Castine Mountain Road LLC CU (Remand) - Merits Decision ( 2022 )

VERMONT SUPERIOR COURT ENVIRONMENTAL DIVISION
Environmental Division Docket No. 21-ENV-00013
32 Cherry St, 2nd Floor, Suite 303,
Burlington, VT 05401
802-951-1740
www.vermontjudiciary.org
Castine Mountain Road, LLC Conditional ON-THE-RECORD
Use Permit Appeal (After Remand) DECISION ON THE MERITS
This is the second occasion we have had to review this proposed dwelling unit and
attached garage in the Town of Stowe. Appellant Michael Seaberg (“Mr. Seaberg”) presently
appeals a February 2, 2021, decision of the Town of Stowe Development Review Board (“DRB”),
approving with conditions a conditional use permit application submitted by Castine Mountain
Road, LLC (“Castine” or “Applicant”). The DRB had previously approved said application in 2019,
but, following an appeal by Mr. Seaberg, we remanded the matter to the DRB to make further
necessary findings of fact and legal conclusions, which it has now done.
This is an on-the-record appeal. Mr. Seaberg represents himself in this matter. The
Applicant has notified the Court of its intention not to appear in this appeal. The Town of Stowe
(“Town”) is participating as an interested person and is represented by Joseph S. McLean, Esq.,
but has not filed a brief.
Background
Castine owns a parcel approximately 4.2 acres in size, located at 4527 Mountain Road in
Stowe, Vermont (“the Property”). The Property is located within the Upper Mountain Road
Zoning District (“the UMR District”) and was previously owned by VTRE Investments, LLC
(“VTRE”). It is the site for an existing six-unit multi-family dwelling.1 Prior owner VTRE also
1
The existing 6-unit dwelling is shown as buildings #1 and #2 on the site plan and the build out plan. Those two
buildings were approved for seven units but have been constructed as six; at times during his testimony, Mr. Lizotte
spoke as though he viewed the construction of this new building at the front of the motel as taking over the seventh
approved unit. See Minutes of May 21, 2019, meeting at 4-5. We do not need to address this issue, as the
proposed and received municipal approval for a duplex on the Property,2 which was the subject
of a separate appeal before this Court (Docket No. 62-6-18 Vtec) that resulted in a remand to the
DRB. The present appeal relates to Castine’s April 9, 2019, application seeking approval to
construct a single dwelling unit, garage, and associated paved turnaround area/driveway (“the
Project”).3 The dwelling unit is proposed to be attached to the front end of the existing six-unit
dwelling on the Property.
Multi-family residential use is permitted as a conditional use in the UMR District, and so
it was determined that the Project, as an addition to an existing multifamily residence, must
receive conditional use approval. In connection with its application, Castine submitted site plans,
a landscaping plan, and a build out plan, each prepared by McCain Consulting, Inc.,4 as well as
floor plans and elevations prepared by Justin Bourne. The record also contains lighting
information, email correspondence, and written comments.
The DRB conducted a public hearing on May 21, 2019, which it continued to July 2, 2019.
Mr. Nicholas Lizotte testified on behalf of Castine at each proceeding. The DRB reviewed the
Project for compliance with the Town of Stowe Zoning Regulations as adopted October 9, 2018,
and effective October 30, 2018 (“Regulations”). On July 16, 2019, the DRB issued its Findings of
Fact, and Conclusions of Law and Decision approving the application subject to conditions.
Mr. Seaberg is an occupant of the abutting property at 4441 Mountain Road, Stowe,
Vermont. He submitted written comments to the DRB ahead of both proceedings and
participated in the May 21 hearing. Mr. Seaberg filed a timely appeal from the DRB’s decision
with this Court on August 12, 2019 (Docket No. 98-9-19 Vtec). In our merits decision, we
construction and other development associated with the new building required conditional use approval regardless;
further, our review is limited by the application and the Questions presented in the Appellant’s Statement of
Questions.
2
The proposed duplex is shown as building #3 on the site plan and the build out plan.
3
The proposed three-bedroom unit and garage is shown as building #4 on the site plan and the build out plan.
