Brousseau/Wedgewood Act 250 Application ( 2010 )

STATE OF VERMONT
ENVIRONMENTAL COURT
}
In re Brosseau/Wedgewood } Docket No. 260-11-08 Vtec
Act 250 PRD Application }
}
Decision and Order
Appellant-Applicants Lauretta Brosseau and Wedgewood Development
Corporation appealed from a decision of the District 4 Environmental Commission
(District Commission) denying their application1 for an Act 250 permit for a proposed
planned residential development in the Town of Colchester. Appellant-Applicants
(Applicants) are represented by Robert C. Roesler, Esq.; the Agency of Agriculture,
Food and Markets (the Agency) is represented by Diane E. Zamos, Esq.; and the Town
of Colchester is represented by Thomas G. Walsh, Esq. The Land Use Panel of the
Natural Resources Board entered an appearance, represented by John H. Hasen, Esq.,
but did not participate in the trial or file any requests for findings or memoranda of law.
The Agency of Natural Resources requested informational status only.
An evidentiary hearing was held in this matter before Merideth Wright,
Environmental Judge. A site visit was taken prior to the hearing date, with the parties
and their representatives. The parties were given the opportunity to submit written
memoranda and requests for findings. After the Vermont Supreme Court’s decision in
In re: Village Associates Act 250 Land Use Permit, 2010 VT 42A, affecting the legal
standard applicable to this case, an additional evidentiary hearing was held to allow the
1 Daniel and Christie Fitzgerald, who own the remaining 1.75 acres that is not involved
in the proposed PRD, were also named on the application but did not enter an
appearance in this appeal.
1
parties to present supplemental evidence directed to the newly articulated standard.
Upon consideration of the evidence as illustrated by the site visit, and of the written
memoranda and requests for findings filed by the parties, the Court finds and
concludes as follows.
Applicants applied for an Act 250 permit for a proposed 29-lot Planned
Residential Development (PRD) on a 36.15-acre parcel of property on the northerly side
of Jasper Mine Road in the Town of Colchester, about one mile from Exit 17 of Interstate
89 (I-89). The area of Colchester surrounding the Exit 17 interchange, and extending
along Jasper Mine Road past the project site, is in the Exit 17 neighborhood of the Town
of Colchester, described in the Town Plan as containing the Exit 17 future growth
center, a “long-term economic future growth center” to be developed after the
Severance Corners designated growth center is completed. Ex. T-2 at 11. The Exit 17
future growth center is described as being bounded on the north by Jasper Mine Road,
so that the project property would not be within the designated growth center
boundaries; however, the parties have not provided the “Exit 17 Growth Center Plan”
adopted in 2000 describing this area in detail. Ex. T-2 at 11. The Colchester Town Plan
states as Policy 6 for the Exit 17 neighborhood as a whole that the “area is designated as
suburban residential, village mixed use, and growth center on the Future Land Use
Map.” Ex. T-2 at 12. That map shows that the project property will be located in a
suburban residential area, across Jasper Mine Road from the village mixed use area, and
near the Exit 17 growth center. Ex. T-5.
U.S. Route 2, constructed around 1970, runs in a southeast to northwest direction
in the Exit 17 area, from Exit 17 of I-89 towards and across the Lamoille River. Route 2
is used for through traffic traveling from the Exit 17 interchange towards the
Champlain Islands and is a very heavily traveled roadway. Jasper Mine Road runs
parallel to and slightly to the northeast of Route 2, and extends from I-89 to the Lamoille
2
River. Since the construction of Route 2 and at the present time Jasper Mine Road is
used almost exclusively for local traffic. The project site is not visible from Route 2 and
tourist traffic does not generally use Jasper Mine Road; a farm stand located at the
project property on Jasper Mine Road would not attract many customers.
Applicant Brosseau and her late husband purchased the project parcel in 1963; it
has not been used for agriculture at least since 1942. No farmers or other agricultural
operations have ever approached the Brosseaus seeking use of the property for haying,
pasture, tree farming or other agricultural use. The property is served by a good drilled
well water supply. Near the road, the property is developed with nine small separate
cabins, separated from the road by a curved driveway. The area between the driveway
and the road represents approximately an acre of open land, except for a few large pine
trees. Approximately 33 acres of the project property is wooded with second-growth,
mature trees, suitable for harvesting for wood chip production rather than for lumber.
