Zaremba Group Act 250 ( 2014 )

STATE OF VERMONT
SUPERIOR COURT — ENVIRONMENTAL DIVISION
{
Zaremba Group Act 250 Permit Appeal { Docket No. 36-3-13 Vtec
{
Decision on the Merits
In the matter before us Shawn Cunningham, Michele Bargfrede, Cindy Farnsworth,
Richard Farnsworth, Gail Gibbons, Robert Gibbons, Diane Holme, John Holme, Janice Housten,
Leonard Lisai, Scott Morgan, Donald Payne, Stephanie Payne, Kathy Pellett, William Reed,
Kathy Schoendorf, Claudio Veliz, Bonnie Watters, and Lew Watters (Appellants) appeal a
February 27, 2013 decision by the District #2 Environmental Commission granting an Act 250
Land Use Permit amendment to Zaremba Program Development, LLC, f/k/a Zaremba Group,
LLC and Theodore Zachary (Applicants or Zaremba). This permit amendment allows
Applicants to create two lots consisting of Lot 1 with 8.72 acres and an existing, permitted 3,000-
square foot restaurant; and Lot 2 with 1.37 acres and the construction and operation of a
proposed 9,100 square-foot retail store (the Project) all to be located at 319 South Main Street
(Route 103) in the Town of Chester, Vermont (the Town).
The Court conducted a site visit at the subject property and surrounding area on the
morning of September 10, 2013 followed by a three-day merits hearing at the Vermont Superior
Court, Civil Division, Newfane Unit in Newfane, Vermont.1 Appearing at the site visit and
merits hearing were Attorneys Alan P. Biederman and David R. Cooper, representing the
Applicants, and Attorney James Allan Dumont, representing the Appellants. Attorney Jon
Groveman, representing the Agency of Natural Resources (ANR) attended and participated in
the trial. Attorney Peter Gill, representing the Natural Resources Board, attended the trial but
did not actively participate. Neither Attorney Groveman nor Attorney Gill attended the site
visit.
A related matter, Docket No. 66-5-12 Vtec, an on-the-record appeal of a decision of the
Town of Chester Development Review Board (DRB), was previously remanded by this Court in
1The parties agreed to the trial being heard in Newfane as the Woodstock courthouse was undergoing
substantial renovations at the time of trial.
1
a June 12, 2013 Decision to the Town of Chester Development Review Board for clarification of
its findings of fact and conclusions of law regarding Town of Chester Zoning Regulations
(Regulations) § 9.4(c)(1)(B), (C) and § 9.4(c)(4)(A).
Stipulated Facts and Exhibits
At the beginning of trial on September 10, 2013, the Applicants and Appellants filed a
written stipulation seeking the admission of facts and exhibits into evidence. No party has
objected to this stipulation, and therefore, we admit the following facts and referenced exhibits
verbatim from the stipulation:
1. Zaremba seeks a permit pursuant to 10 V.S.A. Chapter 151 (“Act 250”), for the
subdivision of an approximately 10.08 acre lot located at 319 Main Street (Route 103) in Chester,
Vermont, into two lots, and the construction and operation of a 9,100 square foot retail store and
associated infrastructure on the smaller, subdivided lot (the “Project”).
2. Zaremba’s Application for an Act 250 Permit describes the project proposed by
Appellant [sic]. The Application is submitted herewith as Exhibit 1. The Application was
submitted with numerous exhibits. Those exhibits are not appended to Exhibit 1. Certain of
those exhibits relate to criteria that are not before the Court as they were not appealed to this
Court. See Paragraphs 8 and 9 below. Other exhibits relate to the Criteria that have been
appealed and will be addressed by live testimony and other exhibits.
3. The initial tenant for the new store will be Dollar General. The only data
submitted as to traffic, signage and use is that of a Dollar General. For purposes of Land Use
Panel Rule 34, Appellants assert that the amount of traffic, the signage, and the particular use of
the site are critical issues; Appellee does not agree. For purposes of this pretrial stipulation, the
parties agree to disagree on this legal issue. The general business operation of Dollar General is
the sale of name brand retail goods at discount prices. Products typically sold in Dollar General
stores are a mix of food and non-food items. Dollar General is not a “dollar store” in that the
prices for goods sold are not limited to one dollar goods. Most products sold are sold for prices
competitive with Wal-Mart, Costco, or other discount retailers.
4. On December 22, 1986, the District 2 Environmental Commission issued Land
Use Permit #2S0699 (the “Original Permit”), which authorized the construction of a 3,000
square foot restaurant and associated parking areas on an approximately 10 acre parcel located
2
at 319 Main Street (Route 103) in Chester, Vermont. Subsequently, two amendments were
issued. The Original Permit and the two amendments are submitted herewith as Exhibit 2.
5. Zaremba’s current application seeks to amend the Original Permit.
6. On February 27, 2013, the District #2 Environmental Commission issued a Land
Use Permit approving the Project. Exhibit 3.
7. Appellants have appealed the under [sic] the following four (4) criteria:
- Criterion 1(D) – Floodways;
- Criterion 5 – Traffic Safety and Congestion;
- Criterion 8 – Aesthetics;
- Criterion 10 – Conformance with Local and Regional Plans
8. The remaining criteria are not before the Court as they are not the subject of this
appeal. The Statement of Questions before the Court reference the four criteria set forth in
Paragraph 6 above [sic].
9. Engineering plans for the Project are submitted herewith as Exhibit 4.
10. Access to the existing Zachary’s pizza restaurant on the Property is via a curb cut
from South Main Street, VT Route 103.
11. As part of the Project, Appellee proposes to remove the existing curb cut and
install a new access to the south. The new driveway from Route 103 will provide shared access
to both the retail store and the restaurant, currently “Zachary’s Restaurant.”
12. The section of VT Route 103 running adjacent to the Property is controlled by the
Town of Chester. Control of the roadway of Route 103 directly in front of the Project is
exercised by the Town of Chester. That control changes to State control approximately 50 feet
south of the property line, or 140 feet south of the entrance drive.
13. The proposed building is a front-gabled, single-story structure. Schematic plans
of the proposed building, together with an artist conception of the building are submitted
herewith as Exhibit 5.
14. The footprint dimensions of the proposed building are 70’ wide by 130’deep.
The narrower dimension and the proposed façade and gable end will face South Main Street.
15. An artist conception of the aerial view of the project is submitted herewith as
Exhibit 6. Appellants do not stipulate that Exhibit 6 is an accurate representation but do not
object to its admission, with that caveat.
3
16. The Project’s proposed hours of operation will be 8:00 a.m. until 9:00 p.m., seven
days a week.
17. The parties agree that upon receipt of an affidavit from Matthew Casey or some
other officer of the Appellee setting forth the expected number of employees at the store at one
time during average days and also during vacation shopping times, the Court may accept that
affidavit as if from a witness under oath and present for cross-examination.
18. All deliveries will occur during normal hours of operation. Trucks supplying the
Project will leave the project in a forward motion i.e., will not back out onto Route 103.
19. The exterior materials will include horizontal wooden clapboard, cornice boards,
corner boards and rake boards.
20. The main entrance will be centered on the front façade of the building and will
have large, tinted faux windows to either side of the entry.