4
The Applicant submitted two copies of the site plan to the DRB. He submitted one copy dated January 25, 2019,
ahead of the May 21 meeting (denoted as Exhibit 2 in the index to the record below). Apparently in response to
feedback at that meeting that the site plan lacked required information and that it was difficult to determine from
the site plan what were existing versus planned improvements, he submitted a revised copy dated June 21, 2019,
along with a “build out plan” dated same, ahead of the continued July 2 proceedings. The revised site plan and build
out plan are denoted as Exhibits 13 and 14 respectively in the index to the record. Unless otherwise noted, we
exclusively refer in this Decision to Exhibit 13, the June 21, 2019, site plan.
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concluded that the DRB did not make findings of fact or draw conclusions of law related to
erosion control and stormwater management, but rather attempted to impose as a condition
that the Project must comply with the relevant sections of the bylaws. We vacated that condition
and remanded the application to the DRB to make findings of fact and conclusions of law on those
issues. Castine Mountain Road, LLC CU, No. 95-8-19 Vtec, slip op. at 6 (Vt. Super. Ct. Envtl. Div.
July 16, 2020) (Durkin, J.) (Hereinafter “Castine I”). We further cautioned that the DRB had not
separated its findings of fact from its conclusions of law regarding landscaping, and that each
lacked the necessary specificity. We directed the DRB to make more detailed findings of fact and
conclusions of law on front and side-yard landscaping. Id. at 7–8. Finally, noting that the
Applicant had not included a time schedule for completion of buildings, parking spaces, and
landscaping with its application, we instructed the DRB to determine whether the application
was complete without such a schedule. Id. at 9.
The DRB chose not to conduct further hearings upon remand, as is its prerogative.
Instead, its decision issued February 2, 2021, indicates that it “reviewed the complete hearing
record” in order to make the necessary additional findings of fact and conclusions of law. In re
4527 Mountain Road, Project No. 5999 (Remand), Findings of Fact, Conclusions of Law, &
Decision at 2 (Town of Stowe Dev. Review Bd. Feb. 2, 2021) (Hereinafter “Remand Decision”).
Mr. Seaberg challenges the DRB’s Remand Decision on each of the issues mentioned above:
erosion control and stormwater management; front and side-yard landscaping; and the time
schedule for completion. He further challenges the adequacy of the DRB’s finding that the
Project will not create an undue adverse impact through water pollution.
Standard of Review
In an on-the-record appeal from a decision by a municipal panel, our role as the reviewing
tribunal is similar to that of the Vermont Supreme Court when it hears appeals from
administrative bodies. That is, we consider only the decision below, the record made before the
municipal panel, and the briefs submitted by the parties. In re Saman ROW Approval, No. 176-
10-10 Vtec, slip op. at 1 (Vt. Super. Ct. Envtl. Div. Sept. 2, 2011) (Durkin, J.). We do not take new
evidence or complete our own determination of the facts. Instead, we review the municipal
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panel’s factual findings to determine whether the decision below “explicitly and concisely
restate[s] the underlying facts that support the decision.” See 24 V.S.A. § 1209(a)—(b).
We will uphold the municipal panel’s findings of fact if substantial evidence in the record
supports them. In re Stowe Highlands Resort PUD to PRD Application, 2009 VT 76, ¶ 7, 186 Vt.
568. In examining whether there is substantial evidence in the record, we are not permitted to
make our own assessment of the credibility of a witness’s testimony or reweigh conflicting
evidence in the record. See In re Appeal of Leikert, No. 2004-213, 2004 WL 5582097 (Vt. Nov.
2004 term) (unpublished mem.); Devers-Scott v. Office of Professional Regulation, 2007 VT 4, ¶ 6,
181 Vt. 248. We are simply to inquire whether the record includes relevant evidence that a
“reasonable person could accept . . . as adequate” support for the findings rendered. Devers-
Scott, 2007 VT 4, ¶ 6 (quoting Braun v. Bd. of Dental Exam’rs, 167 Vt. 110, 114 (1997)). Lastly,
we review the municipal panel’s legal conclusions without deference unless such conclusions are
within their area of expertise. Stowe Highlands, 2009 VT 76, ¶ 7. We apply this standard while
addressing each of the issues raised by Mr. Seaberg in his Statement of Questions.
