                                          STATE OF VERMONT
                                      ENVIRONMENTAL COURT

                                                         }
In re: Eastview at Middlebury, Inc.                      }
  (Appeal of Act 250 Permit #9A0314)                     }             Docket No. 256-11-06 Vtec
                                                         }

                                       Decision on Request to Alter

        Appellant Miriam Roemischer requests that this Court alter its February 15, 2008
Decision on her appeal of the October 6, 2006, District #9 Environmental Commission (“District
Commission”) issuance of Act 250 Permit #9A0314 for the Eastview at Middlebury, Inc.
(“Eastview”) multi-level residential retirement community project adjacent to the Porter Hospital
on South Street in Middlebury (hereinafter referred to as the “Eastview Project”). Appellant
expresses four distinct concerns about the 2008 Merits Decision. We take each of them in turn.
In this regard, we agree that the concerns Appellant expresses merit reconsideration.

A.      Was the estimate of impacted agricultural soils accurate?
        In considering whether the Eastview project, as currently proposed, conforms with Act
250 Criterion 9(B) (i.e., 10 V.S.A. § 6086(a)(9(B)1), the district commission in the first instance,
and this Court on appeal, must make an initial determination of whether the project will
“significantly reduce the agricultural potential of the primary agricultural soils” located on the
project site. Id. An initial function of making this determination is arriving at estimates of (a)
the total size of the project; (b) the portion of the project site that contains primary agricultural
soils; and (c) the portion of the estimated primary agricultural soils on the project site that will be
consumed by the proposed project.
        Such estimates of land mass and the portions which contain primary agricultural soils is
not an exact science. Estimates on the size of Vermont land parcels often contain symbols such
as “±” and phrases such as “approximately” and “about.” This Court’s skills at calculating the



1
  Appellant also contends that the Court incorrectly applied the applicable version of § 6086(a)(9)(B), which was
amended while the Eastview Act 250 application was pending. That challenge is addressed below. Both the pre-
and post-2007 amendments to § 6086(a)(9)(B) require the district commission in the first instance, and this Court on
appeal, to estimate whether a proposed project will “significantly reduce the agricultural potential of the primary
agricultural soils . . ..” Id.
exact size of land parcels is equally subject to approximations. However, Appellant seems to be
confused about the findings rendered by the Court.
        The Court specifically determined that the Eastview project site, as currently proposed,
“contains 40 acres, 30 acres of which Eastview proposes to develop for its project.” Finding
¶ 51, Merits Decision at p. 19. The undisputed evidence, and the Court so found, was that a
significant portion of the 30± acres that Eastview proposed to develop contained primary
agricultural soils.
        But the undisputed evidence at trial also showed, and the Court so found, that portions of
the 30± acres proposed for development also contained other features, such a wetlands, a large
hedgerow and outcroppings of trees and rocks. The Court estimated that these areas should not
be included in the category of primary agricultural soils. The Court therefore attempted to
estimate that portion of the primary agricultural soils on the Eastview site that the Eastview
project would specifically remove from potential agricultural use.                     The Court reached the
estimate of 20± acres.2
         Some evidence and testimony admitted at trial, including the Mitigation Agreement
(Exhibit 40) entered into between Eastview, the Vermont Agency of Agriculture, Food &
Markets and the Vermont Housing & Conservation Board, estimated that the Eastview site
contained 30 acres of primary agricultural soils.3 The Court considered such testimony to be just
that: estimates.       In viewing all the evidence—a substantial portion of which was not
contradicted—the Court became concerned as to how portions of this land, including wetlands
and the large tree and rock outcroppings, could be considered primary agricultural soils. It
appeared that the parties to the Mitigation Agreement felt it unimportant to their discussions to
consider whether wetlands or rock outcroppings could be put to agricultural uses. The Court
believed it inappropriate to ignore these site characteristics. Thus, the Court arrived at an
estimate of 20± acres, which should be read as an estimate of the amount of primary agricultural
soils on the project site that the Eastview project would remove from potential agricultural
productivity.



2
  The Court specifically concluded that of the total 40± acres within the proposed Eastview site, “as much as 30
acres of the Eastview site contains primary agricultural soils and that the Eastview Project will permanently convert
20 acres of those agricultural soils to residential and institutional uses.” Merits Decision at p. 21.
3
  Exhibit 40 at Bates Stamp page 500.