21. A faux hayloft style door will be placed above the main entry.
22. Wooden materials on the exterior facades of the building will be either painted
or stained in neutral earth tones.
23. There will be a natural brick knee wall along the front façade.
24. The roof of the building will have a 5/12 pitch and will be metal standing seam.
25. A faux cupola will be placed on the ridgeline towards the front of the building.
The Project’s lighting (other than emergency lighting) will come on no sooner than ½ hour
before opening and will be turned off no later than ½ hour after closing.
26. Appellee’s proposed photometric plan of the Project’s lighting is submitted
herewith as Exhibit 7. All lighting will be downward facing and will be shielded downward.
The proposed Plan will have zero sum lighting at the property line.
27. The Project’s proposed signage is submitted herewith as Exhibit 8. There shall
be no more than two signs for the Project. One will be wall mounted on the front of the
building (the gable end). The free standing sign will have a brick base.
28. There will be no outdoor storage of products of any kind.
29. All utilities for the project will be underground.
30. There will be two 500 gallon propane tanks installed subsurface to supply the
proposed building with fuel.
31. All HVAC equipment will not exceed 55 dB(A) at the Property line.
4
32. The proposed Project site is located within the Residential Commercial Zoning
District.
33. The current Chester Town Plan was adopted by the Town of Chester Selectboard
on July 21, 2010. Exhibit 9.
34. The Town of Chester has adopted a Future Land Use Map, effective Date July 21,
2010. Exhibit 10.
35. The Southern Windsor County Regional Commission adopted its current
Regional Plan on June 16, 2009 (the “Regional Plan”). The Regional Plan is too voluminous to
append hereto, but the Parties agree that the Court may take judicial notice of the Regional Plan
and its contents.
36. The parties do not agree as to the admission of the expert reports of witnesses
Buscher, Saladino, Rockler, Raphael and Veliz, along with their attachments. Appellants take
the position that all of the reports and attachments, from all parties, should be admitted, subject
to cross-examination. Appellee argues that portions of the reports are hearsay and/or
inadmissible opinions on the ultimate issues before the Court. The parties will raise this for the
Court to decide.
Based upon the evidence presented at trial, including that which was put into context by
the site visit, the Court renders the following additional Findings of Fact.
Findings of Fact
Floodways
37. The Project site is bordered on the southwest by Route 103 and northeast by
Lovers Lane Brook.
38. The northern section of Lot 1 is located within the floodway of Lovers Lane
Brook.
39. The northern section of Lot 1 and the northeastern corner of Lot 2 are located
within the 100 year flood zone associated with Lovers Lane Brook.
40. The proposed building is located within the FEMA inundation flood hazard area.
The building as designed, however, will be two feet above base flood elevation. This design
meets the minimum National Flood Insurance Program inundation flood hazard area
requirements and is consistent with the ANR “Technical Guidance for Determining Floodway
Limits Pursuant to Act 250 Criterion 1(D),” updated October 9, 2009.
5
41. The Project site was flooded during Tropical Storm Irene in 2011.
42. Construction of the Project building and associated fill will result in a loss of
flood water storage of 1,305 cubic yards.
43. The Project is designed, however, to include a flood mitigation cut area located in
the northwestern section of Lot 1 where additional flood water storage of 2,544 cubic yards is
provided. Presently in this area is an elevated berm creating a narrowing of the floodway.
Construction of the mitigation cut area will remove the berm and widen the floodway.
44. Thus, the Project results in the net additional flood water storage over present
conditions of approximately 1,239 cubic yards or 250,228 gallons.
45. The Project will result in two areas where the Lovers Lane Brook floodway is
narrowed. The first is near the east side or rear of the Project building and the second is near
the stormwater pond. Both of these areas are wider than the narrowest section of the brook in
the area of the Project.
46. The Project will not alter the volume of water flowing within Lovers Lane Brook.
47. The Project includes a minimum 50 foot buffer along Lovers Lane Brook.
48. The Project will not alter or affect Lovers Lane Brook where the brook enters the
Williams River.
49. Lovers Lane Brook is narrowest just south of the Project site, in the vicinity of
where Lovers Lane Brook enters the Williams River.
Traffic
50. Vermont Route 103 in the area of the Project is a two-lane road with 1- to 20-foot
shoulders and has a 25-miles-per-hour (MPH) posted speed limit.
51. The speed limit increases to 30 MPH east of the Project access drive.
52. Route 103 is a Vermont state highway, designated as a Class 1 Town Highway,
providing connection between I-91 and points west, including the Okemo Mountain Resort.
53. In 2010 the Vermont Agency of Transportation (VTrans) recorded annual
average daily traffic volume of 8,600 vehicles per day just west of the Project site.
54. The Project is projected to increase average daily traffic by 2% or approximately
one additional vehicle every two or three minutes during peak traffic hours.
55. Applicants completed a traffic study for the Project following the VTrans
protocol.
6
56. Applicants completed peak period traffic counts at two existing Dollar General
sites: 1032 Prim Road, Colchester, Vermont and 236 River Street, Springfield, Vermont.
57. Counts were conducted on a weekday afternoon and Saturday midday.
58. Actual traffic count data was compared to trip generation rates presented in the
Institute of Transportation Engineer’s (ITE) Trip Generation 8th Edition, for Land Use 820
(Shopping Center). The actual traffic counts for the two existing Dollar General sites were
higher than the ITE estimations and Applicants used the actual count data in their traffic
analysis.
59. Site-generated traffic is differentiated between primary and passby trips. A
primary trip is one where the vehicle leaves its origin to specifically visit the Project and
otherwise would not have made the trip. A passby trip is a vehicle that would drive by the
Project site regardless of the presence of the Project, and once the Project is present, the vehicle
turns into the site. Passby trips create new turning movements but do not add new trips.
60. ITE passby rates were lower than actual counts. Applicants used the lower, more
conservative, ITE passby rates in their traffic analysis.
61. The estimated traffic for the Project, including both primary and passby trips, is a
total of 71 trips (36 enter, 34 exit) for weekday p.m. Peak Hour and 92 trips (46 enter, 45 exit) for
Saturday Peak Hour.
62. The Maple Street intersection with Route 103, located approximately 0.25 miles
northwest of the Project, is controlled by a traffic officer during peak ski season and during
peak time periods. This is a condition of a different Act 250 Land Use Permit associated with
the Okemo Mountain Resort.
63. Considering the worst case situation, during peak ski season, additional Project-
generated traffic is projected to increase delays at the Project site and at area intersections by
four seconds or less during both weekday p.m. and Saturday Peak Hour. The greatest increase
in delay, four seconds, will be experienced at the Project access point when vehicles exit the
Project.
64. During weekday p.m. Peak Hour, traffic approaches in the area function at Level
of Service (LOS) C or better under current conditions. Traffic approaches are projected at this
same LOS if the Project is constructed.
7
65. The busiest traffic hour of the week is projected to be Saturday midday (Saturday
Peak Hour).