Discussion
I. Erosion and stormwater issues
Mr. Seaberg’s Questions 5 and 6 ask whether the DRB erred by failing to require a
sediment control plan or by concluding that the Project’s stormwater drainage system was
adequate. As these issues formed the primary basis for our previous decision to remand the
matter back to the DRB, we review the DRB’s decision on these issues first. Pursuant to
Regulations § 3.12.2, “[c]onstruction-related activities associated with any new construction”
must adhere to a set of stormwater management standards. The first of these is that
development “involving the disturbance of more than one-half acre shall submit an erosion and
sediment control plan . . . before a zoning permit is issued.” Regulations § 3.12.2(C).
Regrettably, the DRB has still not separated its findings of fact from conclusions of law, as
previously directed by this Court, which makes our task significantly more difficult. Rather, under
each conditional use standard that it analyzed, the DRB has listed a number of alphabetized bullet
points consisting of a mix of the relevant provisions of the bylaws and the evidence it received.
Then, in a single paragraph labeled “conclusion,” it has listed the conclusions it drew, without
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distinguishing between findings of fact and conclusions of law. Nevertheless, given the existing
length of these appeals, we will do our best to determine whether the DRB made the necessary
factual findings to support each of its necessary legal conclusions and conditions under appeal.
See In re Ferrera & Fenn, No. 159-9-10 Vtec, 2012 WL 6215635 (Vt. Super. Ct. Envtl. Div. Nov. 13,
2012) (“Although it would have been helpful and advisable for the DRB to label individual
paragraphs as findings of fact or conclusions of law, we cannot say that the DRB's failure to do so
is fatal to its decision. The DRB's use of terms such as ‘conclude,’ ‘find,’ and ‘based on’ sufficiently
distinguish the findings of fact from the conclusions of law.”)
The DRB did not make the necessary conclusion of law as to whether the Regulations
require an erosion and sediment control plan for this Project. The DRB did make the factual
finding that the construction associated with this Project would not disturb half an acre or more
of soil. Remand Decision at 13. As evidence, it cited the development application where
Applicant checked “no” next to this question, as well as the Applicant’s testimony. Id; see Exhibit
1, “Town of Stowe Development Application” at 2 (April 9, 2019); see also Dev. Review Bd.
Minutes (July 2, 2019) at 37. We conclude that this is sufficient evidence to support the DRB’s
finding of fact. We rely on that finding to make the necessary legal conclusion that no erosion
and sediment control plan is required for this Project. We therefore answer Mr. Seaberg’s
Question 5 in the negative.
The DRB also needed to determine whether the Project created more than half an acre
of new impervious surfaces, in which case a stormwater management plan prepared by a
qualified engineer would be required. Regulations § 3.12.2(F). Regardless of the amount of new
impervious surface created, the DRB needed to conclude that the Project “provide[s] for an
adequate stormwater drainage system to ensure that existing drainage patterns are not altered
in a manner to cause an undue adverse impact on neighboring properties, town highways or
surface waters” to approve it. § 3.12.2(E).
As to the first point, the DRB concluded that no stormwater management plan was
required. Remand Decision at 13. To reach this conclusion, it found that the Project created less
than half an acre of impervious surface, and as evidence cited the application, Applicant’s
testimony, and the calculations provided on the Applicant’s site plan. Id; see Exhibit 1 –
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“Development Application” at 2; Exhibit 13 – “Site Layout Plan: Castine Mountain Road LLC”,
sheet C-1 (June 21, 2019) (hereinafter “Site Plan”). We conclude that the evidence was sufficient
to support this factual finding and that the legal conclusion is well-supported. We therefore
AFFIRM the DRB’s factual and legal determinations.
We are more troubled by the DRB’s sometimes cursory treatment of the second issue.
