Verizon Wireless Barton Act 250 Permit

STATE OF VERMONT
ENVIRONMENTAL COURT
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In re Verizon Wireless/Barton } Docket No. 6-1-09 Vtec
Act 250 Permit } (Appeal from District #7 Commission)
Telecommunications Facility }
(Appeal of Auger) }
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Decision on the Merits
Vermont RSA Ltd. Partnership and Cellco Partnership, d/b/a Verizon Wireless,
(collectively “Verizon” or “Applicant”) applied for an Act 250 land use permit to erect a
wireless communications tower and related infrastructure in Barton, Vermont. The
permit application describes the project as including the construction of a 107-foot
monopole tower disguised as a pine tree, as well as of an equipment building and
related improvements, on land owned by David and Lucy Marvin at 497 Ingersoll Lane
in Barton. When the District 7 Environmental Commission (“District Commission”)
granted Verizon an Act 250 permit for its project, Michael Auger and his mother,
Jeannette Auger, (collectively “Appellants”) filed a timely appeal with this Court.
Appellants, who jointly own property adjacent to the project site, insist that the
proposed tower and support building will adversely affect their property and business
interests. When the parties were unable to reach a voluntary resolution of their
disputes, the Court conducted a site visit and merits hearing, the latter being
conducted at the Superior Courthouse in Newport, Vermont. Present at the site visit
and merits hearing were Appellant Michael Auger; his attorney, Vincent Illuzzi, Esq.;
and Verizon’s attorney, Pamela A. Moreau, Esq.
Procedural Background
The parties filed a number of pre-trial motions, all of which the Court addressed
in its various pre-trial entry orders and a decision. Because several of those orders
and the decision impacted the legal issues that remained for the Court to address at
trial, we provide the following procedural summary:
By their Statement of Questions, Appellants challenged the Verizon project’s
conformance with three Act 250 criteria: criterion 1, concerning water and air
pollution (10 V.S.A. § 6086(a)(1)); criterion 8, concerning aesthetic impacts (10 V.S.A.
§ 6086(a)(8)); and criterion 10, concerning conformance with a local or regional plan
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(10 V.S.A. § 6086(a)(10)). After Verizon filed a motion for partial summary judgment,
and Appellants had an opportunity to respond, the Court determined that Appellant
Jeannette Auger must be dismissed as an appellant, and that Appellant Michael Auger
only had standing to prosecute a challenge under criterion 8 (aesthetics). The Court
therefore dismissed Questions 1 and 3 from Appellants’ Statement of Questions,
thereby leaving Question 2 for adjudication at trial, and leaving Michael Auger as the
only appellant in this appeal. See In re Verizon Wireless Barton Act 250 Permit, No. 6-
1-09 Vtec (Vt. Envtl. Ct. Feb. 2, 2010) (Durkin, J.). By that same Decision, and based
upon legal theories similar to the foundation for dismissing Questions 1 and 3, the
Court denied Appellants’ request to amend their Statement of Questions. Id. at 11.
The parties and the Court thereafter prepared for trial, which was eventually
scheduled for November 3, 2010. Several discovery disputes arose in the course of
trial preparations, all of which the Court resolved by various entry orders issued on
September 23, 2010. During the course of the parties’ trial preparations, Appellant
Michael Auger disclosed that he intended to present evidence at trial concerning
possible alternate sites for the Verizon project, including on lands not owned or
controlled by Verizon. Verizon thereafter filed a motion seeking a limiting instruction
concerning such testimony. By Entry Order filed October 15, 2010, the Court granted
Verizon’s request, having determined that the applicable standards for review of
whether a proposed project conforms to Act 250 criterion 8 (aesthetics) do not
authorize a reviewing court to consider alternate sites not owned or controlled by a
project applicant. See In re Verizon Wireless Barton Act 250 Permit, No. 6-1-09 Vtec
(Vt. Super. Ct. Envtl. Div. Oct. 15, 2010) (Durkin, J.). The Court considered, but
ultimately rejected Appellant’s motion for reconsideration and request for permission
to file an interlocutory appeal. See In re Verizon Wireless Barton Act 250 Permit, No.
