Agri Mark, Inc. Act 250

STATE OF VERMONT
SUPERIOR COURT ENVIRONMENTAL DIVISION
Vermont Unit Docket No. 122-8-14 Vtec
Agri-Mark Inc. Act 250 Permit DECISION ON MOTION
Agri-Mark, Inc. (Applicant) seeks an amendment to an existing state land use permit,
originally issued March 1987 for the construction of a facility in the Town of Cabot, Vermont
(the Permit). The Permit has since been amended several times. At issue in this appeal,
Applicant submitted an application to amend the Permit in March 2014, seeking authorization
to construct a compressed natural gas (CNG) offloading station with three truck bays for the
purpose of converting fuel supplies for the existing buildings from oil to natural gas (Project).
District Commission # 5 (Commission) issued amended permit 5W00887-8A pursuant to Act 250
Rule 34(D) on May 9, 2014 (Amended Permit). Jill Alexander and Richard Scheiber filed a
motion to alter that decision on May 28, as well as a motion requesting a hearing under Criteria
1, 1(B), 5, 7, and 9. The Commission denied both motions. After timely appealing the
Commission’s decision to this Court, Ms. Alexander withdrew from the matter and Mr. Scheiber
filed an amended Statement of Questions consisting of 10 Questions. Applicant subsequently
filed a motion to dismiss for lack of standing, or in the alternative, to limit the Statement of
Questions. The Vermont Natural Resources Board (NRB) filed a motion in opposition to
Applicant’s surreply as it pertains to the scope of the appeal.1
Mr. Scheiber is represented in this matter by Charlotte Dennett, Esq. Applicant is
represented by Geoffrey H. Hand, Esq. The NRB is represented by Gregory J. Boulbol, Esq.
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The NRB’s motion addresses Applicant’s March 20, 2015 surreply, in which Applicant addresses the request to
limit Mr. Scheiber’s Statement of Questions. Because we grant Applicant’s motion to dismiss, we do not address
the motion to limit the Statement of Questions as it is moot, and therefore, we do not address the NRB’s motion
relevant to that issue.
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Factual Background
For the sole purpose of putting the pending motion into context the Court recites the
following facts which it understands to be undisputed:
1. District Commission # 5 issued the original Act 250 permit to Applicant Agri-Mark in
March 1987 to construct a warehouse and cutting facility with parking areas, roadway,
and related improvements in the Town of Cabot, Vermont.
2. Applicant’s original permit has been amended a number of times.
3. Applicant filed the most recent application to amend the original permit in March 2014
for the construction of a CNG offloading station containing three truck bays for the
purpose of converting fuel supplies for its existing buildings from oil to natural gas (the
Project).
4. The Commission issued administrative amendment 5W0887-8A on May 9, 2014.
5. Jill Alexander and Richard Scheiber filed a motion to alter the amended permit as well as
a motion requesting a hearing under Criteria 1, 1(B), 5, 7, and 9, both of which the
Commission denied on July 16, 2014.
6. Ms. Alexander and Mr. Scheiber appealed the Commission’s decision to this Court on
August 14, 2014. Ms. Alexander subsequently withdrew from the matter.
7. Mr. Scheiber lives at 3532 Walden Road, also known as Route 15, in Cabot, Vermont,
approximately 4 miles from the Project site.
8. Route 15 is the most direct route from Mr. Scheiber’s home to Montpelier, Vermont.
9. Mr. Scheiber states that he has a “particularized interest in his relationship to a
dangerous bridge in Cabot which he routinely crosses and which is now being traversed
twice daily, seven days a week, by Agri-Mark trucks filled with potentially explosive
compressed natural gas.” (Appellant’s Opposition to Agri-Mark’s Motion to Dismiss at 4,
filed Mar. 6, 2015).
10. Mr. Scheiber routinely uses Route 15 and crosses the Gardner Corners Bridge both by
car and on his bike. He crosses the bridge by car on his way to Montpelier for shopping,
doctors’ visits, and entertainment, and by bike for exercise in the spring, summer, and
fall.
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11. Applicant’s fuel trucks traveled Route 15 prior to the most recent permit amendment,
which will not affect the frequency or route of truck traffic.
12. The Gardner Corners Bridge is on the state of Vermont’s list of bridges to repair.
13. The Vermont Agency of Transportation has documented two traffic accidents on the
Gardner Corners Bridge: one on September 8, 2010 and one on July 5, 2011. The latter
involved an Agri-Mark truck hauling milk.
Motion to Dismiss
Applicant’s motion asks this Court to dismiss Mr. Scheiber because he lacks standing to
appeal the Commission’s decision. A party’s standing can affect this Court's subject matter
jurisdiction. Bischoff v. Bletz, 2008 VT 16, ¶ 15, 183 Vt. 235. We therefore review motions to
dismiss for lack of standing under the standard of review afforded by V.R.C.P. 12(b)(1), meaning
that we accept as true all uncontroverted factual allegations and construe them in the light
most favorable to the nonmoving party, which in this instance is Mr. Scheiber. E.g., In re
Goddard Coll. Conditional Use, No. 175-12-11 Vtec, slip op. at 1 (Vt. Super. Ct. Envtl. Div. July 5,
2012) (Walsh, J.).
