Monday, January 24, 2011

Environmental Court Upholds Its Original Ruling in In re Village Associates

In re Village Associates
Docket No. 6-1-08 Vtec
Vermont Superior Court, Environmental Division
Judge Wright

This recent decision from the Environmental Court is the result of a remand from the Vermont Supreme Court, which instructed the Environmental Court to consider the economic cost of tree removal in deciding whether to classify certain soils as "primary agricultural soils" under the Act 250 definition of that term. A January 3, 2011 post to this blog described the Supreme Court's In re Village Associates opinion and the Environmental Court's first implementation of that opinion in its In re Brosseau/Wedgewood decision.

The Environmental Court's decision here follows the same framework as its Brosseau/Wedgewood decision, and reaches the same result: the potential economic benefit of removing trees from 10+ acres of land for an agricultural operation outweighs the cost of the tree removal; therefore, the trees are not an obstacle or limitation to agricultural use of the land "that cannot be easily overcome." Consequently, the Environmental Court reached the same conclusion with respect to the land at issue--it is properly classified as "primary agricultural soil" under Act 250. The end result for the Act 250 permit applicant here is that the applicant must pay an off-site mitigation fee for the reduction of the prime ag soils that will be taken over by the planned development.