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Snyder Group, Inc. Act 250 - Decision on Motions ( 2019 )


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  •                                           STATE OF VERMONT
    SUPERIOR COURT                                                         ENVIRONMENTAL DIVISION
    Environmental Division Unit                                             Docket No. 107-10-18 Vtec
    Snyder Group, Inc. Act 250                                          DECISION ON MOTIONS
    On July 26, 2018, the District #4 Environmental Commission (District Commission) issued
    The Snyder Group, Inc.; Spears Meadows, Inc.; 1350 Spear, LLC; and Gary Farrell (together,
    “Snyder Group”) an Act 250 permit for the development of land located at 1302 and 1350 Spear
    Street in South Burlington, Vermont. The proposed development involves the creation of seven
    lots, construction of 47 residential units, demolition of an existing structure, and certain road
    improvements (“the Project”).1 The Project will also impact several acres of primary agricultural
    soils.
    A group of neighboring property owners (collectively, “Appellants”) appeal the District
    Commission’s decision to grant the permit, along with the permit itself.2 Appellants also appeal
    the District Commission’s September 10, 2018 decision, in which it reaffirmed its conclusion that
    Appellants lacked party status under Act 250 Criterion 9(B), pertaining to primary agricultural
    soils. On appeal, Appellants raise concerns under Criterion 9(B) and Criterion 8, relating to
    aesthetics. Presently before the Court are the Vermont Natural Resource Board’s (“NRB”) motion
    for summary judgment and Snyder Group’s motion for summary judgment, which both challenge
    Appellants’ ability to raise concerns under Criterion 9(B).
    1
    The Project was the subject of a separate appeal before this Court premised on a municipal permit. There
    is currently a motion to coordinate these dockets on hold before this Court. In a February 28, 2019 decision, this
    Court resolved the municipal appeal. See In re Snyder Group, Inc., PUD Final Plat, No. 114-8-17 Vtec (Vt. Super. Ct.
    Envtl. Div. Feb. 28, 2019) (Durkin, J.). That decision is currently on appeal to the Vermont Supreme Court. Given its
    progress, we consider the motion to coordinate the dockets MOOT.
    2
    Appellants are Michael Scollins, Mary Scollins, Robert Skiff, Marley Skiff, and the Pinnacle at Spear
    Homeowners Association. Former appellants William Gilbert and Maurene Gilbert have informed the Court that
    they sold their abutting property in February 2019. They filed a notice of withdrawal on February 7, 2019, and are
    therefore no longer parties in this matter.
    1
    Snyder Group is represented by its attorneys, Matthew B. Byrne, Robert H. Rushford, and
    Celeste E. Laramie. Appellants are represented by attorneys Liam L. Murphy and Daniel A. Seff.
    Attorney Evan Meenan represents the NRB.
    Legal Standard
    This Court reviews motions for summary judgment under the familiar V.R.C.P. 56
    standards, which are applicable to this Court through V.R.E.C.P. 5(a)(2). If the moving party
    shows that there is no genuine dispute over material facts and is entitled to judgment as a matter
    of law, summary judgment is appropriate. See V.R.C.P. 56(a). When multiple motions for
    summary judgment are before the Court, we evaluate each independently. See, e.g., City of
    Burlington v. Fairpoint Commc’ns, 
    2009 VT 59
    , ¶ 5, 
    186 Vt. 332
    .
    Parties must support their assertions of fact with citations to affidavits or other admissible
    evidentiary materials. V.R.C.P. 56(c); White v. Quechee Lakes Landowners’ Ass’n, Inc., 
    170 Vt. 25
    , 28 (1999). Merely conclusory facts or legal conclusions contained in a statement of facts do
    not bind this Court or raise a material dispute. In re Shenandoah LLC, 
    2011 VT 68
    , ¶ 17, 
    190 Vt. 149
     (citing 10B C. Wright, A. Miller & M. Kane, Federal Practice and Procedure § 2738, at 346-56
    (3d ed. 1998); Lussier v. Truax, 
    161 Vt. 611
    , 612 (1993) (mem.)).
    Factual Background
    The following description of facts serves the limited purposes of providing context and
    identifying the undisputed facts material to the pending motions. See Fritzeen v. Trudell
    Consulting Eng’rs, Inc., 
    170 Vt. 632
    , 633 (2000) (“It is not the function of the trial court to find
    facts on a motion for summary judgment, even if the record appears to lean strongly in one
    direction.” (citing Booska v. Hubbard Ins. Agency, Inc., 
    160 Vt. 305
    , 309 (1993))).
