Supreme Court Affirms Amendment to Waterfront Park Permit

In In re Waterfront Park Act 250 Amendment, 2016 VT 39 (April 15, 2016), the Vermont Supreme Court affirmed the Environmental Division’s holding that the City of Burlington is entitled to seek an amendment to its Act 250 permit with regard to the Waterfront Park on Lake Champlain.

Issue: In 1990, Burlington got a land-use permit for the Waterfront Park, and hosted numerous events prior to the end of 1993. In December of 1993, the City applied for an amendment to the permit, which was granted by the district commission with 26 conditions regarding sound levels and the timing of events at the Park. In 2008, Appellant purchased her property at 200 Lake Street, and relied on the 1993 permit conditions in choosing to buy property that close to the park. In 2012, Burlington filed an application to amend the 1994 permit to eliminate restrictions on dates, total days, and weekend days of events in the Park. The commission granted the request and added a new provision meant to regulate noise levels. Appellant appealed to the Environmental Division, which granted Burlington’s motion for summary judgment.

Holding: The Supreme Court affirmed the Environmental Division’s decision, finding that the City was not trying to relitigate the amended condition and that the Environmental Division properly considered the finality and flexibility factors. The Court found that the myriad changes in the Park since 1994 have been so major that the application to amend the permit really was an amendment, not an effort to relitigate the permit or to undermine the purpose of the conditions in the permit. The Court also found that five of the six factors to consider in determining whether an amendment to the condition was warranted weigh in favor of flexibility, while only one factor, appellant and others’ reliance on the original 1994 permit, weighs in favor of finality.