                                 STATE OF VERMONT

                              ENVIRONMENTAL COURT

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In re: Cota Act 250 Land Use Permit (Altered) }         Docket No. 114-6-07 Vtec
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                                   Decision and Order

       Appellant-Applicants Eric and Geraldine Cota appealed from certain conditions

imposed in a decision of the District 6 Environmental Commission approving Act 250

Land Use Permit #6F0590(Altered) for an as-built garage. Appellant-Applicants (the

Cotas) are represented by Joseph F. Cahill, Jr., Esq.; Interested Persons Michaela and

Michael Ledden (the Leddens) are represented by Pamela A. Moreau, Esq. The Natural

Resources Board did not enter an appearance in this appeal.

       An evidentiary hearing was held in this matter before Merideth Wright,

Environmental Judge. A site visit was taken at the beginning of the hearing day, with

the parties and their representatives. The parties were given the opportunity to submit

written memoranda and requests for findings, and extended the time for these filings

by agreement. Upon consideration of the evidence as illustrated by the site visit, and of

the written memoranda and requests for findings filed by the parties, the Court finds

and concludes as follows.

       The Cotas own and occupy two parcels of property, each with frontage on the

easterly side of Route 118. A row of small, largely residential properties is located along

the easterly side of Route 118 in this area, each of which is approximately 75 to 175 feet

in width and approximately 150 feet in depth. The Cotas own and occupy one of these

small residential parcels, approximately ¾ of an acre in area, which they acquired in

1972. The rear (easterly) lot lines of the row of small parcels adjoin a large (16.3-acre)


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parcel formerly owned by Keegan, and acquired by the Cotas in 1988. That parcel

consists of approximately five acres of field adjoining the rear lot lines of the row of

small parcels, plus approximately 10.6 acres of woods beyond the field, plus one of the

small parcels with frontage along Route 118, northerly of and separated from the Cotas’

residential parcel by one other unrelated small residential parcel.

       The Leddens own and occupy a small residential parcel southerly of and

separated from the Cotas’ residential parcel by one other unrelated small residential

parcel. The Leddens’ residential lot fronts on Route 118; its easterly (rear) lot line of

87.11 feet in length, and an adjoining 22-foot-long segment of its northerly lot line

(sometimes referred to during trial as a “jog”) adjoin the Cotas’ 16.3-acre parcel.

       A pole barn or large shed is located on the Cotas’ 16.3-acre parcel, near the rear

lot line of the next property to the north of the Leddens’ residential property and just to

the south of the Cotas’ residential property. The open side of this pole barn faces

easterly; from time to time a dump truck formerly was parked to the southeast of the

pole barn close to the 22-foot-long segment of the Leddens’ northerly side lot line.

Conditions 17 and 18 of the Permit, which are not at issue in this appeal, now require

that the pole barn be used for activity associated with the Cotas’ nursery and

greenhouse business; that the Permittee “shall prohibit the storage, processing, loading,

sorting and sifting of any earth resources from behind the Ledden[s’] rear property line

and southeast of the pole barn;” and that “[t]he land to the southeast of the pole barn

shall be used for farming purposes as defined in [10 V.S.A.] § 6001(22).”

       Although the row of small properties lining both sides of the road is village-like

in character, and includes a bed-and-breakfast, a restaurant, an antiques shop open

part-time, and a massage business, as well as residences, Route 118 is a through road

and carries through traffic, including tractor-trailer and tandem-axle truck traffic. At

least twenty to twenty five such trucks per day, and seasonally as many as fifty or sixty

per day, pass in front of the Ledden and Cota residences on Route 118, some of which
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apply their engine brakes to slow down when passing through the village area.

However, the traffic noise is not so obtrusive or disturbing to the Leddens’ back yard

activities as is noise from the Cota 16.3-acre parcel.

       After the Cotas acquired the 16.3-acre parcel, they began to use it as a storage

area for the equipment used in Mr. Cota’s excavation and landscaping business, and to

stockpile materials for that business, which became Mr. Cota’s full time occupation in

the early 1990s. In addition, during the 1997 severe flooding in the Montgomery area,

the Town of Montgomery stockpiled large quantities of road repair materials in the area

of the Cota property behind and visible from the Leddens’ back yard.