66. During Saturday Peak Hour, southbound traffic at the Pleasant Street
intersection with Route 103, located less than 0.25 miles southeast of the Project, experiences
delays during ski season. This condition will also exist following Project construction. For this
intersection, the worst case approach LOS is D with or without the Project. For all other
intersection approaches in the Project area, the LOS is C or better during the Saturday Peak
Hour. These are acceptable levels of service pursuant to VTrans Level of Service Policy which
considers LOS E unacceptable and LOS D or better to be acceptable.
67. There is a High Crash Location (HCL) at the intersection of Route 103 and Maple
Street. There is no HCL at or in the immediate vicinity of the Project site.
68. Road geometry in front of the Project site is straight and flat.
69. The Project will not increase the rate of crashes.
70. During ski season, the traffic volume to roadway capacity ratio is presently 63%
and is estimated to be 64% if the Project is constructed. During non-ski season these ratios are
55% and 58%.
71. Turn lane warrants analysis was conducted by the Applicants for the Route 103
and Project site access intersection. Applicant used both the Harmelink and the Kikucki and
Chakroborty methodologies for unsignalized intersections. For the Saturday Peak Hour during
ski season, the Harmelink analysis resulted in a warranted eastbound left-turn lane but not
under any other conditions. For the other analysis, warrants for turn lanes were not met.
72. Applicants’ traffic expert provided a credible opinion that peak hour Project
traffic likely will not coincide with ski-related peak hour traffic.
73. Appellants currently experience heavy traffic on Route 103 during ski season.
The character of the area
74. The Project is located in the Town’s Residential Commercial District. The village
center, approximately 0.6 miles to the northwest of the Project, is located in the Town’s Aquifer
Protection District 1. The Town’s Future Land Use Map designates the Project site within a
Village/Mixed-Use area.
75. The Project tract is located in an area where land uses and current development
transitions from a historically dense village center, northwest of the Project site, to a more
8
contemporary mixed-use area including less dense residential and commercial development
south of the Project site. Development in the village center is somewhat interrelated and
situated close to roadways. Development to the south of the village center, including the area
around the Project site, is more independent and set back from roadways with individual
driveways and parking lots. In the immediate area of the Project site several properties have
large parking lots in front of the building and close to Route 103.
76. A sign welcoming travelers to Chester is located adjacent to Route 103 just south
of the Project site.
77. The village center has sidewalks on both sides of Route 103. At the project site
there is only one sidewalk on the east side of Route 103. This single sidewalk is constructed of
asphalt and presently terminates at Pleasant Street, just south of the Project. The existing
sidewalk is a poor means of pedestrian traffic because it is close to the road and is a poorly
maintained irregular surface. The Project will replace the asphalt sidewalk with a concrete
walkway having curbs along Route 103 to separate pedestrian and vehicle traffic.
78. Development along Route 103 in the area of the Project is a mixture of residential
and commercial structures of varied architectural styles, sizes, and ages, with varied roof
pitches, building materials, stories, and colors.
79. Several properties include outbuildings or backyard barns extending away from
Route 103.
80. The Project is 35 feet high at its highest point and the size of the Project building
is larger than buildings in the immediate area. There are, however, some large buildings in the
area, including a hardware store. Buildings having a mass larger than the Project are also
present in the area, including the American Legion, St. Joseph’s Church, and a self-storage
facility.
81. Views looking out from the Project site include the existing pizza restaurant
immediately north and dense mature vegetation further north. There are views of a residence
to the northwest across Route 103, and limited views of Route 103 itself. Across Route 103 and
slightly to the south are views of two very prominently developed properties; one with the
Country Girl Diner and the other with a gas station, mini market, and Vermont Liquor Outlet.
82. The pizza restaurant is contemporary with a hipped rood and large windows.
The building is set back from Route 103 and has a large front parking lot. The Project includes
9
modification of the parking area to replace a portion of the asphalt with a grassed area to be
used by an ongoing farmer’s market.
83. The Country Girl Diner is an older stainless-steel-sided rail car with a flat roof
and prominent windows. It is placed on a stationary foundation, with additions on the front
and back. This property has no defined curb cut off of Route 103 and a majority of the area in
front and on both sides of the building is paved for vehicular parking. There is little to no
landscaping on this property.
84. The gas station, mini market, and liquor outlet is a flat-roofed multicolored
building with gas pumps at the front between the building and Route 103. There is no defined
curb cut off of Route 103 and the area in front and on both sides of the building is paved for
vehicular traffic and parking. An overhead garage door is located on the north end of the
building. Large windows are located on the front and sides of the building. These windows
contain advertisements and neon signs.
85. The American Legion property, located approximately 0.7 miles south of the
Project site, on the west side of Route 103, contains a large commercial building having different
roof pitches, large windows facing Route 103, a cupola centered on the main roof line, and
HVAC systems on the north slope of the main roof. The building, including all of these
elements, is prominently visible while traveling Route 103.
86. Traveling north on Route 103 from Pleasant street to just south of the Project site
an observer experiences a transition of land uses from more sporadically developed properties
set back from the road to more dense homogeneously developed properties set close to the road
in the village center. In this trip, viewers experience contemporary single story banks with
drive-through services, a large hardware store, a historic building renovated into an art gallery,
a Jiffy Mart service station, a post office, and several residential properties.
87. In the immediate area of the Project, development is vehicle oriented while the
village center is more pedestrian oriented with two sidewalks provided for foot traffic.
88. The Project site does not presently appear as open space.
89. Large faux windows are planned for each side of the main entrance on the front
side of the building. No other buildings in the area have faux windows.
90. The front entrance is comprised of full length glass doors.
91. No windows are provided along the sides of the building.
10
92. The Buttonwood barn, located closer to the village green, has 24 windows of
various sizes. The post office in Chester has 15 windows. One bank in town has 6 windows
and the other has 12. The hardware store has 5 windows.
93. Overall the Project design is intended to appear similar to a backyard barn.
Other commercial buildings in the area are of similar building form, including but not limited
to, a hardware store, a church, a post office, and the banks.
94. The Project will be predominantly viewed by travelers driving on Route 103,
although views from neighboring properties will also be likely. Views of the Project will be
more significant as one drives south on Route 103 where approximately 500 feet of roadway
will have views. There will also be limited views of the Project while traveling north on Route
103.
95. Vegetation on the Project site includes both mature and immature trees. A large
silver maple tree located close to Route 103 at the front of the Project site is to be maintained
and trimmed to promote its health. When this tree is no longer in good health, the Town has
requested that it be removed. The Project includes additional Landscaping including plantings
between Route 103 and the Project parking area. Specifically, this will include planting four
Apple Service Berry trees, three Amur Maple trees, and a number of Dwarf Rhododendron or
similar dwarf species in front of the freestanding sign and along the edge of the parking lot.
Nine additional trees, Apple Service Berry and Amur Maple, will also be planted between the
Project and the existing restaurant parking area and the new farmer’s market grass area. At the
rear of the building, 21 8-foot minimum American Arborvitae trees will be planted. At the
southern corner of the building, three additional Apple Service Berry trees will be planted in the
area where a bike rack will be located.
96. Amur Maple and Dwarf Rhododendron are non-native to Vermont. Amur
Maple may become unruly and amorphous as they mature. Dwarf Rhododendron is small and
may be impacted by snow plowing and resulting snow banks. The Dwarf Rhododendron may
also suffer in winter from exposure to salt from the highway.