The DRB described testimony and other evidence presented by the Applicant which established
that there are significant existing stormwater management and erosion issues in the area
surrounding and including the Applicant’s property. As summarized by the DRB, significant
quantities of stormwater flow off of Lower Sanborn Road, which is perpendicular to and across
Mountain Road from the Property. Much of this stormwater flows through two culverts beneath
Mountain Road and into a ditch on the frontage of Applicant’s property, where it continues to
travel downhill past and/or onto Mr. Seaberg’s property. This stormwater carries a significant
quantity of sand and gravel, which periodically requires the State to clean the two culverts.
Remand Decision at 12–13.
Specific to this Project, the DRB identified that the Applicant proposed to relocate an
existing ditch on its property that drains into the ditch on the Mountain Road frontage to
accommodate the new building. The DRB also noted the written testimony from Mr. Seaberg
and Ms. Hillpot that “raised concerns regarding additional Stormwater discharging into the
existing trench that runs parallel to Mountain Road and continues on to their property; they
speculated that the additional run-off will ‘overwhelm the existing culverts at 4441 Mountain
Road and have an adverse effect on this property.’” Remand Decision at 13. The DRB
determined, however, that “[e]xcept for relocating the existing ditch on the western side of the
proposed building, the Applicant is not proposing any changes to the existing drainage pattern,”
and that any runoff from Applicant’s property was just one contributor to water in the frontage
ditch. Id. It ultimately concluded, “Given that the site is previously developed, is generally flat,
and the Applicant is not proposing more than a 1/2 acre of new impervious surfaces or
grading/disturbance…the Project will not have an undue adverse impact on neighboring
properties, town highways or surface waters.” Id.
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It is not our role to re-weigh conflicting testimony. Rather, we must simply determine
whether the DRB could reasonably reach the factual findings it did based on the evidence before
it and whether those factual findings support the legal conclusions drawn. The DRB found that
the only physical changes proposed in this particular application were the addition of 0.19 acres
of impervious surfaces in the form of the house, garage, and paved turnaround area, the
relocation of the drainage ditch around the side of the new building, and the addition of a small
landscaping mound in front of the building. All of this is well supported by the evidence. See Site
Plan at sheet C-1; see also Exhibit 3 – “Landscaping Plan- VTRE Investments LLC Addition of
Building #4,” Sheet L-1 (Jan. 25, 2019) (Hereinafter “Landscaping Plan”); Dev. Review Bd. Minutes
(July 2, 2019) at 36–37. From these facts, the DRB drew the legal conclusion that the Project
would not create an undue adverse impact via stormwater on neighboring properties, town
highways or surface waters.
We conclude that the facts found by the DRB support this conclusion. The Applicant is
not responsible for pre-existing issues with stormwater drainage that begin off its property and
continue onto and through the frontage thereof. The DRB could reasonably conclude based on
the record it developed that the activities proposed as part of this Project would have a negligible
impact, if any, on these pre-existing stormwater drainage issues. We therefore AFFIRM the DRB’s
conclusion that the Project before it will not create any undue adverse stormwater impacts on
neighboring properties, town highways, or surface waters. Nevertheless, we note our concern
that the Town’s current arrangements for the maintenance of Sanborn Road and the watershed
it encompasses appear to be leading to erosion and stormwater impacts on downhill properties.
II. Front yard landscaping
Mr. Seaberg’s Question 1 asks whether the DRB erred by determining that Applicant’s
proposed front yard landscaping is adequate. The relevant conditional use standards on front
yards for this district require that “[a] continuous strip not less than twenty (20’) feet deep,
measured from the edge of the highway right-of-way, shall be maintained between the street
line and the balance of the lot, which strip shall be suitably landscaped,” and that the front yard
not be used for outdoor storage or parking. Regulations § 3.7.2(C)(2)(a). The DRB has discretion
to waive this requirement “when mitigation [through] design, screening or other mitigation will
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accomplish the objectives outlined for the designated districts.” Regulations § 3.7.2(C); see also
id. § 3.7.2(C)(2) (listing objectives for the UMR District, including the preservation of “a well
landscaped highway corridor”). Elsewhere, the regulations further direct that “[i]n instances
where a planting strip is required along road frontage, at least one street tree shall be planted
for each thirty linear feet of landscaping strip.” Regulations § 4.6.3(D).