6-1-09 Vtec, Entry Orders on Motion for Reconsideration and Motion for Permission to
Appeal (Vt. Super. Ct. Envtl. Div. Oct. 29, 2010) (Durkin, J.).
This appeal thereafter proceeded to its scheduled de novo merits hearing. The
Court and the parties conducted a site visit on the morning of the merits hearing.
While not regarded as producing evidence, the site visit provided a helpful contextual
reference for the evidence that was admitted at trial. Based upon that evidence, the
Court renders the following Findings of Fact and Conclusions of Law:
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Findings of Fact
I. Project Site
1. On February 25, 2008, Verizon applied for an Act 250 permit from the District
Commission, seeking approval to erect a wireless telecommunications tower and
related improvements in Barton, Vermont. The proposal involved constructing a
monopole tower, an equipment shelter, and other infrastructure on land owned by
David and Lucy Marvin at 497 Ingersoll Lane.
2. The 100-foot, free-standing tower would be disguised as a tall pine tree and
situated in a field along the westerly edge of a wooded lot. Artificial branches would be
installed around the tower and extend beyond the top of the tower by approximately
seven feet. Twelve panel antennae would be located nine feet from the top of the
tower, painted green, and concealed by the artificial tree branches. The monopole
would be painted brown to resemble a tree trunk. The tower is designed to simulate a
wolf pine, or a large pine tree that visibly stands above others in its vicinity, a not
uncommon sight in this region.
3. The tower/tree structure would be situated within an area measuring 100 feet
by 100 feet that would be leased by Verizon from the land owner. The tower would be
located about 220 feet from the closest abutting property, which is owned by
Appellants. A prefabricated equipment shed, measuring 12 feet by 30 feet would be
located at the base of the tower, inside an area secured by a chain link fence. Electric
service would be supplied to the area by utility lines to be installed along an access
road that would travel from Roaring Brook Road and Ingersoll Lane to the equipment
shed and intersect the northerly boundary of the Marvin property. A gas-powered
electric generator would be located within the equipment shed to serve as a back-up
source for electricity in the event of a power failure.
4. Ingersoll Lane ends just north of the northern boundary to the Marvin property,
along property now or formerly owned by Mr. and Mrs. Ingersoll. The proposed tower
access road would travel from the end of Ingersoll Lane, over the Marvin property, to
the project site. This access road would be approximately one-half mile long and
about twelve feet wide.
5. The project site is located within a clearing on or near the highest elevation of
land on the Marvin property. An overview of the project site, the Marvin property, and
surrounding lands, town roads, and state highways is depicted in an attachment to
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Verizon’s Act 250 Application, which is labeled as “Orthophoto-Vicinity Plan (Sheet 1
of 9)” in Exhibit B. Verizon’s application, with all its attachments, was admitted at
trial as Exhibit B.
6. Elevations of the project site and surrounding lands, together with the forested
areas on and around the Marvin property, make a view of the project site from
adjoining lands difficult or impossible. A view of all site improvements, with the
exception of the top of the tower/tree structure, will be screened, shielded, and nearly
impossible to view from all surrounding lands unless one walks with a determined eye
to locate the project site and looks through the wooded area near the eastern
boundary of the Marvin property.
7. Verizon presented credible testimony from its project manager concerning this
proposed cell tower, its siting, and its visual impacts. The project manager credibly
testified that the Barton site was uniquely advantageous because while the site
provided natural screening from all surrounding properties, little tree cutting or
clearing would be necessary around the proposed facilities themselves because they
would be located in an open field surrounded by the wooded areas. The project
manager also stated that the access road from Ingersoll Lane would mostly follow the
location and width of a pre-existing field or woods road and not exceed twelve feet in
width. Once construction is complete, the access road would rarely be used; primary
use would be for regular or emergency maintenance to the proposed tower and its
support facilities.
8. The elevation of the project site is 1,248.5 feet above sea level; the completed
tower, including the artificial pine branches that will rise above it, will reach its
highest elevation at 1,355.5 feet.
9. The area surrounding the project site is heavily wooded with a mixture of
various pine trees and underbrush. The average height of trees in the area near the
project site is just about 50 feet. See “Detail Site Plan & Tree Elevations (Sheet 7 of
9),” attachment 1 to Act 250 Application (Exhibit B).
