Monday, July 26, 2010

Environmental Court Decision on Party Status for Act 250

In re Pion Sand & Gravel Pit
Docket No. 245-12-09 Vtec
July 2, 2010
Superior Court, Environmental Division, Judge Durkin

This was a decision regarding the Appellants' party status motion in an an appeal from the District 7 Environmental Commission's decision granting an Act 250 permit for the development and operation of a commercial sand and gravel pit in Lowell, Vermont. The Appellants were a group of siblings who co-own a 17-acre parcel of land adjoining the proposed gravel pit, and their parents (although the Court ended up denying the parents any party status as a separate issue in this decision). The District Environmental Commission had allowed the Appellants party status only as to noise under Act 250 criterion 1, and as to scenic beauty and aesthetics under Act 250 criterion 8. Appellants' motion to the Superior Court, Environmental Division claimed they had party status under Act 250 criteria 1 (dust, water pollution, asbestos, and pollution from hazardous materials), 3 (water supply), 4 (soil erosion), 5 (traffic), 9B (primary agricultural soils), 9E (extraction of earth resources), 9K (public investment), and 10 (town and regional plans). Their motion was supported by several affidavits, including three affidavits from expert witnesses - a hydrogeologist, a traffic engineer, and a sound expert.

In its decision, the Court recited the requirements to establish party status: first, the person must have a particularized interest that is protected by Act 250; second, the person must demonstrate a causal connection between the proposed project and an impact on the person's particularized interest. The Court also specified that it requires an "offer of proof" from the people requesting party status to show that they have the particularized interest and that the causal connection exists. The offer of proof must meet fairly exacting standards--it must be "specific and concrete" and "must be sufficiently explicit to give the trial court an understanding of the materiality of the offered evidence." For the most part, the Court held that the Appellants had failed to sustain their burden and did not demonstrate that there was any causal connection between the proposed project and their particularized interests.

The Court's decision in this case is noteworthy because it sets a high bar for adjoining property owners who seek party status. Under many of the criteria in dispute in this case, the Appellants had expert witnesses who testified that the project may have impacts on the Appellants' interests, but the Court rejected much of the experts' testimony as overly speculative and failing to make the "requisite connection" between the project and the Appellants' interests. With respect to water pollution, for example, the Court stated that the expert's observations that the Applicant's permit materials lacked certain information about the Project was not enough to show that the Project could impact the Appellants' interests. Instead, the Court held that the Appellants needed to provide an evidentiary foundation to show how contaminants from the proposed project could reach the aquifer that was Appellants' water supply. Because the Appellants did not provide the evidence to make the causal connections, the Court refused to grant them party status. The Court did, however, conclude that the Appellants presented sufficient evidence to grant them party status as to traffic, public investments, soil erosion, and extraction of earth resources, in addition to the noise and aesthetics issues on which the District Environmental Commission had awarded them party status. Consequently, the matter will proceed to trial de novo on those issues.