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          Thankfully, this initial component of Criterion 9(B) does not require a more exact
calculation in determining the amount of primary agricultural soils that a proposed project will
impact; it merely directs a determination as to whether the proposed project will result in a
“significant” reduction of the agricultural use potential of primary agricultural soils. Precedent
from the former Environmental Board, which we are directed to afford the same weight as
precedent from this Court,4 does not mandate an exact calculation of the specific acreage, but
rather whether a “significant” portion of primary agricultural soils on the site will be impacted.
The former Environmental Board regarded more than half to be “significant.” See Re: Reynolds
and Cadreact, Docket No. 4C1117-EB, Findings of Fact, Conclusions of Law and Order at 7 (Vt.
Envtl. Bd. May 27, 2004).5
          The undisputed evidence was, and the Court so found, such a significant impact to be a
direct consequence of the Eastview project. For these reasons, we do not see the need to disturb
our findings or legal conclusions that estimate (a) the total size of the project site (40± acres); (b)
the portion of the project site that contains primary agricultural soils (as much as 30± acres); and
(c) the portion of the estimated total of primary agricultural soils on the project site that will be
consumed by the proposed project (20± acres).

B.        Did the Court apply the correct version of 10 V.S.A. § 6086(a)(9)(B)?
          Applicant Roemischer correctly notes that Eastview submitted its Act 250 permit
application to the District #9 Environmental Commission on November 14, 2005 and that the
version of 10 V.S.A. § 6086(a)(9)(B) then in effect was different than that referenced in the
Merits Decision at pp. 21-22. We therefore must determine whether we applied the correct
version of the statute and, if not, whether that is grounds to alter our Merits Decision.



4
    See 10 V.S.A. §8405(m).
5
   In reviewing the former Environmental Board decisions cited by Appellant in her Proposed Findings of Fact and
Conclusions of Law at p. 38 (Sept. 6, 2007), we did not find the 1/3rd definition for “significant” that Appellant
suggested. See Re: Times and Seasons, LLC, et. al., Docket No. 3W0839-2-EB, Findings of Fact, Conclusions of
Law and Order at 52, (Vt. Envtl. Bd. May 27, 2004) (finding that development on “two-thirds of the primary
agricultural soils on the site constitutes a significant reduction in the agricultural potential of such soils.”) (reversed
on other grounds, In re: Times & Seasons, LLC, 2008 VT 7); and Re: Southwest Vermont Health Care Corporation,
Docket No. 8B0537-EB, Findings of Fact, Conclusions of Law and Order at 38, (Vt. Envtl. Bd. Feb. 22, 2001)
(“loss of one-third of the primary agricultural soils on a site constitutes a reduction in the agricultural potential of
such soils.”)




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         The first portions of both versions of 10 V.S.A. § 6086(a)(9)(B)6 are initially similar, in
that they ask the district commission in the first instance, and this Court on appeal, whether the
proposed project will significantly reduce the agricultural potential of the primary agricultural
soils on the project site. If this question is answered in the negative, and the project otherwise
conforms with “all other applicable [Act 250] criteria,” both statutes direct that an Act 250
permit “will be granted . . ..” Id. If, however, the determination is made that the project will
impact primary agricultural soils on the project site, then an Act 250 permit may not issue, unless
several subsections are satisfied. Compare subsections (i)–(iv) of the 2005 and 2007 Statutes.
These two statutory versions of the second alternative for Criterion 9(B) compliance are
substantially similar, except for language in subsection (i) of the 2005 Statute that is not found in
the 2007 Statute.         Specifically, for projects that will impact primary agricultural soils,
§ 6086(a)(9)(B)(i) (2005) limits Act 250 approval under Criterion 9(B) to those projects where
doing so is the “only” means by which “the applicant can realize a reasonable return on the fair
market value of his land . . ..” Id.
         First, the Court wishes to note for the parties, and offer our regrets, that we relied upon
the 2007 Statute in our Merits Decision. We were not aware of the distinction and referred to the
2007 Statute without an understanding of this distinction. We therefore turn to an analysis of
whether the application of the 2007 Statute to this application was improper or warrants
alteration of our Merits Decision.
         In comparing the subsections of both statutes, we note that subsections (ii) and (iii) are
identical, except for an initial phrase in the 2007 Statute that we determined was not applicable
to our analysis. See Merits Decision at 22 (finding that recent amendments to the Middlebury
Town Plan that possibly would include the Eastview site in a designated growth center does not
impact our analysis). In a similar vein, subsection (i) of the 2007 Statute repeats the requirement
contained in subsection (iv) of the 2005 Statute that there be a determination that the proposed
project “will not significantly interfere with or jeopardize the continuation of agricultural or
forestry on adjoining lands . . ..” We specifically rendered positive findings on all these sub-
sections. Merits Decision at 22.



