Gingras Act 250 Amended Permit

STATE OF VERMONT
SUPERIOR COURT ENVIRONMENTAL DIVISION
Vermont Unit Docket No. 22-3-15 Vtec
Gingras Act 250 Amended Permit
Application (Application #6F0501-1) DECISION ON MOTION
Decision on Motion for Party Status
Michael Gingras (“Mr. Gingras”) seeks an Act 250 Land Use Permit to subdivide his 9.92
acre tract of land (“Project”) at 172 Lakewood Drive in the Town of Swanton, Vermont
(“Property”). The District # 6 Environmental Commission (“the District Commission”) deemed
the project a minor application and modification of Mr. Gingras’s existing Act 250 Permit
# 6F0501 (“the Permit”). Edward Baker (“Mr. Baker”), Mr. Gingras’ neighbor, attended the
Commission’s hearing on July 18, 2014, at which he was granted preliminary party status under
Criteria 5 (traffic) and 8 (aesthetics), but denied party status under criteria 1(B) (wastewater
disposal) and 9B (prime agricultural soils). The Commission later approved the Project and
issued Permit # 6F0501-1 (“Dash-1 Permit”) on February 19, 2015. Mr. Baker timely appealed
that decision and filed a Statement of Questions containing 13 Questions. He also appeals the
denial of his party status as to certain Criteria and has moved, pursuant to Vermont Rule for
Environmental Court Proceedings (V.R.E.C.P.) 5(d)(2), for party status in this appeal under
Criteria 1(B) and 9(B).1 Mr. Gingras opposes granting Mr. Baker party status under those two
Criteria. The Vermont Natural Resources Board (“NRB”) has filed a legal memorandum in
support of Mr. Baker’s motion for party status.
Mr. Baker is represented by attorney Joseph F. Obuchowski, Mr. Gingras is represented
by attorney Nicole A. Killoran, and the NRB is represented by attorney Peter J. Gill.
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At the conclusion of their proceedings, the District Commission granted Mr. Baker final party
status under Act 250 criteria 5 and 8, but denied his request for party status under criteria 1(B)
and 9(B).
Factual Background
For the sole purpose of putting the pending motions into context the Court recites the
following facts:
1. Mr. Gingras owns approximately 9.91 ± acres of land located on at 172 Lakewood Drive
in the Town of Swanton, Vermont (“the Property”).
2. The Property is subject to Act 250 Permit # 6F0501 (“the Permit”), which authorized the
construction of a 60-foot by 125-foot commercial bait processing facility, known as Hog Island
Wholesale Bait.
3. Mr. Baker lives on approximately 10.1 ± acres of land located at 155 Lakewood Drive,
which shares a common boundary of approximately 877 feet along Mr. Gingras’ northern
boundary.
4. Mr. Baker’s property includes pastureland used for farming activities, including the
boarding, raising, feeding, and/or management of four or more horses.
5. In 1994, a ditch running along a portion of the Property’s northern boundary shared
with Mr. Baker drained excess groundwater and/or wastewater running off Mr. Gingras’
Property towards Mr. Baker’s property, directing the runoff towards Lake Champlain.
6. The parties dispute whether this ditch prevented the overflow of water from the
Property onto Mr. Baker’s land.
7. In 2002, Mr. Baker constructed a berm to prevent overflow from the ditch from running
off onto his property.
8. Both parties contend that since Mr. Baker constructed the berm, water has continued to
back up on both properties, saturating both properties and causing flooding.
9. Mr. Baker states that the saturation and flooding of his property has resulted in the
degradation of his pasture and farm land, thereby limiting the number of horses he can board
and creating conditions posing potentially serious harmful effects on the health of his horses.
10. On May 5, 2014, Mr. Gingras filed an application to subdivide the Property into 3 lots: a
wastewater disposal system will be installed on Lot 1; the existing commercial bait operation
buildings will be expanded with the construction of a 4,100 square-foot addition on Lot 2; and a
single family residence will be constructed on Lot 3 (the “Project”).
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11. The Project will use 715 gallons per day of water. Existing water demand for the bait
shop is 225 gallons per day and the proposed single family residence will require 490 gallons
per day.
12. Septic waste generated by the existing bait operation, the 4,100 square-foot addition,
and the residential and commercial uses located at 176 Lakewood Drive will be served by the
existing shared mound system approved in Potable Water Supply and Wastewater System
Permits WW-6-0345 and WW-6-0345-1.
13. Septic waste generated by the single family residence proposed for Lot 3 will be served
by a new mound system approved in Permit WW-6-0345-2.
14. Overflow water from the minnow holding tanks located inside the existing bait building
will drain to a 100,000 gallon settling pond via a trench floor drain registered with the Drinking
Water and Groundwater Protection Division and authorized under the Underground Injection
Control Program.