97. Retaining existing vegetation along with the supplemental landscaping will
decrease visibility of the Project and soften views. In the late fall and winter, with less foliage,
the Project will be more visible.
11
98. A sign is proposed to be mounted on the front of the building above the
entrance. This sign is approximately 16 inches high and 16 feet long. A free-standing sign is to
be located south of the entrance drive. This sign is 15 feet high by 6 feet wide. The signs will be
downlit and not internally illuminated.
99. Exterior lighting includes pole-mounted and wall-mounted full cutoff lights.
Project lighting will operate only from one half-hour prior to opening and after closing.
Mr. Shawn Cunningham
100. Shawn Cunningham owns and resides at property located at 3008 Popple
Dungeon Road in Chester, Vermont.
101. Mr. Cunningham’s property is located approximately 4.5 miles from the
proposed project.
102. Mr. Cunningham drives past the proposed project site on a daily or almost daily
basis.
103. When driving his daughter to and from school, Mr. Cunningham drives between
his home, on one side of the proposed project, and her school, on the other side of the proposed
project. During each trip, Mr. Cunningham passes and views the proposed project site.
Conclusions of Law
Question 1 - Criterion 1(D) Floodways:
Pursuant to Criterion 1(D) Floodways, a permit may be granted if the applicant
demonstrates that:
(i) the development or subdivision of lands within a floodway will not
restrict or divert the flow of flood waters, and endanger the health, safety
and welfare of the public or of riparian owners during flooding; and
(ii) the development or subdivision of lands within a floodway fringe will
not significantly increase the peak discharge of the river or stream within
or downstream from the area of development and endanger the health,
safety, or welfare of the public or riparian owners during flooding.
10 V.S.A. § 6068(a)(1)(D).
ANR’s publication entitled “Technical Guidance for Determining Floodway Limits
Pursuant to Act 250 Criterion 1(D)” (Technical Guidance), issued October 7, 2003, updated
12
October 9, 2009, is instructive in analyzing this Criterion. The document is intended to guide
land development to reduce inundation and erosion hazards associated with flooding events.
Appellants raised some concerns relating to the Project narrowing the Lovers Lane Brook
floodway in two areas which could potentially result in increased water currents and erosion
hazards. The Project will not alter the volume of water flowing within Lovers Lane Brook.
Thus, if the brook channel or floodway is narrowed, the result would only be an increased flow
rate. The two areas where the Lovers Lane Brook floodway will be narrowed by the Project are,
however, wider than the narrowest area under present conditions. Thus, the Project will not
increase the flow rate of the brook or flood events associated with the brook. Additionally,
although portions of the Project are located within a floodway, the Project’s minimum 50-foot
buffer from Lovers Lane Brook satisfies erosion hazard concerns. Thus, most of the focus under
Criterion 1(D) for the Project relates to inundation concerns.
The Project site was flooded during Tropical Storm Irene in 2011. A portion of the
proposed new building is located within the FEMA inundation flood hazard area. The building
as designed, however, will be two feet above base flood elevation. This design meets the
minimum National Flood Insurance Program inundation flood hazard area requirements and is
consistent with ANR’s Technical Guidance.
Construction of the Project building and the addition of fill material to realize the
acceptable elevation will result in a loss of flood water storage of 1,305 cubic yards. In order to
address this loss of flood water storage, the Project is designed to include a flood mitigation cut
area located in the northwestern section of Lot 1. This will create additional flood water storage
of 2,544 cubic yards and therefore the Project results in the net additional flood water storage of
approximately 1,239 cubic yards or 250,228 gallons. Thus, overall the Project mitigates
inundation concerns by providing additional flood water storage.
Lastly, we find that the Project will not alter or affect Lovers Lane Brook where the
brook enters the Williams River. We therefore conclude that the Project satisfies Criterion 1(D)
as the Project will not restrict or divert the flow of flood waters, will not significantly increase
the peak discharge of the river, and will not endanger the health, safety and welfare of the
public or riparian owners during flooding.
13
Question 2 - Criterion 5 Traffic:
Criterion 5 requires that a development “[w]ill not cause 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). “A
permit cannot be denied for a project that creates unsafe conditions within the meaning of
[C]riterion 5, but permit conditions can be imposed to remedy those conditions.” In re Agency
of Transportation, 157 Vt. 203, 207 (1991) (citing 10 V.S.A. § 6087(b)). An opponent to a
proposed development carries the burden of proof under Criterion 5 to show that the proposed
development will cause “an unreasonable or adverse effect.” 10 V.S.A. § 6088(b).
Applicants undertook a detailed traffic analysis for the proposed project. As noted in
the factual findings, they took into consideration higher estimates based on actual traffic counts
at other Dollar General stores in the state. They followed the Vermont Agency of
Transportation (VTrans) protocol in assessing traffic for the Project. The estimated traffic for the
Project, including both primary and passby trips, is a total of 71 trips (36 enter, 34 exit) for
weekday PM Peak Hour and 92 trips (46 enter, 45 exit) for Saturday Peak Hour.
Considering the worst case situation, during peak ski season, additional Project-
generated traffic is projected to increase delays at the Project site and at area intersections by
four seconds or less during all peak hours. The greatest increase in delay, four seconds, will be
experienced at the Project access point when vehicles exit the Project Site.
Under current conditions, the area intersections function at Level of Service (LOS) C or
better. Applicants project this same LOS if the Project is constructed. During Saturday Peak
Hour, southbound traffic at the Pleasant Street intersection experiences delays during ski
season. The Project will not significantly alter these preexisting delays. For this intersection, the
worst case approach LOS is D without or with the Project. For all other intersections in the
Project area, the LOS is C or better during the Saturday Peak Hour. These are acceptable levels
of service pursuant to VTrans Level of Service Policy which considers LOS E unacceptable and
LOS D or better to be acceptable.
During ski season, the ratio of traffic volume to roadway capacity is presently 63% and
is estimated to be 64% if the Project is constructed. During non-ski season these ratios are 55%
and 58%. Turn lane warrants analysis was conducted by the Applicants for the Route 103 and
Project site access intersection. Applicant used both the Harmelink and the Kikucki and
14
Chakroborty methodologies at unsignalized intersections for determining whether turn lanes
were warranted. Under the first methodology, a left turn lane in the eastbound direction was
warranted at the project site only at Saturday Peak Hour during the ski season, but was not
warranted during weekday Peak Hour during ski season and was not warranted at all during
non-ski season. Using the second methodology, no turn lane is warranted by the project under
any scenarios. Based on these analyses, the Project does not propose to include any turn lanes,
and we conclude that the absence of turn lanes will not create any unsafe conditions or
unreasonable congestion. Applicant’s traffic expert provided a credible opinion that peak hour
Project traffic likely will not coincide with ski-related Saturday peak hour traffic.
Appellants currently experience heavy traffic on Route 103 during ski season. The
Project’s most significant impact on traffic will be the four-second increase in delay for vehicles
exiting the Project site. This delay is experienced by patrons of the Project site. While there are
other intersection delay increases, they are all less than four seconds. Although there is a High
Crash Location (HCL) at the Route 103-Maple Street intersection, there are no HCLs at or in the
immediate vicinity of the Project site and the Project will not increase the rate of crashes.