To be afforded party status, an appellant must demonstrate a “particularized interest
protected by [Act 250] that may be affected by an act or decision by a district commission” or
this Court on appeal. 10 V.S.A. § 6085(c)(1)(E). 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).
An appellant must also demonstrate that his particularized interest “may be affected by
an act or decision by [the] District Commission.” 10 V.S.A. § 6085(c)(1)(E). To do this, an
appellant must allege some causal relation between the proposed development and his
interest. In re Bennington Wal-Mart Demolition/Constr. Permit, No. 158-10-11 Vtec, slip op. at
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9–10 (Vt. Super. Ct. Envtl. Div. Apr. 24, 2012) (Walsh, J.). A relationship is causal if there is a
reasonable possibility that the commission’s decision may affect the particularized interest. Id.
As party status determinations are made under specific Act 250 Criteria, the interest
asserted must be protected by the Act 250 Criterion for which the person seeks status.
Although Mr. Scheiber has not requested party status under specific Act 250 Criteria, his
opposition to Applicant’s motion to dismiss relates only to the impact of the amended permit
on the Gardner Corners Bridge. The Court therefore considers Mr. Scheiber’s party status
under Criteria 5 (traffic), 7 (municipal fire services), and 9(K) (public investment).
a. Criterion 5 (Traffic)
Criterion 5 requires that a project will not result in “unreasonable congestion or unsafe
conditions with respect to use of the highways, waterways, railways, airports and airways, and
other means of transportation existing or proposed.” 10 V.S.A. § 6086(a)(5). In determining
party status regarding Criterion 5, “‘the relevant inquiry is whether the petitioner uses the
roads that may be impacted by a project on a regular basis.’” Pion Sand & Gravel Pit, No. 245-
12-09 Vtec, slip op. at 14 (quoting Re: Pike Indus., Inc., No. 5R1415-EB, Mem. of Decision, at 2
(Vt. Envtl. Bd. Nov. 19, 2004)). In Pike Industries, the former Environmental Board explained:
A project may cause a hazardous condition or congestion at a point some
distance from the actual project site or the petitioner’s home; conversely, a
person may live immediately adjacent to a proposed project but never drive
the roads that the project will use. Therefore, the location of a petitioner’s
residence is only one factor that may be relevant to a consideration of party
status under Criterion 5, to the extent that it demonstrates that the
petitioner’s use [of] the roads may be impacted on a regular basis and that
the petitioner may thus experience impacts that differ from those
experienced by the public in general.
Pike Indus., No. 5R1415-EB, at 2.
Mr. Scheiber argues that his particularized interest is his relationship to a “dangerous
bridge” that both he and the Agri-Mark trucks filled with CNG regularly traverse. (Appellant’s
Opposition at 4). Although he indicates that Applicant’s trucks traverse the bridge “twice daily,
seven days a week,” he does not indicate whether this is an increase in the frequency of Agri-
Mark truck traffic, nor does he indicate the frequency with which he traverses the bridge other
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than to say his use is “routine.” Id. Furthermore, despite Mr. Scheiber’s statement that travel
across the bridge is the only direct route to Montpelier, he offers no support for this statement,
leaving to Court to interpret this as an opinion rather than a fact. Absent such facts, the Court
cannot find a specific relationship between Mr. Scheiber and the bridge sufficient to show a
particularized interest; rather, the Court agrees with Applicant that Mr. Scheiber’s interest in
using the bridge as a main route to Montpelier is one that is shared by any member of the
general public.
Even if Mr. Scheiber had offered sufficient factual support to prove that his interest in
the bridge was particularized, he has failed to demonstrate a causal connection between the
Project and his interest. Although Mr. Scheiber offers documented accidents on the bridge, the
town of Cabot’s concern with the bridge, and the bridge’s placement on the state’s list of those
to repair, he has failed to demonstrate a reasonable possibility that his interest in the bridge
may be affected by the Commission’s decision. Such a connection requires “more than mere
speculation and theory.” Bennington Wal-Mart, No. 158-10-11 Vtec, slip op. at 5. Although Mr.
Scheiber supports his concerns regarding the bridge’s general safety with facts, he does not
offer factual support for his conclusion that the Commission’s decision will affect the safety of
the bridge. He merely states that the bridge is narrow, that “there is another accident waiting
to happen,” and that such a collision could be calamitous. (Appellant’s Opposition at 6).
It is unclear how Mr. Scheiber has arrived at this conclusion, especially considering that
the result of the Commission’s decision is simply that Agri-Mark trucks traversing the bridge will
now contain CNG rather than oil. Mr. Sheiber offers nothing, apart from speculation about the
hazardous nature of CNG transport compared to oil transport, relating the amended Project to
a new impact on the bridge. Without factual support for his assertion that the Commission’s
approval of this change has affected traffic safety or congestion on the bridge, Mr. Scheiber’s
assertions are mere speculation and insufficient to afford party status under Criterion 5.
b. Criterion 7 (Municipal Fire Services)
Criterion 7 requires an examination of whether a project will “place an unreasonable
burden on the ability of the local governments to provide municipal or governmental services.”
