Lake Champlain Bluegrass Festival JO

STATE OF VERMONT
ENVIRONMENTAL COURT
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In re Lake Champlain Bluegrass Festival } Docket No. 204-11-10 Vtec
Jurisdictional Opinion (#6-007; recon.) } (Appeal from Dist. 6 Comm.)
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Decision on the Merits
The sole legal question presented in this appeal is whether the operators of the
Lake Champlain Bluegrass Festival (“the Festival”), a bluegrass music festival that has
operated for up to four days per year for the previous nine years, should be required to
obtain a state land use permit, commonly referred to as an Act 250 permit. When the
District Coordinator (“the District Coordinator”) for the District 6 Environmental
Commission (“the District Commission”) concluded that Act 250 jurisdiction did not
arise as a result of the Festival operations or related improvements, adjoining property
owners Rene R. Prairie and Louise Prairie (“Appellants”) appealed the District
Coordinator’s determination to this Court. When the parties were unable to reach a
voluntary resolution of their dispute, despite their efforts at compromise, the Court
conducted a site visit on the property that hosts the Festival and thereafter conducted
a de novo merits hearing at the Grand Isle Courthouse in North Hero, Vermont.
Appearing at the site visit and trial was Mr. Prairie, joined by Appellants’
attorney, Joseph F. Cahill, Jr., Esq. Steven L. Palmer, registered agent for Hay Bale
Entertainment, LLC (“Hay Bale”), which owns, organizes, and supervises the Festival
each year, also attended, together with Hay Bale’s attorney, Liam L. Murphy, Esq.
Loren T. Palmer, registered agent for Windmill Bay Farms, LLC, the owner of the
property upon which the Festival is conducted each year, also attended the site visit
and trial. The Land Use Panel of the Vermont Natural Resources Board (“the Panel”)
appeared as an Interested Person in this appeal; its General Counsel, John H. Hasen,
Esq., participated in the site visit and trial.
Based upon the evidence presented at trial, including that which was put into
context by the site visit, the Court renders the following Findings of Fact and
Conclusions of Law.
1
Findings of Fact
1. Steven L. Palmer, registered agent for Hay Bale, conceived of the Festival prior
to 2002. Beginning in August, 2002, the Festival has operated for a period of one to
four days during August of each year. In its earlier years, the Festival operated for
only one day; in its later years, the Festival has operated for up to four days, beginning
on a Thursday and ending on a Sunday.
2. Over the last nine years, Hay Bale has entered into a written lease each
summer for the use of a portion of an agricultural field for the Festival operations.
The leased land is owned by Windmill Bay Farms, LLC (“Windmill”), the registered
agent of which is Loren T. Palmer, Steven L. Palmer’s father.
3. The parcel of land which includes the area leased by Windmill to Hay Bale
totals 265 acres. Much of the Windmill land consists of agricultural fields and some
wooded areas; the portion of land leased to Hay Bale contains 30 to 40 acres and
abuts the northern boundary of U.S. Route 2 in the Town of Alburgh, Vermont. The
entire Windmill parcel and neighboring parcels are depicted on an Orthophoto Plan
admitted as Exhibit A. The portion of the Windmill parcel leased and used for the
Festival is depicted on Exhibit A as the “Festival Area.”
4. Appellants live on property approximately five miles from the Festival Area.
They also own a separate undeveloped parcel of land along a portion of the northern
border of the Windmill parcel which they use for hunting and other recreational
activities. Appellants generally allege that the Festival interferes with their use and
enjoyment of their undeveloped abutting property.
5. In recent years, the Festival has attracted 1,200 or more attendees. The most
recent Festival occurred in August, 20101 and was conducted over three days.
6. The Festival Area contains mostly open fields that are used for growing hay and
other agricultural purposes during all other days of the year. The Festival organizers
and attendees use the internal farm field roadways within the Festival Area for access
to the Festival staging areas. No roadways were constructed or improved by the
Festival organizers.
7. The Festival organizers have constructed or installed some improvements on
the Festival Area. These improvements, mostly installed in 2006, include the
following:
1
The Festival organizers suspended the Festival event planned for 2011, due to the pending legal challenge to its
operation without an Act 250 permit.