VTrans standards, such as LOS, are instructive when analyzing a project’s impact on
transportation, however, we need not defer to these standards. We make an independent
determination, typically with the assistance of VTrans standards, of a project’s conformance
with Criterion 5. In re Walmart Stores, Inc., 167 Vt. 75, 85–86 (1997) (citing In re Agency of
Transp., 157 Vt. 203, 206 (1991)). Level of Service below C is generally inconsistent with
Criterion 5 at intersections that are not in compact, urban areas. Id. at 86.
We conclude, based on the LOS analysis and the minimal change in used highway
capacity, that the Project complies with Criterion 5 as the Project will not cause unreasonable
congestion or unsafe conditions with respect to use of the highways or other means of
transportation existing or proposed.
Question 3 - Criterion 8 Aesthetics:
To receive an Act 250 land use permit, an applicant must provide evidence sufficient to
enable the Court to find that the proposed project “[w]ill not have an undue adverse effect on
the scenic or natural beauty of the area, aesthetics, historic sites or rare and irreplaceable natural
areas.” 10 V.S.A. § 6086(a)(8). If an applicant satisfies the initial burden of production, then the
ultimate burden of proving that a project does not conform to Criterion 8 rests upon the
15
project’s opponents. 10 V.S.A. § 6088(b); In re Rivers Dev., Nos. 7-1-05 Vtec and 68-3-07 Vtec,
slip op. at 33 (Vt. Envtl. Ct. Mar. 25, 2010) (Durkin, J.) (citing In re Route 103 Quarry, No. 205-10-
05 Vtec, slip op. at 8 (Vt. Envtl. Ct. Nov. 22, 2006) (Durkin, J.), aff’d, 2008 VT 88, 184 Vt. 283).
The cornerstone of the Criterion 8 analysis is the question: “[w]ill the proposed project
be in harmony with its surroundings—will it ‘fit’ the context within which it will be located?”
Re: Quechee Lakes Corp., Nos. 3W0411-EB and 3W0439-EB, Findings of Fact, Conclusions of
Law, and Order, at 18 (Vt. Envtl. Bd. Nov. 4, 1985).
We received no evidence of historic sites or rare or irreplaceable natural areas at the
Project site or in the surrounding area. Furthermore, no assertions were made at trial that the
Project as proposed will interfere with any areas of scenic or natural beauty. We therefore limit
our review under Criterion 8 to the Project’s aesthetic impacts.
A general analysis of aesthetic impacts can be subjective, but the former Environmental
Board established a more objective two-part test, now referred to as the “Quechee test,” to
evaluate a project under Criterion 8. Id. at 17 (quoting Re: Brattleboro Chalet Motor Lodge, Inc.,
No. 4C0581-EB, Findings of Fact, Conclusions of Law, and Order (Vt. Envtl. Bd. Oct. 17, 1984)).
First, we examine whether a proposed project may cause an adverse impact on the character of
the area. Id. Specific considerations of adversity include the nature of the Project’s
surroundings, existing land uses in the area, the compatibility of the Project’s design with those
surroundings, the suitability of the Project’s materials and colors, the locations from where the
Project can be viewed, and the Project’s impact on open space. Id. at 17–18. If we find an
adverse impact, the Court then determines whether that impact will be “undue.” Id. The
Vermont Supreme Court has approved the use of the Quechee test and we therefore employ it
here. In re Rinkers, Inc., 2011 VT 78, ¶ 9, 190 Vt. 567.
In their post-trial memorandum, Appellants raise the issue of whether the amendment
application before the Court is barred by Act 250 Rule 34(E)—commonly known as the “Stowe
Club Highlands test”— and whether principles of issue preclusion make the factual findings in
the original permit binding on this Court in our consideration of the character of the area under
Criterion 8. These issues were not raised within Appellants’ Statement of Questions.
The Environmental Division’s review in an appeal is restricted by an appellant’s
Statement of Questions. See V.R.E.C.P. 5(f); In re Garen, 174 Vt. 151, 156 (2002). That is, the
16
scope of an appeal before us only includes issues explicitly raised in each Question as well as to
issues intrinsic to them. In re Jolley Assocs., 2006 VT 132, ¶ 9, 181 Vt. 190.
Here, Appellants raise the question of compliance with Criterion 8. Appellants’
questions do not raise the issue of Act 250 Rule 34(E) or issue preclusion, nor are these issues
intrinsic to any of the questions in Appellants’ Statement of Questions. Therefore, we do not
consider the questions of whether Applicants’ most recent applications are barred by Rule 34(E)
or issue preclusion.2
a. The character of the area.
When considering the Project’s aesthetics impacts, the baseline “character of the area”
includes existing buildings, roadways, and other nearby developments. As specified in the
above facts, the area of the Project is a mixture of residential and commercial structures of
varied architectural styles, sizes, and ages, with varied roof pitches, building materials, stories,
and colors. The land use and development patterns within the village center are different and
distinct from the properties within the immediate area of the Project site. Thus, the character of
the village center is not controlling with respect to our aesthetic review of the Project. It is
within this context that we consider whether the Project will cause an “adverse” impact on the
character of the area.
b. Whether the aesthetic impact is “adverse” to the area’s character.
The Project building is similar in scale, material, and form to existing buildings in the
area. The building has a pitched or hipped roof. Its natural earth tone color and horizontal
clapboard wood siding and brick knee wall match the appearance of other buildings in the area.
Landscaping will also mitigate or soften views of the Project from Route 103 and generally
decrease visibility of the building. The mass or scale of the Project, while large, is similar to a
2 We note that even if we were to consider whether Rule 34(E) bars consideration of this application, we
would conclude it does not. The condition at issue states: “The permittee shall make no changes to the
Dorand Farmhouse property and large tree in front of the property without an amendment to this
permit.” Charles Zachary, Land Use Permit 2S0699, Condition 15, (1986). Thus, the condition itself
contemplates consideration of an amendment to this condition without requiring a showing that the
elements of Rule 34(E) have been met. Furthermore, our Supreme Court has stated that issue preclusion
is not the correct framework in which to evaluate applications for permit amendments. In re Stowe Club
Highlands, 166 Vt. 33, 36–37 (1996).
17
few other buildings in the area. The Project’s building mass is undifferentiated which is unlike
other large buildings in the area.
Views of the Project building while traveling north on Route 103 are fairly limited in
duration and occur through small openings in vegetation. Views of the Project while traveling
south on Route 103 are also brief but will be fairly open. Presently, these views include the
pizza restaurant and parking lots. These views are softened by vegetation. Supplemental
landscaping will further soften views.
The Project’s building has no windows along its northern side, which is visible traveling
south on Route 103. The faux windows at the front of the building are also visible. The
Building’s copula is located off-center toward the front and closer to Route 103.
Neighbors to the Project testified as to their concern that the Project building is
“different” or “dramatically different” from other buildings in the area. Diane Holme owns a
property on Putnam Hill Road that overlooks the project. She believes that the Project looks
like a warehouse and that Project lights might add a glow to the area.
Claudio Velize rents space just south of the Project at 183 Main Street where he lives and
has office space. Mr. Velize is an architect specializing in commercial and residential design.
