In re Treetop Development Company Act 250 Development

The purpose of the Vermont Land Use and Development Act (Act 250) was to protect the environment by requiring permitting of certain development projects by a regional environmental commission (commission). After an environmental commission issued an Act 250 permit (permit), any changes to the permit had to follow the formal procedure. An environmental commission could grant conditional approval of a permit with reasonable conditions, including measures to ensure compliance. The Natural Resources Board (NRB) and the Agency of Natural Resources (ANR) had exclusive authority to enforce compliance with and to initiate enforcement actions regarding the conditions of a permit. An interested party in the proceedings to issue a permit could request that the NRB or ANR enforce or investigate alleged violations of a permit. Here, the Stratton Corporation; Treetop Development Company, LLC; and two affiliated companies (collectively, Stratton) (plaintiffs) developed a residential subdivision and related infrastructure, including a stormwater-management system (system), pursuant to a permit issued by a commission. After completion of the subdivision, the Treetop at Stratton Condominium Association, Inc. (association) sued Stratton and sought remediation of construction defects of the system. Consequently, Stratton agreed to seek amendments to the permit from the commission to allow for modifications of the system. The commission, expressing concerns over Stratton’s initial failure to comply with the permit, imposed a condition (condition 14) on the amended permit that reserved to the commission the right to review issues related to the system and to evaluate and impose additional conditions as needed. Neither Stratton nor the association appealed the amended permit. Later, the commission instituted a reconvened hearing, pursuant to condition 14, to consider whether to impose additional conditions on the amended permit, but the commission declined. The association filed an appeal with the superior court. The superior court dismissed the appeal, finding that condition 14 was an impermissible and invalid reservation of authority to reopen a final and binding permit. The association appealed.