    1.     The Project involves forming seven new lots, building 47 residential units, demolishing an
    existing home, and developing the road system.
    2.     The above-named parties that comprise Snyder Group collectively own the Project land
    located at 1302 and 1350 Spear Street in South Burlington, Vermont (“the Property”).
    3.     The Property consists of 25.93 acres.
    2
    4.       The Property contains, and the Project will impact, a number of acres of primary
    agricultural soils.3
    5.       The Property has previously supported an agricultural use.
    6.       The University of Vermont (“UVM”) owns land adjacent to the Property that it currently
    farms.
    7.       Appellants own land immediately proximate to or adjoining the Property.
    8.       Michael and Mary Scollins reside at 214 Meadowood Drive in South Burlington, Vermont,
    immediately adjacent to the Property. Robert and Marley Skiff own a home and property located
    at 89 Springhouse Road in South Burlington, Vermont, which is adjacent to the UVM farmland.
    The Pinnacle at Spear Homeowners Association controls land adjacent to the Property.
    9.       The vast majority of Appellants’ collective land contains primary agricultural soils that are
    contiguous with the primary agricultural soils on the Property.
    10.      Appellants do not currently farm their properties.
    The 2008 Partial Review Order
    11.      In 2006, Spear Meadows, Inc. (“Spear Meadows”)—one party in the current group of
    applicants we are referring to as Snyder Group—submitted an application detailing a prior
    version of the Project to the District Commission.
    12.      The 2006 application proposed subdivision and construction on 26.19 acres of land that
    overlaps substantially with the current Property under review.4
    13.      In 2008, Spear Meadows petitioned the District Commission for partial findings on
    Criterion 9(B) alone. See 10 V.S.A. § 6086(a)(9)(B) (detailing the Criterion); Act 250 Rule 21
    (defining the partial review process, discussed further below).
    14.      The District Commission issued a Memorandum of Decision and Order on October 20,
    2008, (2008 Partial Review Order) in response to Spear Meadows’ request.
    15.      Addressing Criterion 9(B), the 2008 Partial Review Order stated that “in order to reduce
    the impact on the agricultural potential[,] off-site mitigation is appropriate to further the public
    3
    While there appears to be some disagreement regarding the exact number of acres the Project will affect,
    the parties agree that the Project will impact a substantial number of acres with primary agricultural soils. The
    specific total area is not material to the motions.
    4
    While Snyder Group does not explain this discrepancy, the minor difference in acreage is not material to
    our decision on the pending motions.
    3
    good.” The Order “authorize[d] the Applicants to enter into an off-site mitigation agreement
    with the State of Vermont Agency of Agriculture for the 23.23 acres of Primary Agricultural soils
    that will be impacted by the proposed Project.”
    16.       The 2008 Partial Review Order went on to state that “[u]pon receipt of a signed off-site
    mitigation agreement between the Applicants and the Agency of Agriculture, the Commission
    will revisit the Applicants’ application, and will issue a decision on Criterion 9(B).”
    17.       The Order closed with the statement, “[t]he Commission will defer its decision on
    Criterion 9(B) for the Project pending submittal of an off-site mitigation agreement.”
    18.       No party appealed the 2008 Partial Review Order.
    19.       No party entered into or submitted an off-site mitigation agreement after the Order was
    issued.
    20.       The 2008 Partial Review Order did not specify a period of time during which any of its
    statements would remain in effect or bind the parties.
    21.       Since Spear Meadows did not submit an off-site mitigation plan to the District
    Commission, the District Commission did not revisit the then-pending application or issue an
    additional decision on Criterion 9(B).
    The Present Application
    22.       Snyder Group submitted an application for the current version of the Project on March 2,
    2018.5
    23.       After two hearings, a site visit, and a hold on the proceedings pending submittal of
    additional information, the District Commission issued Snyder Group’s permit and promulgated
    its Findings of Fact, Conclusions of Law, and Order on July 26, 2018. 6
    5
    The pending application is an application to amend a prior version of the permit. This characteristic does
    not have material implications for the parties’ arguments or the present motions.
    6
    While Appellants repeatedly object to the facts in the NRB’s statement of undisputed material facts, which
    Snyder Group joined, most of the facts objected to relate to the procedural history of this matter. Appellants’
    concern appears to derive from the NRB’s characterization of the District Commission’s actions below. Appellants,
    however, recite a substantively identical procedural history and direct us to consider the same documents from the
    proceedings below. As we have examined the specific materials cited to and, regardless, draw all reasonable
    inferences for the non-moving party, we conclude that Appellants’ objections do not raise disputes of material fact.