Mr. Velize believes that the existing gas station mini market, hardware store, and banks do not
‘fit’ the area. To him, the County Girl Diner is unique to American history, and therefore, the
diner does not offend him. Mr. Velize testified to the presence of large buildings in the area,
some larger than the Project, and to how these existing structures have commonality and
integrate with neighboring properties. He also pointed out several large structures as having
telescoping elements to their design so their large mass is visually broken up. Mr. Velize
provided a photographic tour of all buildings within the area. Mr. Velize takes issue with
several features of the Project building, including, but not limited to, the faux windows, the off-
center copula, the full height glass front doors, the building’s mass, and the location of parking
at the front of the lot. Mr. Velize did acknowledge that Town regulations, including front and
side setback requirements and the requirement that site coverage can not exceed 35%, make it
difficult if not impossible to develop the site to match development in the village center.
Shawn Cunningham testified to the proposed structure’s large mass and lack of
windows. He noted other large structures in the area, reviewed the number and details of
18
windows in those structures, and concluded that the proposed structure has too few windows
and therefore does not fit the area.
Richard Farnsworth owns 4.25 acres abutting the subject site. Mr. Farnsworth testified
to impacts from the existing pizza restaurant including noise from restaurant patrons, on-site
traffic, and vehicle doors closing. Without foliage, the pizza restaurant is visible to Mr.
Farnsworth.
David Raphael, Appellants’ aesthetics expert, testified as to his review of the Project’s
aesthetic impacts. Due to the Project’s single large unbroken mass, decrease in site vegetation
and inadequate supplemental landscaping, building design, extensive setbacks, and alterations
to green space, Mr. Raphael believes the Project is out of context. Mr. Raphael testified at length
about how the Project is located in the “gateway” area of Chester and how although Applicants
attempted to design a barn-like building, the roof is too flat, the copula is false and off-center,
and the front has large faux windows, all detracting from any barn-like appearance. Mr.
Raphael believes that the Project should be redesigned by reducing setbacks, increasing
landscaping, and breaking up the mass of the building. In reviewing the Project area as the
“gateway” to Chester, we specifically note the existing and visibly prominent gas station, mini
market and liquor outlet, and Country Girl Diner directly across Route 103 from the Project site.
These existing developments within the so called “gateway” are part of the context with which
the Project must be compatible.
Nicolas Rockler, PhD., another of Appellants’ witnesses, provided his analysis of
southern Vermont retail buildings. In Mr. Rockler’s analysis, he provided the average size of
retail-only buildings and mixed retail and residential/lodging/restaurant buildings in towns
having similar population to Chester. Mr. Rockler’s conclusion was that the Project is of a scale
much larger than can be found in southern Vermont towns comparable to Chester. We find Mr.
Rockler’s analysis of limited value as it does not consider all buildings. Rather, the analysis
excludes consideration of larger buildings such as self storage facilities, commercial storage
facilities, garages, and barns. One specific example excluded from the study is the Woodstock
Inn. Additionally, the study reviews square footage of a building and does not review or
consider volume. Lastly, the opinion does not speak to building design, shape, roof pitch, color,
or materials, which are all relevant to the Criterion 8 analysis.
19
Applicants’ aesthetic expert Michael J. Buscher testified to his review on potential
aesthetic impacts of the Project. He provided aerial photographs, maps, and photographs of
existing development in Chester in support of his review.
Given all of this, we find that the lack of windows along the building’s sides, large faux
front windows, and large all-glass front doors are unlike any other building in the area. The
off-center cupola differs in appearance from other buildings with cupolas. Lastly, the building
has a large undifferentiated mass. The Project, and especially these noted features, will be
visible to travelers on Route 103. Despite the varied character of the area and the other
buildings of similar size, these features do not fit the character of the area. We therefore
conclude that the Project will result in an adverse aesthetic impact to the area’s character.
c. Whether the aesthetic impact is “undue,” given the area’s character.
Having concluded that the Project will result in an adverse aesthetic impact on the area’s
character, we must address whether the impact is undue and therefore in conflict with Criterion
8. 10 V.S.A. § 6086(a)(8). 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?”; or (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?” Quechee Lakes Corp.,
Nos. 3W0411-EB and 3W0439-EB, at 19–20; see also In re Rinkers, Inc., 2011 VT 78, ¶ 9, 190 Vt.
567 (applying this test).
Based upon the evidence received at trial, we conclude that the Project does not violate a
clear, written community standard intended to preserve the aesthetics of the Project area.
Applicants suggest that there are no clear, written community standards intended to preserve
the aesthetics of the Project area. Appellants assert that the Project violates a statement within
the Goals and Objectives section of the Town Plan requiring that “[a]s development pressures
increase upon the Town and less densely populated areas, it is vital that the unique
characteristics of the Town be preserved.” (Exhibit 9, Town of Chester, Vermont Town Plan, at
4.) Leaving aside the issue of whether this provision is a clear standard intended to preserve
the aesthetics of the area, we conclude that the Project will not violate this standard. The Project
is located in an area with a current mix of development types and building styles. Nothing
20
about the Project diminishes or spoils the unique characteristics of the Town especially in the
Project’s immediate surroundings.
Appellants also assert that the Town Plan’s Land Use chapter, specifically pertaining to
the Mixed Use Village, requires that “[t]hese areas should remain as they are in character and
settlement pattern” and “[n]ew development should not detract from the historic character and
aesthetic qualities of the village centers.” Id. at 10–11. Again, leaving aside the issue of whether
this provision is a clear standard intended to preserve the aesthetics of the area, we conclude
that the Project will not violate this standard. The Project matches the settlement pattern of its
surrounding properties. Furthermore, the Project is immediately surrounded by more
contemporary development and the Project does not detract from the historic village green and
its immediate surroundings.
Lastly, Appellants offer that the Town’s zoning regulations at § 9.4(c)(4) establish a clear
standard intended to preserve aesthetics. Section 9.4(c)(4) applies to development within the
Residential-Commercial District needing conditional use approval and requires that
construction of new buildings adhere harmoniously to the “over-all New England architectural
appearance” which gives the center of Chester its distinct regional character and appeal. (See
Exhibit 18, Town of Chester Zoning Regulations, at § 9.4(c)(4).) Little if any evidence was
offered at trial regarding the “over-all New England architectural appearance.” The Project
building is designed to generally imitate a “backyard barn” style and its building form matches
several existing buildings in Chester. The large glass faux windows and doors at the front of
the building may be in harmony with New England architecture to the extent that Mr. Velize on
cross-examination could not discredit the fact that some agricultural barns in Vermont have
large front glass doors. Based on the evidence before us we can not conclude the Project
violates Section 9.4(c)(4). We therefore conclude that the Project does not violate any clear,
written community standard.
We next conclude that the Project will not offend the sensibilities of the average person
and that it will not be shocking or offensive. While neighboring Appellants testified as to how
they expect the Project to be offensive and how views from specific locations may shock them,
we must consider the Project’s impacts from the perspective of an average person. As discussed
above, there will be brief views of the Project from Route 103 and some views from neighboring
properties. Under present-day conditions, there are views of the neighboring pizza restaurant
21
and multiple buildings of different sizes and architectural design in the Project area. The
Project, and specifically the building, is similar in material and form to existing structures.
