Sunday, May 1, 2016

Park Permitting Pushback

In re Waterfront Park, 2016 VT 39

By Andrew Delaney

Burlington sought to amend its Act 250 permit for the Waterfront Park on Lake Champlain. Neighbor challenged Burlington’s right to do so. The Environmental Division granted summary judgment and ruled the Burlington was entitled to seek to amend its permit. Let's take a quick look back.

In 1990, Burlington got a land-use permit for the Waterfront Park. Events were held. In ’93, Burlington sought to amend its permit, and attempted to delegate “timing, duration, and frequency of events and sound levels,” to the Parks and Recreation Commission (I hear there’s a sitcom about this). At any rate, the district commission granted the amendment and imposed 26 conditions, which related to, among other things, maximum sound levels and how to measure them, as well as timing and frequency of events at the park.

In 2008, neighbor bought her property, which is right next door. She researched before she bought and relied on the timing-and-frequency-and-maximum-sound-levels provisions in the permit. She knew there would be festivals and events, but also knew they’d be limited by the conditions. She’s significantly impacted by the events at the Park—“loud noise for extended periods of time, significant vehicular and pedestrian traffic congestion, and limits on her ability to sleep, spend time outdoors, open her windows, and enjoy her property.”

There’s been a lot of residential and commercial development in and around the Park since its beginnings. Festivals and events attract a lot of visitors and this helps the Burlington economy significantly.

In 2013, Burlington “adopted PlanBTV, which outlines the City's development goals for downtown Burlington and the waterfront.” The plan opines that residents and businesses need to embrace “the important community role played by the park and its many events,” and the “event planners and organizers need to be sensitive to the impacts that event noise, lighting, and traffic congestion has on their neighbors.”

The plan and other relevant documents call “for maximizing the use of the Park for festivals and special events” and limiting development in the Waterfront Park area.

In November 2012, Burlington sought to amend the permit again. Among the conditions Burlington sought to amend was a frequency, timing, and noise levels condition. Burlington wanted to get rid of date, total-number-of-days, and weekend-day restrictions. It also sought to extend a noise-cutoff time to 11:00 p.m.

The district commission granted the request, and imposed a series of sound-level restrictions and noise-monitoring requirements.

Neighbor appealed to the Environmental Division pursuant to this statute. Both Burlington and neighbor filed cross-motions for summary judgment “on the threshold question of whether the City was entitled to request the amendments to the . . . Permit under Act 250 Rule 34(E).” The Environmental Division granted Burlington’s motion and denied neighbor’s, concluding that Burlington had “satisfied the threshold requirements for seeking a permit amendment reflected in Rule 34(E).” (Rule 34(E) is Code of Vt. Rules 12-004-060 and presumably can be found somewhere in this jumble—good luck.)

The parties essentially agreed that the amendment was cool if Burlington was allowed to seek the amendment. Neighbor therefore appeals the trial court’s grant of summary judgment on the threshold can-Burlington-even-seek-an-amendment issue.

And so, the sole issue on the SCOV’s plate is “whether the 2013 Amendment violated Act 250 Rule 34(E).” The rule is based on the SCOV’s Stowe Club Highlands decision. The case is pretty important in Vermont land-use law. Basically, the idea is to balance flexibility with finality. Perhaps because (in my opinion) it’s so hard to dig up Rule 34(E) in that Michie site, the SCOV pastes the whole thing (pre-December 2015 amendment) into ¶12 of the opinion. I’m not going to do that here.

Neighbor argues that: (1) Burlington was simply trying to relitigate the condition and the trial court screwed up in concluding otherwise; and (2) that the trial court screwed up the finality-versus-flexibility balancing test.

The SCOV reasons that it reviews the grant of summary judgment “anew and without deference,” but drops a footnote to indicate that standard isn’t entirely clear.

Neighbor first asserts that in 1994, Burlington knew or could have foreseen the circumstances it relied on to amend the permit in 2012.