The one-acre open area between Jasper Mine Road and the cabins’ driveway is
relatively flat; the Brosseau family flooded it for use as a skating rink in the winter. The
Brosseaus operated the cabins as commercial rentals, and also operated a restaurant on
the property. At the present time two of the cabins are winterized and used as rental
properties; the property taxes on the proposed project site are approximately $8,000 to
$9,000 per year.
The property drops off in elevation away from the road and cabins by about
eight to fifteen feet, and is relatively flat throughout the project parcel except for a knob
or knoll of land rising steeply near the northwesterly side of the project property in the
area proposed for lots 14, 15, and 16. The property drops off steeply at the northeast
corner. Four or five areas of Class 3 wetland, and an area of Class 2 wetland with its
associated fifty-foot buffer area, extend across the central area of the property generally
from the southeast corner to the northerly side of the property.
The developed properties immediately surrounding the project parcel, including
3
those on the opposite sides of Jasper Mine Road and Watkins Road, are all in residential
use, except for a small cemetery separating the southwesterly corner of the project
property from Jasper Mine Road. Properties in commercial and industrial use are
located to the east of the project’s general area, closer to the Exit 17 interchange.
Residential developments similar to that proposed for the project property are located
generally to the west and north of the property. No commercial or economic
agricultural operations adjoin the project property or are located nearby. In fact, very
few agricultural operations are located within a three-mile radius of the project
property, and of these, most could be accessed from the project property only by
traveling along heavily traveled roadways.
Dairy farmers in this area of Vermont routinely rent fields not contiguous with
their home farms, to grow hay or silage corn for use on their farms; they also arrange to
cut hay on others’ fields in return for removing the hay crop. In general, they are
willing to travel as much as three or four miles to reach such fields, as long as the
roadway to be used for such travel is not a heavily traveled road unsuitable for slow
agricultural machinery. On the other hand, it is not practical for farmers to grow crops
such as sweet corn or berries on fields that are that far from their home farm, because of
the need for more frequent cultivation and the difficulties in preventing vandalism or
theft of crops from such fields.
Of the 36.15 acres of the project parcel, 34.4 acres are involved in the proposed
PRD. The proposed PRD consists of 26 single-family house lots, each approximately a
half–acre in area, as well as three common area lots totaling nearly twenty acres. The
house lots are located on a loop roadway surrounding Common Area B, which contains
the Class 2 wetland and its buffer, as well as Class 3 wetlands; Common Area A is
located between the easterly boundary of the property and the loop road, and also
contains a Class 3 wetland area.
4
The only issue in the appeal is whether the project complies with Criterion 9(B)
of Act 250, 10 V.S.A. § 6086(a)(9)(B); the basis on which the application was denied by
the District Commission. The analysis of primary agricultural soils under Act 250
requires several steps. First, the decisionmaker must determine whether the soils on a
project parcel meet the statutory definition of primary agricultural soils in 10 V.S.A.
§ 6001(15). If and only if primary agricultural soils are located on a proposed project
site does the analysis turn to Criterion 9(B) of Act 250, 10 V.S.A. § 6086(a)(9)(B).
Criterion 9(B) requires the applicant to demonstrate either that the proposed project will
not reduce the agricultural potential of such soils, or that the proposed project will
comply with all four subcriteria, including any appropriate mitigation called for by
subcriterion (iv). 10 V.S.A. §§ 6086(a)(9)(B), 6093.
Soils Affected by the Proposed Project
Of the 27.4 acres of soils on the project parcel with a rating of prime, statewide,
or local as defined by the Natural Resources Conservation Service of the United States
Department of Agriculture (USDA-NRCS), the parties agree that at least 15.3 acres of
such soils will be affected by the proposed project. The Agency argues that an
additional 2.8 acres of such soils, for a total of 18.1 acres of such soils, are also affected
by the proposed project. The 2.8 acres consists of 1.8 acres between the knoll and the
westerly property line, plus the one acre at the front of the property between the cabins’
driveway and Jasper Mine Road.