2
a) a sign at the access way entrance to the Festival Area, supported by two
wooden posts and standing about three feet high;
b) a movable stage that is constructed on a hay wagon-type platform with wheels
and stored on the edge of a field when the Festival is not in operation;
c) three separate electrical connection junctions, housed in wooden boxes, sitting
about three feet off the ground and supported by two wooden posts;
d) one or more portable electric generators and a fuel storage tank;2
e) electrical extension lines, buried several inches underground, that supply
electricity to the three electrical junction boxes; and
f) three poles, each about twenty feet high and upon which temporary lighting is
attached.
8. All of these improvements are only used during the one- to four-day period of
the Festival. Each year, the portable generators and all lights are removed from the
Festival Area and stored off site. At the end of the Festival, the Festival Area is
returned to agricultural use.
9. After Appellants alleged that the Festival activities triggered Act 250
jurisdiction, the Festival organizers permanently removed the sign and the posts
supporting it. Several of the other posts were either removed or cut to a height of
about three feet.
10. During the Festival each year, the Town of Alburgh Fire Department sells meals
and other food and drink as a fund-raising effort for that Department. The Grand Isle
County Sheriff’s Department provides traffic control and safety officers for the Festival,
at a cost charged to and paid by Hay Bale. The Festival organizers also provide
temporary porta-potties and other sanitary facilities for the Festival attendees. All
waste is collected and removed from the site; no waste flows from the site to
surrounding properties, streams, or groundwater.
11. Festival attendees may purchase tickets for each Festival prior to or during the
event weekend. In return for their payment, attendees are allowed into the Festival
Area to listen to music and camp; they are permitted to bring tents, campers, or
recreational vehicles onto the site. There are no electrical, water, or waste disposal
hook-ups offered or permitted on the site.
12. There is no running water provided on the site during the Festival event.
13. Steven Palmer, representing Hay Bale, communicates with state and municipal
officials before each yearly Festival event to advise of Hay Bale’s planned activities and
2
The fuel storage tank is principally used for Windmill’s non-Festival agricultural activities. It was unclear, from
the evidence presented at trial, whether fuel from this storage tank is used to keep the Festival generators running
during the Festival. The tank remains on the property throughout the year.
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to determine what Hay Bale needs to do in anticipation of the Festival each year. Mr.
Palmer testified credibly that he secured all permits required by state and municipal
officials and that in prior year he was advised by John Wakefield, Natural Resources
Board Permit Compliance Officer, that an Act 250 permit was not required for the
planned Festival activities.3
14. No Agency of Natural Resources permits are required for the Festival event.
15. There are no residences in the immediate area of the Festival. The closest
residence appears to be almost one mile away. Mr. Palmer credibly testified that he
and those he employs (including deputies from the Grand Isle County Sheriff’s
Department) have never received a complaint about the Festival activities.
16. Mr. Prairie, one of the appellants in this appeal, is an experienced business
person who has previously been required to secure an Act 250 permit for certain land
use activities. He stated at trial that he wishes to make sure that others, including
Mr. Palmer, are required to secure an Act 250 permit when the law requires, since he
was required to do so.
17. Sometime prior to August 3, 2010, Appellants complained to Mr. Wakefield, the
Permit Compliance Officer. Mr. Wakefield thereafter requested that the District
Coordinator render a determination, based upon the facts alleged by Appellants, as to
whether the Festival activities gave rise to Act 250 jurisdiction and the need to obtain
an Act 250 permit.
18. On August 3, 2010, the District Coordinator issued his determination on a
document entitled “Project Review Sheet,” a copy of which was admitted into evidence
at trial as Appellants’ Exhibit 13. By this Project Review Sheet, the District
Coordinator gave notice of his determination that the Festival activities, as then
described to him, required an Act 250 permit.
19. The District Coordinator forwarded a copy of his August 3, 2010 Project Review
Sheet to Windmill, as the owner of the property that he had determined required an
Act 250 permit.
20. At the request of Hay Bale, and after receiving further information concerning
the Festival activities and improvements, the District Coordinator, on October 11,
2010, issued a reconsideration of his prior jurisdictional determination. By this
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While Mr. Palmer’s credible trial testimony was uncontradicted with regard to requesting and receiving this
permit determination from the Permit Compliance Officer, there was no evidence offered at trial that Mr. Palmer
sought a jurisdictional opinion from the District Coordinator prior to the opinions that are detailed in the District
Coordinator’s determinations discussed in ¶¶ 18 and 20, below.