Thus, we conclude that the sensibilities of the average person would not be offended or shocked
by the addition of the Project.
Lastly, we conclude that the Project’s design is compatible and in harmony with its
surroundings. Again, although it is not an exact match to existing buildings in the area, the
overall design of the Project is similar to other buildings and surrounding properties. The
Project building’s large front faux windows and glass doors and off-center cupola are not barn-
like, however, its earth tone colors will help the building’s overall appearance recede into its
background and lessen the impact of these features.
Applicants have also taken reasonable steps in building design to address the context of
the Project, including retaining existing vegetation and planting additional landscaping. We are
concerned with the proposed Amur Maple plantings which are non-native to Vermont and may
become unruly and amorphous as they mature. Additionally, the proposed Dwarf
Rhododendron is another non-native plant which is small and may be impacted by snow
plowing and resulting snow banks at the edge of the parking lot. The Dwarf Rhododendron
may also suffer in winter from exposure to salt from the highway. We therefore require that the
Amur Maples and Dwarf Rhododendron proposed in the landscaping plan be replaced with
similarly functioning species that are native to Vermont. This slightly modified landscaping
will mitigate or soften visibility of the Project from Route 103 and neighboring properties and
decrease visibility of the building and parking lot. Modifications to the existing parking lot
which reduce asphalt coverage and increase green space will help to mitigate views and the
impact of the Project area as well.
There was testimony at trial concerning the lack of faux windows on any other property
in Chester or any “backyard barn” that the Project is meant to imitate. There was no
explanation given for why it is not reasonable to include real windows rather than fake
windows. We therefore conclude that Applicants have taken reasonable, generally available
mitigating steps, but we do impose a condition requiring that the Project be modified to replace
the faux windows with real windows to further mitigate aesthetic impacts.
In sum, although we conclude that some of the Project’s aesthetic impacts may be
adverse, we also conclude that none of the aesthetic impacts will be “undue.” As noted above,
22
Appellants provided considerable testimony and photographic evidence regarding their
concerns, however, we are not persuaded that aesthetic impacts reach the level of being undue.
See 10 V.S.A. § 6088(b) (placing ultimate burden of showing a project’s nonconformance to
Criterion 8 on the project’s opponents). We conclude that the Project as proposed conforms to
Act 250 Criterion 8.3
Question 4 - Criterion 10 Town and Regional Plan
Criterion 10 requires that the project proponent show that its proposal is in conformance
with any duly adopted local or regional plan or capital program under 24 V.S.A. Chapter 117.
10 V.S.A. § 6086(a)(10). In making this finding, if applicable provisions of the town plan are
ambiguous, the district commission or this Court, for interpretive purposes, shall consider
bylaws, but only to the extent that they implement and are consistent with those provisions,
and need not consider any other evidence. 10 V.S.A. § 6086(a)(10); In re Molgano, 163 Vt. 25,
30–31 (1994).
As we noted above, the Town Plan’s Land Use section pertaining to the Mixed Use
Village contains provisions applicable to the Project. In analyzing these Plan provisions under
Criterion 8, we found that even if they evidenced a clear and specific policy, Appellants had not
met the burden of showing that the Project does not conform to that policy. While similar, the
analysis under Criterion 10 is different. The Applicant, rather than the Appellants, has the
burden of proof under Criterion 10. 10 V.S.A. § 6088(a). In order for a Town Plan to be
enforceable under Criterion 10, however, the language must be mandatory and not merely
aspirational. In re Rivers Dev., LLC, Nos. 7-1-05 Vtec and 68-3-07 Vtec, slip op. at 9 (Vt. Envtl.
Ct. Jan. 8, 2008) (Durkin, J.).
The Plan provisions in the Land Use-Mixed Use Village section only describe in general
terms how development “should” or “is encouraged to occur.” (Exhibit 9, Town of Chester,
Vermont Town Plan, at 10–11.) This language is aspirational and does not create mandatory
requirements. Thus, even assuming the Plan contains clear and specific policies, the Plan
cannot be used to deny the project under Criterion 10. Further, as concluded above, we find
that the Project does in fact comply with those policies.
3Our review in this matter is limited to Act 250 and the rules and case law relating thereto. The Town
has a zoning ordinance generally regulating setbacks, height, and use, and the Town Plan speaks to
certain land use planning issues. The Town has not, however, created a design review board or process
allowing for more detailed design review of development proposed within the Town.
23
The Project also conforms with the relevant Transportation provisions in Chapter 2 of
the Town Plan. These goals and policies include, but are not limited to, maintaining and
expanding facilities for bicycle and pedestrian transportation, limiting new curb cuts, and
minimizing impacts on current peak traffic volumes and on truck traffic in the village center.
Assuming that the Transportation provisions are mandatory and not merely aspirational, we
find that the Project is in line with these and other transportation provisions as it will improve
the pedestrian sidewalk and include a bike rack, it will replace an existing curb cut for access
serving both the existing restaurant and the Project, and it will not have an unreasonable impact
on peak traffic.
We therefore conclude that the Project complies with Criterion 10 and need not consider
the Town’s Zoning Regulations for further interpretation of the Town Plan.
Shawn Cunningham’s Standing
In a post trial motion, Applicants ask the Court to dismiss Shawn Cunningham’s appeal
for lack of standing under Criterion 8 and this Court’s lack of subject matter jurisdiction
regarding his claims. Applicants argue that Mr. Cunningham, who lives approximately 4.5
miles from the project site, fails to allege an injury to a particularized interest protected by
Criterion 8, and therefore, cannot satisfy the minimum showing required for standing in this
Court under Act 250. In response, Mr. Cunningham testified at trial that he drives past the
proposed project site on a daily basis when driving his daughter back and forth between their
home and her school, on opposite sides of the project site. Mr. Cunningham further testified
that due to this drive he regularly views the proposed site two or more times per day. In his
opposition to Applicants’ motion, Mr. Cunningham argues that there is no evidence that other
members of the public share this level of exposure to the proposed development.
Standard for Standing
Whether a party has standing affects this Court’s subject matter jurisdiction. Bischoff v.
Bletz, 2008 VT 15, ¶ 15, 183 Vt. 235. As such, we review the pending motion under the standard
of review afforded by Rule 12(b)(1) of the Vermont Rules of Civil Procedure, which governs
motions to dismiss for lack of subject matter jurisdiction. In re Goddard College Conditional
Use, No. 175-12-11 Vtec, slip op. at 1 (Vt. Super. Ct. Envtl. Div. July 5, 2012) (Walsh, J.).
Therefore, we accept as true all uncontroverted factual allegations and construe them in the
24
light most favorable to the nonmoving party (here, Shawn Cunningham). Id.; see also Rheaume
v. Pallito, 2011 VT 72, ¶ 2, 190 Vt. 245. This Court has also recognized that “a party’s standing
or party status may be raised at any time.” 114 Coll. St. Permit Amendment, No. 227-09-06
Vtec, slip op. at 2 (Vt. Envtl. Ct. Dec. 14, 2007) (Wright, J.).