       Mr. Cota operates an excavating and landscaping business from the property,

and stores equipment and supplies (sand, gravel, topsoil, and crushed stone) used in

the business on the 16.3-acre parcel. In the peak years of approximately 2000-2001,

when the business had two employees as well as Mr. Cota, the business used a number

of different pieces of heavy equipment to move material to, on, and from the property.

Mr. Cota had the 40’ x 62’ metal garage at issue in this appeal constructed on a slab

foundation on the 16.3-acre parcel in 2000, without then obtaining an Act 250 Permit.

The garage is intended to provide an indoor space for the storage and servicing of the

business equipment formerly stored in the open on the property.                The Cotas

subsequently applied for an as-built permit for the garage; certain conditions of that

permit are the subject of this appeal.

       The stockpiling activity involved deliveries to the property by tandem-axle

dump trucks, including the dumping of material and the banging of the tailgate to

dislodge sticky or soft earth material that did not slide out by gravity. It is possible to

remove such remaining soft or sticky material by shovel, to avoid banging the tailgate.

At the height of the business activity, as much as eight to ten tandem-axle dump truck

loads a day were brought to the property and stockpiled there, with work going on

during extended hours and on weekend days. The activity on the property during the
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peak years impaired the Leddens’ ability to fully enjoy their back yard. In particular it

was the unpredictibility of the work times that was a problem for the Leddens, so that

they could not count on any given day or time to be quiet.

       Since July of 2003, however, Mr. Cota’s health issues have resulted in a severely

reduced level of operation of his business. Currently, Mr. Cota anticipates being able

to work no more than one to three days in any week, during the approximately thirty-

week operating season from mid-April through the first week in November.

       In light of Mr. Cota’s reduced schedule, he has disposed of much of the

equipment. Specifically, the following equipment that was in use on the property

during the height of its use has been disposed of: a tandem-axle dump truck with a 20-

ton tag-along, an E110B Cat excavator, two grizzlies (stationary screening devices to

separate finer material from larger stones that would roll down the outside of the

screen), and a 3½-yard bucket loader used to feed material onto the grizzlies. Two

other pieces of equipment were being offered for sale as of the date of trial: a dozer and

a Traxcavator. The equipment remaining on the property for use in the business is a

one-ton (non-tandem-axle) dump truck, a nine-ton tag-along, a small PC40 light blue

excavator on rubber tracks, and a small red Kubota 4-wheel-drive tractor with several

attachments.

       In addition to disposing of equipment, the Cotas have disposed of or are in the

process of disposing of a pile of steel girders, a large tank, and a pile of large concrete

blocks. They are maintaining relatively reduced size piles of materials on the property

compared to during the peak period. The southerly and westerly area of the field

where the Town’s materials had been stored has also been cleaned up and seeded; some

of it is now used for agriculture and gardening. The Cotas eventually hope to sell the

16.3-acre property after it is fully cleaned up.

       Unappealed Conditions 8 (daytime- and weekday-only hours of operation), 10

(vehicle servicing indoors), 18 (prohibiting earth resource material work behind the
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Leddens’ rear property line and southeast of the pole barn) and 20 (prohibiting rock

crushing and screening), together with the fact that the operating season is April 15

through the first week in November, have reduced the potential for noise and visual

effects that might disturb the Leddens in the use of their property, compared to the

level of use at the height of operation of the business.

       Mr. Cota estimates that, at the current reduced level of the business, the total

number of tandem-axle dump truck loads of material that would be required to be

delivered to the property in an entire annual thirty-week season is approximately thirty

tandem-axle dump truck loads, but that he might require, for example, a delivery of up

to four such loads in a single week, followed by, for example, no such deliveries for six

weeks. However, now that the Cotas do not own a tandem-axle dump truck, the

landscaping and stone materials delivered to the property must either be delivered by

the gravel pit owner or by another supplier, both of whom use tandem-axle dump

trucks. Otherwise, if the material had to be collected in the Cotas’ one-ton dump truck,

it would require four or five times as many truck loads, as the one-ton dump truck must

make at least four or possibly five round trips to bring in the same amount of material

that can be carried by a single tandem-axle dump truck. The Cotas’ estimate of 30 truck

trips of deliveries to the property in each operating season was based on the tandem-

axle dump truck capacity.