The one acre at the front of the property is separated from the remainder of the
property by the cabins’ driveway and the arc of cabins themselves. Although that acre
is flat and accessible to agricultural equipment, the existence of the rental cabins
prevents the acre at the front of the property from being used for commercial or
economic agriculture.
5
The additional 1.8-acre area is a long, narrow area, only about forty feet wide at
its narrowest point, located generally between the project property’s westerly boundary
and the knoll in the northwest area of the property. It adjoins the back yards of five
residential properties and adjoins the cemetery. Although access to the 1.8-acre area is
available over a relatively flat path or woods road between the cemetery and the knoll,
the 1.8-acre area is too narrow, too close to the residential back yards, and too isolated
from the remaining soils to be used for any reasonable agricultural purpose and
therefore to be classified as primary agricultural soils.
Accordingly, 15.3 acres of the 27.4 acres of soils classified as prime, statewide, or
local under the USDA-NRCS system are affected by the proposed project.
Primary Agricultural Soils as defined by 10 V.S.A. § 6001(15)
Since the statutory amendments to Act 250 in 2006, associated with the then-new
growth center legislation, 2005, No. 183 (Adj. Sess.), primary agricultural soils are
defined for the purposes of Act 250 review in 10 V.S.A. § 6001(15) as:
soil map units with the best combination of physical and chemical
characteristics that have a potential for growing food, feed, and forage
crops, have sufficient moisture and drainage, plant nutrients or
responsiveness to fertilizers, few limitations for cultivation or limitations
which may easily be overcome, and an average slope that does not exceed
15 percent. Present uses may be cropland, pasture, regenerating forests,
forestland, or other agricultural or silvicultural uses. However, the soils
must be of a size and location, relative to adjoining land uses, so that those
soils will be capable, following removal of any identified limitations, of
supporting or contributing to an economic or commercial agricultural
operation. Unless contradicted by the qualifications stated in this
subdivision, primary agricultural soils shall include important farmland
soils map units with a rating of prime, statewide, or local importance as
defined by the Natural Resources Conservation Service (N.R.C.S.) of the
6
United States Department of Agriculture (U.S.D.A.). 2
This definition represents a change in focus from the prior language of this
section,3 and a greater statutory recognition of the system for categorizing soils used by
2
The text below shows the changes made by 2005, No. 183 (Adj. Sess.) to 10 V.S.A.
6001(15). The new material is underlined and the deleted material is struck through:
"Primary agricultural soils" means soils which have a potential for growing food and
forage crops, are sufficiently well drained to allow sowing and harvesting with
mechanized equipment, are well supplied with plant nutrients or highly responsive to
the use of fertilizer, and have soil map units with the best combination of physical and
chemical characteristics that have a potential for growing food, feed, and forage crops,
have sufficient moisture and drainage, plant nutrients or responsiveness to fertilizers,
few limitations for cultivation or limitations which may easily be overcome, In order to
qualify as primary agricultural soils, the and an average slope of the land containing
such soils that does not exceed 15 percent. , and such land is Present uses may be
cropland, pasture, regenerating forests, forestland, or other agricultural or silvicultural
uses. However, the soils must be of a size and location, relative to adjoining land uses,
so that those soils will be capable, following removal of any identified limitations, of
supporting or contributing to an economic or commercial agricultural operation. If a
tract of land includes other than primary agricultural soils, only the primary
agricultural soils shall be impacted by criteria relating specifically to such soils. Unless
contradicted by the qualifications stated in this subdivision, primary agricultural soils
shall include important farmland soils map units with a rating of prime, statewide, or
local importance as defined by the Natural Resources Conservation Service (N.R.C.S.) of
the United States Department of Agriculture (U.S.D.A.).
3
Relatively few cases have addressed primary agricultural soils at all since the current
version of 10 V.S.A. § 6001(15) took effect on July 1, 2006, and only two have considered
the new language. See Village Associates, 2010 VT 42A; In re: Eastview at Middlebury,
Inc., No. 256-11-06, slip op. at 22 (Vt. Envtl. Ct. Feb 15, 2008) (Durkin, J.) (determining
that project lands are capable of contributing to an economic or commercial agricultural
operation, particularly if used in conjunction with other nearby agricultural lands).
