Wednesday, May 11, 2011

Recent Environmental Division Decisions

  • Act 250 Criterion 8 – Aesthetics – Analysis
  • Court held that 100+ foot cell tower, designed
    to look like tall pine tree, will not have an undue adverse impact on
    aesthetics of small village/rural area
  • Recognized burden-shifting from Applicant to
    Appellant under Act 250: once Applicant makes threshold showing, Appellant has
    burden to show that project will have undue adverse impact
  • Court credited Applicant’s witnesses’ testimony
    as credible, and it was not overcome by Appellant’s testimony and evidence
  • Appeal from Burlington’s Development Review
    Board’s decision to issue construction permit for one single-family house on
    one lot of a previously approved two-lot subdivision
  • Court notes that a large part of dispute
    centered around the City of Burlington’s prior issuance of a subdivision
    approval, which was not timely appealed and was therefore final
  • After reviewing the procedural history of the
    subdivision approval, Court concludes that the construction permit was properly
    issued as Applicant’s plans conform to all applicable zoning criteria
  • Appeal of a zoning violation issued by the Town
    of Colchester for Appellants’ operation of a marina on his condominium property
    on Lake Champlain
  • Appellant alleges that Town zoning exceeds Town’s
    statutory authority, violates public trust doctrine, and infringes on
    constitutional right to travel
  • Court rules that shoreland regulations are
    properly within Town authority and do not regulate Lake Champlain, thus do not
    violate public trust doctrine
  • Court rules that constitutional claim is
    groundless
  • Appellant also argues that Notice of Violation
    and Town Development Review Board decision affirming the Notice deprived him of
    due process by not sufficiently informing him of factual basis for Notice or of
    what action he must take to cure the violation
  • Court agrees that Notice was deficient on these
    grounds, and thus dismisses the case; however, Court notes that this does not
    preclude any future Notices of Violation for the same property and use
  • Court denies Appellants’ request for attorney’s
    fees