    Further, to the extent Appellants take issue with the NRB’s quoting of Appellants’ prior statements to the
    District Commission regarding their interests under Criterion 9(B), we note that this Court conducts a de novo review
    of party status issues and their concerns are not material. See In re RCC Atlantic, Inc., & Sousa, No. 163-7-08 Vtec,
    slip op. at 6 (Vt. Envtl. Ct. May 8, 2009) (Durkin, J.).
    4
    24.     While the District Commission granted Appellants preliminary party status for Criteria 8
    and 9(B) in the early stages of review, it denied them final party status under Criteria 9(B) in its
    July 26, 2018 Order.
    25.     Appellants requested that the District Commission reconsider its denial of party status.
    In a decision dated September 10, 2018, the District Commission affirmed its denial of Appellants’
    party status under Criterion 9(B).
    26.     Appellants appealed Snyder Group’s permit, the findings and conclusions underlying the
    permit approval, and the District Commission’s denial of party status under Criterion 9(B) to this
    Court on October 10, 2018.
    Discussion
    The two summary judgment motions before the Court present two issues relating to
    Criterion 9(B) and Appellants’ ability to assert claims relevant to primary agricultural soils. First,
    Snyder Group’s motion raises the question of whether the District Commission’s 2008 Partial
    Review Order resulted in a final and binding approval of Snyder Group’s application with respect
    to Criterion 9(B), such that Criterion 9(B) is not open to review in the present proceedings.
    Second, if further review of Criterion 9(B) is not precluded by the 2008 Partial Review
    Order, both Snyder Group and the NRB’s motions require us to assess whether Appellants
    demonstrate a particularized interest in the primary agricultural soils sufficient for party status
    under Criterion 9(B).7 We address these legal issues below.
    I.    Whether the 2008 Partial Review Order precludes further review of Criterion 9(B) in the
    present proceedings.8
    An applicant seeking an Act 250 permit must satisfy all ten criteria under the Act. See 10
    V.S.A. § 6086(a) (defining the criteria); see also In re SP Land Co., LLC, 
    2011 VT 104
    , ¶ 24, 
    190 Vt. 418
     (citing In re Woodford Packers, Inc., 
    2003 VT 60
    , ¶ 22, 
    175 Vt. 579
     (mem.)). But while an
    applicant must eventually make this showing, circumstances may arise where a District
    7
    Snyder Group asserts that a lack of party status under Criterion 9(B) would answer Question 1 of
    Appellants’ Statement of Questions and require dismissal of Questions 2 through 6, which are premised on Criterion
    9(B). Preclusion from the 2008 Partial Review Order would require dismissal of Question 1 through 6. Appellants
    do not dispute this assertion and the Court agrees. The present motions do not raise challenges to Question 7,
    pertaining to the impacts of the Project on aesthetics under Criterion 8.
    8
    As noted previously, only Snyder Group moved for summary judgment on this question.
    5
    Commission’s decision on discrete criteria may help the applicant avoid unnecessary or
    unreasonable costs. Act 250 Rule 21 allows an applicant to request review of specific criteria, or
    a single sub-criterion, that may be of particular importance to the planning or implementation of
    its development before proceeding to the comprehensive Act 250 review. See also 10 V.S.A.
    § 6086(b).
    Upon receipt of a petition for partial review under Rule 21, the District Commission can
    either evaluate the isolated issues or proceed to the remaining criteria. See Act 250 Rule 21(II)(C).
    If the District Commission decides to issue a partial decision, it is required to make findings of
    fact and conclusions of law, as well as impose any necessary conditions or terms on the identified
    criterion or criteria. See Act 250 Rule 21(II)(D). These conclusions remain in effect while the
    ultimate permit decision is pending for “a reasonable and proper term as determined by the
    District Commission.” Id. The conclusions remain binding on the parties for the duration of the
    specified term, unless misrepresentation or fraud occurred, or the relevant facts have changed
    such that the conclusions are no longer valid. Act 250 Rule 21(II)(E). A partial decision does not
    qualify as an Act 250 permit. See SP Land Co., 
    2011 VT 104
    , ¶ 25 (distinguishing partial findings
    from permits).
    In this matter, the District Commission issued the 2008 Partial Review Order in response
    to Snyder Group’s petition under Rule 21. Snyder Group requested review of Criterion 9(B) alone.
    Snyder Group argues that the 2008 Partial Review Order resulted in a final approval of
    the application under Criterion 9(B). Snyder Group contends that because that decision was not
    appealed, it became binding on all parties, Criterion 9(B) was not properly before the District
    Commission, and Appellants cannot now attempt to relitigate the issue.