6
  We follow both parties’ lead in hereinafter referring to the two versions of 10 V.S.A. § 6086(a)(9)(B) as the “2005
Statute” and the “2007 Statute.”


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        Thus, the only provision remaining from either statute is subsection (i) from the 2005
Statute.   This provision states that a project may still obtain Act 250 approval, even if it
significantly impacts agricultural soils, if it is shown that “the applicant can realize a reasonable
return on the fair market value of his land only by devoting the primary agricultural soils to uses
which will significantly reduce their agricultural potential . . ..” Id.
        We note that the Merits Decision includes a discussion of the characteristics of this site
that, due to its proximity to the Porter Hospital facilities and the village center, make it the most
ideal site for the Eastview facility. Id. at 22. We also concluded that because the co-applicants,
including the current fee title holder of the site, Middlebury College, own no lands, other than
those that contain significant agricultural soils. We concluded that this project, if sited on any
other available lands, would still have an impact on primary agricultural soils. Id. at 22. We
therefore turned to other evidence offered by Eastview to determine whether its project could
conform to Criterion 9(B).
        In this regard, we specifically reject Appellant’s current argument that agricultural
mitigation agreements were not an accepted basis for conformance with 10 V.S.A.
§ 6086(a)(9(B)(i) (2005). Agricultural mitigation agreements have long been relied upon for
conformance with Criterion 9(B). See Re: Southwest Vermont Health Care Corporation, supra,
at 38–40 (citing Re: J. Philip Gerbode, Docket No. 6F0357R-EB, Findings of Fact, Conclusions
of Law and Order at 9 (Vt. Envtl. Bd. March 26, 1991)) (finding conformance with
§6086(a)(9(B)(i), even where a significant impact on agricultural soils would occur, because
such impact would be adequately offset by an agricultural mitigation agreement offered by the
applicant). Our Supreme Court has also acknowledged that the mitigation program, administered
by the Vermont Department of Agriculture, can be a legal and legitimate means by which
projects that will impact agricultural soils may gain Act 250 approval under Criterion 9(B). See
In re: Nehemiah Associates, Inc., 168 Vt. 288, 290-91 (1998). Thus, agricultural mitigation
agreements have long been acknowledged as a proper vehicle for Criterion 9(B) conformance,
even though the 2005 Statute made no reference to such agreements. The Legislature addressed
this in its 2007 amendments to § 6086(a)(9)(B), including a specific reference in subsection (iv)
to agricultural mitigation agreements and the deletion of subsection (i) from the 2005 Statute, as
it did not contain specific authorization for the use of mitigation agreements. In this regard, we
see no substantive difference between the application of Criterion 9(B) before and after the 2007



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amendments, particularly in light of the well reasoned precedent from the former Environmental
Board.
         Eastview also claims that the 2007 Statute should be followed in this appeal, both
because it is remedial in nature and because, as the applicant, it alone has the right to claim the
benefit of a favorable change in law while its application is pending. These arguments have
merit, yet we decline to address them in detail in light of the foundation detailed above for our
determination that our Findings and Conclusions as to Criterion 9(B) need not be changed.

C.       Did the Court find that the additional 10 acres will be used for agriculture?
         Appellant next claims that there was no evidence to support a finding that the ten acres
within the Eastview site that is not proposed for development “will be used for agriculture.”
Appellant is partially correct; there is no support for such a finding in the record. But she is
mistaken that the Court made such a finding. The specific conclusion Appellant attacks made no
such prediction; rather, we concluded that the ten acres of the project site reserved from
development “are capable of contributing to an economic or commercial agricultural operation,
particularly if joined with the other agricultural lands located nearby.” Merits Decision at 22.
         Both the 2005 and 2007 versions of Criterion 9(B) requires the Court to determine
whether the “development has been planned to minimize the reduction of agricultural potential
of the primary agricultural soils . . ..” 10 V.S.A. § 6086(a)(9)(B)(iii). We concluded that
Eastview had satisfied this subsection by including ten acres in the project site on which
development has not been proposed. Id. at ¶57, p. 20. We also concluded that Eastview had
reduced the impact on the potential use of agricultural soils by reducing “the total number of
units from 116 to 101 and further cluster[ing] the to-be-developed area, so as to reduce the
amount of agricultural soils impacted.” Id.
         Little dispute was offered at trial over the importance of the primary agricultural soils on
and adjacent to the Eastview site. But it was also generally undisputed that, even prior to
Eastview’s proposal, these lands have only been used for viable agricultural purposes on an
intermittent basis and, when used, were leased at rates well below the market for primary
agricultural lands. Id. at ¶52, p. 20. Thus, an unconditional prediction that this ten acres “will
be” used for agricultural purposes is not supported by the record, was not made by this Court and
is not a required finding under Criterion 9(B).




