









2014 VT 124










In re Goddard College Conditional
Use, Goddard College Act 250 Reconsideration (Bouffard, Appellant) (2014-049)
 
2014 VT 124
 
[Filed 21-Nov-2014]
 
NOTICE:  This opinion is
subject to motions for reargument under V.R.A.P. 40 as well as formal revision
before publication in the Vermont Reports.  Readers are requested to
notify the Reporter of Decisions by email at: JUD.Reporter@state.vt.us or by
mail at: Vermont Supreme Court, 109 State Street, Montpelier, Vermont
05609-0801, of any errors in order that corrections may be made before this
opinion goes to press.
 
 



2014 VT 124



 



No.  2014-049



 



In re Goddard College
  Conditional Use


Supreme Court




 


 




In re Goddard College Act 250 Reconsideration


On Appeal from




(Karen Bouffard, Appellant)
 


Superior Court,
Environmental Division




 


 




 


 




 


September Term, 2014




 


 




 


 




Thomas
  G. Walsh, J.




 



Brice Simon of Breton & Simon, PLC,
Stowe, for Appellant.
 
Geoffrey H. Hand and Elizabeth H. Catlin of Dunkiel Saunders Elliott Raubvogel
& Hand,
  PLLC, Burlington, for Appellee.
 
William H. Sorrell, Attorney General, and Robert F.
McDougall and Scot L. Kline, Assistant
  Attorneys General, Montpelier, for Amicus Curiae
Vermont Natural Resources Board.
 
 
PRESENT:    Reiber,
C.J., Dooley, Skoglund and Robinson, JJ., and Maley, Supr. J.,
                    
Specially Assigned
 
 
¶ 1.            
ROBINSON, J.   This case raises the issue of whether
Act 250 requires consideration of alternative siting in every case in which a
party objects to a proposed land-use project on aesthetic grounds, pursuant to
10 V.S.A. § 6086(a)(8), without regard to the presence of competent
evidence supporting alternative siting as a reasonable mitigating
measure.  Appellant Karen Bouffard (Neighbor), a
neighboring resident, challenges the Superior Court, Environmental Division’s
grant of an Act 250 permit to Goddard College to build a woodchip heating
system on its campus in Plainfield, arguing that the court failed to properly
consider measures to mitigate the aesthetic impact of the project by siting it
elsewhere on the college property.  We affirm. 
¶ 2.            
 The college obtained an Act 250 permit from District Environmental
Commission No. 5 in 2012, authorizing it to replace individual oil-fired
systems in each of twenty-three campus buildings with a new central woodchip
boiler system on its campus in Plainfield.  The project includes a
2,469-square-foot building, distribution pipeline, woodchip-storage area, and
access roadway.
¶ 3.            
Several area residents appealed to the Environmental Division for de
novo review.  Residents raised several claims, and the court rejected each
of them in an April 2013 decision on the college’s motion for summary judgment
and a January 2014 decision on the merits.  With respect to Criterion 8 of
Act 250, the court found that while there would be adverse aesthetic impacts
from the project, these impacts would not be unduly adverse.  Neighbor now
appeals, challenging the Environmental Division’s conclusions with respect to
the aesthetics criterion.  In particular, neighbor argues that the court
erred in refusing to consider relocation of the project within the project
tract, and that its analysis concerning mitigation of the project’s adverse
aesthetic impacts was not supported by adequate factual findings that are
themselves supported by the record.
¶ 4.            
The Environmental Division “determines the credibility of witnesses and
weighs the persuasive effect of evidence, and we will not overturn its factual
findings unless, taking them in the light most favorable to the prevailing
party, they are clearly erroneous.”  In re Vill. Assocs. Act 250 Land Use Permit,
2010 VT 42A, ¶ 7, 188 Vt. 113, 998 A.2d 712 (quotation omitted).  We
review “the environmental court’s rulings on questions of law or statutory
interpretation de novo.” In re Grp. Five Invs. CU Permit, 2014 VT 14, ¶ 4, ___ Vt.
___, 93 A.3d 111.
 