To have standing in this Court as a “person aggrieved” by a district commission
decision, an appellant must allege “an injury to a particularized interest” protected by Act 250
that is attributable to the decision and that can be redressed. 10 V.S.A. § 8504(a) and § 8502(7).
Thus, our inquiry involves the elements of standing articulated by the United States Supreme
Court and adopted by the Vermont Supreme Court. In re Champlain Marina, Inc., Dock
Expansion, No. 28-2-09 Vtec, slip op. at 5 (Vt. Envtl. Ct. July 31, 2009) (Durkin, J.); Lujan v.
Defenders of Wildlife, 504 U.S. 555, 560-61 (1992) (setting forth the federal standing
requirements); Hinesburg Sand & Gravel Co., Inc. v. State, 166 Vt. 337, 341 (1997) (adopting the
federal standing requirements).
First, Mr. Cunningham must demonstrate that he has an interest protected by Act 250
that is particular to him, rather than a general policy concern shared with the public. In re Pion
Sand & Gravel Pit, 245-12-09 Vtec, slip op. at 7 (Vt. Super. Ct. Envtl. Div. July 2, 2010) (Durkin,
J.). An interest may be particularized even if it is shared with multiple members of the general
public. In re McLean Enters. Corp., No. 2S1147-1-EB, Mem. of Decision at 7 (Vt. Envtl. Bd. Sept.
19, 2003) (noting the irrelevance of other individuals being similarly affected by a development
as long as the impacts on the parties are “particular to them, concrete, and [are not impacts]
affecting the common rights of all persons”). Second, Mr. Cunningham must show a reasonable
possibility that the district commission decision on the proposed project may affect his
particularized interest. In re Bennington Wal-mart Demolition/Constr. Permit, 158-10-11 Vtec,
slip op. at 9–10 (Vt. Super. Ct. Envtl. Div. Apr. 24, 2012) (Walsh, J.) (noting that “a party need
only refer to evidence that demonstrates a non-speculative causal connection between the
proposed project and [his or her] particularized interests”) (quoting In re Granville
Manufacturing Co., Inc., No. 2-1-11 Vtec, slip op. at 6 (Vt. Super. Ct. Envtl. Div. July 1, 2011)
(Durkin, J.) (internal quotations omitted)). We have specifically rejected the application of any
“heightened evidentiary standard, more akin to a merits review” when considering a party’s
standing. Id. at 10 n. 5. Finally, we note that the parties do not dispute whether any injury Mr.
Cunningham may experience could be redressed by a favorable decision.
25
Guided by these requirements, we consider whether Mr. Cunningham has standing
under Criterion 8 (impacts upon scenic or natural beauty, aesthetics, historic sites, or rare and
irreplaceable natural areas). We note that as a Chester resident, Mr. Cunningham has standing
under Criterion 10 (conformance with Town Plan), and Zaremba does not dispute this. See
Bennington Wal-mart Demolition/Constr. Permit, 158-10-11 Vtec, slip op. at 16 (finding
standing exists under Criterion 10 for any plaintiff that is a resident of the town in which
proposed development will be located). Mr. Cunningham has not argued that he has standing
under any criteria other than 8 and 10.
Criterion 8
Zaremba limits its motion to Mr. Cunningham’s lack of standing under Criterion 8.
Criterion 8 provides that prior to approving a project, the district commission must find that it
“[w]ill not have an undue adverse effect on the scenic or natural beauty of the area, aesthetics,
historic sites or rare and irreplaceable natural areas.” 10 V.S.A. § 6086(a)(8). Standing may be
conferred where a plaintiff establishes that they “use” the area that may be affected and will
therefore “directly” experience an alleged lessening of the “aesthetic and recreational values” of
the area. Sierra Club v. Morton, 405 U.S. 727, 735 (1972); see Lujan, 504 U.S. at 562-63. Thus,
while “generalized harm to the forest or the environment” will not alone support standing, if
that harm in fact affects the “recreational, or even the mere esthetic interests” of the plaintiff,
that will suffice. Summers v. Earth Island Inst., 555 U.S. 488, 494 (2009) (suggesting that
allegations that plaintiff’s organizational member had visited subject site, had imminent plans
to do so in the future, and would experience harm to his viewing of flora and fauna would have
been sufficient for standing); see In re Champlain Marina, Inc., Dock Expansion, No. 28-2-09
Vtec, slip op. at 6 (Vt. Envtl. Ct. July 31, 2009) (Durkin, J.).
Mr. Cunningham has testified that during the course of his daily activities as a Chester
resident, he regularly views the proposed project site and the surrounding area. Mr.
Cunningham resides within the same town as the project site, approximately 4.5 miles away,
and makes regular trips past the site when driving his daughter between their home and her
school. This, however, is not sufficient to establish that Mr. Cunningham has a particularized
interest in the aesthetic character of the project site. Mr. Cunningham does not drive by the
project site in order to take advantage of the aesthetic beauty of the area; he drives by because
the public highway connects his home and his daughter’s school. He therefore has no
26
particularized interest in the aesthetic character of the project site; his interest is the same as any
person who happens to drive this section of Route 103 on a regular basis. Simply driving by a
development project as part of a daily routine is not the same as the use of an area that creates a
particularized interest in the aesthetic character of that area, such as hiking, fishing, boating,
picnicking, or the like. Although Criterion 8 provides a broad protection against undue adverse
aesthetic impacts we cannot say Mr. Cunningham has an interest, particular to him, in the
aesthetic character of the project site. We therefore conclude that Mr. Cunningham does not
have standing in this appeal under Criterion 8. We do note that Mr. Cunningham testified at
trial to the potential aesthetic impacts of the Project. This testimony was relevant and
admissible whether he was testifying on his own behalf or as a witness for the other appellants
and we fully considered it in rendering this decision.
Conclusion
For the reasons discussed above, we conclude that the Project satisfies Criterion 1(D) as
the Project will not restrict or divert the flow of flood waters, will not significantly increase the
peak discharge of the river, and will not endanger the health, safety and welfare of the public or
riparian owners during flooding. We conclude that the Project complies with Criterion 5 as the
Project will not cause unreasonable congestion or unsafe conditions with respect to use of the
highways or other means of transportation existing or proposed. Although we conclude that
some of the Project’s aesthetic impacts may be adverse to the character of the area, we also
conclude that none of the aesthetic impacts will be “undue,” and as such, the Project as
proposed conforms to Act 250 Criterion 8. We condition our positive conclusion under
Criterion 8 on the following conditions:
1. Applicants shall replace the faux windows at the front of the Project building
with real windows.
2. Applicants shall replace the Amur Maples and Dwarf Rhododendron
proposed in the landscaping plan with similarly functioning species that are
native to Vermont.
We conclude that the Project complies with Criterion 10 because it does not conflict with any
mandatory and unambiguous policies of the Town Plan. Lastly, we conclude that Mr.
Cunningham does not have standing in this appeal under Criterion 8 because he has alleged no
particularized interest protected by that Criterion.
27
A Judgment Order accompanies this Decision. This completes the current proceedings
before this Court.
Done at Berlin, Vermont, this 14 day of February, 2014.
____________________________________
Thomas G. Walsh, Environmental Judge
28