       The noise of a tandem-axle dump truck is a deeper (lower frequency) noise

compared to that of a one-ton dump truck, and was experienced by the Leddens during

the height of operation of the business as more obtrusive.          However, no sound

measurements or expert evidence was presented as to the decibel level of that noise or

whether such noise is any louder (that is, at a greater decibel level) than that produced

by a one-ton dump truck. The Court finds that a more limited number of tandem-axle

truck deliveries to the property, if done with advance notice to the Leddens, will be less


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obtrusive and disturbing to the Leddens’ use of their back yard than four or five times

the number of one-ton dump truck deliveries.

       The District Commission granted the Act 250 Permit at issue in this appeal in

April of 2007 and altered its decision on May 29, 2007. The Cotas appealed Conditions

14, 15, 16, and 21, of the altered permit.

       Condition 14 required that:

       The Permittee shall install a six foot stockade fence[] along the Ledden[s’]
       rear property line (easterly) and 22’ along the Ledden[s’] [northerly1] line.
       The Permittee shall submit a site drawing depicting final location, fence
       type and fence color to the Commission and the Ledden[]s for review and
       approval within 60 days of the issuance of this permit. The Permittee
       shall apply for and secure all necessary local permits within six months of
       the issuance of this permit and shall install the fence within one year of
       the issuance of this permit. The Permittee shall be responsible for the
       maintenance of the fence.


       The parties agreed on the record of the hearing that a six-foot-high stockade

fence as provided in Condition 14 will be installed on the Ledden property line where it

adjoins the Cota 16.3-acre parcel, and that the Leddens will allow access to their

property so that the fence can be installed with the face side (so-called ‘good’ side)

facing the Ledden property. The Leddens agree to the design and appearance of the

fence as shown on Exhibits 1 and 2, and that the face side of the fence need not be

painted by the Cotas.

       Condition 15 required that:

       The Permittee shall plant a double row of pine trees (6’–8’ in height),
       spaced 10’ on center[,] behind the entire length of the fence on the
       Permittee property and shall be maintained by the Permittee. Should the


1  The text says “southerly,” but all parties agreed at trial that it was meant to refer to
the segment of the Ledden’s northerly lot line adjoining the Cotas property and running
to the southeasterly corner of the next property to the north.
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      Ledden[]s and the Permittee reach some other mutually accepted solution,
      they shall contact the Commission for review and approval.
      The purpose of the tree planting required by Condition 15 is to block or

minimize the visual and aural impacts of the Cotas’ excavating and landscaping

business activities from the Leddens’ deck and back yard, to the extent that those

activities can be heard or seen above the proposed fence. Although pine trees provide a

dense visual screen, a screen of pine trees is not appropriate in the location imposed by

Condition 15, because that species will grow too large and will shade the Leddens’

existing trees, shrubs and garden from the east; because the dropping of the pine

needles will render the soil acidic and may adversely affect the health of the existing

trees, shrubs and flower garden in the Leddens’ back yard; and because tree limbs may

fall in windy conditions and damage the fence and the Leddens’ existing trees and

shrubs. Cedars are also not an appropriate species as they are likely to be eaten by deer.

      Mr. Cota suggested in evidence that balsam firs may be a better species to use,

although there was no evidence as to the height at maturity of balsam firs. Although

the purpose of the tree screening is to supplement the fence during the operating season

of the Cota business (and the season during which the Leddens use their deck and back

yard), no evidence was presented as to whether any deciduous tree species might be a

more appropriate choice.

      Several beautiful mature lilac trees are located at the easterly end of the Leddens’

back yard which now provide the necessary screening above the fence during the

season of operation of the Cota business. At present, it will provide sufficient screening

to plant new trees for screening purposes only in the 35-foot-long area marked with

three Xs on Joint Exhibit 3. Only if and when the Leddens’ large lilac trees die or must

be removed would it be necessary to add screening trees to replace them.