10. Verizon maintains that many cell towers in Vermont along Interstate 91 have
been constructed to resemble pine trees. While these structures are considerably
more expensive to construct and maintain than conventional monopole towers, the
tower/tree structures blend into their surroundings.
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11. Appellant Michael Auger testified to his distain for such artificial structures. He
noted that they are often easily identifiable, especially when they appear to rise high
above the natural trees in the area. Mr. Augur noted that he has observed nearly all
of the artificial tree towers along the interstate highway from White River Junction to
Barton. However, when asked to estimate the number of such structures along the
highway for this distance, his estimate was a small fraction of the artificial tree tower
sites credibly revealed in the testimony from Verizon’s project manager.
12. Verizon commissioned a detailed visual analysis report of its proposed tower
project; a copy was included as Attachment 9 to Verizon’s Act 250 permit application
(Exhibit B). This report provides a credible analysis of the scenic qualities of the
surrounding area and analysis of the project’s visual impact on the surrounding area.
II. District Commission Proceedings1
13. The District Commission first classified Verizon’s application as a “minor
application,” pursuant to Act 250 Rule 51(A), after determining that there was a
demonstrable likelihood that the project would not present a significant adverse
impact under the applicable Act 250 criteria.2 Soon after it published notice of the
proposed permit, the District Commission received two requests for a hearing from
area property owners.
14. The first request was received on May 14, 2008 from Vincent Illuzzi, who was
acting in his individual personal capacity as both a resident in the same county as the
project site and the owner of a commercial property developed with a communications
tower in the vicinity of Barton Mountain.3 Mr. Illuzzi requested the opportunity to
present evidence as to why Verizon’s proposal should not be considered a minor
1
We recite a brief summary of the District Commission proceedings here, to provide needed procedural context.
Since this appeal is heard on a de novo basis, pursuant to 10 V.S.A. § 8504(h), the factual and legal determinations
made by the Commission do not impact upon our determinations here.
2
Under Rule 51, a “minor application” may be granted a permit without a hearing or the issuance of findings of fact
and conclusions of law. Act 250 Rule 51(A), (B)(3)(b). The District Commission need only convene a hearing if,
after publication of a proposed permit, a person eligible for party status raises substantive issues on an Act 250
criterion in his or her request for a hearing. Id. Rule 51(B)–(D).
3
Although Mr. Illuzzi now represents Michael Auger in this appeal, he originally participated in the proceedings
below in his own capacity rather than in the capacity of Michael Auger’s attorney. Mr. Illuzzi is not an appellant in
this appeal. Some suggestion was made during pre-trial conferences that an alternate site for Verizon’s project
suggested by Appellant Michael Auger and Mr. Illuzzi was, in fact, owned by Attorney Illuzzi. However, no
evidence detailing this or other suggested alternate sites was received at trial due to the Court’s Entry Orders of
October 15 and 29, 2011. Thus, the existence of suggested alternate sites not owned or controlled by Verizon, and
whether such sites were owned by Attorney Illuzzi, was not at issue in these proceedings.
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application. He also requested party status generally, but did not request party status
under any specific criteria.
15. On May 16, 2008, Appellants jointly notified the District Commission that they
supported Mr. Illuzzi’s request for a hearing. In their May 16 letter, however,
Appellants also failed to explicitly request party status for any of the Act 250 criteria.
It appears that other letters were later sent to the District Commission regarding party
status, but the Court has not been provided with copies of those correspondences.
16. After receiving these requests for a hearing, the District Commission concluded
that a hearing on Verizon’s proposal was necessary; it held a site visit and hearing on
August 19, 2008.
17. After completing the hearing and its deliberations, the District Commission
ultimately determined that the proposal complied with all applicable Act 250 criteria
and issued Verizon Land Use Permit #7R1276,4 authorizing the construction of the
proposed monopole tower and related improvements.
18. Appellants filed a timely appeal with this Court on January 9, 2009.
III. Appellants’ Property and Surrounding Neighborhood
19. Appellant Michael Auger and his mother, Jeannette Auger, jointly own property
abutting the Marvin property. The Auger property has a long history of significant
agricultural use in this region. However, at the time of trial, the Augers had
suspended their agricultural and other business operations at their property.
