Allen Road Land Co. Act 250 Appeal

STATE OF VERMONT
SUPERIOR COURT _ ENVIRONMENTAL DIVISION
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In re Allen Road Land Co. Act 250 Permit } Docket No. 62-4-11 Vtec
(appeal of Amended Act 250 } (appeal from District 4 Envtl.
Permit No. 401232-1) } Commission determination)
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_In re Allen Road Land Co. JO #4-226 } Docket No. 63-4-11 Vtec
} (appeal from J.O. of District 4
} Envtl. Commission
} Coordinator)
}
Decision on Motions for Consolidation and Stay
Appellants Sharon and Doug Carlson (“Appellants”) have appealed, in Docket
No. 62-4~11 Vtec, a decision by the District 4 Environmental Commission (“District
Commission”) approving an amendment to a state land use permit issued to Allen
Road Land Company (“Applicant”) for the construction of 30 residential units, in four
nevv three-story buildings, and of associated development in the City of South
Burlington (“City”). The amendment authorizes Applicant to use blasting techniques
to remove ledge in order to install a sewer line and to add decks and basements to the
approved buildings. Appellants have also appealed, in Docket No. 63-4-11 Vtec, a
Jurisdictional Opinion #4-226 (“JO”) issued by the District 4 Environmental
Commission Coordinator (“District Coordinator”) determining that the use of a
hydraulic jack hammer to remove ledge does not require a permit amendment,
provided the noise it generates does not exceed a specified limit.
Currently pending before the Court are Appellants’ motion to consolidate their
two appeals and their motions to stay the underlying decisions in both dockets.
Applicant has responded to these motions by filing a response in opposition to both
pending motions. In both dockets, Appellants are represented by Jacob O. Durell,
Esq. and Applicant is represented by Christina Jensen, Esq.
Factual Background
For the sole purpose of putting the pending motions into context, we recite the
following facts, which we understand to be undisputed unless otherwise noted:
1. On August 6, 2010, the District Commission issued a state land use permit,
LUP No. 4C1232, to Applicant authorizing the following: (1) the construction of 30
residential units in four new three~story buildings; (2) the retention of one existing
residence; (3) the construction of 600 linear feet of new road; and (4) the construction
of three carports. The permit covered development of a 4.99 acre parcel off Hinesburg
Road (Vermont Route 1 16) in the City of South Burlington, Vermont.
2. . In an application dated December, 2010, Applicant sought an amendment to its
original permit for the use of blasting to remove ledge on its property in order to install
the proposed sewer line. The amendment application also sought approval to use
blasting to remove additional ledge Applicant might discover during construction and
approval to add decks and basements to its buildings.
3. On January 24, 2011, the District Commission held a public hearing on the
application for a permit amendment and recessed the hearing in order to receive
additional submissions from the parties. After receiving the additional submissions,
the District Commission adjourned the hearing on March 15, 2011.
4. On March 23, 2011, Applicant requested a jurisdictional opinion from the
District Coordinator to determine whether it needed a permit amendment in order to
use a hydraulic jack hammer to remove ledge on its property.
5. On April 1, 2011, the District Coordinator issued the JO indicating that an
amendment would not be necessary for Applicant to use a hydraulic jack hammer to
remove ledge, provided that the`` noise generated by such use does not exceed 76
decibels, measured as a weighted average over an eight-hour period.
6. On April 14, 2011, the District Commission issued a permit amendment,
No. 4C1232~1, to Applicant authorizing “blasting for installation of sewer line and the
addition of decks and basements to the approved buildings.” (See Mem. in Opp’n to
Mot. for Stay of Amendment to Act 250 Permit, Attach. 1, Land Use Perrnit
Amendment, No. 4C1232~1 at 1, filed May 13, 2011.) The District Comrnission
conditioned its approval on the Applicant following its “Blasting Plan” and limiting
noise generation to 76 decibels, measured as a weighted average over an eight-hour
period.
7. On April 29, 2011, Appellants timely appealed both the District Coordinator’s
decision in Docket No. 63-4-11 Vtec and the District Commission’s decision in Docket
No. 62-4-11 Vtec.
