Quechee Highlands Opponents Head to Court

Wednesday, March 16, 2016
Hartford — Critics of Quechee Highlands, a proposed development that travel company executive Scott Milne plans to build off Interstate 89’s Exit 1, have lodged their opposition in the Vermont Supreme Court, setting the stage for a ruling that could change the face of Vermont.

The Preservation Trust of Vermont and the Vermont Natural Resources Council filed an amicus brief Friday asking the court to overrule a February Superior Court order that the project be granted a permit under Act 250.

Milne, a Pomfret resident who ran for governor in 2014, has been trying for 10 years to build 115,000 square feet of office, retail and residential space in 10 buildings on a 168-acre parcel off Route 4 near Quechee Mobil and the interstate interchange, but that effort has been opposed by the Two Rivers-Ottauquechee Regional Commission, which says the Highlands project violates clauses of the regional plan that prevent “principal retail establishments” from being sited outside of downtowns and designated growth centers.

“To reasonable Vermonters that want regulation as it was in the late ’60s, I want all those things, too, and Quechee Highlands is consistent with that,” Milne said Tuesday. He pointed out that the Hartford Planning Commission unanimously approved the project, which builds on about 11 acres of the 168-acre parcel, and sets aside more than 100 acres in permanent easement. “And now the people at Two Rivers totally want to hijack that process.”

While the February ruling by Judge Thomas Walsh in the court’s Environmental Division was targeted at the dispute between Milne and Two Rivers, Vermont Natural Resources Council Executive Director Brian Shupe said Tuesday the outcome of the legal battle could affect planning documents throughout Vermont.

“The judge completely bent over backward to try to avoid using the regional plan in his ruling,” Shupe said.

Shupe took issue with two of Walsh’s findings.

First, he said that Walsh erred in defining a principal retail establishment as one in which a majority of square footage is devoted to retail.

“That’s not how any planning or regulatory agency uses the term. If you had a million square feet, you could have 499,000 square feet of retail, and that is just not consistent with any use,” Shupe said. “It defies common sense.”

Shupe also took issue with Walsh’s finding that the language in the regional plan was “aspirational,” and therefore not concrete enough to mandate compliance. The language would have to be more specific, the judge found, in order to guide development in a way that didn’t leave planners at the mercy of “the unbridled discretion of the regional planning commission.”

Shupe said that if the Supreme Court finds that the language in the Two Rivers’ regional plan isn’t concrete enough, then other planning documents in the state — including municipal master plans — are vulnerable to challenges.

“What’s really at stake is how both regional and municipal plans are to be considered in Act 250,” Shupe said. “The Two Rivers plan has been held up as a model for having clear and unambiguous language.”

Shupe said the high stakes is what motivated the filing by the two environmental groups, as well as a similar amicus brief also filed Friday by five regional commissions.

“I think this is really a critical decision,” Shupe said. “It has the potential to change 40 years of precedent of how plans are considered under criterion 10,” the part of the law that requires developments to comply with regional plans.

Milne derided the notion that state and regional agents were concerned about maintaining the integrity of town plans, noting that after approving the project, Hartford was forced to amend its master plan, under pressure from Two Rivers, to conform to the regional plan.

“The state and the political apparatchiks told the town they couldn’t do it,” he said. “Now they’re acting like they’re concerned about what towns want. This is about towns’ rights.”

Two Rivers Executive Director Peter Gregory said the group had not coordinated the amicus briefs, “but it was apparent that there were multiple planning organizations and nonprofit organizations that wanted to support 40 or 50 years of planning law in the state of Vermont.”

Milne took issue with the idea that regional planners could guide development that makes sense in the long term.

“If they think they’re smart enough to create the blueprint for the economy 100 years from now, they ought to be smart enough to write a plan that a judge would agree with,” Milne said.

If the Supreme Court upholds the lower court’s decision, Gregory said, the Two Rivers board might consider changing the language in the plan, but that the underlying policy aims “would not change in any way.”

Arguments before the Supreme Court are likely to take place this summer; Milne said that, if the court rules in his favor this year, he will break ground on the project in 2017.

Matt Hongoltz-Hetling can be reached at mhonghet@vnews.com or 603-727-3211.

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