In its 2019 decision, the DRB did not adequately address whether this 20’ deep strip was
present and appropriately planted and if not, whether the DRB was justifiably waiving the
requirement. Castine I, No. 95-8-19 Vtec at 7 (July 16, 2020). Mr. Seaberg claims that the
Remand Decision suffers from these same infirmities.
Based on the submitted landscaping plan and Mr. Lizotte’s testimony, the DRB made the
following findings of fact: “The area from the edge of the right-of-way to a depth of
approximately 45' feet contains an open existing grassy area, the proposed 4' landscaped mound,
and two (2) proposed blue spruce trees. The blue spruce trees are proposed to be 8' -10' when
planted. No buildings or structures are located within this area. A small portion of the turn-
around area and portions of the existing driveway are within this area.” Remand Decision at 14.
The DRB also found, based on Mr. Lizotte’s testimony, that existing soil & drainage conditions
have led to the death of trees along the front of the property and therefore restrict the
Applicant’s ability to landscape in front yard. Id. at 11; See Dev. Review Bd. Minutes (July 2, 2019)
at 24, 27. Based on these facts, the DRB concluded that “Given the existing soil and drainage
conditions…the proposed landscaping mound and trees, together with the design and placement
of the proposed building, provide sufficient landscaping and screening to better integrate the
proposed building into its natural surroundings and be compatible with neighboring properties.”
Remand Decision at 11.
This passage is not a model of clarity and could generate confusion as to whether the DRB
has concluded that the landscaping is adequate or has waived that requirement in favor of
alternative mitigation. Indeed, during the July 2, 2019, meeting, board members expressed some
confusion themselves about whether they were waiving the front yard landscaping
requirements, with the Board Chair indicating they had “pass[ed]” on them. See Dev. Review Bd.
Minutes (July 2, 2019) at 44; Id. at 40–42. However, it is the DRB’s written decision that is final,
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which in this instance is the Remand Decision. See 24 V.S.A. § 1209(a) (requiring municipal panels
conducting on-the-record hearings to issue final decisions in writing); Nash v. Warren Zoning Bd.
of Adjustment, 153 Vt. 108, 113 (1989) (finding that a voice vote taken at the close of a hearing
by a municipal panel approving a permit application was not a final decision, while a subsequent
written decision denying the application was).
We conclude based on a review of the decision in its entirety that the DRB determined
that the front yard landscaping requirements were met, with the possible exception of the
requirement that one tree be planted every thirty feet. The DRB found that there is a strip of
more than 20’ depth between the building and the road in which no storage or parking is located.5
It called that landscaping “sufficient” and in a separate section on page 15 it concluded that the
“4' landscape mound with evergreen trees…provide suitable landscaping.” Together this
suggests a suitably landscaped strip, as required by Regulations § 3.7.2(C)(2)(a), where suitability
is determined in part by the soil conditions and drainage and their ability to support vegetation.
If the DRB did waive the “one tree per thirty feet” requirement, it did so because of evidence it
deemed credible that the rest of the front yard area would not sustain tree plantings, given the
extensive stormwater infiltration from Sanborn Road. We AFFIRM these legal conclusions in the
Remand Decision, and we determine that the factual findings underlying them are based on
evidence that a reasonable person would deem sufficient.
III. Side yard landscaping
Mr. Seaberg’s Question 2 asks whether the DRB erred by determining that the side yard
landscaping next to the proposed building is also adequate. In our previous decision, we stated
that the DRB must “include some findings or reasoning to support the DRB’s conclusion that ‘the
proposed landscaping . . . meets the standards outlined in Section [4.6].’” Castine I, No. 95-8-19
Vtec at 7 (July 16, 2020).
Those standards direct that “[l]andscaping shall be designed to achieve the purposes of
this section, strengthen the features and conditions unique to each site, and should include a
combination of shade trees (deciduous and/or coniferous), deciduous and evergreen shrubs, well
5
Mr. Lizotte testified that the turn-around area, which, in any case, appears to be within 45’ but not 20’ from the
road, will not be used for parking. Remand Decision at 14; see Site Plan, sheet C-1.