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October 11, 2010 reconsideration letter, the District Coordinator gave notice that he
had now concluded, based upon all facts presented to him, that the Festival activities
and improvements were of such a minor nature as to be entitled to an exemption from
Act 250 jurisdiction.
21. Appellants thereafter filed a timely appeal of the District Coordinator’s
October 11, 2010 reconsideration.
Conclusions of Law
Act 250, codified at 10 V.S.A. §§ 6001 through 6093, was enacted over forty
years ago “to protect Vermont’s lands and environment by requiring statewide review
of ‘large-scale changes to land utilization.’” In re Audet, 2004 VT 30, ¶13, 176 Vt. 617(mem.) (quoting Comm. to Save Bishop’s House, Inc. v. Med. Ctr. Hosp. of Vt., Inc.,
137 Vt. 142, 151 (1979)); see also In re Pilgrim P’ship, 153 Vt. 594, 596 (1990). Where
land development is proposed or has occurred, the responsible party is required to
obtain an Act 250 permit. 10 V.S.A. § 6081(a). Thus, the threshold question
presented in any initial analysis of a land use project is whether the project fits the
statutory definition of “development” and thereby triggers the need for the party
undertaking the project to obtain an Act 250 permit.
The term “development” is defined in 10 V.S.A. § 6001(3)(A) as an activity falling
within any one of eight descriptions. The description and definition most applicable to
the Questions posed by Appellants here is found in subsection (3)(A)(ii), which states
that development includes “[t]he construction of improvements for commercial or
industrial purposes on more than one acre of land within a municipality that has not
adopted permanent zoning and subdivision bylaws.”4 Id. Act 250 Rule (2)(C)(3)
defines “construction of improvements” as “any physical action on a project site which
initiates development,” subject to certain enumerated exceptions.
In the appeal now before us, the parties do not dispute that the Festival
organizers have installed some improvements on the Windmill property; the parties
appear to agree that the Festival organizers have completed the improvements and
associated activities listed above in our Factual Findings ¶¶ 7–12. The parties’ legal
dispute instead centers on whether these improvements and associated activities are
so minor in nature as to fall under a statutory or rule exception (e.g., one of the
4
No party to this appeal challenged the District Coordinator’s determination that the Town of Alburgh had not, as
of the date of the initial jurisdictional request, adopted both zoning and subdivision bylaws, thereby making the
provisions of 10 V.S.A. § 6001(3)(A)(ii) applicable.
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exceptions in Act 250 Rule (2)(C)(3)), and allow the Festival organizers to avoid the
need to obtain an Act 250 permit. For the reasons detailed below, we conclude that
while the listed improvements and associated activities were constructed and
undertaken for the Festival, they are so minor in nature that they are exempt from the
definition of “development” under 10 V.S.A § 6001(3)(A). Since no development has
occurred, the Festival organizers are not obligated to obtain an Act 250 permit.
I. The Import of In re Audet
The question of whether Act 250 jurisdiction attaches to a land development
has given rise to significant administrative efforts and litigation. The Vermont
Supreme Court’s determination in Audet marks a relatively recent analysis and is
often cited for the general proposition that “any construction activity, no matter how
minute, triggers Act 250 jurisdiction.” Audet, 2004 VT 30, ¶ 11 (“10 V.S.A. § 6081(a)
mandates a land use permit before commencement of any construction on a
development.”) (citing In re Rusin, 162 Vt. 185, 191 (1994)).
In Audet, the target of the jurisdictional inquiry were the activities of Mr. Real
Audet, a car repairman and used car salesman. In the course of that dispute, Mr.
Audet stated that he had every intention of being, in his own words, a “bad neighbor.”
2004 VT 30, ¶ 3. In direct disregard of the concerns his neighbors expressed when his
plans to rehabilitate a condemned residence on property he had recently purchased
failed, he began to use the property to “store junked cars, a large pile of used tires,
automotive debris, a company truck and a flatbed trailer.” Id. ¶¶ 2-3. In order to
make the parcel available for these uses, he “cleared brush” and “graded, filled and
graveled portions of” the property. Id. ¶3.