The SCOV notes that changes based on “small or moderate changes in circumstances are ordinarily disfavored,” but bigger changes may warrant changes. The SCOV concludes “that the changes in and around the Park since 1994 have been so extensive that it would be improper to characterize the City's application as a mere effort to relitigate the 1994 permit.” The SCOV points to the ECHO Lake Aquarium and Science Center, Union Station, and Main Street Landing as examples. In ’94, Burlington had only just begun to use the Park as a venue for public events.

The SCOV quotes with approval the trial court’s reasoning that foresight alone doesn’t mean circumstances can’t change to such a degree that an amendment is warranted. Here, the SCOV reasons that just because Burlington had high hopes for the Waterfront Park, that doesn’t mean that its success was inevitable. So, being successful with goals won’t necessarily render significant changes to foreseeable outcomes.

Neighbors next argument is that the trial court “incorrectly balanced the need for flexibility over finality in concluding that an amendment” was warranted. Neighbor contends that all the factors weigh “in favor of affirming the finality of the 1994 permit.”

The SCOV acknowledges “that one factor—others’ reliance on the prior permit conditions—weighs in favor of finality,” but concludes that the other factors tip the scale toward flexibility.

The SCOV reasons that the first three factors—“changes in facts, laws, technology, and innovative design” between the permit and the amendment—go on the flexibility side of the scales.

The SCOV points to the extensive “changes in the City’s use of the Park and in the number and location of surrounding residential and commercial structures.” On this point, the SCOV agrees with the trial court that it was appropriate to revisit the condition and mitigate adverse impacts. In so reasoning, the SCOV rejects neighbor’s argument that none of these events were beyond Burlington’s control. Here, the SCOV reasons that the Park’s success “required a confluence of different factors”—many of which were beyond Burlington’s control.

The SCOV also notes that the measurement and regulation of sound levels supports Burlington’s attempt to amend. The SCOV notes that the limits in the 1994 permit are ambiguous (pointing to this case to illustrate), and points out that applicable guidelines did not exist in 1994.

The SCOV also puts the fourth factor—policy considerations—on flexibility’s side. Here, the SCOV notes that the municipal plan is in favor of maximizing the park’s use. The SCOV also notes that it’s publicly owned property dedicated to public use.

The SCOV sees the fifth factor—whether there was manifest error in the original permitting process—as a wash. There’s no evidence of a manifest error, and the sound-level provisions needed, at the least, clarification.

As noted above, the SCOV concludes that reliance by others in the permit’s terms tips in favor of finality. Burlington points out that by the terms of the permit it can get permission to alter them with written permission from the district commission, but the SCOV is not swayed on the point. The SCOV opines that the “proposed changes will unquestionably affect neighbor’s interests.” The SCOV points out that neighbor benefitted from the conditions in the ’94 permit and it was reasonable for her to rely on the conditions when she bought her home.

But on balance, the SCOV concludes “that the factors supporting flexibility in this case outweigh those calling for finality.” The Park is a dynamic resource for Burlington “and its increased use has been and will continue to be important to the City’s cultural, recreational and social life, and its prosperity.” In this case, it seems, neighbor’s reliance on the permit’s conditions is outweighed by the factors favoring flexibility.

What do you think? Let us know below.


  1. Is The City going to reduce Neighbor's property tax based on the reduction in property value caused by the City itself? Silly question. Is there a time when government will ever live up to its promises? It accepted the original conditions and then asked for changes. New conditions granted and accepted again. And yet again the City looks for amendments. When can adjoining land owners expect finality? Pretty much all of the growth and changes were under the control of and encouraged by the City. If finality is not to be seriously considered then it should not be in the rules. All written orders should contain a warning that requests for amendments can be asked and approved at any time in the future. If the Neighbor knew that previously issued orders were not to be relied upon they may have decided to spend their hard earned tax dollars in another community.

  2. The SCOV sees the fifth factor—whether there was manifest error in the original permitting process—as a wash. There’s no evidence of a manifest error, and the sound-level provisions needed, at the least, clarification.