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kept grasses and ground covers.” Regulations § 4.6.3(A). The stated purposes of the section
include “enhance[ing] the overall appearance of individual properties; integrat[ing] new
development into its natural and historic surroundings; preserv[ing] and enhanc[ing] the
particular identity of individual sites; and maintain[ing] compatibility among neighboring
properties and consistency within the community.” § 4.6.1. The landscaping requirements also
direct that shade trees should help break up the visual bulk of large buildings. § 4.6.3(C).
As the DRB noted, the Applicant submitted a landscaping plan with this application. That
plan denotes existing retained landscaping features, landscaping features proposed to be
removed or added as part of this Project (those within a bolded “bubble” on the plan), and
landscaping features proposed to be removed or added as part of the proposed duplex project.
Landscaping Plan, sheet L-1. The only landscaping changes proposed as part of this application
were the removal of two white pine trees and the addition of a 4-foot-tall landscaping mound
flanked at the front by two new blue spruce trees. All of these changes were proposed between
the Project and the road, or in other words, in the front yard of the new building. See Remand
Decision at 10.
Between the proposed new building and Mr. Seaberg’s property is the existing paved
driveway, and a grassy area including a number of existing trees. The landscaping plan further
identifies three new maple trees to be planted along the most direct lines of sight between the
Project and Mr. Seaberg’s property. Planting of those maple trees appears to be proposed as
part of the duplex project.
The DRB made the following finding of fact that appears to apply generally to landscaping
around the Project: “The proposed landscaping is coupled with the existing landscaping and
mature bushes/trees that are located on the site.” Remand Decision at 11. Further, the DRB
imposed as condition number 8 the following requirement: “Landscaping shall be installed and
maintained as shown in the provided Project plans prepared by McCain Consulting and amended
herein. Any dead and dying plants and trees as shown on said plans shall be replaced within one
(1) year of death.” Remand Decision at 17. Taken together, we conclude these passages amount
to 1) a factual finding that the side yard of the Project will include all the retained existing and
proposed trees and shrubs shown on the Landscaping Plan between the Project and Mr.
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Seaberg’s property and 2) a condition to ensure that these new trees will be planted regardless
of whether the proposed duplex receives approval or is constructed. We also conclude that this
factual finding and condition are sufficiently supported by the evidence. See Landscaping Plan,
sheet L-1; Dev. Review Bd. Minutes (May 21, 2019) at 46–47.
The DRB further drew the legal conclusion that “the proposed landscaping mound and
trees, together with the design and placement of the proposed building, provide sufficient
landscaping and screening to better integrate the proposed building into its natural surroundings
and be compatible with neighboring properties.” Remand Decision at 11. This conclusion
appears to apply equally to the side as well as front-yard landscaping and is supported by the
factual findings referenced above. Together with the associated conditions, it represents the
bare minimum necessary for the DRB to determine that the Project comports with the
requirements of Section 4.6 as they apply to side-yard landscaping. The Remand Decision on this
issue, including Condition 8, is therefore AFFIRMED.
IV. Written time schedule for construction
Mr. Seaberg’s Question 3 asks whether the “DRB err[ed] in determining that a time
schedule for completion of buildings, parking spaces and landscaping did not need to be
submitted prior to approval of the Application?” In our previous decision, we provided the
applicable standards from the regulations. We first addressed Mr. Seaberg’s Question 3 from
that earlier appeal, which he appears to have dropped in this appeal, as to whether a “phasing
plan” was required. We concluded that the Regulations provision Mr. Seaberg cited applied only
to planned unit developments, and he had not provided any evidence that this Project qualified
as such. Castine I, No. 95-8-19 Vtec at 8–9 (July 16, 2020). However, we also remarked that
separate from any phasing plan, the Regulations require all conditional use applications to
include materials stating the ‘time schedule for completion of buildings, parking spaces and
landscaping,’ unless waived by the DRB. Id.; see Regulations § 3.8(8). We requested that the
DRB provide a clearer statement of whether the Applicant had met this latter requirement or
whether the DRB waived it.