Discussion
In Docket No. 62-4~1 1 Vtec, Appellants_are appealing the District Commission’s
grant of an amended permit, No. 4C1232-1, to Applicant’s state land use permit for
the construction of 30 residential units, in four new three-story buildings, and of
associated construction and development, on a 4.99 acre parcel off I-Iinesburg Road in
the City of South Burlington. Permit amendment No. 4C1232-1 authorizes Applicant
to take the following steps not included in the original permit: to use blasting
techniques, subject to a noise limitation, to remove ledge in order to install a sewer
line and to add decks and basements to the approved buildings. ln Docket No. 63-4-
11 Vtec, Appellants are appealing the District Commissioner’s issuance of the JO
determination that the use of a hydraulic jack hammer to remove ledge does not
require a permit amendment, provided the noise it generates does not exceed a
Speciiied iimit. '
Appellants now seek consolidation of their two appeals and ask for ma stay of
both the District Commission’s decision granting permit amendment No. 4C1232-1
and the District Coordinator’s JO indicating that no amendment is necessary for use
of a hydraulic jack hammer.
I. Motion to Consolidate
Appellants’ motion to consolidate under V.R.E.C.P 2(b) is titled a “l\/lotion for
Coordination of Proceedings,” which is an accurate description of their request. (See
Mot. for Coordination of Proceedings, filed Apr. 29, 2011). Under V.R.E.C.P. 2(b),
which is titled “Coordination of Proceedings,” when a “project involves multiple
proceedings that have resulted or may result in separate hearings or appeals . . . the
court may advance, defer, coordinate, or combine proceedings and may make other
orders that will promote expeditious and fair proceedings and avoid unnecessary costs
or delay.” This rule gives the Court a “ilexible case management tool,” allowing us to
coordinate the conferences and hearings for multiple appeals concerning the same
project. Reporter’s Notes, V.R.E.C.P. 2.
Here, Appellants seek coordination of the proceedings for two appeals involving
a single project, Applicant’s construction of 30 residential units in four new three~
story buildings, and development associated with these buildings Applicant opposes
Appellants’ request, arguing that the two pending appeals involve different substantive
and procedural issues and addressing them together would not benefit the Court or
the parties. We cannot agree with Applicant. Before us we have the appeals of
decisions approving two different methods for removing ledge to provide for the
construction of a single project. Although the legal issues that are raised in each
appeal differ to some extent, there is some overlap of legal issues presented and an
overlap of many of the relevant factual issues. It is our experience that the
coordination of conferences and hearings for these types of related cases will save the
Court and parties valuable resources. Consequently, we GRANT Appellants’ motion to
consolidate.
We note that Applicant’s opposition to Appellant’s request appears to be
partially based on a misunderstanding of the request and the applicable procedural
rule. This Court often uses the term “consolidate” as shorthand for the coordination
of proceedings, which we regularly grant upon motion by one of the parties. See, e.g.,
In re Rivers Dev. Conditional Use Appeal, Nos. 7~1-05 Vtec, 68-3-0'7 Vtec, 183-8-07
Vtec, 248-11-0'7 Vtec, and 157-7-08 Vtec, slip op. at 7-11 (Vt. Envtl. Ct. Nov. 21,
2008) (Durkin, J) (granting the appellant’s motion to consolidate despite opposition by
some of the other parties). This type of consolidation is not the same as consolidating
multiple actions (e.g., multiple appeals) into a single action. See Reporter’s Notes,
V.R.E.C.P. 2 (“[V.R.E.C.P. 2(b)] does not address full consolidation of proceedings,
which by virtue of V.R.C.P. 42(a) may be ordered only with the consent of the
parties.”)1 The consolidation of actions involves the substitution of a single docket
number for multiple actions, concludes with a single ruling, and requires the parties’
consent. See V.R.C.P 42(a) (“[The court] may, with the consent of the parties, order all
actions consolidated . . . .”); Mobbs v. Central Vt. RV., Inc., 155 Vt. 210, 215 & n.2
(1990) (discussing V.R.C.P 42 and distinguishing a court order to hold a joint trial
from an order merging “suits in a single cause of action”).
Here, Appellants are not requesting consolidation of their two appeals into one;
thus, Applicant’s consent is not necessary for us to grant Appellants’ motion. Because
1 Federal Practice and Procedure provides a helpful description of the types of consolidation and serves as guidance
here because of the similarity between V.R.C.P. 42(a) and Rule 42 of the Federal Rules of Civil Procedure. See ll
Wright, Miller & Kane, Federal Practice and Procedure: Civil 3d § 2382; Mobbs v. Central Vt. RV., Inc., 155 Vt.
210, 215 (1990) (“Because V.R.C.P 42 is substantially Similar to Fed.R.Civ.P. 42, See Reporter’s Notes, V.R.C.P.