20. The Auger property and its agricultural activities are commonly known as
Sugarmill Farm. The Sugarmill Farm was previously an established dairy farm that
catered to the general public by selling produce and other local agricultural products,
including maple syrup products. The Augers produced as much as 2,000 gallons of
maple syrup annually.
21. The Augers had also established a business of attracting visitors to their
property, who enjoyed observing their agricultural operations, purchasing agricultural
products, and visiting areas on the Farm and surrounding woods for picnicking and
hiking.
22. The Augers’ property is located on the easterly slope of a hillside that faces
towards Interstate 91. Their property and the surrounding area contribute to the
scenic vista one enjoys while travelling in either direction on this section of I-91. The
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The Commission also issued Findings of Fact and Conclusions of Law on December 23, 2008.
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Augers allow a Vermont Travelers Information Station to be maintained in the front
parking area of their property, which is a short distance from the I-91 Exit 25
interchange.
23. The Augers’ property also lies along the westerly edge of state highway 16, just
south of the center of Barton, which is about one mile away. Several commercial
developments exist within this distance of highway, particularly near the I-91 Exit 25
interchange.
24. Appellants’ predecessors in title conveyed an easement upon the property to the
Vermont Electric Power Company, Inc. (“VELCO”) which allows for the construction
and maintenance of high voltage electric transmission lines. VELCO currently
maintains three parallel electric transmission lines on Appellants’ property that run in
a general east-west direct, south of the farmhouse and the other structures on
Appellants’ property. These transmission lines are strung between rows of wooden
poles or towers5 that hold the transmission lines about 50 feet or more above the
ground.
25. The deeded easement authorizes VELCO to clear a swath of land of up to 250
feet in width for the maintenance and support of its lines. Mr. Auger credibly
estimated that the area clear-cut for the existing transmission lines is about 100 feet
wide and runs the entire width of his property, thereafter travelling to the west onto
the Marvin property and to the east over I-91. A portion of these transmission lines is
depicted in several of the photos Appellant Michael Auger admitted at trial. See
Exhibits 5, 7, 8(b), and 9(b).
26. Verizon’s proposed monopole tower would not be visible from the Sugarmill
Farm farmhouse or related structures, but it would be visible from some of the
picnicking and hiking areas on the Augers’ property.
27. Travelers along I-91 would find it difficult to observe the proposed tower while
driving, but may be able to see the top of the proposed tower/tree momentarily during
their travels.
28. The proposed tower/tree would be about 3,300 feet from Appellant’s farmhouse
and about 4,800 feet from the westerly edge of I-91.
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We use the term “towers” here to denote a structure constructed of two or more tall wooden poles, with wooden
cross timbers, used to hold the electric transmission lines high above the land.
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Discussion
The sole issue remaining for determination in this de novo appeal is whether
Applicant’s proposed tower conforms to Act 250 criterion 8. Given that the number of
criteria that may be considered in the course of a review of a state land use permit
application can total up to 30,6 one might assume that the review of only one criterion
should be rather simple and straightforward. When that single criterion is criterion 8,
however, such an assumption is often incorrect, for the determination to be made is
whether a proposed project will cause “an undue adverse effect on the [aesthetics or]
scenic or natural beauty of the area.” 10 V.S.A. § 6086(a)(8).
Thankfully, our predecessor, the former Vermont Environmental Board,
established guidelines for effectively conducting an evaluation of a project’s
conformance with criterion 8. These Board guidelines are commonly known as the
“Quechee analysis,” which derives its name from the project that had the unfortunate
characteristic of being unduly adverse to its surrounding area and aesthetics. See In
Re Quechee Lakes Corp., 154 Vt. 543, 546, 556–557 (1990) (affirming an
Environmental Board determination that unauthorized changes to the project,
including increased skylights and glazed windows, caused an “undue adverse”
aesthetic impact).