      Condition 16 provided that: “[t]here shall be no more than one truck trip per

week that delivers earth resource material to the landscaping and excavating business

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in any year of operation.” Condition 21 provided that “[t]he use of tandem axle trucks

for use in the excavating and landscaping business shall be prohibited.”

      To achieve the delivery of up to thirty tandem-axle loads of material in the thirty-

week season as required for the Cota business, while protecting the Leddens’ use of

their deck and back yard, Conditions 16 and 21, taken together, must be amended to

allow deliveries by tandem-axle truck, but to limit the numbers of deliveries in any

week and any operating season, and to provide advance notice to the Leddens.



      Accordingly, based on the foregoing, it is hereby ORDERED and ADJUDGED as

follows (new text shown in bold type, deleted material shown in strike through type):

      Condition 14 is hereby amended as follows:

             The Permittee shall install a six-foot stockade fence along the
      Leddens’ rear (easterly) property line and 22’ along the Leddens’
      northerly line, where the Leddens’ property line abuts the Cota property.
      The Leddens agree to allow entry onto their property as necessary for
      the installation of the fence, during reasonable hours and upon
      reasonable advance notice. As agreed by the Cotas and the Leddens, the
      fence shall be similar in design and appearance to Exhibits 1 and 2, and
      shall be installed unpainted and with the face side towards the
      Leddens’ property. The Permittee shall submit a site drawing depicting
      final location, fence type and fence color to the Commission and the
      Ledden[]s for review and approval within 60 days of the issuance of this
      permit. The Permittee shall apply for and secure all necessary local
      permits to construct the fence within three six months of the issuance of
      this permit and shall install the fence within one year of the issuance of
      this permit. The Permittee shall be responsible for the maintenance of the
      fence to the extent that the fence can be reached from the Cota property,
      but the Permittee is not required to paint or otherwise maintain the face
      of the fence facing the Leddens’ property.


      Condition 15 is hereby amended as follows:

      The Permittee shall plant a double row of balsam fir pine trees (6’–8’ in
      height at planting), spaced 10’ on center, behind the portion entire length

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      of the fence on the Permittee property installed under condition 14 above
      that is marked on Joint Exh. 3 with three X’s, for a total of 35 feet in
      length; and the trees shall be maintained by the Permittee. Should the If
      and when the mature lilac trees near the Ledden rear property line die
      or are removed as diseased or unsafe, the Permittee shall plant
      additional balsam fir trees as above, along the remainder of the fence
      along the Ledden easterly property line, unless at that time either the
      Leddens and or the Permittee, or their successors, reach some other
      mutually accepted solution, they shall contact apply to the Commission
      for amendment of this condition review and approval.


      Condition 16 is hereby amended as follows:

      There shall be no more than four truck trips one truck trip in any
      calendar per week, and shall be no more than a total of thirty such truck
      trips in any operating year (April 15 through the first week of
      November) that deliver earth resource material to the Permittee’s
      landscaping and excavating business in any year of operation. All such
      deliveries shall occur only during the permitted operating hours as
      provided in Condition 8. Other than under emergency conditions,
      twenty-four hours’ prior notice shall be provided to the Leddens, by
      telephone or other method of their choice, of the schedule for such trips,
      and all trips for a given week shall be scheduled on a single day of that
      week. Banging of tailgates is prohibited; any soft or sticky material that
      does not slide out shall be removed by an alternative method.
      Condition 21 is hereby amended as follows:

      The use of tandem-axle trucks for use in the excavating and landscaping
      business on the property is shall be prohibited except for the truck trips
      allowed by Condition 16, which may be conducted by tandem-axle
      trucks.


      This decision concludes this appeal; it is remanded to the District 6

Environmental Commission only to the extent necessary for it to issue a further altered

Land Use Permit #6F0590 to conform to the changes ordered in this decision. Any




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requests for or agreements to further changes in the conditions of Land Use Permit

#6F0590, as so altered, must be made to the District Commission in the first instance.



      Done at Berlin, Vermont, this 14th day of January, 2009.




             _________________________________________________
                   Merideth Wright
                   Environmental Judge




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