Other cases decided after July 1, 2006 applied the previous version of 10 V.S.A. §
6001(15). In re: Times and Seasons, LLC, 2008, VT 7, ¶ 16, 183 Vt. 336; In re: Times and
Seasons, LLC, No. 45-3-09 (Vt. Envtl. Ct. Mar. 29, 2010) (Durkin, J.); In re: JLD Properties
of St. Albans, LLC, Nos. 129-5-06, 242-10-06, 92-5-07, 221-10-07, 80-4-08, 116-6-08 Vtec,
(Vt. Envtl. Ct. Jan. 20, 2010) (Durkin, J.). The remaining cases involving Criterion 9(B)
only involved litigants’ party status, or involved primary agricultural soils as an
7
the USDA-NRCS. It was only in this most recent statutory change that the definition
uses the term “soil map units,” and incorporates by reference the farmland classification
system used by the USDA-NRCS (discussed further at footnote 5, below).
For the purposes of facilitating an accurate analysis in any Act 250 Criterion 9(B)
case, such as the present appeal, the statutory definition of primary agricultural soils in
§ 6001(15) may be considered as consisting of two equally important concepts or
components, both of which must be met for the soils on the project site to be considered
as primary agricultural soils triggering further analysis under Criterion 9(B). The first
component considers whether the soils have sufficiently favorable physical, chemical,
drainage and topographic characteristics; that is, whether they have a high enough
rating in the USDA-NRCS soils rating system. The second component explicitly
considers the economics of farming;4 it requires the decisionmaker to determine
whether the soils are capable of sustaining an economic or commercial agricultural
operation on the project parcel, or contributing to such an operation conducted off site.
undisputed fact. In re: Morgan Meadows/Black Dog Realty Subdivision Act 250 Permit,
No. 267-12-07 Vtec (Vt. Envtl. Ct. May 1, 2008 (motion decision)) and (Vt. Envtl. Ct. Dec.
1, 2008 (reconsideration)) (Wright, J.) (party status); In re: Rinker’s Inc., No. 302-12-08
(Vt. Envtl. Ct. Sept. 17, 2009) (Wright, J.) (party status); In re: Pion Sand & Gravel Pit,
No. 245-12-09 Vtec (Vt. Envtl. Ct. July 2, 2010) (Durkin, J.) (party status); In re: Gizmo
Realty/VKR Associates, LLC, No. 199-9-07 Vtec (Vt. Envtl. Ct. Apr. 30, 2008 (summary
judgment)) and (Vt. Envtl. Ct. Mar. 10, 2009 (decision)) (Durkin, J.) (undisputed fact).
4
As discussed in Village Associates, 2010 VT 42A, ¶ 19, the economics of farming must
be considered in order to avoid unnecessarily protecting “fictitious farms.”
Agricultural economics are explicitly considered in the second component of § 6001(15);
in the “appropriate circumstances” for mitigation flexibility found in § 6093(a)(3); and
in § C(2)(a)(i) of the “Statement of Procedure: Preservation of Primary Agricultural
Soils,” adopted under the Administrative Procedure Act by the Land Use Panel of the
Vermont Natural Resources Board (NRB Primary Agricultural Soils Procedure).
8
The language used in the definition covering the first component—the physical,
chemical, drainage and topographic characteristics of the soils—actually tracks the
language already used in the soils rating system of the USDA-NRCS, including the
concept of whether the soils have limitations for cultivation and how hard it is to
overcome those limitations. This portion of the definition may be thought of as the
innate or natural potential of the soils for growing crops. This concept covers the
following language from the § 6001(15) definition:
[S]oil map units with the best combination of physical and chemical
characteristics that have a potential for growing food, feed, and forage
crops, have sufficient moisture and drainage, plant nutrients or
responsiveness to fertilizers, few limitations for cultivation or limitations
which may easily be overcome, and an average slope that does not exceed
15 percent. . . . Unless contradicted by the qualifications stated in [the
remainder of the definition, discussed below] primary agricultural soils
shall include important farmland soils map units with a rating of prime,
statewide, or local importance as defined by the Natural Resources
Conservation Service (N.R.C.S.) of the United States Department of
Agriculture (U.S.D.A.).
