                                 STATE OF VERMONT

                             ENVIRONMENTAL COURT

                                                       }
In re Rinker’s, Inc., d/b/a                            }
 Rinker’s Communications, and                          } Docket No. 302-12-08 Vtec
 Beverly and Wendell Shephard                          }
 (Appeal of Shaw, et al.)                              }
                                                       }

    Decision and Order on Appellee-Applicants’ Motion for Partial Summary Judgment

        Appellants Karen Shaw, Forrest Foster, Joe McCarthy, Jo-Anne McCarthy,

Katherine Mitchell, and David Mitchell appealed from a decision of the District 7

Environmental Commission issuing Act 250 Land Use Permit No. 7C1219-2 to

Appellee-Applicants Rinker’s, Inc., d/b/a Rinker’s Communications (Rinker’s), and

Beverly and Wendell Shephard.1 By the same notice of appeal, Heather Bryant sought

to appeal from what she characterized as the District Commission’s denial of party

status to her under Act 250 Criterion 8; on April 22, 2009 this Court issued an entry

order explaining that Ms. Bryant had been granted “friend of the commission” status by

the district commission and that she retains that status as amicus curiae in the present

appeal. Rural Newco, LLC, d/b/a AT&T Mobility (AT&T) was given leave to participate

in this appeal as amicus curiae by decision and order of this Court dated April 14, 2009.

As Rinker’s and AT&T have filed joint memoranda, this decision will refer to them

together as Appellee-Applicants or Applicants.

        Appellants and Ms. Bryant are represented by Jared M. Margolis, Esq.; Appellee-

Applicant Rinker’s is represented by L. Brooke Dingledine, Esq.; AT&T is represented


1  Applicant-Landowners Beverly and Wendell Shephard have not entered an
appearance in this matter; Rinker’s has entered into a lease of the proposed site from the
Shephards.
                                            1
by William J. Dodge, Esq. and Charlotte B. Ancel, Esq. The Land Use Panel of the

Natural Resources Board has not entered an appearance in this matter, but has

informational status through Melanie M. Kehne, Esq.; the Vermont Agency of Natural

Resources has not entered an appearance in this matter, but has informational status

through Judith Dillon, Esq.

         Other than Heather Bryant’s party status, which has been addressed, the only

issue raised in the Statement of Questions in the present appeal is whether the proposed

project will “have an undue adverse effect on the aesthetics of the area pursuant to 10

V.S.A. § 6086(a)(8).”

         Rinker’s and AT&T have moved for partial summary judgment. The following

facts are undisputed unless otherwise noted.

         Applicants seek an Act 250 permit to replace an existing 57-foot-high

communications tower with a new 180-foot-high communications tower, together with

related antennas (raising the combined structure to a height of 200 feet), and related

infrastructure, including buildings and equipment. The site of the proposed project is

an approximately two-acre portion of an approximately 200-acre tract on Bridgman Hill

Road, in the Compact Residential zoning district.        The proposed site is an open

meadow, surrounded by trees to the northwest and northeast.            No tree cutting is

proposed. An existing access road will serve the proposed project.

         The proposed tower is designed in the guyed lattice style. Rinker’s is in the

business of providing pager services, which are used by businesses and by emergency

services. The proposed tower is designed to improve the signal for Rinker’s pager

service. AT&T proposes to locate mobile phone antennas on the tower. The tower is

designed to accommodate more than these two providers. As of the present, only

Rinker’s and AT&T’s proposals to locate antennas on the tower have been stated to the

Court.

         In the Compact Residential zoning district, telecommunications facilities require
                                             2
conditional use approval from the municipal Zoning Board of Adjustment (ZBA) under

§ 5.2 of the Hardwick Zoning and Subdivision Bylaws (Bylaws), and must also meet

municipal zoning standards specific to telecommunications facilities in § 4.15 of the

Bylaws.2

       Rinker’s received conditional use approval for the proposed project from the

ZBA. In the appeal of that municipal conditional use approval to this Court (Docket

No. 4-1-05 Vtec), Appellants Karen Shaw, and Forrest Foster, and amicus Heather

Bryant participated as appellants, while Appellants Joe McCarthy, Jo-Anne McCarthy,

David Mitchell, and Katherine Mitchell participated as interested parties. The Court

granted conditional use approval in October 2006, finding that the proposed project

generally met the requirements of §§ 5.2 and 4.15 of the Bylaws, and concluding

specifically that “the proposed tower does not adversely affect the scenic and historic

resources of the neighborhood in which it is sited.” In re Appeal of Shaw, No. 4-1-05

Vtec, slip op. at 8 (Vt. Envtl. Ct. Oct. 2, 2006) (Durkin, J.). The Environmental Court’s

decision was affirmed by the Vermont Supreme Court. In re Appeal of Shaw, 2008 VT

29, 183 Vt. 587 (mem.).

       In June 2008, Rinker’s submitted an application for an Act 250 permit for the

proposed project.     In late 2008 the District Commission approved the application,

subject to conditions, and this appeal followed.