42, We look to federal case law for guidance.”)
it has been proven that the coordination of conferences and hearings for multiple
appeals involving a single development project, as presented here, improves the
efficiency of this Court’s operation and reduces costs, we GRANT Appellants’ motion to
consolidate.
II. Motion to Stay
'I``urning to Appellants’ motions to stay, we note that decisions of district
environmental coordinators or commissions are not automatically stayed upon their
appeal, but this Court has authority to issue a stay, and set its terms and conditions,
when it is “necessary to preserve the rights of the parties.” V.R.E.C.P. 5(e); cf. V.R.C.P.
62(d)(2). ln determining whether the equities weigh in favor of issuing a stay of the
two decisions now on appeal, we consider four factors: “(1) the likelihood of success of
the appealing party on the merits, (2) whether the party seeking the stay will suffer
irreparable injury if the stay is not granted, (3] whether the issuance of a stay will
substantially harm other parties, and (4) the location of the best interests of the
public.” N. Cmtv. Inv. Corp. Conditional Use Application, Nos. 123-6-07 Vtec, 128-6-
07 Vtec, and 152-7-07 Vtec, slip op. at 2 (Vt. Envtl. Ct. Aug. 30, 2007) (Durkin, J)
(quoting In re Tariff Filing of New England Tel. 85 Tel. Co., 145 Vt. 309, 311 (1984)).
We note that our determination here of whether to issue a stay in either appeal does
not govern our eventual determination of the merits in these appeals.
Turning to the first factor, in their request for a stay of the District
Commission’s issuance of permit amendment No. 4C1232-1, Appellants argue that
they are likely to succeed because they can show that the use of blasting to remove
ledge will violate criterion 8 of 10 V.S.A., Chapter 151 (commonly known as “Act 250”).
See 10 V.S.A. § 6086(a)(3). That is, they argue that noise and vibrations produced by
the blasting will have an undue adverse aesthetic impact. In examining the evidence
Appellants discuss in their motion, we are not convinced they are likely to succeed on
this issue. Appellants express concern that the foundations and structures on their
property will be damaged from the scheduled blasting, but they do not support this
assertion with evidence. T he evidence Appellants do discuss does not call into
question the conclusion reached by the District Commission that any adverse impacts
will not be undue. See In re Times & Seasons, LLC, 2008 VT 7, ‘|] 8, 183 Vt. 336(indicating that a decision-making body applying criterion 8 first determines if a
project will cause an adverse aesthetic impact and then, if so, examines whether the
adverse impact is undue); (See Mem. in Opp’n to Mot. for Stay of Amendment to Act
250 Permit, Attach. 2, Allen Road Land Co., No. 4C1232-1, F``indings of Fact,
Conclusions of Law, and Order, at 3-10, filed May 13, 2011). While we stress that our
determination here is not equivalent to a ruling on the merits, for the purposes of
ruling on Appellants’ request for a stay of the District Commission’s issuance of permit
amendment No. 4C1232-1 in Docket No. 62-4-11 Vtec, we find that Appellants have
not shown that they are likely to succeed.
We reach the same conclusion for Appellants’ request for a stay in their appeal
of the JO issued by the District Coordinator. There, the applicable question is
whether Appellants have made reference to sufficient evidence to show that it is likely
we would ultimately find that the use of a hydraulic jack hammer to remove ledge
constitutes a “material change” to their original permit and therefore requires an
amendment, See Act 250 Rule 34(A) (describing the circumstances triggering the need
for a permit amendment). Act 250 Rule 2(C)(6) defines material change as a “change n
to a permitted development or subdivision which has a significant impact on any
finding, conclusion, term or condition of the project’s permit or which may result in a
significant adverse impact with respect to any of the criteria [in Act 250].” Appellants
appear to presume that the use of a hydraulic jack hammer will have an adverse
impact upon the original permit or criterion 8, but they do not present evidence that
provides a foundation for this Court to reach either of those legal conclusions. In the
absence of such evidence, this Court is unable now, and will be unable at a de novo
hearing on the merits, to conclude that the use of a hydraulic jack hammer, as
proposed and as conditioned, constitutes a “material change.” Thus, we conclude that
Appellants have not shown, at this juncture, that they are likely to succeed in their
appeal of the District Coordinator’s JO in Docket No. 63-4-11 Vtec.
In assessing the second factor in our analysis, whether Appellants will suffer
irreparable injury, should a stay not be granted for either permit amendment No.