Thus, soils categorized as prime, or as having statewide or local importance in the
USDA-NRCS rating system, are presumed to qualify as primary agricultural soils
unless, under the second component of § 6001(15), they are shown to be incapable of
supporting or contributing to an economic or commercial agricultural operation. In
addition, soils which in fact have the requisite physical, chemical, drainage and
topographic characteristics, but have not been so characterized in the USDA-NRCS
rating system, are considered to qualify as primary agricultural soils, again, unless they
are incapable of supporting or contributing to an economic or commercial agricultural
operation.
The second component in the definition of primary agricultural soils addresses
the economic potential of the land to actually be used for agriculture. This concept
covers the following language from the § 6001(15) definition:
9
Present uses may be cropland, pasture, regenerating forests, forestland, or
other agricultural or silvicultural uses. However, the soils must be of a
size and location, relative to adjoining land uses, so that those soils will be
capable, following removal of any identified limitations, of supporting or
contributing to an economic or commercial agricultural operation.
Soil Map Units on the Project Parcel
The parties do not dispute that 27.4 acres of soils on the project parcel have a
rating of prime, statewide, or local as defined by the USDA-NRCS. These soils are
therefore considered to be primary agricultural soils, unless “contradicted by the
qualifications stated” elsewhere in § 6001(15) (and discussed at length in the following
section of this decision). Of these soils, 15.3 acres will be affected by the project, that is,
under Criterion 9(B), the development will result in the “reduction in the agricultural
potential” of 15.3 acres of these soils.
Under Village Associates, the cost of removing the forest cover is to be
considered in the analysis under the first component of § 6001(15), rather than under
the second component.5 2010 VT 42A, ¶ 23. If the forested cover of the property were
5
The Supreme Court, in deciding Village Associates, may not have had available to it
the USDA-NRCS soils rating system applicable to Vermont, found in the present case in
State’s Ex. D, USDA-NRCS, Farmland Classification Systems for Vermont Soils (2006).
This system classifies soils based upon the presence or absence of specifically listed
limitations for cultivation. For statewide soils, the listed limitations are: excessive slope
and erosion hazard, excessive wetness or slow permeability, flooding hazard, shallow
depth to bedrock (limiting the root zone and available water capacity), and moderately
low to very low available water supply. State’s Ex. D at 3. (These are the types of
limitations discussed in the Environmental Board decisions cited in Village Associates
2010 VT 42A, ¶ 13.) The ‘limitations’ considered in the farmland classification system
do not include the crop of trees or other plants growing on the soils at the time of
evaluation. Class 1 soils are then defined as having “few limitations that restrict their
use,” while other classes have moderate or severe limitations that reduce the choice of
plants or require conservation practices or careful management to allow them to be
used. State’s Ex. D at 12. The classification system for Agricultural Value Groups then
10
to be removed for conversion of the agricultural soils to agricultural use,6 the trees
would be sold for wood chip use (or possibly as cordwood), and the stumps would be
placed at the edges of the useable field areas so that any topsoil entrained by the roots
could be washed off by rain and remain on the property. Because this work could be
done over time and by the farmer, it would cost approximately $1,000 per acre.
Removal of the forested cover of the property for development purposes, with the work
done by appropriate contractors under an erosion control permit, and with the trees
and stumps being removed from the property, would cost approximately $2,625 per
acre.
If cleared for agriculture, the suitable soils on the project property could grow
sweet corn, berries, or hay, producing a crop within two to three years after clearing.
Farmers amortize the cost of adding new acreage to production over a period of
approximately five years. The net income per acre for sweet corn, exclusive of harvest
labor costs, is approximately from $2,000 to $3,250 per acre, depending on whether the
corn is sold at wholesale or at retail. The net income per acre for strawberries, exclusive
of harvest labor costs, and assuming that they could all be brought to market, is as
much as approximately $18,000 per acre. The net income per acre for hay in dry square
bales is approximately $1,125 per acre. The net income for corn silage is approximately
$400 per acre. The net income for hay silage is approximately $385 per acre.