Based upon his actions and his change in use of the property, Mr. Audet’s
neighbors requested that the staff for the District 5 Environmental Commission
determine whether Mr. Audet needed an Act 250 permit. Id. ¶ 4. The District 5
Coordinator ultimately concluded that he did need a permit. Id. Mr. Audet thereafter
requested a declaratory ruling from the former Vermont Environmental Board that,
because the property was not part of his business, Act 250 jurisdiction did not attach.
Id. ¶ 5. In the interim, Mr. Audet ceased his use of the property for storage and
claimed that he was no longer using the property as part of his business. Id. The
former Environmental Board thereafter ruled that Act 250 jurisdiction did not apply to
Mr. Audet’s recently acquired property. Id.
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Mr. Audet’s neighbors appealed the Environmental Board’s determination to the
Vermont Supreme Court. The Court agreed with the neighbors that, to the extent that
the former Board based its determination upon an unspecified de minimis exception to
the applicable Environmental Board rule, that was an error. Id. ¶10. The Court,
citing its prior decision in Conservation Law Found. v. Burke, 162 Vt. 115, 121 (1993),
stated that “if an administrative agency wishes to include a de minimis exception to its
regulations, it must do so explicitly in [the] rulemaking process.” Id.¶10.
However, the Court then went on to affirm the former Environmental Board’s
determination that Act 250 jurisdiction did not attach to Mr. Audet’s property because
he was no longer using the property as part of his business. Id. ¶¶ 11–16. The
Supreme Court reasoned that Act 250 jurisdiction does not attach when a party
begins using his or her property in a way that could constitute “development” under
Act 250 but then, in good faith, ceases that use before engaging in any “construction,
physical change to the land or other ongoing impact that would require Act 250
review.” Id. ¶¶ 11–14. The Court concluded that Mr. Audet had abandoned his
business use in good faith without completing any construction, physical change to
his property, or other activity that resulted in an ongoing impact requiring an Act 250
permit. Id. ¶ 14. The Court then concluded that, consequently, Mr. Audet was not
subject to Act 250 jurisdiction. Id. ¶ 14.
Audet does not speak to a situation where some construction has occurred, as
is the situation in the pending appeal, since some improvements have been made to
the Festival Area. However, the case does raise the question of how the activities
associated with the Festival, an event which occurs no more than four days per year,
could trigger Act 250 jurisdiction when those activities cease each year after the
Festival concludes. It appears indisputable that, at least when Mr. Audet was engaged
in the “bad neighbor” uses of his property, his activities and uses were much more
substantial and had a greater potential to cause significant impacts than any of the
Festival activities. We are inclined to conclude that, if Mr. Audet’s more substantial
site activities and uses did not trigger the jurisdictional authority of Act 250 after he
abandoned them in good faith, the Festival activities cannot do so either. When we
acknowledge the current characteristics of the Festival activities—that the event
occurs for no more than four days out of the year and ceases for the year thereafter—
we conclude that the Festival activities, as currently presented, should not give rise to
Act 250 jurisdiction.
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II. Whether the Panel’s De Minimis Exception Applies
Audet is not our only source of guidance here because, in 2009, in response to
Audet, the Panel adopted a de minimis exception to its definition of the term
“construction of improvements” by amending Act 250 Rule 2(C)(3)(c).5 In so doing, the
Panel implemented a de minimis exception to when improvements to property trigger
Act 250 jurisdiction.
The specific legal question before us is whether the Festival organizers, who
concede that they completed most of their site improvements in 2006, can avail
themselves of the de minimis exception to the Act 250 jurisdictional trigger when that
exception was not enacted until 2009, after the improvements were made. While the
general principal applicable to Act 250 proceedings is that the law in effect when the
proceeding is commenced is the law that applies, the question we must answer here is
what activity commences an Act 250 proceeding when the improvements at issue have
already been completed and when the Court, and the District Commission before us,
is in the preliminary stage of determining whether Act 250 jurisdiction applies to those
improvements. See Re: Okemo Limited Liability Co., et al, No. #2S0351-24B-EB,
Mem. of Decision, at 5 (Vt. Envtl. Bd. May 10, 2004);6 In re Ross, 151 Vt. 54, 56, 57
n.1 (1989).
