ROBINSON, J. This case requires us to apply Act 250 Rule 34(E), which establishes a framework for determining whether a party may seek to amend an Act 250 permit. Neighbor appeals from the Environmental Division's award of summary judgment to the City of Burlington. The Environmental Division ruled that the City is entitled to seek an amendment to its Act 250 permit covering the Waterfront Park located on the shores of Lake Champlain. We affirm.
The sole issue on appeal is whether the amendment violated Act 250 Rule 34(E). Neighbor makes two arguments First, neighbor challenges the trial court's conclusion that the City was not merely trying to relitigate a prior condition. Second, neighbor contends the trial court did not properly balance finality with flexibility.
The City sought to amend a number of conditions in the 1994 permit, which set rules that apply to events held in the Waterfront Park. The district commission granted the City's request and deleted certain conditions restricting dates, total days, and weekend days of events in the Park; extended the cutoff time for music; and substituted new noise regulations. On appeal, the trial court on summary judgment ruled that the application did not violate Rule 34.
We review the trial court’s summary judgment ruling anew and without deference, applying the same standard as the Environmental Division We note however that the proper standard of review is not entirely clear. Because we reach the same conclusion as the trial court even affording its ruling no deference, the resolution of this case does not turn on the applicable standard of review.
I
Rule 34 (E) (2) states “the district commission shall consider whether the permittee is merely seeking to relitigate the permit condition or to undermine its purpose and intent.” In Stowe Club Highlands, we stated: "Permit applicants should consider foreseeable changes in the project during the permitting process, and not suggest conditions that they would consider unacceptable should the project change slightly." 166 Vt. 33, 39. The trial court correctly observed, however, that "[f]oresight alone does not overcome the conclusion" that circumstances might change to such a degree that an amendment is warranted. Here, the City hoped for a robust waterfront that would serve as a focal point for the community and the region. The extent of its success in achieving these hopes was not so foreseeable at the time of the 1994 Permit that the City was forever precluded from seeking amendments to the permit if its hopes were realized. We conclude that the changes in and around the Park since 1994 have been so extensive that it would be improper to characterize the City's application as a mere effort to relitigate the 1994 permit, or to undermine the purposes of the conditions in that permit.
II
Rule 34 calls for the district commission to consider a nonexclusive list of factors in balancing the need for finality against the need for flexibility.
On balance, we agree with the Environmental Division's conclusion that the factors supporting flexibility in this case outweigh those calling for finality. The Park has been a dynamic resource to the City, and its increased use has been and will continue to be important to the City's cultural, recreational and social life, and its prosperity. While neighbor's reliance on the prior permit limitations carries some weight, in this case it is outweighed by other factors so that it is not unreasonable to consider proposed amendments to the permit.
Affirmed.
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