The Environmental Board first articulated its standards for analyzing aesthetic
impacts in its evaluation of an application to amend the Act 250 permit for the
Quechee Lakes project that was first issued in 1972. See Re: Quechee Lakes Corp.,
Nos. 3W0411-EB and 3W0439-EB, Findings of Fact, Conclusions of Law and Order, at
17–20 (Vt. Envtl. Bd. Nov. 4, 1985). While that Board determination was not directly
reviewed by our Supreme Court, the Court has expressed its approval and admiration
for the former Board’s establishment of the Quechee analysis in several decisions
since. See, e.g., In re McShinksy, 153 Vt. 586, 591–93 (1990). We provided a
summary of the applicable decisions from the former Environmental Board and our
Supreme Court in a contested de novo appeal concerning criterion 8: In re Eastview at
Middlebury, Inc.. No. 256-11-06 Vtec, slip op at 13–15 (Vt. Envtl. Ct. Feb. 15, 2008)
(Durkin, J.), aff’d, 2009 VT 98.
As noted in Eastview at Middlebury, No. 256-11-06 Vtec, slip op. at 14, the
criterion 8 analysis that has since become known as the Quechee analysis has its
6
See 10 V.S.A. §§ 6086(a)(1)—(10), including all subsections.
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origins in another former Environmental Board decision: Re: Brattleboro Chalet Motor
Lodge, Inc.. No. 4C0581-EB, Findings of Fact, Conclusions of Law and Order (Vt.
Envtl. Bd. Oct. 17, 1984). In that proceeding, the former Board reviewed the aesthetic
impacts of a motor lodge proposed to be constructed within 200 feet of Interstate 89,
along an established scenic corridor. Id. at 7–11. The Board characterized its
analysis in a manner that is helpful for our analysis of Verizon’s proposed tower and
related infrastructure:
The term “undue” generally means that which is more than necessary--
exceeding what is appropriate or normal. The word “adverse” means
unfavorable, opposed, hostile. "Scenic and natural beauty" pertain to the
pleasing qualities that emanate from nature and the Vermont landscape.
In short, through Criterion 8 the Legislature has directed that no project
within our jurisdiction be approved if it has an unnecessary or
inappropriate negative impact on the enjoyment of surrounding natural
and scenic qualities.
Id. at 6. In its 1985 determination in Quechee Lakes Corporation, the Board used this
description to craft a clear process, in the form of a multi-part test, for analyzing
whether a project will have an undue adverse affect. Recently, our Supreme Court
summarized the Quechee analysis steps as follows:
[A] two-pronged approach [is employed] to determine if an
application complies with criterion 8. First, it determines if the proposed
project will have an adverse aesthetic impact, and if so, it considers
whether the adverse impact would be undue. An adverse impact is
considered undue if any one of the three following questions is answered
in the affirmative: (1) does the project violate a clear, written community
standard intended to preserve the aesthetics or scenic, natural beauty of
the area; (2) does the project offend the sensibilities of the average
person; and (3) has the applicant failed to take generally available
mitigating steps that a reasonable person would take to improve the
harmony of the proposed project with its surroundings.
In re Appeal of Times & Seasons, LLC and Benoit, 2008 VT 7, ¶ 8, 183 Vt. 336(citations omitted).
Thus, we endeavor first to determine whether the proposed Verizon tower and
support facilities will have an adverse aesthetic impact. To employ the parlance of
Brattleboro Chalet Motor Lodge, we seek to determine if the proposed project is
“unfavorable,” “opposed,” or “hostile” to its surroundings. For the reasons detailed
below, we conclude that it is not, and is therefore in conformance with criterion 8.
Our analysis must begin with an acknowledgement of and sincere admiration
for the scenic beauty of Appellants’ property. Nestled at the base of a small hillside,
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Appellants’ property and those adjacent to it on Route 16 are clear contributors to the
quality scenic corridor for which our Northeast Kingdom is so admired. But any
observer of the area surrounding the proposed Verizon project site, or the context in
which the project would be located, must acknowledge that the area is no stranger to
development. Quite the contrary is true. Commercial development exists at the
nearby I-91 Exit 25 interchange and Barton village center, some of which is only
several hundred yards away. Appellants’ property plays host to highly visible, high-
power electric transmission lines. Thus, the context against which we test Verizon’s
proposed project is one where the proximity of an interstate highway, I-91, has
brought with it commercial development, but also one where the overall scenic beauty
has not been corrupted by the current commercial development.