This issue appears to be one of first impression. The two principal parties here,
and the Panel as intervener, note that their legal research has not revealed any prior
decision of our Supreme Court, this Court, or the former Environmental Board, that
addresses whether the de minimis exception can apply retroactively to improvements
made before the exception was established. Our legal research has also not yielded
any precedent directly on point. However, for the reasons stated below, we ultimately
conclude that the date the improvements were made is not the date of significance
here. Rather, given the early determinations that Act 250 jurisdiction was not
triggered for improvements, the date of significance here is the date that the original
jurisdictional opinion regarding the Festival was requested by Appellants, sometime in
2010. Thus, under the reasoning detailed below, we ultimately determine that we do
not have to address whether the de minimis exception adopted in 2009 can be applied
5
Pursuant to 10 V.S.A. § 6025(b), the Panel possesses the authority to enact “substantive rules . . . that interpret and
carry out the provisions of [title 10, chapter 151] that pertain to land use regulat[ion].”
6
Given the expertise and quasi-judicial experience of the former Environmental Board, we show its prior decisions
the same precedential weight and considerations as decisions from this Court, as directed by 10 V.S.A. § 8504(m).
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retroactively; Festival organizers can avail themselves of the exception because it was
in place when the original jurisdictional opinion was sought.
Appellants and the Panel presented two arguments to support their contention
that the Festival organizers cannot benefit from the enactment of the de minimis
exception. First, both Appellants and the Panel make reference to determinations by
this Court, later affirmed by the Vermont Supreme Court, in an appeal entitled In re
Times & Seasons, LLC Act 250 Reconsideration, No. 45-3-09 Vtec (Vt. Envtl. Ct.
March 29, 2010)(Durkin, J.), aff’d, 2011 VT 76. That appeal concerned an application
for an Act 250 permit, denied by the Supreme Court in a prior proceeding,7 for which
the applicant sought reconsideration to take into account a change in the statutory
provisions that had occurred after the denial of his application. Id. at ¶ 5. This Court,
and then the Supreme Court on appeal, concluded that the applicant could not enjoy
the benefits of a change in this statutory definition when requesting reconsideration of
a prior application because an applicant “may not simultaneously take advantage of
the laws in effect at the time of the initial application and those in effect at the time of
the reconsideration application.” Times & Seasons, 2011 VT 76, ¶11 (“[T]he
submission of a reconsideration application is not a separate vesting event. . . . To
decide otherwise would be contrary to our vested rights doctrine, which allows the
applicant on reconsideration to maintain the advantage of favorable findings when
laws or regulations have changed unfavorably.”)
In the case at bar, no Act 250 application has been filed and no reconsideration
of a permit determination has been requested. Instead, the appeal before us concerns
a jurisdictional opinion, a decision which answers the preliminary question of whether
a landowner’s activities trigger Act 250 jurisdiction. Further, the original
jurisdictional opinion, and the reconsidered jurisdictional opinion now on appeal, were
both requested after the de minimis exception was added to the Act 250 rules; there
was no intervening change in the statutory law as there was in Times & Seasons. For
these reasons we do not find Times & Seasons applicable to these proceedings.
Appellants and the Panel’s second argument is that 1 V.S.A. § 214(b)(2), a
provision that limits the retroactive application of laws, prevents the de minimis
exception in Act 250 Rule 2(C)(3)(c) from applying to the Festival improvements. See 1
V.S.A. § 214(b)(2) (“The amendment or repeal of an act or [statutory] provision . . .
shall not . . . [a]ffect any right, privilege, obligation or liability acquired, accrued or
7
See In re Times and Seasons, LLC, 2008 VT 7, 183 Vt. 336.
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incurred prior to the effective date of the amendment . . . .”). The core of their
argument is that the de minimis exception cannot apply retroactively. For the reason
detailed below we ultimately conclude that the Festival organizers can benefit from the
de minimis exception without the retroactive application of that provision; we
determine, as described below, that the activity commencing the Act 250 proceeding
here is the request for the original jurisdiction opinion, a request sought by Appellants
after the 2009 amendment to Act 250 Rule 2(C)(3)(c) was enacted.