4C1232-1 or the JO, we ask if Appellants have made a case that such injuries are
likely and if they would have an adequate remedy at law, should the injuries they
allege actually occur. The injuries discussed by Appellants include damage to the
structures on their property and the fixtures in their home, the potential for lost wages
and vacation days should they stay home to protect their property to accommodate a
non-specific blasting schedule, and the disruption to their lives from avoiding going
outside during blasting and from being near loud noise and vibrations. Again,
Appellants sincerely express fears but provide no evidence upon which this Court can
rely to conclude that these injuries are likely to occur. See ln re Route 103 Quarrv,
No. 205-10-05 Vtec, slip op. at 3-4 (Vt. Envtl. Ct. Sept. 14, 2007) (Durkin, J)
(concluding there was not “sufficient evidentiary foundation . . . to link [the
applicant’s] proposed future blasting practices and the harm that [the neighbors]
anticipated”). Further, while Appellants argue that it may be inconvenient for them to
seek monetary compensation for any injuries they should actually suffer, and that the
quantification of such compensation may be difficult, they do not argue that they
would have no legal recourse for seeking such compensation in the event that they
should suffer such unfortunate injuries.
We find that Appellants have not provided sufficient evidence to show that they
will suffer irreparable injury justifying a stay in either appeal. However, to relieve
Appellants of some of their concerns, we find it appropriate to require that, if Applicant
does choose to use blasting while the appeal in Docket No. 62-4-1 1 Vtec is pending, it
must provide notice to Appellants at least two business days prior to each day it
undertakes such blasting.2
Examining the third factor, whether the issuance of a stay will substantially
harm Applicant, the parties’ filings lead us to conclude that Applicant will not be
harmed by a stay restricting it from commencing ledge removal. Appellants argue that
the removal of ledge is only one part of a larger development project and that Applicant
can continue with the remainder of the development in the midst of a stay addressing
removal of ledge. Applicant does not directly refute this contention; instead, Applicant
expresses concern about the appeals generally and Appellants’ motive for seeking a
stay for both appeals. Thus, we conclude that third factor weighs in Appellants’ favor,
or in favor of granting a stay of both permit amendment No. 4C1232-1 and the JO.
Whether the public interest will be best served by a stay is the fourth factor we
consider, and we find it inconclusive for both appeals. Applicants are seeking to
create a private development with multiple residential units, and the injuries
Appellants allege are mainly to their real and personal property. T he parties’ filings
are not helpful in our assessment of this factor, and we conclude that, if anything,
2 We recognize that Applicant may already plan to do this since Applicant represents in it’s response in opposition
to the motion to stay in Docket No. 62-4-11 Vtec that blasting will be “scheduled in advance, with ample notice
given to neighbors.” (See Mem. in Opp’n to Mot. for Stay of Amendment to Act 250 Permit 9.)
Appellants have failed to show that a stay of either permit amendment No. 4C1232-1
or the JO will favor the public interest.
Taking into consideration our conclusions under the four factors discussed
above, we find that the equities favor Applicant and that a stay is not warranted for
either permit amendment No. 4C1232-1 or the JO. Consequently, we DENY
Appellants’ requests for a stay of the District Commission’s decision granting permit
amendment No. 4C1232-1 authorizing the use of blasting to remove ledge, Docket No.
62-4-11 Vtec, and the District Coordinator’s JO indicating that no amendment is
necessary for use of a hydraulic jack hammer to remove ledge, Docket No. 63-4-11
Vtec. We do, however, find it appropriate to require that Applicant provide notice to
Appellants at least two business days prior to each day it undertakes blasting if it
elects to do so while the appeal in Docket No. 62-4-11 Vtec is pending. We wish to
emphasize that, to the extent that Applicant goes forward with using either blasting or
a hydraulic jack hammer to remove ledge, techniques that the Court will be examining
in the two pending appeals, Applicant does so at its own peril, since the Court may
ultimately overturn the decisions authorizing the use of these techniques by Applicant.
Conclusion
For all o.f the reasons more fully discussed above, we GRANT Appellants’ motion
to consolidate their two appeals so that the proceedings are coordinated in accordance
with V.R.E.C.P. 2(b). We DENY Appellants’ motions to stay in both dockets, Docket
Nos. 62-4-11 Vtec and 63-4-11 Vtec, although we require Applicant to provide notice
to Appellants at least two business days prior to each day it undertakes blasting. We
stress that if Applicant does undertakes ledge removal with either blasting or a
hydraulic jack hammer while these appeals are pending, it does so at the risk that its
authorization may ultimately be revoked.
Done at Newfane, Vermont, this 6th day of July 2011.