Sunday, February 12, 2017

Service Station Scrap

In re Costco, 2016 VT 86

By Andrew Delaney

Every time I hear “Costco,” I think of this scene from Idiocracy:

That has little to do with this opinion. If that bothers you, you’re welcome to take it up with management.

This is an appeal by Costco’s neighbors—specifically, gas-station companies R.L. Vallee and Timberlake Associates—from a superior court decision affirming several permits issued to Costco for Costco’s new gas station. Let me grossly oversimplify. Vallee raises four issues related to traffic mitigation and stormwater impacts, and Timberlake says the trial court screwed up when it relied on “on a presumption with respect to the project's impact on water pollution and waste disposal under Act 250.”

Costco has some land in Colchester. It wanted to expand, move some parking, and throw in a gas station. It applied for and got various state and local permits. A wetland was reclassified (with a little help from Timberlake) and this required an individual wetland permit.

“Vallee and Timberlake appealed all of the permit determinations to the environmental division.” A bunch settled and the rest went to a coordinated, multiple-day trial. The trial court affirmed the permits. Vallee and Timberlake appeal separately with some overlap.

The SCOV defers to the trial court on factual findings unless those findings are totally crazypants. Even though the SCOV reviews the legal conclusions de novo, so long as the conclusions are supported by the facts, the SCOV will roll with it. The SCOV also defers greatly “to an agency’s interpretations of its own regulations.” Simply put, Vallee and Timberlake have their work cut out for them.

The SCOV starts with the traffic issues. Vallee claims that the trial court flubbed when it found that Costco’s improvements were sufficient to mitigate traffic impacts. In a nutshell, under Act 250, a development can’t get a permit if it’ll cause unreasonable congestion or unsafe conditions relative to highways. While long-term improvements (for which there’s an up-to-ten-years’ timeframe) may mitigate congestion during rush hour, Vallee contends that Costco’s short-term improvements won’t cut it.

The gas station was estimated to result in some more traffic in an already-congested-at-rush-hour spot. In order to mitigate the traffic impact, Costco proposed adding dedicated left- and right-hand turn lanes, and a through-or-right-turn lane. Costco also proposed better synchronization of traffic lights and a “‘Do Not Block Driveway’ sign at the curb cut for Vallee’s facility.” The trial court found that this was good enough to fully mitigate the impact from the additional traffic.

Vallee maintains that there was “no evidence” to support the trial court’s conclusion: the expert simulations assumed completion of the long-term improvements (which could take ten years) and, really, the only thing the short-term improvements do is create more storage capacity for cars to wait in traffic.

The SCOV goes through the evidence and Costco’s expert’s testimony and concludes that there was enough to support the trial court’s finding. For example, when asked if the near-term improvements would mitigate the impact from additional traffic, even without the long-term improvements being completed, the experts said, “They will.”

There’s a lot more to it, but that’s the bottom line—in an already congested situation, the applicant isn’t required to mitigate the underlying congestion, but the additional congestion that will be caused by the project. The SCOV concludes that the trial court’s findings are supported by the experts’ testimony and the traffic issues don’t grow teeth.

Vallee’s next issue is with an underground pipe. The wetland permit was issued and, as best I can tell, there’s an underground pipe that goes into detention pools and is within the buffer zone of the wetland (for clarity, this is the reclassified-during-the-process wetland mentioned above). Vallee argues that the trial court should’ve kicked it back to the Agency of Natural Resources (ANR) because that wasn’t considered when the original wetland permit issued.

The procedural history is somewhat complicated. But it doesn’t matter too much. The trial court found that the underground pipe and wastewater mitigation system’s impact on the wetland was minimal if any. So the trial court affirmed the issuance of the permit, even though the ANR hadn’t really considered it when it issued the permit.

So the SCOV doesn’t put much stock in Vallee’s lack-of-jurisdiction argument. There’s also a bit about a cross-examination getting shut down. The SCOV throws that one to the side with a “trial court discretion” nod.

Next is the impact-on-the-wetland issue. Vallee argues that the trial court was wrong in concluding that the project wouldn’t have an undue adverse impact on the wetland. Costco’s current stormwater treatment system has been around for almost 25 years. The new system and improvements will decrease direct flow of stormwater into the affected wetland.

Vallee tried to argue at trial that the new treatment system—which would divert more water to be treated—would harm the wetland by decreasing the water level. The trial court didn’t buy it, and neither does the SCOV. The new system will actually lessen the adverse impact compared to the old system and help remove pollutants. Vallee’s argument, in the SCOV’s view, is unsupported. It boils down to a don’t-improve-it-even-though-the-old-system-isn’t-compliant argument and that’s not gonna work.

Finally, Vallee argues that the trial court incorrectly excluded its expert’s exhibit that showed that the old stormwater system was better than the new. Previously, the trial court had found a computer-aided stormwater analysis by the same expert unreliable. This exhibit was based on some testimony, some analysis, and some computer inputs. The trial court had reliability concerns and ultimately, the trial court ruled that the exhibit’s probative value was outweighed by its prejudicial effect.

This is weird because this was a bench trial, and Vallee argues that the probative-versus-prejudicial balancing test doesn’t apply in a bench trial. Vallee also argues that the court’s concerns about the exhibit were unfounded. The SCOV acknowledges the weirdness of probative-versus-prejudicial in a bench trial, but reasons that the trial court’s underlying analysis shows that it was concerns about the methodology and not the probative-versus-prejudicial test that led to the exhibit’s exclusion. The trial court is the gatekeeper and gets to make decisions about expert testimony with its best judgment. That’s what happened here and the SCOV isn’t going to disturb the trial court’s ruling.

Timberlake’s only argument is that there wasn’t enough evidence for the trial court to conclude that “the project met the Act 250 criteria for water pollution and waste disposal.” It acknowledges that the stormwater discharge permit from ANR established a rebuttable presumption of compliance. It argues that it effectively rebutted the presumption by cross examining ANR’s stormwater compliance analyst and establishing that the presumption was not as found by the trial court.

The SCOV doesn’t buy it. The ANR’s acknowledgment that it used national design standards rather than performance testing the symptoms itself isn’t really evidence that the project doesn’t comply with Act 250 criteria. ANR gets great deference in making technical determinations of its own regulations. It’s not enough to beat the presumption and put the burden back on Costco.

And that’s the end. The issuance of the permits and the trial court’s decision are affirmed.

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