    Appellants assert that the 2008 Partial Review Order does not have any preclusive effect.
    In support of their assertion, Appellants offer the Order’s concluding statements that the District
    Commission would defer its decision on Criterion 9(B) pending submission of an off-site
    mitigation agreement. Thus, because no mitigation agreement was submitted, and the District
    Commission did not return to Criterion 9(B), it did not propound any final determinations in 2008.
    A final District Commission decision in partial review bars parties from collaterally
    attacking its conclusions before the expiration of the period specified by the District Commission.
    6
    See In re Taft Corners Assocs., Inc., 
    160 Vt. 583
    , 593 (1993) (citations omitted) (barring collateral
    attacks on unappealed Act 250 permit decisions); In re Killington Vill. Master Plan Act 250
    Application Appeal, No. 147-10-13 Vtec, slip op. at 56-57 (Vt. Super. Ct. Envtl. Div. June 21, 2016)
    (Durkin, J.); Act 250 Rule 21(II)(D), (E). Parties who oppose the partial decision must appeal it
    within 30 days to avoid this binding result. 10 V.S.A. § 8504(k)(3).
    The question now before this Court requires us to determine whether the 2008 Partial
    Review Order resulted in a final decision on Criterion 9(B), or on some aspects of Criterion 9(B),
    that became binding when it was not appealed.
    Final decisions in the Act 250 context resolve “the ultimate issue” before the District
    Commission. In re Scott Farm Act 250, No. 48-4-17 Vtec, slip op. at 1-2 (Vt. Super. Ct. Envtl. Div.
    Aug. 22, 2017) (Walsh, J.); see also In re Saxon Ptnrs LLC BJ’s Warehouse Sketch Plan, No. 5-1-16
    Vtec, slip op. at 2 (Vt. Super. Ct. Envtl. Div. July 15, 2016) (Walsh, J.) (generally describing the
    attributes of final decisions). This means that for an order to be final, it must have “disposed of
    all matters that should or could properly be settled at the time and in the proceeding then before
    the decision-making body.” Jordan v. State Agency of Transp., 
    166 Vt. 509
    , 513 (1997) (internal
    quotations, alterations, and citations omitted); see also In re Armitage, 
    2006 VT 113
    , ¶ 6, 
    181 Vt. 241
    ; Scott v. City of Newport, 
    2004 VT 64
    , ¶ 12, 
    177 Vt. 491
    . Only final decisions can have
    preclusive effect. Trickett v. Ochs, 
    2003 VT 91
    , ¶ 16, 
    176 Vt. 89
    ; see also Lamb v. Geovjian, 
    165 Vt. 375
    , 379-80 (1996) (“Res judicata bars the litigation of a claim or defense if there exists a final
    judgment in former litigation in which the parties, subject matter and causes of action are
    identical or substantially identical.”     (emphasis added) (internal quotations and citations
    omitted)).
    In the 2008 Partial Review Order, the District Commission stated that it chose to “defer
    its decision on Criterion 9(B) for the Project pending submittal of an off-site mitigation
    agreement.” It also qualified its conclusions with the statement that “[u]pon receipt of a signed
    off-site mitigation agreement . . . the Commission will revisit the Applicants’ application, and will
    issue a decision on Criterion 9(B).” Thus, by its own terms, the 2008 Partial Review Order did not
    close the District Commission’s review of Criterion 9(B). See Zingher v. Dep’t of Aging and
    Disabilities, 
    163 Vt. 566
    , 571 (1995) (determining that res judicata did not apply where “[t]he
    7
    plain language of the order leaves open the possibility of reviewing the matter again and is,
    therefore, not a final agency determination.”).
    In addition, without a mitigation agreement, or without some specifications regarding the
    details of that agreement, the 2008 District Commission could not have determined whether
    “suitable mitigation w[ould] be provided for any reduction in the agricultural potential of the
    primary agricultural soils,” as required by the plain terms of Criterion 9(B). An order approving
    the proposal under Criterion 9(B) without providing any specificity as to the conditions of a future
    mitigation agreement would impose an invalid condition subsequent. See In re Treetop Dev. Co.
    Act 
    250 Dev., 2016
     VT 20, ¶ 14, 
    201 Vt. 532
     (holding that a District Commission cannot approve
    an Act 250 permit while reserving the right to subsequently modify the permit’s conditions).