In its Remand Decision, the DRB added a new section on the required components of the
conditional use application. In this section, it stated that no written statement had been provided
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of the time schedule. However, it also noted Mr. Lizotte’s testimony as to the sequencing in
which Castine expected to complete this Project and the other developments on the property for
which it had obtained or sought permits. The DRB chose to retain condition 3 initially imposed
in its 2019 decision, namely that Mr. Lizotte provide a written statement matching that testimony
before he would be issued a permit. From the above, we conclude that the DRB waived the
requirement for the statement of a time schedule, instead electing to rely on a memorialization
of the more flexible sequencing plan to which Mr. Lizotte testified. Given the significant
uncertainty that the appeals concerning each Project at the property have added to any
estimates that would appear in a time schedule, and the relatively small nature of this Project,
we cannot conclude that the DRB erred in waiving this requirement. The Remand Decision on
this issue, including condition 3, is therefore AFFIRMED.
V. Adverse impacts via water pollution
Mr. Seaberg’s Question 4 asks whether the DRB “err[ed] in determining that the
application would cause no undue water pollution.” See Regulations § 3.7.2(B)(2) (requiring that
the proposed use “will not result in undue water . . . pollution”). In our previous decision, we
determined that the DRB’s insufficient conclusions on stormwater prevented us from reviewing
its conclusion on undue water pollution. Castine I, No. 95-8-19 Vtec at 9 (July 16, 2020). Now
that the DRB has provided sufficient detail as to stormwater, we can review their finding on water
pollution.
Mr. Seaberg’s sole argument about water pollution in his brief is that a proposed drainage
swale on the Southern half of Applicant’s property (away from the Project) will, he claims,
capture stormwater from the Project area and direct that stormwater across the boundary line
and to the leachfield area for Mr. Seaberg’s septic system. He argues this could damage his septic
system, which could lead to pollution of the river that runs behind both properties. Appellant’s
Brief at 9. He avers that he raised this issue in his written testimony ahead of the final DRB
hearing and that the DRB referred to the testimony. However, he claims that the DRB did not
properly factor this testimony into its determination that the Project would not cause undue
water pollution. Id.
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The DRB did state that it found Mr. Seaberg’s testimony on this leachfield issue and/or on
the stormwater discharged to the drainage ditch running along Mountain Road to be
“speculat[ive].” Remand Decision at 13. Again, we are not permitted to make our own
assessment of the credibility of witness testimony or reweigh conflicting evidence in the record.
See In re Appeal of Leikert, No. 2004-213, 2004 WL 5582097 (Vt. Nov. 2004 term) (unpublished
mem.); Devers-Scott v. Office of Professional Regulation, 2007 VT 4, ¶ 6, 181 Vt. 248. Rather, we
must inquire whether the record includes relevant evidence that a “reasonable person could
accept . . . as adequate” support. Devers-Scott, 2007 VT 4, ¶ 6. As detailed earlier, the factual
findings that the DRB did make regarding stormwater issues were supported by evidence that a
reasonable person would deem sufficient. We therefore will not disturb those findings. Nor do
we find reason to disagree with the DRB’s legal conclusion based on those findings that no undue
water pollution would be caused by the Project in the manner alleged by Mr. Seaberg. The
Remand Decision on this issue is therefore AFFIRMED.
Conclusion
For the foregoing reasons, the Court concludes that the DRB’s findings of fact are
supported by substantial evidence in the record below. Furthermore, we conclude that with one
exception, the DRB has made the necessary legal conclusions as to the issues raised by Mr.
Seaberg in his appeal, and that those conclusions are supported by its findings of fact. We further
conclude, as to Mr. Seaberg’s Question 5, that no erosion and sediment control plan is required
for construction associated with this project, based on the DRB’s well-supported findings of fact.
We determine further that the DRB’s conditions are supported by the evidence and note our
understanding that Condition 8 requires applicant to complete all of the landscaping
improvements shown on the Landscaping Plan regardless of whether the Duplex project receives
approval or is constructed. We therefore AFFIRM the DRB’s approval of Applicant’s conditional
use application for this project.
A Judgment Order accompanies this Decision.
This completes the current proceedings before this Court concerning this appeal.
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Electronically signed on January 7, 2022, at Brattleboro, VT pursuant to V.R.E.F. 9(d).
QQCL
________________________________
Thomas S. Durkin, Superior Judge
Environmental Division
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