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         Appellant also argues that our findings are deficient because “there is a possibility that
[Eastview] would expand in the future” onto the ten acres not now slated for development.
Appellant’s motion to alter at 6. We decline to consider this argument, as it contemplates a
possible future development proposal that is not the subject of our jurisdictional authority in this
appeal. To consider it would require the rendering of an impermissible advisory opinion. In re:
Appeal of 232511 Investments, Ltd. d/b/a Stowe Highlands, 2006 VT 27 at ¶19. We decline to
do so.

D.       Did the Court rely on undisclosed site visit observations?
         Lastly, Appellant asserts that the Court relied upon its own observations during the site
visit that preceded the first day of trial, and that the Court failed to disclose these site visit
observations. Appellant is mistaken. The Court merely gave notice in its Merits Decision that
some of the factual representations presented at trial were better understood by the Court, in light
of the site visit the Court conducted with the parties. Id. at 5 and 20, n. 14. The Court
specifically noted that some of the trial evidence was “put into context by the site visit the Court
conducted with the parties prior to trial.” Id. There were no site visit observations, absent from
the evidence admitted at trial, upon which the Court relied in rendering its findings.
         Site visits fulfill an important function of giving the parties’ representations a context
within which the Court may better understand the evidence offered at trial, particularly for a trial
judge who is not familiar with the project site and the neighborhood that surrounds it. This
concept does not employ new evidence not offered by or disclosed to the parties; it helps the
Court put into context the verbal representations and two-dimensional site plans offered at trial.
Some examples from the Eastview trial include the hedgerow and outcropping of trees and rocks
on the project site.    All parties fully understood the verbal and two-dimensional site plan
references to these objects. The Court did not, at least until it conducted the site visit on the first
day of trial.
         The Court always attempts to make clear, both at site visits and the beginning of trials,
that while site visits have always served an important function, they do not constitute evidence
upon which this Court can base its findings; any site visit observations or representations a party
intends to rely upon must be repeated and referenced at trial. Through long experience with
district commission proceedings, this jurist has concluded that it is improper in rendering
findings to rely upon site visit observations, unless such evidence is specifically introduced by a


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party at trial. Rather, a site visit serves an important function of giving context to the parties’
representations for the fact-finder.
       Site visits are recognized as an important tool at our disposal.           See V.R.E.C.P.
2(d)(2)(ix); In re: Vermont RSA Limited Partnership d/b/a Verison Wireless, 2007 VT 23 ¶3
(referencing observations made during Board site visit); and In re Herrick, 170 Vt. 549, 551
(1999) (mem.) (passing reference in trial court decision to site visit, with adequate facts in the
record to support findings, does not constitute error). We see no error in the contextual reference
to our site visit in this appeal. We have no ability to make disclosure of facts observed during
the site visit that were not presented into evidence at trial, because we know of none. In response
to Appellant’s request here, we can only respond by saying that we received testimonial
representations and exhibits at trial that the site visit helped the Court to better understand. We
simply cannot recall any facts that weren’t disclosed at trial, observed during the site visit, and
upon which the Court based its findings.

                                               Conclusion
       The Court has reconsidered its findings and legal conclusions that Appellant challenges
in her motion to alter. However, for all the reasons more fully expressed above, the Court
concludes that it is not necessary to alter its Merits Decision. Therefore, the Decision on the
Merits and Judgment Order of February 15, 2008 remain final.

       Done at Berlin, Vermont this 27th day of March, 2008.



                                             ___________________________________
                                              Thomas S. Durkin, Environmental Judge




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