    While the 2008 Partial Review Order allowed Spear Meadows to obtain an off-site
    mitigation agreement, it did not resolve the ultimate issue before the District Commission of
    whether the application satisfied Criterion 9(B), or whether the agreement was adequate. The
    District Commission reserved to itself the option of rejecting any off-site mitigation agreement,
    or even revising its conclusion that off-site mitigation alone could satisfy the requirements of
    Criterion 9(B). Thus, the 2008 Partial Review Order did not dispose of any aspect of Criterion 9(B)
    with finality.
    In addition, the fact that the District Commission did not specify a “reasonable and proper
    term” during which any of its conclusions would remain final and binding indicates that it did not
    intend to finally resolve any questions related to Criterion 9(B). See Act 250 Rule 21(II)(D), (E).
    Given the language of the 2008 Partial Review Order and the requirements of Criterion 9(B), we
    conclude that the District Commission refrained from reaching a final decision on Criterion 9(B),
    or any aspect of the Criterion, until it could assess whether the mitigation provided for in the
    agreement was suitable.
    Further, interlocutory review of the 2008 Partial Review Order would have been
    inappropriate.9 Thus, the 2008 Partial Review Order did not result in a final decision or an
    9
    Even without a final decision, this Court can hear an interlocutory appeal of a preliminary order in a
    narrow class of cases. See Scott Farm, No. 48-4-17 Vtec at 2 (Aug. 22, 2017) (Walsh, J.). Interlocutory appeals of
    orders by an administrative body like the District Commission are reviewed under 3 V.S.A. § 815. In re Mathez Act
    250 LU Permit, 
    2018 VT 55
    , ¶ 8. The statute allows appeals of decisions that are not final only “if review of the final
    8
    appealable preliminary order. Appellants cannot now be bound by prior statements that they
    could not have appealed previously. See Lamb, 
    165 Vt. at 379-80
     (citation omitted) (explaining
    that preclusion only applies when a party did or could have raised the concerns in previous
    litigation).
    For these reasons, we conclude that the 2008 District Commission deferred its decision
    on Criterion 9(B) in its entirety.            Without a mitigation agreement to revisit, the District
    Commission did not make any binding determinations. Snyder Group’s motion for summary
    judgment on this issue must therefore be DENIED.10
    II.    Whether Appellants have identified a particularized interest sufficient to secure party
    status under Criterion 9(B).11
    Because the District Commission’s 2008 Partial Review Order does not preclude review of
    Criterion 9(B) in the current proceedings, we next turn to the question of whether Appellants
    qualify for party status under the Criterion. Below, the District Commission granted Appellants
    decision would not provide an adequate remedy, and the filing of the appeal does not itself stay enforcement of the
    agency decision.” 3 V.S.A. § 815(a).
    In addition, the Vermont Supreme Court has explained that interlocutory review may be appropriate when
    an order exceeds the jurisdiction of the decision-making body below, or is defective in such a way that delay would
    lead to mounting harms. Taft Corners, 
    160 Vt. 583
    , 588-89 (1993) (citations omitted).
    Here, there is no allegation that the District Commission exceeded its jurisdiction with the 2008 Partial
    Review Order, or that its statements produced harm that might worsen over time. More importantly, any error in
    the 2008 Partial Review Order, including its statement that off-site mitigation alone could satisfy Criterion 9(B), could
    have been fully cured in an appeal of the District Commission’s final decision if it had revisited Criterion 9(B). See
    Scott Farm, No. 48-4-17 Vtec at 2 (Aug. 22, 2017) (citing In re Maple Tree Place Assocs., 
    151 Vt. 331
    , 332 (1989);
    Beaupre v. Green Mountain Power Corp., 
    168 Vt. 596
    , 597 (1998)). Interlocutory review was not available.
    10
    Because of this conclusion, we do not reach Appellants’ arguments that any final decisions in the 2008
    Partial Review Order expired under 10 V.S.A. § 6091(b) or after the five-year period the NRB recommends in its
    Master Permit Policy and Procedure for Partial Findings of Fact. We also do not reach the question of whether any
    alleged differences between the proposal in 2008 and the Project currently under review render conclusions in the
    2008 Partial Review Order inapplicable to the present proceedings.
    11
    As noted above, both Snyder Group and the NRB moved for summary judgment on the issue of whether
    Appellants have identified a particularized interest in primary agricultural soils. However, in the NRB’s reply to
    Appellants’ opposition to its motion, the NRB significantly reduced the scope of its challenge. In response to the
    affidavits that Appellants submitted in support of their opposition, which described their particularized interests
    under Criterion 9(B), the NRB narrowed its motion to include just a couple of those particularized interests.
