STRATTON >> The Supreme Court backed the Environmental Division of the Superior Court in saying a condo association's failure to appeal a decision on time kept a permit "final and binding."
The appeal is part of an ongoing dispute between groups with the Treetop at Stratton Condominium Association and the Stratton Corporation over an improperly constructed stormwater management system, the Supreme Court's decision said. The association appealed the Vermont District 2 Environmental Commission's refusal to impose additional conditions on Stratton's Act 250 permit. The corporation runs a ski resort in Stratton.
The Supreme Court noted that its decision "does not affect the association's right, as a matter of law, to appeal the commission's decisions generally or to seek permit amendments." It would just have to be done within the time frame set forth by statutes.
"The association chose not to exercise these rights, however, and the unappealed amended permit is final and binding. For this reason, despite our decision affirming the Environmental Division's decision, the association has not been denied a mechanism to challenge the commission's decisions generally. That right existed at the time the permit was issued and was not exercised. It will also exist regarding any amended permits Stratton may seek and which may properly issue following a new application, should those circumstances be presented," the Supreme Court stated. "(The Natural Resources Board and the Agency of Natural Resources) are empowered to enforce Act 250 and the amended permit and the association, as an interested party, may participate, and in fact is participating, in those proceedings by the rights vested under (statute). The association remains free to raise any concerns it might have about Stratton's compliance with the permit conditions and may request that the NRB or ANR enforce or investigate possible violations."
The commission issued an Act 250 permit to the Stratton Corporation in November 2002, allowing for the construction of 25 three-unit townhouses and related infrastructure in what was called the Treetop Project. The Treetop Development Company, which is a Stratton Corporation affiliate, finished the project four years later. The townhouses were sold.
When issues arose with the stormwater management system, a lawsuit was filed against the corporation in 2009. The association was "seeking damages and remediation for various construction defects" in the project, the decision said, including those having to do with the stormwater management system. A settlement agreement was reached requiring the corporation to apply for and obtain corrective permit amendments and pay for any fixes to the stormwater management aspects of the project.
In August 2012, the corporation filed an application with the commission to amend its permit to address "leaks and seepage" but also bring the system into compliance with previous permitting guidelines.
After the amended permit was approved with conditions, the Stratton Corporation and the condo association moved to amend it further. That was ultimately approved in November 2013 with conditions that required Stratton to repair a stormwater retention pond on or before Sept. 1, 2014. The association made no appeal.
The DEC issued a notice for a reconvened hearing in February 2014 to discuss whether more conditions were necessary. After hearings were held, a memorandum of decision was issued on May 16, 2014, saying the commission opted against imposing additional conditions as both the ANR and the NRB would be looking at the project.
The association appealed that memorandum of decision to the Environmental Division of the Superior Court. The appeal was dismissed by the court, which defended the DEC's position that authority on Act 250 compliance falls on ANR and the NRB. The Environmental Division also said the "injustice alleged by the association stems from its free, calculated and deliberate choice not to take an appeal" when the amended permit was issued.
The association felt the Environmental Division made a mistake in granting Stratton's motion to dismiss the appeal, arguing "Condition 14" — which gives jurisdiction over stormwater systems and allows the commission to amend or add conditions to bring them into compliance with Act 250 — is "valid and enforceable."
"The association also asserts that it based its decision not to appeal the amended permit on the commission's reservation of authority to impose further conditions in order to ensure the stormwater management system's compliance with Act 250, and that Stratton's motion to dismiss is a collateral attack on Condition 14," the Supreme Court wrote. "Stratton, on the other hand, contends that under the association's view, Condition 14 amounts to a key that can be used to re-open the door to amend the permit at any time and impose additional conditions, preventing finality."
Contact Chris Mays at firstname.lastname@example.org or 802-254-2311, ext. 273.