed in conformance with
stormwater discharge permits previously granted to Stratton by the Agency of Natural
Resources (ANR). On March 12, 2012, Stratton applied for an Act 250 permit amendment to
remedy all violations and restore the Project site. On October 21, 2013, the Commission issued
Land Use Permit Amendment # 2W1142-D to address the remediation and alterations (the
Permit Amendment). This Permit Amendment was not appealed and is therefore final.
Stratton’s failure to receive advance approval of the alterations to the Project and their
failure to construct the Project as permitted are violations of Act 250. The Natural Resources
Board (NRB) and Stratton entered into an Assurance of Discontinuance on July 15, 2014 (the
AOD) to resolve the Permit violations and address Stratton’s failure to obtain the Permit
Amendment prior to altering the Project. The AOD requires Stratton to comply with the Permit
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and the Permit Amendment, take certain actions to bring the project site into compliance with
all permit conditions and regulations, pay a civil penalty, and reimburse the NRB and ANR for
the cost of enforcement.
The Treetop at Stratton Condominium Association, Inc. (the Association), representing
the interests of the owners of the Project’s townhouse condominium units, participated in the
various Act 250 proceedings. The Association expresses an interest in ensuring that the Project
infrastructure, especially the stormwater management system and erosion control elements,
are constructed in conformance with the Permit, Permit Amendment, and all applicable
regulations.
This Court, by its November 14, 2014 entry order, granted the Association’s motion to
intervene in the enforcement proceeding pursuant to 10 V.S.A. § 8020. NRB v. Stratton Corp.,
No 106-7-14 Vtec, slip op. at 3 (Vt. Super. Ct. Envtl. Div. Nov. 14, 2014) (Walsh, J.). In a decision
dated April 10, 2015 the Court determined that the scope of the matter before the Court is
limited to the violations contained in the AOD which are: 1) fire truck access, 2) retaining walls
and tree clearing, and 3) the stormwater detention basin and conveyance system. NRB v.
Stratton Corp., No 106-7-14 Vtec, slip op. at 4 (Vt. Super. Ct. Envtl. Div. Apr. 10, 2015) (Walsh,
J.). The Court also determined, in a separate appeal related to the Permit Amendment, that
because the Permit Amendment was not appealed, it was final and binding on all parties. The
Court, in denying the Association post-judgment relief, also recognized that the issues raised by
the Association in that appeal related to:
[W]hat [the Association] allege[d] to be a fundamental failure of the Permit
Amendment to ensure compliance with Act 250. As we noted in our prior
decision, the Commission is statutorily required to make positive findings under
all Act 250 Criteria before issuing a permit. 10 V.S.A. § 6086(a). By its plain
language the Permit Amendment made these findings.
In re Treetop Dev. Co. Act 250, No. 77-6-14 Vtec, slip op. at 2–3 (Vt. Super. Ct. Envtl. Div. Mar.
25, 2015) (Walsh, J.).
Stratton now moves for partial summary judgment in this matter, arguing that based on
the unappealed Permit Amendment and the prior decisions of this Court, it is entitled to
judgment as a matter of law regarding any remedial measures necessary to bring the project
into compliance as that issue was fully resolved by the Permit Amendment. The Association
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opposes the motion and argues that the Court is still legally authorized to review the alleged
violations. The Association asserts the following:
Stratton Corporation has continued to resist making a good faith and
comprehensive attempt to cure its permit violations and instead has filed
incomplete and inadequate plans and specifications with the District 2
Environmental Commission, conducted its work to correct the permit violations
in a deficient and defective manner, and attempted to avoid responsibility for
permit and regulatory compliance by claiming that the vague and inconclusive
decision of the District 2 Environmental Commission in issuing Act 250 Permit
#2W1142-D [the Permit Amendment] prevents the Environmental Division from
conducting a thorough and comprehensive review of Stratton Corporation’s
violations or requiring Stratton Corporation to do all work necessary to correct
all of its violations.
(Response to Stratton’s Mot. for Partial Summ J. at 8, filed May 28, 2015). Here, again, the
Association misconstrues the legal effect of the Permit Amendment, the scope of the AOD, and
the issues remaining in this appeal.
While the Association continues to assert that the Permit Amendment failed to
adequately address the deficiencies in the construction of the project following the original
permit, the fact remains that the Association did not appeal the Permit Amendment, which
renders it final and binding. As noted above, this Court has already determined that the Permit
Amendment brings the project into compliance with Act 250. Treetop Dev. Co. Act 250, No. 77-
6-14 Vtec, slip op. at 2–3. As final adjudications of this issue, involving the same parties, and
throughout which all parties have had ample opportunity to litigate the issue, both the Permit
Amendment and this Court’s decisions in Docket No. 77-6-14 Vtec preclude relitigation of the
issue in this appeal. See In re Cent. Vt. Pub. Serv. Corp., 172 Vt. 14, 20 (2001) (citing State v.
Dann, 167 Vt. 119, 126 (1997)) (setting out elements of collateral estoppel).
The scope of the AOD is limited to the violations that pre-date the Permit Amendment.
Furthermore, by its plain terms the AOD requires Stratton to comply with all requirements of
the Permit Amendment and to submit plans to ANR indicating compliance. While the
Association raises issues of compliance with the Permit Amendment in its opposition to
Stratton’s motion for partial summary judgment, that issue is not before the Court. It is within
the sole authority of the NRB to enforce the Permit Amendment. If the work required by both
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the Permit Amendment and the AOD is not completed, it will be up to the NRB to enforce those
directives. This is outside the scope of this enforcement action.
For the above stated reasons, Stratton’s motion for partial summary judgment is
GRANTED. The sole issue remaining in this matter is a determination of whether the AOD is
sufficient to carry out the purposes of the Vermont environmental enforcement statutes with
respect to administrative penalties, considering the factors set out in 10 V.S.A. § 8010. See 10
V.S.A. § 8020(h) (establishing the scope of intervention in an administrative enforcement
action).
Motion to Stay Discovery and Scheduling Order
Stratton and the NRB have also filed a joint motion to stay discovery and this Court’s
scheduling order pending resolution of the motion for summary judgment. As the Court hereby
grants Stratton’s motion for summary judgment, the motion to stay discovery is DENIED.
Stratton and the NRB both must timely respond to any discovery requests by the Association
with the understanding that such discovery must be limited to the issues that remain in this
matter as a result of this decision.
Conclusion
For the reasons stated in greater detail above, the issue of whether the remedial
measures required by the Permit Amendment resolve the violations contained in the AOD has
been fully litigated and adjudicated in Stratton’s favor. Stratton’s motion for partial summary
judgment is therefore GRANTED. The joint motion to stay discovery is DENIED and any
discovery necessary to allow the parties to prepare for final adjudication of the issues left
unresolved by this decision must proceed promptly.
As the issues remaining for trial are limited to the penalty factors set out in 10 V.S.A.
§ 8010, the Court sets this matter for a single day of trial per the enclosed notice.
Electronically signed on July 13, 2015 at 12:23 PM pursuant to V.R.E.F. 7(d).
_________________________________________
Thomas G. Walsh, Judge
Superior Court, Environmental Division
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