    Specifically, the NRB’s motion now challenges whether Appellants can raise concerns under Criterion 9(B) that relate
    to pastoral views and wildlife. See Appellants’ Affs. ¶¶ 22-23.
    The NRB does not object to a grant of party status under Criterion 9(B) for Appellants’ other asserted
    interests—see Appellants’ Affs. ¶¶ 1-21—though it did reserve its right to question whether Appellants have
    supported their claims after they present their evidence at trial. Snyder Group did not narrow its motion and
    continues to assert a lack of party status under Criterion 9(B) in full.
    9
    preliminary party status under Criterion 9(B). Prior to the close of the hearings, the District
    Commission reexamined Appellants’ party status, as required by 10 V.S.A. § 6085(c)(6) and Act
    250 Rule 14(E)(3), and denied Appellants final party status under that criterion. The District
    Commission declined to alter its determinations in a September 10, 2018 order. 12
    Snyder Group argues that Appellants do not have standing to raise any issues relating to
    primary agricultural soils. Snyder Group asserts that Appellants do not offer a particularized
    interest in the Project’s primary agricultural soils that differs from the interests of the general
    public—interests which are already represented by the Vermont Agency of Agriculture, Food and
    Markets. As footnoted above, the NRB narrowed its challenge to Appellants’ party status in its
    reply to their opposition but continues to assert that Appellants do not have party status to raise
    issues related to pastoral views and wildlife habitat under Criterion 9(B).
    We evaluate issues related to party status de novo, without reference to the evidence or
    arguments presented to the District Commission. In re Pion Sand & Gravel Pit, No. 245-12-09
    Vtec, slip op. at 8 (Vt. Super. Ct. Envtl. Div. July 2, 2010) (Durkin, J.).
    Appellants asserting concerns under a specific Act 250 criterion must qualify for party
    status under that criterion. To qualify, appellants must first possess a particularized interest
    protected by the criterion, not just a general policy interest shared with the public at large. See
    In re Barefoot & Zweig Act 250 Application, No. 46-4-12 Vtec, slip op. at 5 (Vt. Super. Ct. Envtl.
    Div. Mar. 13, 2013) (Durkin, J.) (citations omitted); 10 V.S.A. § 6085(c)(1)(E); 10 V.S.A. § 8504(a). 13
    Next, that interest must be protected by the specific criterion under which the appellants
    seek party status. In re Granville Mfg. Co., Inc., No. 2-1-11 Vtec, slip op. at 6 (Vt. Super. Ct. Envtl.
    Div. July 1, 2011) (Durkin, J.) (citation omitted); see also 10 V.S.A. § 6805(c)(2)(D)(ii).
    12
    Under V.R.E.C.P. 5(d)(2), this Court automatically accords status to an appellant claiming party status as
    a person aggrieved when the appellant files a notice of appeal and meets the requirements of 10 V.S.A. § 8504(a)
    and (d)(1). Because Appellants appeal, in part, the District Commission’s decision denying them party status under
    10 V.S.A. § 8504(d)(1)(B), they gained party status automatically upon filing their notice of appeal and retain that
    status unless this Court determines otherwise on motion.
    13
    We emphasize 10 V.S.A. § 8504(a), which permits any person aggrieved by a decision of a District
    Commission to appeal to this Court. In the Act 250 context, a “person aggrieved” is a person who alleges an injury
    to a “particularized interest” protected by Act 250 that is attributable to an act or decision of a District Commission
    and can be redressed by this Court. 10 V.S.A. § 8502(7).
    10
    Lastly, at the pre-trial stage, appellants must show that there is a “reasonable possibility”
    that the relevant decision or permit on appeal will affect their particularized interest. In re
    Bennington Wal-Mart Demolition/Constr. Permit, No. 143-7-09 Vtec, slip op. at 10 (Vt. Super. Ct.
    Envtl. Div. Apr. 24, 2012) (Walsh, J.). This requires a causal connection between the proposed
    project and the alleged impact to their particularized interests. In re Big Spruce Rd. Act 250
    Subdivision, No. 95-5-09 Vtec, slip op. at 6 (Vt. Envtl. Ct. Apr. 21, 2010) (Durkin, J.). The appellants
    do not need to prove an impact, but they must meet a minimum factual threshold sufficient to
    move their claim outside of the realm of mere speculation and to show that an impact may occur.
    Barefoot & Zweig, No. 46-4-12 Vtec at 5-6 (Mar. 13, 2013); see also In re RCC Atlantic, Inc., No.