We find illustrative, if not analogous to the situation here, the procedural
circumstances outlined by the former Environmental Board when it first reviewed the
jurisdictional claims against Mr. Audet and announced the following:
As this is an instance where there has never been a final
determination as to Act 250 jurisdiction, and as this is a de novo
proceeding, the “present state of affairs” – or the status quo – is that
there is no jurisdiction over the tracts in question. The burden of proof is
therefore on the party that claims that jurisdiction should attach.
Re: Audet, d/b/a Joe Audet Auto and Truck Sales, Inc., No. 409-Declaratory Ruling,
Findings of Fact, Conclusions of Law and Order, at 9–10 (Vt. Envtl. Bd. Dec. 5, 2002)
(citing Re: Town of Williston Road Improvements, No. 381-Declaratory Ruling,
Findings of Fact, Conclusions of Law, and Order, at 4-5 (Vt. Envtl Bd. Jan. 13, 2001)).
Thus, we determine that when the Court or a district commission is in the preliminary
stage of determining whether Act 250 jurisdiction attaches to a landowner’s previous
activities, the activity commencing the Act 250 proceeding is either some showing that
Act 250 jurisdiction does apply to the landowner’s previous activities or the
submission of a request by a party for a jurisdictional opinion from a district
coordinator.
Appellants here do not contest the assertions made on Hay Bale’s behalf at trial
that the Permit Compliance Officer previously advised that no Act 250 permit was
needed for the planned Festival improvements and associated activities. Thus, this
jurisdictional dispute came before the District Coordinator in 2010 with no prior
determination or showing that the Festival improvements and associated activities
triggered Act 250 jurisdiction. By 2010, when the original request for a jurisdictional
opinion was made by Appellants, the de minimis exception, a 2009 amendment to Act
250 Rule 2(C)(3)(c), was in effect. Thus, it was the law in effect when the Act 250
proceeding here was commenced.
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Consequently, we conclude that our review should not be based on the version
of Act 250 Rule 2(C)(3)(c) in effect in 2006 when the improvements were made to the
Festival Area, but should instead utilize the version of Rule 2(C)(3)(c) in effect in 2010
when the initial jurisdictional opinion was requested. Thus, the Festival organizers
can benefit from the enactment of the de minimis exception to the Act 250
jurisdictional trigger.
III. Application of the De Minimis Exception
Jurisdictional opinions are unique from Act 250 permit determinations,
particularly in the procedural posture that gives rise to such opinions. First, a
jurisdictional opinion may be requested by “any person,” including those who would
not have standing to appeal that jurisdiction opinion or the grant or denial of an Act
250 permit application. 10 V.S.A. § 6007(c); see also Act 250 Rule 3(A); In re
Marcelino Waste Facility (Appeal from Act 250 JO #4-205, 3rd Recons.), No. 44-2-07
Vtec, slip op. at 2, 4 (Vt. Envtl. Ct. Nov. 6, 2007) (Durkin, J.). Unless the requesting
party seeks a “final determination,” a jurisdictional opinion may be rendered without
prior notice to other parties, including perhaps even the owner of the land that is the
subject of the jurisdictional opinion request. See 10 V.S.A. § 6007(c). Here, it appears
from the exhibits before us that a final determination was rendered only after Hay Bale
requested reconsideration.
A jurisdictional opinion also does not necessarily have the precedential weight
of a district commission determination on an Act 250 permit application. Unlike a
decision to grant or deny an Act 250 permit application, jurisdictional opinions are
issued by a district coordinator and not by the district commission. See Act 250
Rule 3. Also, a jurisdictional opinion is issued not after a full evidentiary proceeding,
but rather is based, at least initially, solely upon the representations made by the
requesting party. Ultimately, a jurisdictional opinion does not give the requestor a
permit; it can become a final determination once the appeal period passes, but, once
final, it is nothing more than a determination that an Act 250 permit is or is not
required, based upon the facts presented. As the former Environmental Board has
noted, an Act 250 jurisdictional determination “is only as good as the facts upon
which it is based." Re: Dexter and Susan Merritt, Dec. Ruling #407, Mem. of Decision,
at 6 (Vt. Envtl. Bd. June 20, 2002), aff’d 2003 VT 84, 175 Vt. 624 (mem.) (quoting Re:
Catamount Slate, Inc. et al., Dec. Ruling #389, Mem. of Decision, at 11 (Vt. Envtl. Bd.