15. Water in the settling pond will then drain to a 1,000 gallon pump station with an
automated filtration unit. The filters on that unit will be regularly cleaned when the unit is
back-flushed; the resulting back-flushed water will be directed back to the settling pond.
16. Water will be pumped from the pump station to a proposed subsurface drip dispersal
system, an approved technology in Section 923 of the Wastewater System and Potable Water
Supply Rules.
17. The drip system will filter and disperse 8,000 gallons of water per day.
18. The area for the drip dispersal system runs generally away from Mr. Baker’s property
and towards either Lake Champlain or a ditch along the rear of Mr. Gingras’ Property.
19. A swale will be constructed along the northern edge of the drip dispersal system
bordering Mr. Baker’s property to allow positive drainage towards the Lake or the ditch in the
event the buried drip line becomes damaged.
20. Stormwater runoff from the buildings, rooftops, access drives, and parking areas will be
treated in grass line swales with check dams to a culvert under Lakewood Drive which then
discharges into Lake Champlain.
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21. The drip dispersal system and the new wastewater system permitted for Lot 1 both
overshadow a portion of Mr. Baker’s property.
22. The District # 6 Environmental Commission (“the District Commission”) deemed Mr.
Gingras’ application to be a minor application and noticed a hearing to be held on July 18, 2014.
Mr. Baker attended this hearing and was granted preliminary party status under Criteria 5 and
Criteria 8, but was denied party status under Criteria 1(B) and Criteria 9(B).
23. Mr. Baker now moves for party status under Criteria 1(B) and 9(B).
24. On November 5, 2014 the Commission approved the Project and issued Permit
# 6F0501-1, which was subsequently altered and amended before being re-issued on February
19, 2015 (“Dash-1 Permit”).
25. Mr. Baker timely appealed the Commission’s decision and moved for party status under
Criteria 1(B) and 9(B).
Analysis
Mr. Baker asserts that he is entitled to party status under Act 250 Criteria 1(B) and 9(B);
in his opposition, Mr. Gingras contends that this Court should not grant Mr. Baker party status
because Mr. Baker cannot meet the substantive standards necessary to claim party status
under Criteria 1(B) and 9(B).
Mr. Baker seeks party status under 10 V.S.A. § 6085(c)(1)(E), under which “[a]ny
adjoining property owner or other person who has a particularized interest protected by [Act
250] that may be affected by an act or decision by a District Commission” is entitled to party
status. Although an interest is particularized if it is specific to the appellant rather than a
general policy concern shared with the public, an interest may still be particularized even if it is
shared with multiple members of the general public so long as it is specific to the party and not
merely an interest in “the common rights of all persons.” In re Pion Sand & Gravel Pit, No. 245-
12-09 Vtec, slip op. at 7 (Vt. Super. Ct. Envtl. Div. July 2, 2010) (Durkin, J.); Re: McLean Enters.
Corp., No. 2S1147-1-EB, Mem. of Decision at 7 (Vt. Envtl. Bd. Sept. 19, 2003).
Mr. Baker must also show that the interest is protected by the Act 250 criteria for which
he is seeking party status and that this interest may be affected by the Commission’s issuance
of the land use permit currently under appeal. In re Granville Mfg. Co., No. 2-1-11 Vtec, slip op.
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at 6 (Vt. Super. Ct. Envtl. Div. July 1, 2011) (Durkin, J.). To demonstrate that this particularized
interest may be affected by an act or decision by a district commission, an appellant must allege
some causal relation between the proposed development and her interest. In re Bennington
Wal-Mart Demolition/Constr. Permit, No. 158-10-11 Vtec, slip op. at 9–10 (Vt. Super. Ct. Envtl.
Div. Apr. 24, 2012) (Walsh, J.). This requires a showing of a reasonable possibility, beyond mere
speculation and theory, that the Commission’s decision may affect the particularized interest.
Id.; Pion, No. 245-12-09 Vtec at 7. We review Mr. Baker’s party status requests in light of these
legal standards.
I. Criterion 1(B)
Criterion 1(B) provides, in relevant part, that “a permit will be granted whenever . . . the
development or subdivision will meet any applicable health and environmental conservation
department regulations regarding the disposal of wastes, and will not involve the injection of
waste materials or any harmful or toxic substances into ground water or wells.” 10 V.S.A.
§ 6086(a)(1)(B). Mr. Baker raises concerns about the disposal of waste overflow water through
the proposed subsurface drip dispersal system and the underground flow of such water to his
property.
Specifically, Mr. Baker alleges that the drip dispersal system will exacerbate an existing
condition regarding the saturation of his property and may affect his horses’ health. This is not
a general policy concern shared with the general public; rather, it is particular to Mr. Baker as it
affects the flooding and saturation of his property.
Further, this interest is protected by Criterion 1(B) because it involves the injection of
waste materials into the groundwater.