    163-7-08 Vtec, slip op. at 8 (Vt. Envtl. Ct. May 8, 2009) (Durkin, J.).
    Along with these general requirements for party status under Act 250 criteria, this Court
    has also considered the dimensions of party status under Criterion 9(B) specifically. These
    specific parameters refine and adapt the generally applicable party status requirements to the
    Criterion 9(B) context, but do not limit or expand standing. See In re Verizon Wireless Barton
    Permit, 
    2010 VT 62
    , ¶ 7, 
    188 Vt. 262
     (recognizing that courts cannot “judicially expand the class
    of persons entitled to such [appellate] review” when standing is regulated by statute (quoting
    Garzo v. Stowe Bd. of Adjustment, 
    144 Vt. 298
    , 302 (1984))).
    Criterion 9(B) requires that “the development or subdivision of primary agricultural soils
    will not result in any reduction in the agricultural potential of the primary agricultural soils,” or
    that any impact to the soils will be mitigated to the extent possible. 10 V.S.A. § 6086(a)(9)(B). In
    evaluating the specific prerequisites for party status under this Criterion, the Court has
    recognized the distinction between an appellant’s interest in protecting the agricultural potential
    of soils and an interest in the ancillary benefits of life in an agricultural area, such as pastoral
    views, a dispersed settlement pattern, or an agricultural character of the neighborhood. See In
    re Morgan Meadows/Black Dog Realty Subdivision Act 250 Permit, No. 267-12-07 Vtec, slip op.
    at 6-7 (Vt. Envtl. Ct. May 1, 2008) (Wright, J.); see also Morgan Meadows, No. 267-12-07 Vtec at
    11
    7 (Dec. 1, 2008) (clarifying the May 1, 2008 decision).14 These ancillary interests are protected
    by, and must remain confined to, more relevant Act 250 criteria, like Criteria 8, 9(H), and 9(L).
    This Court has also recognized that appellants do not need to be farmers to assert
    Criterion 9(B) concerns. See Morgan Meadows, No. 267-12-07 Vtec at 8 (Dec. 1, 2008) (citing In
    re Eastview at Middlebury, Inc., No. 256-11-06 Vtec, slip op. at 2-3 (Vt. Envtl. Ct. Feb. 15, 2008)
    (Durkin, J.)); see also In re The Van Sicklen Ltd. P’ship, No. 4C1013R-EB, Mem. of Decision, at 6-7
    (Vt. Envtl. Bd. June 8, 2001) (citing In re Spear St. Assocs., No. 4C0489-1-EB, Mem. of Decision, at
    3 (Vt. Envtl. Bd. Apr. 4, 1984)).15 Further, a non-farmer appellant’s proximity to agricultural lands
    can contribute to a finding that their interest is particularized. See Eastview at Middlebury, No.
    256-11-06 Vtec at 3 (Feb. 15, 2008); see also Morgan Meadows, No. 267-12-07 Vtec at 7 n.2 (Dec.
    1, 2008) (citations omitted).
    Turning to the interests Appellants express to this Court, we first address their concern
    that the Project will lead to a loss of the pastoral views they currently enjoy. This is plainly an
    aesthetic concern that Appellants can assert under Criterion 8, but not Criterion 9(B). The scenic
    landscape Appellants value is an ancillary benefit of an agricultural neighborhood and not an
    interest directly related to our Criterion 9(B) review of the Property’s agricultural potential.
    The same is true for Appellants’ interest in protecting any wildlife that may depend on
    the land in its current state, a concern better presented under Criterion 8(A). This Court must be
    mindful of the distinction, especially given the shifting burden of proof. See 10 V.S.A. § 6088
    14
    To the extent the parties question the effect of the second Morgan Meadows decision on the
    precedential value of the first, we note that the second decision should be read as a clarification of the first based
    on its plain language. The second decision provides a “closer examination” of the case law and statutory changes at
    issue in the first. Morgan Meadows, No. 267-12-07 Vtec at 4 (Dec. 1, 2008). Both elaborate on the requirements
    for Criterion 9(B) status and, while the second decision introduces slightly greater detail, we detect no material
    conflict between the two. Thus, the opinions both articulate the same principles and can be read together.
    15
    The inquiry into Appellants’ party status raises the question of whether the Morgan Meadows decisions
    reduced the precedential weight of the former Environmental Board’s decisions on Criterion 9(B) standing. This
    Court gives Environmental Board decisions the “same weight and consideration” afforded to the Court’s own prior
    decisions. 10 V.S.A. § 8504(m). In Morgan Meadows, we reached the conclusion that the Environmental Board
    formerly permitted appellants to assert interests ancillary to an agricultural use under Criterion 9(B), while we now
    consider those interests under other criteria. No. 267-12-07 Vtec at 7 n.5 (May 1, 2008). This interpretation of the
    Environmental Board’s prior decisions does limit those decisions with respect to the line between Criteria 8 and 9(B),
    but not in their entirety. They continue to support the principles for which we cite them here.
