Brousseau/Wedgewood Act 250 PRD

STATE OF VERMONT
ENVIRONMENTAL COURT
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In re Brosseau/Wedgewood } Docket No. 260-11-08 Vtec
Act 250 PRD Application }
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Decision and Order on Motion for Summary Judgment
Appellant-Applicants Lauretta Brosseau and Wedgewood Development
Corporation appealed from a decision of the District 4 Environmental Commission
(District Commission) denying their application for an Act 250 permit for a proposed
Planned Residential Development (PRD) in the Town of Colchester. Appellant-
Applicants (Applicants) are represented by Robert C. Roesler, Esq.; the Agency of
Agriculture, Food and Markets is represented by Diane E. Zamos, Esq.; and the Town
of Colchester is represented by Thomas G. Walsh, Esq. The Land Use Panel of the
Natural Resources Board entered an appearance represented by John H. Hasen, Esq.,
but has not filed memoranda on the present motion. The Agency of Natural Resources
has requested informational status only.
Applicants have moved for summary judgment on some of the questions in the
Statement of Questions. The following facts are undisputed unless otherwise noted.
In August 2008, Applicants1 applied for an Act 250 permit for a proposed 29-lot
Planned Residential Development on the easterly side of Jasper Mine Road in the Town
of Colchester. The project is proposed to consist of 26 single-family house lots and
1The application was filed by Applicants, together with Daniel and Christie Fitzgerald,
who own a 1.75-acre parcel that is part of the project tract, but is not involved in the
proposed PRD. The Fitzgeralds have not entered an appearance in this appeal.
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three common area lots. The project tract is 36.15 acres in area, of which 34.4 acres are
involved in the proposed PRD. The District Commission determined that the proposed
project did not comply with Criterion 9(B) of Act 250, 10 V.S.A. § 6086(a)(9)(B), and
denied the application in October 2008.
If primary agricultural soils are located on a proposed project site, Criterion 9(B)
requires the applicant to demonstrate either that the proposed project will not reduce
the agricultural potential of such soils, or that the proposed project will comply with
subcriteria (i)–(iv). 10 V.S.A. § 6086(a)(9)(B). Primary agricultural soils are defined for
the purposes of Act 250 review in 10 V.S.A. § 6001(15) as:
soil map units with the best combination of physical and chemical
characteristics that have a potential for growing food, feed, and forage
crops, have sufficient moisture and drainage, plant nutrients or
responsiveness to fertilizers, few limitations for cultivation or limitations
which may easily be overcome, and an average slope that does not exceed
15 percent. Present uses may be cropland, pasture, regenerating forests,
forestland, or other agricultural or silvicultural uses. However, the soils
must be of a size and location, relative to adjoining land uses, so that
those soils will be capable, following removal of any identified
limitations, of supporting or contributing to an economic or commercial
agricultural operation. Unless contradicted by the qualifications stated in
this subdivision, primary agricultural soils shall include important
farmland soils map units with a rating of prime, statewide, or local
importance as defined by the Natural Resources Conservation Service
(N.R.C.S.) of the United States Department of Agriculture (U.S.D.A.).
In the present appeal, of the 27.4 acres of the project tract having a rating of
prime, statewide, or local as defined by the N.R.C.S., the parties do not dispute that at
least 15.3 acres of such soils will be impacted by the proposed project. The Agency
identifies an additional 2.8 acres, for a total of 18.1 acres that it argues are primary
agricultural soils. However, material facts are in dispute as to the area of these 18.1
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acres, if any, that meets the other elements of the definition of primary agricultural soils
contained in 10 V.S.A. § 6001(15).
Question 6 of the Statement of Questions
Question 6 of the Statement of Questions asks the Court to determine whether
“the soils on the [p]roject [s]ite have few limitations for cultivation or limitations which
may be easily overcome.” Applicants argue that the existing forest cover on the project
site constitutes a limitation to cultivation that cannot be easily overcome, and that the
soils therefore do not meet the definition of primary agricultural soils. This argument is
based on the cost of removing the trees on the property, which Applicants argue is so
high that agricultural use is not feasible.
The Court rejected a similar argument in In re Village Associates Act 250 Land
Use Permit, No. 6-1-08 Vtec, slip op. at 6–8 (Vt. Envtl. Ct. Apr. 30, 2009) (Wright, J.).2 As
explained in that decision, additions to the statutory language that specifically include
soils in present use as “regenerating forests” or “forestland,” together with “the overall
structure of the statutory treatment of primary agricultural soils[,] show[] that the cost
of overcoming a limitation for cultivation was not intended to be considered in
determining whether such a limitation may ‘easily’ be overcome.” Id. at 7.
In the present case, Applicants have not alleged that there are any limitations to
cultivation other than the presence of mature trees on the project site. No physical or
technical impediments to the removal of trees on the project site have been identified.
Because the cost of removing trees alone does not constitute a limitation that cannot be
easily overcome, as explained in Village Associates, Applicants’ Motion for Summary
2The decision is available at:
http://www.vermontjudiciary.org/GTC/Environmental/ENVCRT%20Opinions/08-
006.VillageAssoc.dec.pdf.
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Judgment as to Question 6 is DENIED, and summary judgment is GRANTED to the
Agency of Agriculture, Food and Markets on Question 6.
Remaining Issues in Motion for Summary Judgment
Material facts are in dispute as to the rest of the issues raised in Applicants’
Motion for Summary Judgment, which is therefore denied except as to Question 6. The
disputed material facts include whether the location of the soils is suitable for
agriculture, and whether the soils would be capable of supporting or contributing to an
economic or commercial agricultural operation at that location. As may be seen in the
Village Associates decision, evidence regarding whether soils are capable of supporting
or contributing to an economic or commercial agricultural operation requires a showing
of more than the mere distance between the location and the nearest farm. The
disputed material facts also include whether a 1.8-acre portion and another 1-acre
portion of the subject soils are so isolated from the remaining soils rated as prime or
statewide that those 2.8 acres should not be considered primary agricultural soils.
Material facts are disputed, or at least have not been provided, as to what “wetlands
and other features” “segregate” the site’s agricultural soils from other soils on the site.
Finally, material facts are disputed, or at least have not been provided, as to whether
the project is planned to minimize the project soils’ reduction in agricultural potential,
10 V.S.A. § 6086(a)(9)(B)(iii); whether suitable mitigation has been proposed,
§ 6086(a)(9)(B)(iv); and whether “appropriate circumstances” for off-site mitigation
exist under § 6093(a)(3)(B).
Accordingly, based on the foregoing, it is hereby ORDERED and ADJUDGED
that Applicants’ Motion for Summary Judgment is DENIED, and that summary
judgment is GRANTED in part to the Agency of Agriculture, Food and Markets as to
Question 6.
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A telephone conference is scheduled for July 8, 2009 (see enclosed notice) to
discuss mediation and to discuss scheduling an evidentiary hearing if necessary to
resolve the remaining issues.
Done at Berlin, Vermont, this 9th day of June, 2009.
_________________________________________________
Merideth Wright
Environmental Judge
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