¶ 5.            
Act 250 requires the district environmental commission, before granting
a permit, to find that the proposed project meets ten statutory criteria. 
10 V.S.A. § 6086(a).  Criterion 8 requires,
among other things, that the project “not have an undue adverse effect on the
scenic or natural beauty of the area” or “aesthetics.”  Id.
§ 6086 (a)(8).  Although the applicant has
the burden of proof with respect to many of the Act 250 criteria, the burden of
proof for Criterion 8 is “on any party opposing the applicant.”  Id.
§ 6088(b); see also In re Denio, 158 Vt.
230, 236, 608 A.2d 1166, 1170 (1992) (noting that § 6088(b) allocates
burden to “party opposing the applicant . . . to
show an unreasonable or adverse effect”).[1]
¶ 6.            
In making Criterion 8 determinations, the district commissions and the Environmental
Division, like this Court, apply the two-step Quechee
test.  In re Rinkers, Inc.,
2011 VT 78, ¶ 9, 190 Vt. 567, 27 A.3d 334 (mem.) (applying test of In re Quechee
Lakes Corp., Nos.  3W0411-EB & 3W0439-EB,
slip op. at 17-18 (Vt. Envtl. Bd.
Nov. 4, 1985),
http://www.nrb.state.vt.us/lup/decisions/1985/3w0439-eb-fco.pdf). 
The first step is determining whether the project “ ‘will
have an adverse impact on aesthetics and the scenic and natural beauty of an
area because it would not be in harmony with its surroundings.’ ”  In
re Chaves Act 250 Permit Reconsider, 2014 VT 5, ¶ 23, ___ Vt. ___, 93
A.3d 69 (quoting In re Halnon, 174 Vt. 514,
515, 811 A.2d 161, 163 (2002) (mem.)).  If the project will have an
adverse impact, the second question is whether the adverse impact will be “undue.”  Rinkers, 2011 VT 78, ¶ 9.  An adverse impact is “undue”
if (1) the project “violates a clear, written community standard intended to
preserve the aesthetics or scenic, natural beauty of the area,” (2) the project
“offends the sensibilities of the average person,” or (3) “the applicant has
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 Eastview
at Middlebury, Inc., 2009 VT 98, ¶ 20, 187 Vt. 208, 992 A.2d 1014.
¶ 7.            
The Environmental Division found, and neither party contests on appeal
that the project will have adverse impact.  This case deals with the narrow
issue of the third factor in the undue-impact analysis: whether the college
failed to take reasonable and generally available mitigating steps to improve
the harmony of the proposed project with its surroundings in a way that makes
the project’s impacts unduly adverse.
¶ 8.            
A generally available mitigating step “is one that is reasonably
feasible and does not frustrate the project’s purpose or Act 250’s
goals.”  In re Stokes Commc’ns
Corp., 164 Vt. 30, 39, 664 A.2d 712, 718 (1995).  Considering
in detail the baseline character of the area and the evidence about the type,
impact, and frequency of project effects, the trial court found that the
college had taken “reasonable steps” to improve the harmony of the buildings
with the surroundings.  Specifically, the court found that project
buildings would be similar in style, color, size, and scale to other buildings
in the area; that the project was compatible with its surroundings (“fit”);
that sporadic noise would be limited and not undue; and that vegetation and
landscaping would reduce the visibility of the project.  Neighbor does not
challenge these findings on appeal.
¶ 9.            
Neighbor makes two arguments.  The first is an evidentiary
one.  Neighbor contends that the Environmental Division “refused to” allow
presentation of evidence on relocation of the project elsewhere on the campus
as a generally available mitigating step.  This contention is not
supported by the record.  There was no evidentiary ruling by the trial
court denying neighbor the ability to present evidence of alternative project
sites in support of the claim that reasonable, generally available mitigating
steps were not taken.  The college raised a hearsay objection after
neighbor’s attorney asked neighbor during her testimony whether any
representatives of the college had made any statements about “other possible
locations” for the project.  In response, neighbor argued that the
question was relevant to whether the college had taken reasonable mitigating measures. 
The court expressed skepticism about the suggestion that re-siting the project
qualified as a mitigating measure, rather than a new project, but allowed the
testimony, stating: “[T]o the extent your examination leads to . . . other
areas on their campus that they could propose this . . . I’m not going to
strike that from the record.  I’m not sure how much I will rely on that in
my decision.”  Neighbor then testified that a representative of the
college had told her that the college had previously considered, and rejected,
other sites for the project.  She did not proffer any further evidence on
the subject.  In sum, the only relevant evidentiary ruling made was in
favor of neighbor, and neighbor was not barred in any way from presenting
evidence on alternative sites.  
¶ 10.        
Neighbor next argues that the Environmental Division erred substantively
in its Criterion 8 determination that the aesthetic impact of the project would
not be unduly adverse.  Neighbor asserts that the court’s analysis “lacks sufficient
findings, or conclusions derived from evidence in the record, to support the
contention that reasonabl[y] available mitigation
occurred.”  Neighbor complains that “missing from the lower court’s
analysis” is an indication that the college or the court
“thoroughly review[ed]” mitigating steps,
“including relocation within the project tract.”
¶ 11.        
We reject this claim.  The trial court’s analysis is well-grounded
in substantial evidence derived from the record, and it is not arbitrary, capricious,
or clearly erroneous.  The court’s lack of discussion regarding a
relocation of the project to some other site on college’s campus is not grounds
for reversal here.  We need not and do not decide the question raised by
the court during the hearing below: whether alternative siting within a project
tract may be considered as a reasonable mitigating measure (as opposed to a
whole different project not subject to consideration in an Act 250 permitting
proceeding).[2] 
Assuming without deciding that the court can consider proposed alternative
siting as a reasonable mitigating measure in the undue-impact analysis,
neighbor in this case failed to produce any competent evidence to support an
alternative siting argument.
¶ 12.        
As noted above, in Criterion 8 challenges, the burden of proof is on the
party opposing the application to show an unreasonable or adverse effect. 
10 V.S.A. § 6088(b).  “[I]n the absence of
evidence on the issue, or where the evidence is indecisive, the issue must be
decided in the applicant’s favor.”  Denio,
158 Vt. at 237, 608 A.2d at 1170.  Simply put, in
these cases it is the objecting party’s job—not the applicant’s or the
court’s—to adduce substantial evidence showing an unduly adverse effect on
aesthetics or scenic views.  That burden includes the duty to demonstrate
the availability of reasonable mitigating steps to improve the project’s
harmony with its surroundings if the failure to take reasonable mitigating
steps is a basis for an undue-adverse-impact challenge.  Here, neighbor
put forth almost no competent evidence on the issue of alternative
siting.  The only testimony transcribed for the record on appeal is
neighbor’s own.  We assume it is the only testimony that potentially
supports her contention.  See V.R.A.P. 10(b)(1) (“By failing to order a
transcript, the appellant waives the right to raise any issue for which a
transcript is necessary for informed appellate review”); Evans v. Cote,
2014 VT 104, ¶ 7, ___ Vt. ___, ___ A.3d. ___ (“Without the transcript,
this Court assumes that the trial court’s findings are supported by the
evidence.”).  At trial, neighbor testified that a college representative
told her “that there were at least two, possibly three other sites that [the college]
considered before” selecting the site at issue, and that the college did not
want to locate the project near historic buildings.  Beyond this, neighbor
presented no evidence that, for example, a suitable alternate site is
“reasonably feasible” (i.e., it would not frustrate the project’s purpose or
Act 250’s goals), or that the alternative satisfies the criteria under
§ 6086(a) and any other applicable permitting requirements.  Because
neighbor does not even remotely present substantial evidence on the issue of
siting, we need not decide whether, to what extent, and under what
circumstances shifting the location of a proposed project within the same tract
may be a mitigating step under Criterion 8.
Affirmed.
 