    12
    (placing the burden of proof on applicants for Criterion 9 but on parties opposing the application
    for Criterion 8).
    Appellants next assert an interest in mitigating impacts to the existing and future working
    agricultural landscape in their neighborhood that may result from the impairment of the primary
    agricultural soils on the Property. In conjunction, Appellants express an interest in preserving
    the agricultural potential of their own adjoining properties, which also contain primary
    agricultural soils.
    They assert that loss of the Property’s primary agricultural soils would significantly reduce
    the viability of their own lands and the adjacent UVM property for farming, while rendering the
    area more susceptible to non-agricultural development, because the Property would be integral
    to any future working agricultural landscape. This interest is corroborated by the Property’s
    historical agricultural use and the current use of the adjacent UVM land for farming. Further,
    Snyder Group does not dispute that the Project will impact the Property’s primary agricultural
    soils. In fact, it appears indisputable that the proposed development will significantly reduce the
    agricultural potential of the identified agricultural soils. We therefore conclude that, as adjoining
    property owners, Appellants’ interest in the agricultural potential of the specific area surrounding
    and including the Project is particularized. Cf. Morgan Meadows, No. 267-12-07 Vtec at 10-11
    (May 1, 2008) (denying party status to an organization and its members because, without
    proximity, the interests asserted were generalized).
    While many of Appellants’ assertions are based on personal knowledge and statements
    in the form of affidavits, we note the unique nature of the interest Criterion 9(B) is designed to
    protect. The Criterion focuses on the future agricultural potential of primary agricultural soils on
    the project site and neighboring properties. Thus, the Criterion involves an interest predicated
    on future, or continued, agricultural uses at the neighborhood level. This has implications for the
    types of evidence the parties can or should offer both before and during trial, and may require
    support in the form of testimony.
    We add that party status is a question that remains open throughout the Act 250 permit
    review process.       As this Court must apply the standards applicable before the District
    Commission, we may be obligated to reevaluate party status after the presentation of evidence
    13
    at trial. See 10 V.S.A. § 8504(h); 10 V.S.A. § 6085(c)(6) (providing that the District Commission
    shall reevaluate party status prior to the close of its hearings).
    We therefore conclude that Appellants have demonstrated the reasonable possibility of
    an impact to their particularized interest in the agricultural potential of the Property and their
    properties, and in the working agricultural landscape in their neighborhood. We therefore
    conclude that they should be afforded party status to assert that interest under Criterion 9(B).
    Thus, the NRB’s motion, as limited by its reply to Appellants’ opposition, is GRANTED.
    Snyder Group’s motion for summary judgment on this issue is GRANTED IN PART and DENIED IN
    PART.
    Conclusion
    Because by its plain terms the 2008 Partial Review Order did not finally resolve the prior
    application’s compliance with Criterion 9(B), it is not a final decision with preclusive effect in the
    present proceedings. Snyder Group’s motion for summary judgment on this issue is DENIED.
    Further, Appellants have demonstrated the reasonable possibility of an impact to their
    particularized Criterion 9(B) interests. Criterion 9(B), however, does not include interests related
    to pastoral views or wildlife concerns, which may fit within the scope of other criteria. Appellants
    cannot assert these interests under Criterion 9(B).
    Accordingly, the NRB’s motion for summary judgment, as narrowed by the NRB’s reply to
    Appellants’ opposition, is GRANTED. Because we exclude certain concerns from the scope of
    Appellants’ Criterion 9(B) interests, but recognize Appellants’ party status to assert their interest
    in the agricultural potential of the area under Criterion 9(B), we GRANT IN PART and DENY IN
    PART Snyder Group’s motion for summary judgment on this issue.
    The Court Manager shall set this matter for a telephonic conference so that the Court may
    discuss with the parties what actions need to be completed in preparation for trial.
    Electronically signed on May 22, 2019 at Newfane, Vermont, pursuant to V.R.E.F. 7(d).
    ________________________________
    Thomas S. Durkin, Superior Judge
    Environmental Division
    14
    

Document Info

Docket Number: 107-10-18 Vtec

Filed Date: 5/21/2019

Precedential Status: Precedential

Modified Date: 7/31/2024