Finally, Mr. Baker’s interest may be affected by the Commission’s issuance of the land
use permit currently under appeal. Mr. Baker has demonstrated that the disposal of
wastewater on Mr. Gingras’ Property may already be causing impacts on his interests; such a
showing meets the threshold requirement to establish a reasonable possibility that a decision
on Criterion 1(B) could affect his particularized interest. See In re Barefoot & Zweig Act 250
Application, No. 46-4-12 Vtec, slip op. at 8 (Vt. Super. Ct. Envtl. Div. Mar. 3, 2013) (Durkin, J.)
(concluding that appellant’s allegations that stormwater and sediment from a neighboring
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project could degrade the stream due to its location and that applicant’s use of the site had
already caused erosion on appellant’s property the threshold requirement to establish a
reasonable possibility of impacts was met). While we recognize that the wastewater permit
obtained by Mr. Gingras creates a rebuttable presumption of compliance with Criterion 1(B),
this does not eliminate Mr. Baker’s valid interest under that Criterion or affect his party status.
The Court concludes that Mr. Baker has demonstrated not only a particularized interest
protected by Criterion 1(B), but also a reasonable possibility that this interest may be affected
by a decision on the Project. For this reason, we GRANT Mr. Baker’s motion for party status
under Criterion 1(B).
II. Criterion 9(B)
Criterion 9(B) addresses primary agricultural soils and requires an applicant to
demonstrate that “the subdivision or development will not result in any reduction in the
agricultural potential of the primary agricultural soils . . . .” 10 V.S.A. § 6086(a)(9)(B). Mr.
Baker raises concerns that the drip dispersal system will compound harm to his pastureland
that is currently saturated as the result of wastewater flowing from Mr. Gingras’ Property onto
his fields. He contends that the Project will further limit his ability to raise horses on his
property. This interest is particularized, rather than a general policy concern, in that it affects
his ability to raise horses on his own property.
Further, Mr. Baker’s interest is protected under Criterion 9(B)(i), which looks at “the
continuation of or potential for agriculture or forestry on adjoining lands . . . .” 10 V.S.A.
§ 6086(a)(9)(B)(i); see also In re Morgan Meadows/Black Dog Realty, No. 267-12-07 Vtec, slip
op. at 6 (Vt. Envtl. Ct. Dec. 1, 2008) (Wright, J.). Although “agriculture” is not defined under 10
V.S.A. Chapter 151, “farming” is defined as “the raising, feeding, or management of four or
more equines owned or boarded by the farmer, including training, showing, and providing
instruction and lessons in riding, training, and the management of equines.” 10 V.S.A.
§ 6001(22)(G). Here, Mr. Baker has alleged that he is unable to board any more than four
horses on his property because of the wet pastureland, which is caused, at least in part, by
overflow from Mr. Gingras’ Property. By declaring an interest in the viability of agricultural
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operations on his adjoining property, Mr. Baker has made a sufficient showing of a
“protectable” interest under criterion 9(B). See Morgan Meadows, No. 267-12-07 Vtec at 7–9.
Finally, Mr. Baker has demonstrated that there is a reasonable possibility that his
interest may be affected by a decision on the proposed Project. He asserts that development
on the project site has already and will continue to reduce the amount of his own pastureland
available for agriculture, particularly for raising horses. He discusses how the loss of suitable
pastureland poses significant threats to the animals’ health, offering proof in the form of a
signed statement from a veterinarian. Mr. Baker has made a showing that the proposed
development, which includes a drip dispersal system, may exacerbate existing saturation of his
pasturelands by introducing 8,000 gallons per day of wastewater that will be injected into the
ground, which may, as a result, significantly interfere with or jeopardize the continuation of
raising horses on his property. Mr. Baker relies on both personal knowledge and an expert’s
advice rather than speculation, all of which taken together is sufficient to demonstrate a causal
connection between the proposed project and the alleged adverse impacts upon his interests.
Cf. In re RCC Atlantic, Inc., No. 163-7-08 Vtec, slip op. at 8–9 (Vt. Envtl. Ct. May 8, 2009) (Durkin,
J.) (concluding that the prospective appellants had failed to provide a sufficient offer of proof in
the context of requesting party status because they neglected to reference any specific
evidence in the form of credible documentation or an affidavit describing a factual basis for
their concerns).
The Court concludes that Mr. Baker has demonstrated not only a particularized interest
protected by Criterion 9(B), but also a reasonable possibility that this interest may be affected
by a decision on the Project. For this reason, we GRANT Mr. Baker’s motion for party status
under Criterion 9(B).
Conclusion
For all of the reasons more fully discussed above, we conclude that, in regards to Act
250 Criteria 1(B) and 9(B), Mr. Baker has demonstrated that he is entitled to party status. We
therefore GRANT his motion for party status under Act 250 criteria 1(B) and 9(B).
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Electronically signed on August 21, 2015 Burlington, Vermont, pursuant to V.R.E.F. 7(d).
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Thomas S. Durkin, Judge
Environmental Division
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