The development that Verizon proposes is quite dissimilar to the multi-unit
motor lodge that the former Environmental Board found so objectionable in
Brattleboro Chalet Motor Lodge. That proposal was massive and located within 200
feet of I-89; the Verizon proposal is minor by comparison and is designed to replicate a
tall pine tree, a not uncommon site in the region. These two projects appear to be
polar opposites: as much as Brattleboro Chalet Motor Lodge exemplifies an
aesthetically adverse project, the Verizon tower exemplifies an aesthetic symmetry
with its surroundings. The fact that the Verizon tower will be located nearly 4,800 feet
away from I-91 and 3,300 feet away from Appellant’s farm house, and hardly even
visible from those sites, adds to its aesthetic congruity.
Verizon is to be commended for its efforts to eliminate the materially adverse
aesthetic impacts that its project might otherwise bring to this area. In developing the
proposed infrastructure, Verizon will cause little earth disturbance and little or no tree
cutting. Its presentation convinced the undersigned that the design of its tower will
replicate a pine tree form that is not uncommon in this region. True, the proposed
tower will not be invisible. Idle minds driving down an interstate (the undersigned
included) often engage in the contest of trying to identify all the nearby cell towers,
poorly masked as artificial trees. This game is made easy by the tower/trees that rise
awkwardly above neighboring trees, sometimes by over 100 feet. But Verizon’s
presentation proved that, at least in northern Vermont, we may be losers at this
contest more often then we know. Mr. Auger learned this after his own testimony
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showed that he was only aware of a small fraction of the artificial tree towers installed
by Verizon along the northerly sections of I-91.
Based on the evidence Verizon submitted at trial, we find credible support for a
conclusion that Verizon’s cell project, as proposed, fits with the surrounding area.
The visual analysis report Verizon commissioned from its landscape architect provides
a convincing summary of the aesthetic qualities of the surrounding area and the
impacts of the proposed tower project upon those surroundings. The landscape
architect concluded that the aesthetic impact of the proposed tower project would not
be averse to its surrounding or, if it were determined to be adverse, its adverse impact
would not be undue.
In reply to Verizon’s evidence, Mr. Auger sincerely stated his disdain for such
artificial structures and his fears for the adversities that this tower may bring to his
property and business, if and when he succeeded in reinvigorating his commercial
ventures. But his disdain and concerns ring hollow; they appear to have little factual
foundation. In contrast, Verizon’s presentation remained convincing.
When an applicant has made an adequate threshold showing under criterion 8,
thereby fulfilling its evidentiary burden of proof, the evidentiary burden then shifts to
the opposing party to show that the project will have an adverse impact. 10 V.S.A.
§ 6088(b). Mr. Auger failed to make this showing. Thus, we conclude that Applicant
has shown that its proposed tower project, if constructed and maintained according to
the submitted site plans and attachments, will not have an adverse impact on the
aesthetics, or scenic or natural beauty of the area.
Following the Quechee analysis, as established by the former Environmental
Board, our conclusion is that no adverse impact under criterion 8 will be caused by
this project. This ends our analysis, since we need not render a determination of
whether the adverse impact is “undue” when we have concluded that there is no
adverse impact. We therefore conclude that the proposed Verizon tower, designed to
resemble a pine tree, together with its related support facilities, conforms to Act 250
criterion 8.
Conclusion
For all the reasons more fully discussed above, we conclude that the Verizon
tower, designed to resemble a wolf pine, and together with its related support facilities,
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conforms to Act 250 criterion 8. Since criterion 8 is the only criterion remaining to be
addressed in this appeal, we conclude that Verizon’s application must be APPROVED.
These proceedings are remanded to the District 7 Environmental Commission,
solely to complete the ministerial act of re-issuing Act 250 Permit #7R1276 in
conformance with this Merits Decision and the unappealed determinations of the
District Commission.
A Judgment Order accompanies this Merits Decision. This completes the
current proceedings pending before this Court.
Done at Berlin, Vermont, this 21st day of April 2011.
____________________________________________
Thomas S. Durkin, Environmental Judge
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