June 29, 2001), rev’d on other grounds, 2004 VT 14, 176 Vt. 284).
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We therefore embark to rule on the question presented to us by Appellants,
which is the same question first put before the District Coordinator: whether, based
on the facts presented, the Festival improvements and associated activities trigger Act
250 jurisdiction. To render this determination, as discussed above, we must employ
the Act 250 rules in effect at the time that the initial request for a jurisdictional
determination was made: the rules as last amended on July 10, 2009.
The July 10, 2009 version of Rule 2(C)(3)(c) creates a de minimis exception to
the general definition of the statutory term “construction of improvements” as that
term is used within 10 V.S.A. § 6001(3)(A)(ii) and the definition of “development.”
Appellants and the Panel correctly suggest that the Rule 2(C)(3)(c) de minimis
exception places the burden of proof upon Hay Bale to show that the exception
applies, since it is the entity requesting that it be applied. But, we decline to adopt the
remaining suggestion from Appellants and the Panel that a further proceeding is
necessary to hear the presentation of evidence before we can determine the
applicability of this exception. Rather, we conclude that we afforded the parties
sufficient opportunity to present evidence on whether Hay Bale has adequately met its
burden of demonstrating that the Festival improvements are “de minimis” and “will
have no potential for significant adverse impact under any of the criteria of 10 V.S.A.
Sections 6086(a)(1) through (10) directly attributable to such construction or to any
activity associated with such construction.” Act 250 Rule 2(C)(3)(c).
The evidence presented by Hale Bale to the Court at trial, and for the most part
undisputed, is that the Festival improvements consist of (1) a sign and its posts, both
of which were permanently removed after the request for an Act 250 jurisdictional
opinion occurred; (2) a portable stage, set on a hay wagon with wheels, that is often
moved before and after the event; (3) three posts and temporary lights that are only
used during the Festival and removed after the event concludes; (4) one or more
portable generators brought on and taken off the Windmill hay field; (5) three wooden
boxes housing electrical connection junctions; and (6) electrical extension cords buried
several inches underground that supply the temporary electricity to the portable stage
and lights. These improvements are all de minimis in accordance with Rule
2(C)(3)(c)(i) in that they are small and unobtrusive or are removed at the conclusion of
the Festival each year.
Additional evidence presented by Hay Bale indicates that the Festival has
historically occurred on no more than four days of an entire year. While over 1,200
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individuals have sometimes attended the Festival and camped on its leased hay fields,
the event and its attendant noise and traffic conclude shortly thereafter. In the nine-
year history of the event, Hay Bale’s registered agent and the staff it employs,
including deputies from the Grand Isle County Sheriff’s Department, have not received
a single complaint. Thus, we conclude that historically, and as described at trial, the
Festival improvements and associated activities do not have the potential for
significant adverse impact under any of the Act 250 criteria. See Act 250 Rule
2(C)(3)(c)(ii). There was no credible evidence presented of any significant impacts
caused by the Festival improvements and associated activities.
We therefore conclude that Hay Bale is entitled to claim a de minimis exception.
Therefore, the Festival improvements and associated activities are not within Act 250
jurisdiction. In other words, they do not constitute “development” as it is described in
10 V.S.A. § 6001(3)(A)(ii) and § 6081(a) and Act 250 Rules 2(C)(3)(c) and 3.
Conclusion
For the reasons discussed above, we conclude that historically the Festival
improvements and associated activities are exempt from the definition of
“development” as that term is used in 10 V.S.A. § 6081(a) as a jurisdictional trigger for
the application of Act 250. Consequently, Hay Bale is not obligated to obtain an Act
250 permit.
Our determination is limited to the facts presented in this appeal. This
determination does not control any future permit requirements that may arise as a
consequence of material changes in future Festival improvements or associated
activities.
A Judgment Order accompanies this Decision. This completes the current
proceedings before this Court concerning the pending Jurisdictional Opinion
proceedings.
Done at Berlin, Vermont, this 3rd day of January 2012.
____________________________________________
Thomas S. Durkin, Environmental Judge
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