Accordingly, if the forest cover of the project property is considered to be a
examines whether corrective measures, such as drainage, can be installed to allow the
use of those soils for crop production. The classification system clearly states that,
“[n]ormally, the cost” of installing corrective measures to overcome such limitations
“should not be considered when making this determination.” State’s Ex. D at 10.
6
Evidence was presented briefly suggesting that ginseng could be grown in wooded
conditions; however, insufficient evidence was presented on its cultivation
requirements for the Court to make any findings as to this potential agricultural use of
the project property.
11
limitation under the first component of § 6001(15), as interpreted in Village Associates,
the cost of overcoming that limitation is not “so high that conversion of the land into
agricultural use is not economically feasible.” 2010 VT 42A, ¶ 23. Rather, the cost of
tree removal, even if calculated at $2,625 per acre rather than at $1,000 per acre, could be
amortized in an agricultural operation within two to five years, depending on the crop
planted and the market conditions. However, the cost of tree removal would make it
uneconomical to cut the trees solely in order to grow hay or corn silage on the property,
or to convert the property to pasture.
Capability of Supporting or Contributing to an Economic or Commercial Agricultural
Operation
The 27.4 acres of soils on the project parcel classified as prime, statewide, or local
under the USDA-NRCS system, following removal of the trees, are of a size capable of
contributing to an economic or commercial agricultural operation, raising berries or
sweet corn, or even hay or silage corn, but they are not of a location, relative to
adjoining (or even nearby) land uses, capable of supporting or contributing to an
economic or commercial agricultural operation. As to size, even given the location of
the useable soils in two segments surrounding the wetlands and constrained by the
knoll, the appropriate soils on the property could be planted with sweet corn or
prepared for strawberries, or could be prepared for a hay crop.
Of the agricultural operations within a three-mile radius of the project property,
the closest one to the project property is located south of the project property on the
other side of Route 2: the Hillis Sugarbush Farm and Vineyard. Access to this property
from the project property would necessitate crossing Route 2 but not traveling along
Route 2. This operation grows grapes and keeps a horse, and possibly also keeps sheep.
No evidence was presented as to whether this operation holds itself out as a business or
is an economic or commercial agricultural operation; rather, evidence was presented
12
that this instead is a farm run as a sideline or hobby. No evidence was presented as to
whether the owner of this agricultural operation would actually be willing to cultivate
or cut hay or use any other agricultural product from the project property.
Only two of the agricultural operations within a three-mile radius, both dairy
farms, appear to be able to be accessed from the project property without traveling on
Route 2. The nearest is located to the north of the project property in the Town of
Milton, approximately 2.6 miles away by local roads; the other appears from the map to
be approximately two miles farther by road from the project property. No evidence
was presented from the farmers of either of these particular farms as to whether they
actually would be willing to cultivate or cut hay or use any other agricultural product
from the project property. Rather, an experienced dairy farmer would be willing to cut
hay from the project property only if no rent or other costs were charged and if no more
than a few miles of travel on local roads was necessary.
Two other dairy farms are located within a three-mile radius, but are located
west of the Lamoille River and appear from the map to require travel for several miles
along Route 2, as well as being much farther from the property by road. One of these
farms, on Cadreact Road and Bear Trap Road, also keeps horses. No evidence was
presented suggesting that the farmers of these farms would actually be willing to travel
to cultivate or cut hay or use any other agricultural product from the project property.
The Bear Trap Nursery is also located to the northwest of the project property west of
the Lamoille River; access to it from the project property appears from the map to
require travel for several miles along Route 2. The Bear Trap Nursery holds itself out as
a business, selling at least pumpkins, gourds, and chrysanthemums. No evidence was
presented as to whether this agricultural operation would actually be willing to travel
to cultivate or cut hay or use any other agricultural product from the project property.
