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Supreme Court Upholds Finding that Act 250 Permit for Burlington Road Complies with Act 250’s Transportation Criterion

In In re Champlain Parkway Act 250 Permit (Fortieth Burlington, LLC, Appellant), 2015 VT 105 (August 21, 2015), the Vermont Supreme Court considered Act 250’s transportation criterion in connection with the Champlain Parkway.

Issue: Whether the environmental court was correct to conclude that an Act 250 permit for a road complied with Criterion 5, subject to certain conditions.

Holding: The Court affirmed the environmental court’s conclusion that an Act 250 permit to complete a road in Burlington complied with Criterion 5 (Act 250’s transportation criterion), subject to conditions requiring the applicants (the City of Burlington and the Vermont Agency of Transportation) to monitor and report on traffic congestion and safety impacts, and to work with appellants (a company owning land next to the proposed road) to resolve any other issues. The Court specifically found that the applicants met their burden of establishing prima facie compliance with Criterion 5, and that appellants did not meet their statutory burden of showing the availability of reasonable mitigating steps or alternatives. The Court also found that the conditions imposed by the environmental court were appropriately tailored to the evidence and to its conditional findings that the project “may” cause traffic congestion or unsafe conditions. It also found that an order for applicants and appellants to work together in good faith did not exceed the environmental court’s authority, because it did not require appellants to make any specific action, only to act in good faith.