In re SP Land Co., LLC, 2011 VT 104 (Johnson, J.) (Reiber, C.J., dissenting.)

This appeal arises out of a dispute over an administrative amendment to the master development plan for Killington Resort Village. The Environmental Commission originally granted this administrative amendment pursuant to Act 250 Rule 34(D). Mountainside Properties, LLC, an adjoining property owner, appeals the Environmental Court’s denial of its motion to alter and amend a grant of summary judgment in favor of co-applicants. Mountainside argues that the Environmental Court erred because: (1) administrative amendments under Rule 34(D) require an underlying Act 250 land use permit, and (2) co-applicants’ fifteen-lot subdivision cannot be approved without demonstrating compliance with all Act 250 criteria under 10 V.S.A. § 6086(a), as required by 10 V.S.A. § 6081(a). We agree and therefore reverse.

The issue of whether a Rule 34(D) administrative amendment may be used to authorize a fifteen-lot subdivision absent positive findings on all Act 250 criteria is at the core of this case.Rule 34(D) states:

A district commission may authorize a district coordinator to amend a permit without notice or hearing when an amendment is necessary for record-keeping purposes or to provide authorization for minor revisions to permitted projects raising no likelihood of impacts under the criteria of the Act.

We hold that Rule 34(D) applies solely to the Act 250 land use permit issued after full substantive review of all ten statutory criteria under 10 V.S.A. § 6086(a) and cannot apply to findings of fact and conclusions of law on fewer than all of the Act 250 criteria for a master plan. The statute makes clear that the Legislature intended full review under all Act 250 criteria and subcriteria for just this kind of substantial subdivision.

Reiber, C.J., dissents on procedural grounds without necessarily disagreeing with the majority’s holding that an administrative amendment under Act 250 Rule 34 may be inappropriate where, as here, a master plan application does not result in affirmative findings on all of the Act 250 criteria and a master plan permit. The Chief Justice emphasizes, however, that under the Master Permit Policy and Procedure a fully approved master plan application may well support a later administrative amendment where it would not materially affect any Act 250 criteria le=} � o : @| X�t :p>

Reiber, C.J., dissents because the issue the majority decides was not raised below in a timely and proper manner and therefore should not be reviewable on appeal. The question it addresses—whether an administrative amendment under Rule 34 requires an underlying Act 250 permit—was not raised with the trial court before the entry of judgment but only later in a Rule 59(e) motion to alter or amend.