Three remaining agricultural operations within a three-mile radius of the project
property are located to the east of I-89, which runs in a north-south direction at this
13
location. One is an approximately 23-acre field of corn located on U.S. Route 7, a
heavily-traveled roadway running in a north-south direction parallel to and to the east
of I-89. Access to this field of corn from the project property appears from the map to
require travel both on Route 2 and Route 7. No evidence was presented as to who
cultivates this field or whether this agricultural operation would actually be willing to
cultivate, harvest, or use any agricultural product from the project property. Similarly,
a Christmas tree farm is located approximately two miles farther east, and would
require travel on Routes 2 and 7 and local roadways. No evidence suggested that the
tree farm would actually be willing to cultivate, harvest, or use any agricultural product
from the project property. Finally, the Elm Hill Farm is located on Route 7
approximately two miles south of Exit 17, and would require traveling approximately
three to four miles along Routes 2 and 7. It holds itself out as a business, selling at least
pumpkins, apples, mulch hay and Christmas trees, although it is not clear which or how
much of these agricultural products are raised on the property. That is, no evidence
was presented as to the extent to which the Elm Tree Farm is actually an economic or
commercial agricultural operation, or whether it sells agricultural products raised
elsewhere. It does also sell fencing, furniture and sheds made from wood grown off the
property. No evidence was presented as to whether this agricultural operation would
actually be willing to travel to cultivate or cut hay or use any other agricultural product
from the project property.
The property therefore is not located close enough or with convenient enough
local road access to any commercial or economic agricultural operation to contribute to
that operation, and is not located close enough to a farm stand or other market
opportunity to sustain its own economic or commercial agricultural operation without a
farmer living on or near the property. It is surrounded by residential, commercial, and
industrial uses, and is located in an area planned for residential development, adjacent
to a village mixed use area and near a planned growth center. It is on a local roadway
14
not suitable for a roadside agricultural stand, as most of the traffic in the area that might
stop at such a stand travels instead on Route 2. No economic or commercial
agricultural operation in the area would cultivate the project property or cut hay on it,
or raise berries or other economic crops on it. At most, a farmer might be willing to
come to cut a hay crop on the project property at no cost; this might be an agricultural
use of the project property but would not be an economic one, much less a commercial
one.
Although properties of this size and soil quality in general may well be capable
of supporting an on-site or contributing to an off-site economic or commercial
agricultural operation, this particular property is not. Despite the physical, chemical,
drainage and topographical qualities of the soils, the location of this particular property
means that it will not be used for agriculture regardless of the proposed development,
Village Associates, 2010 VT 42A, ¶ 19; its soils do not qualify as primary agricultural
soils under the second component of the § 6001(15) definition.
Criterion 9(B) Mitigation Analysis
Applicants also argue, in the alternative, that this project presents “appropriate
circumstances” for payment of a mitigation fee to preserve agricultural soils off-site, if
the project property were considered to contain primary agricultural soils. As the Court
has ruled that the project property does not contain primary agricultural soils, it is
enough to note that the considerations for mitigation flexibility under 10 V.S.A.
§ 6086(a)(9)(B)(iv), § 6093(a)(3), and in the NRB Primary Agricultural Soils Procedure
§ C(2)(a)(i) are similar to those discussed in this decision. That is, the test for
“appropriate circumstances” for off-site mitigation may be based on findings that the
land containing primary agricultural soils is “of limited value” in contributing to an
economic or commercial operation and that devoting the land to agricultural uses is
“impractical” based on “its location in relationship to other agricultural and
15
nonagricultural uses.” NRB Primary Agricultural Soils Procedure § C(2)(a)(i).
Accordingly, based on the foregoing, it is hereby ORDERED and ADJUDGED
that the proposed project property does not contain primary agricultural soils as that
term is defined in 10 V.S.A. § 6001(15), and therefore that an Act 250 Permit for the
proposed project is hereby GRANTED. As the other criteria of Act 250 were analyzed
by the District Commission and were not at issue in the appeal, this matter is hereby
returned to the District Commission to perform the ministerial task of issuing the
permit in accordance with the District Commission decision as modified by this
decision.
Done at Berlin, Vermont, this 8th day of December, 2010.
_________________________________________________
Merideth Wright
Environmental Judge
16