Thursday, April 15, 2010

Recent Vermont Environmental Court Decisions

Rivers Development, LLC Conditional Use
7-1-05 Vtec, 68-3-07 Vtec Washington
Hon. Thomas Durkin

This case was a consolidated appeal, by the developer, of the Town of Moretown Development Review Board's decision denying approval of a rock quarry and crushed rock processing facility, and of the District #5 Environmental Commission's denial of an Act 250 permit for the same proposed facility. The appeal encompassed a broad range of Act 250 criteria and town plan and zoning issues, and in a 71-page decision, the Court upheld the decisions of the Moretown DRB and the District Commission to deny the permits. The Town, its Planning Commission, and its School Board were represented by SDRS attorneys Ron Shems and Geoff Hand.

The issues upon which the Court sided with the Town, District Commission, and concerned neighbors in this case were Act 250 Criteria 8 (aesthetics), 9(E) (earth resources), and 10 (conformance with the town plan); and the zoning bylaws that addressed similar concerns as those Act 250 criteria. The developer was successful in addressing the environmental criteria related to air pollution, water pollution (including floodways), streams, shorelands, wetlands, water supply, soil erosion and stormwater, traffic, a variety of financial and economic impacts on public entities, and necessary wildlife habitat and endangered species.

On the issue of aesthetics, the Court took into consideration that the road on which the project was proposed (Route 100B) has been designated a Vermont Byway/Scenic Highway, and that the quarry would be visible from various points along the scenic corridor; the general scenic nature of the Mad River Valley; the agricultural and forested nature of the area; the recreational uses of the area; the lack of any other quarries or industrial uses that employ blasting or significant truck traffic; the fact that blasted rock could be thrown well beyond the quarry floor area to adjoining properties; the fact that the quarry walls were oriented toward Route 100B; and copious evidence related to noise from blasting and crushing operations. Based on all of the evidence, the Court concluded that the project did not appropriately "fit" within its surroundings and therefore would cause an undue adverse impact to the area.

Under Act 250 Criterion 9(E), the Court determined that the proposed quarry would have an unduly harmful impact on area land use and development. It based its conclusion on the fact that the area around the quarry has been recognized as expecially scenic and is host to many recreational activities by the public, and the fact that the quarry would bring "new intrusions" into the area in the form of fly rock. The possibility that fly rock could travel as far as 1,500 feet from the quarry would necessitate neighbors staying inside their homes during times of quarry blasting operations, which could occur around twelve times a year for the 33 year life of the quarry.

Finally, the Court determined, for many of the reasons it articulated in other sections of its opinion, that the quarry did not conform to the provisions of the Town plan that deal with scenic features and the safe use and enjoyment of neighboring properties.

Times & Seasons LLC Act 250 Reconsideration
45-3-09 Vtec Windsor
Hon. Thomas Durkin

The Court granted summary judgment in favor of the Natural Resources Board and the Town of Royalton Planning Commission on the developer's application for reconsideration of its Act 250 application, thereby denying the Act 250 permit for a deli and gift shop in the Town of Royalton. The Royalton Planning Commission was represented by SDRS attorneys Geoff Hand and Elizabeth Catlin. The critical issue on summary judgment in this case was whether the developer, in its application for reconsideration, could avail itself of the statutorily amended definition of "primary agricultural soils" when that definition changed after the developer had filed its original Act 250 application, but before filing its application for reconsideration. This was the key issue because the developer did not make any changes to the project plans, but relied entirely on the statutory change as the basis for reconsideration.

The Court rejected the developer's argument that it can take advantage of beneficial changes in the law that occur while an Act 250 permit is pending. In its decision, the Court distinguished this case from a long line of Vermont Environmental Board cases that had allowed applicants to take advantage of changes in Act 250 Rules, zoning regulations, and town plans that occurred while Act 250 permit applications were pending. The basis for the distinction was that the Times and Seasons case involved a change to state statute, not to rules or regulations or town plans, and Vermont Supreme Court precedent clearly states that, under 1 V.S.A. s. 214, a statutory amendment shall not be applied to pending litigation if it "affect[s] any right, privilege, obligation, or liability acquired prior to the statute's effective date." In re Eustance Jurisdictional Opinion, 2009 VT 16, paragraph 27. The Environmental Court concluded here that the definitional change to Act 250's definition of primary agricultural soils would affect the developer's existing legal obligations, and thus the change in statute could not be applied to the application for reconsideration.

Tanquay Storage Unit Permit
149-7-09 Vtec Franklin
Hon. Merideth Wright

This case was an appeal, by neighbors, of the Town of Troy Zoning Board and Planning Commission's grant of approval for construction of a storage-unit facility. This case raised several issues related to the Town of Troy's zoning bylaws, and contains some helpful information for towns, permit applicants, and opponents of development. The issues that were actually decided involved the Court's interpretation of the Town's bylaws, and thus the decision provides municipalities with some guidance for drafting zoning bylaws and town plans. However, the issue that is perhaps the most important for municipalities, permit applicants, and development opponents to be aware of is not an issue that was raised by the parties. In the Court's recitation of the factual background of the case, it noted that the town's zoning board of adjustment (ZBA) and its planning commission clearly failed to abide by the statutory requirements for decision-making by municipal panels because neither panel had stated its conclusions with respect to the issues they were deciding, nor the factual bases for its conclusions. 24 V.S.A. s. 4464(b)(1). The Court stated that, if the appellants had raised this as an issue on appeal, the panels' failures could have been grounds for the Court to remand the matter, despite the fact that the appeal was a de novo proceeding.