 


 


FOR THE COURT:




 


 


 




 


 


 




 


 


 




 


 


Associate
  Justice



 









[1] 
Neighbor relies on a 1986 decision of the former Environmental Board to argue
that applicant bears the burden of persuasion on this issue.  In re
Thomas, No. 2W0644-EB, slip op. at 8 (Vt. Envtl. Bd. Feb. 18, 1986),
http://www.nrb.state.vt.us/lup/decisions/1986/2w0644-eb-fco.pdf. 
We reject that holding as inconsistent with the applicable statute and case
law.


[2]
 See In re Vt. Elec. Power Co., No. #7C0565-EB,
slip op. at 4-5 (Vt. Envtl. Bd. Dec. 12,
1984), http://www.nrb.state.vt.us/lup/decisions/1984/7c0565-eb-lup.pdf
(holding, in pre-Quechee decision, that
potential alternative siting is not a permissible consideration under Act
250).  But see In re Rinkers, Inc., No.
302-12-08 Vtec, slip op. at 21 (Vt. Envtl. Ct. May 17, 2010),
https://www.vermontjudiciary.org/gtc/environmental/ENVCRTOpinions2000-2004/08-302c.Rinkers.dec.pdf
(“[I]n the context of the aesthetics subcriterion of
Act 250, an examination of alternative locations for a telecommunications tower
is only relevant to determining whether [a]pplicants
have taken the generally available mitigating steps that a reasonable person
would take to improve the harmony of the proposed project with its
surroundings.”), aff’d, 2011 VT 78, 190 Vt.
567, 27 A.3d 334 (mem.).