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10 V.S.A. § 6086(a)(7). Mr. Scheiber must therefore make some threshold showing in support
of his allegation that rises above “mere speculation and theory.” Pion Sand & Gravel Pit, No.
245-12-09 Vtec, slip op. at 7. Mr. Scheiber fails to meet this threshold, stating only that the
transportation of CNG across the bridge will increase the risk of hazardous outcomes, which will
therefore increase the need for municipal fire and rescue services. (Appellant’s Opposition at
6). Mr. Scheiber does not offer factual support for this argument or allege that the Project will
create an unreasonable burden on the ability of the local government to provide services. For
these reasons, his argument fails to state concerns for which this Court may grant party status
under Criterion 7.
c. Criterion 9(K) (Public Investment)
Criterion 9(K) directs the granting of a permit for a development on or adjacent to public
lands upon a demonstration that the development “will not unnecessarily or unreasonably
endanger the public or quasi-public investment” in the lands or “materially jeopardize or
interfere with the function, efficiency, or safety of, or the public's use or enjoyment of or access
to” the lands. 10 V.S.A. § 6086(a)(9)(K). This Criterion “seeks to protect state and local
governments from adverse fiscal impacts on public facilities and investments that are adjacent
to the proposed project.” Re: St. Albans Grp. & Wal-Mart Stores, Inc., No. 6F0471-EB, Mem. of
Decision, at 9 (Vt. Envtl. Bd. Apr. 15, 1994).
Regarding public investments in roadways and related traffic issues, Criterion 9(K)
requires a person seeking party status to make a higher showing of an interest than Criterion 5
requires. In re North East Materials Grp., LLC, Amended Permit, No. 35-3-13 Vtec, slip op. at 10
(Vt. Super Ct. Envtl. Div. Aug. 21, 2013) (Walsh, J.) (citing Re: Van Sicklen Ltd. P'ship, No.
4C1013R-EB, Mem. of Decision, at 8 (Vt. Envtl. Bd. June 8, 2001)). Mr. Scheiber does not
directly argue that he has a particularized interest under Criterion 9(K), he indirectly addresses
Criterion 9(K) “as it relates to the impact of CNG safety hazards on the municipality.”
(Appellant’s Opposition at 7). He makes no allegations beyond the safety concerns addressed
by Criterion 5. The Court therefore finds no factual basis for the allegation that the Project will
“unnecessarily or unreasonably endanger the public or quasi-public investment” in the lands or
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“materially jeopardize or interfere with the function, efficiency, or safety of, or the public's use
or enjoyment of or access to” the lands. For this reason, we conclude that Mr. Scheiber is not
entitled to party status under Criterion 9(K).
Motion to Strike Questions
Applicant argues, and the NRB agrees, that a preliminary issue in this appeal is whether
the Project was appropriate for an administrative amendment. For this reason, Applicant and
NRB ask that if the appeal is not dismissed for lack of standing, the Court limit Mr. Scheiber’s
Questions to Question 1, which asks whether an Act 250 District Commission can issue an
administrative amendment to a permitted project when that amendment amounts to
“significant new construction needed for the conversion of a manufacturing plant from oil to
natural gas fuel.”
We have concerns with the process by which the Commission approved the amended
permit. The Commission approved physical changes to a permitted project through the
administrative amendment process under Rule 34(D) rather than the minor amendment
process under Rule 51. Rule 34(D) allows a District Commission “to amend a permit . . . when
. . . necessary for record-keeping purposes or to provide authorization for minor revisions to
permitted projects raising no likelihood of impacts under the criteria of 10 V.S.A. § 6086(a).”
Conversely, Rule 51 allows for a minor permit amendment “if the district commission
determines that there is a demonstrable likelihood that the project will not present a significant
adverse impact under any of the 10 criteria of 10 V.S.A. § 6086(a).”
Whereas Rule 34 allows for administrative amendments when there is no likelihood of
impacts under the criteria of 10 V.S.A. § 6086(a), Rule 51 allows for minor amendments when
there is a demonstrable likelihood that the project will not present a significant adverse impact
under those criteria. As concluded above, we do not have jurisdiction over this matter and we
therefore cannot address Question 1. We do, however, express our concern with the
Commission’s decision to consider Applicant’s Project under Rule 34, when it is clear from the
amendment application that the proposed Project will result in physical changes beyond purely
administrative revisions.
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Conclusion
For the reasons discussed above, Mr. Scheiber has failed to demonstrate a particularized
interest that may be affected by the Commission’s decision. Applicant’s motion is GRANTED
and we DISMISS Mr. Scheiber from the pending appeal for lack of party status.
This completes the proceedings currently before this Court. A Judgment Order
accompanies this Decision.
Electronically signed on May 20, 2015 at 11:20 AM pursuant to V.R.E.F. 7(d).
_________________________________________
Thomas G. Walsh, Judge
Superior Court, Environmental Division
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