Katzenbach Act 250 Permit - Entry Regarding Motion for Party Status ( 2018 )

STATE OF VERMONT
SUPERIOR COURT ENVIRONMENTAL DIVISION
Docket No. 124-9-17 Vtec
Katzenbach Act 250 Permit
ENTRY REGARDING MOTION
Count 1, Act 250 District Commission Decision (124-9-17 Vtec)
Title: Motion for Party Status (Motion 1)
Filer: Rebecca Beidler
Attorney: Ryan P. Kane
Filed Date: December 7, 2017
Response filed on 02/14/2018 by Attorney Peter J. Gill for Interested Person Natural Resources
Board
Response filed
The motion is GRANTED IN PART.
This is an appeal of an Act 250 permit issued by the District #7 Environmental Commission
(District Commission) approving the operation of a sand and gravel pit in Albany, Vermont.
Rebecca Biedler and Jeffrey Ellis, individually and d/b/a Peace of Earth Farm, Mimi Aoun, and
Judy Valley (together, Appellants) participated in the proceeding below, where they were
granted preliminary and final party status under Criteria 1, 1(D), 1(E), 4, 5, and 8, but denied party
status under Criteria 1(A), 9(B), and 9(L).
Appellants now move for party status under Criteria 1(A) and 9(B).
To attain party status, Appellants must show that they have a particularized interest
protected by Act 250 that may be affected by the District Commission’s decision to grant the
permit. 10 V.S.A. § 6085(c)(1)(E). An interest is particularized if it is specific to the party seeking
status, as opposed to “a general policy concern shared with the general public.” In re Pion Sand
& Gravel Pit, No. 245-12-09 Vtec, slip op. at 7 (Vt. Super. Ct. Envtl. Div. Jul. 2, 2010) (Durkin, J.).
The party moving for status must show a “causal connection between [the] proposed project and
the potential impact to their particularized interests.” Id. (citation omitted). Appellants need not
prove that the proposed project will affect their particularized interests; rather, they must make
an “offer of proof” showing “a reasonable possibility that their . . . particularized interests may
be affected by” the decision to grant the permit. In re Bennington Wal-Mart, No. 158-10-11 Vtec,
slip op. at 9 (Vt. Super. Ct. Envtl. Div. Apr. 24, 2012) (Walsh, J.) (citations omitted).
Criterion 1(A): Headwaters
Criterion 1(A) requires an Act 250 applicant to demonstrate that the proposed
development:
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will meet any applicable Health and Environmental Conservation Department
regulation regarding reduction of the quality of the ground or surface waters
flowing through or upon lands which are not devoted to intensive development,
and which lands are:
(i) headwaters of watersheds characterized by steep slopes and shallow soils;
or
(ii) drainage areas of 20 square miles or less; or
(iii) above 1,500 feet elevation; or
(iv) watersheds of public water supplies designated by the Agency of Natural
Resources; or
(v) areas supplying significant amounts of recharge waters to aquifers.
10 V.S.A. § 6086(a)(1)(A).
Appellants’ motion alleges the following. Ms. Beidler and Mr. Ellis (who live together),
and Ms. Valley live on a small dead-end Class IV road. The surrounding area contains wetlands,
hydric soils, and two ponds. A small stream flows from on or near the proposed project site
through Ms. Beidler and Mr. Ellis’s property. The area is characterized by steep slopes and
shallow, sandy soils. In its current condition the area has erosion problems, with sand washing
out onto neighboring properties. The stream has seen increased flows in recent years, with
attendant erosion problems.
The motion alleges that developing the access road and significantly increasing large
truck traffic associated with the proposed project may exacerbate erosion in the area.
These allegations support a conclusion that there is a reasonable possibility the proposed
project will impact the quality of the ground or surface waters on land with headwaters of
watersheds characterized by steep slopes and shallow soils, under Criterion 1(A)(i).
The NRB suggests that Appellants fail to demonstrate how their interests may be
protected by this criterion because they have not identified any Health and Environmental
Conservation Department regulation that might apply to the proposed project to mitigate this
threat. We decline to adopt this strict requirement into our determination of party status. It is
sufficient that Appellants have presented a particularized interest that is protected by Criterion
1(A) and show a reasonable possibility that the proposed project will impact that interest. If we
determine during this litigation that there is no relevant regulation, then Appellants’ challenge
under Criterion 1(A) will become moot.
Criterion 9(B): Primary Agricultural Soils
Criterion 9(B) restricts development that will adversely impact primary agricultural soils.
Ms. Beidler and Mr. Ellis operate a farm downhill and across the road from the proposed
project. They allege that the proposed project may exacerbate the existing erosion problems
alleged above, potentially affecting the soil they rely on for growing vegetables and raising
animals. They further allege that dust and erosion caused by increased truck traffic, along with
calcium chloride (which might be used to control dust), may adversely impact the soils they rely
on for farming. The motion contains no allegations that Ms. Aoun or Ms. Valley have a
particularized interest under Criterion 9(B).
These allegations are sufficient to secure party status under Criterion 9(B)(i), which
requires the Act 250 applicant to demonstrate that the proposed project “will not significantly
interfere with or jeopardize the continuation of agriculture or forestry on adjoining lands or
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reduce their agricultural or forestry potential.” 10 V.S.A. § 6086(a)(9)(B)(i); see also In re Gingras
Act 250 Amended Permit, No. 22-3-15 Vtec, slip op. at 6–7 (Vt. Super. Ct. Envtl. Div. Aug. 21,
2015) (Durkin, J.).
Conclusion
Appellants’ motion for party status under Criterion 1(A) is GRANTED for Ms. Beidler, Mr.
Ellis, and Ms. Valley. The motion for party status under Criterion 9(B)(i) is GRANTED for Ms.
Beidler and Mr. Ellis but DENIED for Ms. Valley. Because the motion does not allege any
particularized interest that Ms. Aoun may have, she is DENIED party status on both criteria.
So ordered.
Electronically signed on March 14, 2018 at 12:23 PM pursuant to V.R.E.F. 7(d).
_________________________________________
Thomas G. Walsh, Judge
Superior Court, Environmental Division
Notifications:
Ryan P. Kane (ERN 6705), Attorney for Appellant Rebecca Beidler
Ryan P. Kane (ERN 6705), Attorney for Appellant Jeffery Ellis
Ryan P. Kane (ERN 6705), Attorney for Appellant Mimi Aoun
Ryan P. Kane (ERN 6705), Attorney for Appellant Judy Valley
Peter J. Gill (ERN 4158), Attorney for Interested Person Natural Resources Board
L. Brooke Dingledine (ERN 2387), Attorney for Interested Person Ed Mateo
L. Brooke Dingledine (ERN 2387), Attorney for Interested Person Pat Mateo
Appellee Christian D. Katzenbach
nlow
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