Act 250 Criterion 8

       Criterion 8 of Act 250 requires that proposed projects “[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). In addition, subsection (A) of

Criterion 8 analyzes a project’s effect on necessary wildlife habitat and endangered

2 All citations to section numbers refer to sections of the Hardwick Zoning and
Subdivision Bylaws effective October 30, 2003 unless otherwise specifically noted.
                                              3
species. 10 V.S.A. § 6086(a)(8)(A). The components of Criterion 8 relating to historic

sites, to rare and irreplaceable natural areas, and to necessary wildlife habitat and

endangered species are not claimed to be at issue in this case and will not be referred to

further.

       To avoid interpreting any of the components or elements of Criterion 8 as

surplusage, the term “aesthetics” and the phrase “scenic or natural beauty of the area”

must each carry a meaning that is separate and distinct from the other. See In re Jenness

& Berrie, 2008 VT 117, ¶ 24 (citing Robes v. Town of Hartford, 161 Vt. 187, 193 (1993))

(“When possible         we   construe   statutes to   avoid   rendering   one   part   mere

surplusage . . . .”).

       The only element of Criterion 8 raised by Appellants in their Statement of

Questions is that of “aesthetics.” Appellants do not raise any issues as to the effect of

the project on the scenic or natural beauty of the area. “Aesthetics” is therefore the only

element of Criterion 8 at issue in this appeal.

       However, Appellee-Applicants’ motion and Appellants’ response have also

raised the issue of the project’s effect on scenic and natural resources under Criterion 8,

conflating it with the issue of aesthetics. The motion argues that the doctrine of issue

preclusion should prevent the Court from addressing either the “aesthetics” or the

“scenic and natural resources” element of Criterion 8 in the present appeal, arguing that

both issues have already been decided in favor of Rinker’s in the municipal litigation.

Because this appeal is limited to the issues raised in Appellants’ Statement of Questions,

this decision will address only issue preclusion as to aesthetics.



Issue Preclusion as to Aesthetics

       The doctrine of issue preclusion prevents “the subsequent relitigation of an issue

that was actually litigated and decided in a prior case where that issue was necessary to

the resolution of the dispute.” In re T.C., 2007 VT 115, ¶ 20, 182 Vt. 467 (quotation
                                              4
omitted). All five of the following factors must be met for issue preclusion to apply:

       (1) preclusion is asserted against one who was a party or in privity with a
       party in the earlier action; (2) the issue was resolved by a final judgment
       on the merits; (3) the issue is the same as the one raised in the later action;
       (4) there was a full and fair opportunity to litigate the issue in the earlier
       action; and (5) applying preclusion in the later action is fair.
Trepanier v. Getting Organized, Inc., 155 Vt. 259, 265 (1990) (citing Bernhard v. Bank of

America Nat’l Trust & Sav. Ass’n, 122 P.2d 892, 895 (Cal. 1942)).

       In determining whether the last two factors above have been met, courts are

instructed to consider

       the type of issue preclusion, the choice of forum, the incentive to litigate,
       the foreseeability of future litigation, the legal standards and burdens
       employed in each action, the procedural opportunities available in each
       forum, and the existence of inconsistent determinations of the same issue
       in separate prior cases. In short, in order to satisfy the final two criteria,
       the party opposing [issue preclusion] must show the existence of
       circumstances that make it appropriate for an issue to be relitigated.
Id. at 265–66 (footnotes and citations omitted).



Factors One & Two: Parties in the earlier action; Issue resolved by a final judgment

       Appellants do not dispute that they all participated as parties in the earlier

appeal of the municipal conditional use approval. Although four of the Appellants

participated as interested persons, rather than as appellants, interested persons qualify

as parties for the purposes of issue preclusion. Scott v. City of Newport, 2004 VT 64,

¶ 10, 177 Vt. 491 (mem.).

       The appeal in Docket No. 4-1-05 Vtec was resolved by a final judgment of this

Court, which was subsequently affirmed by the Vermont Supreme Court. In re Appeal

of Shaw, No. 4-1-05 Vtec (Vt. Envtl. Ct. Oct. 2, 2006) (Durkin, J.), aff’d, 2008 VT 29

(mem.). Appellants do not dispute that this constituted a final judgment on the merits.



                                             5
Factors Three and Four: Whether the issue is the same as the one raised in the later

action; Whether there was a full and fair opportunity to litigate the issue

       These factors requires the Court to determine if the issue under Act 250 Criterion

8, whether the project will have an undue adverse effect on aesthetics, is the same issue

as any issue decided in the municipal case, and whether the municipal case allowed the

parties the full and fair opportunity to litigate the issue.

       The municipal case determined that “the proposed tower does not adversely

affect the scenic and historic resources of the neighborhood in which it is sited,” finding

that the proposed project generally met the standards in the Bylaws for conditional use

approval, § 5.2, and for telecommunications towers, § 4.15(F). In re Appeal of Shaw,

No. 4-1-05 Vtec, slip op. at 8 (Vt. Envtl. Ct. Oct. 2, 2006) (Durkin, J.).

       The first sentence of § 4.15(F)(5) requires that “[n]ew telecommunications

facilities, including towers, shall be sited and designed to minimize their visibility and

not result in an undue adverse impact on the town’s scenic landscape.” § 4.15(F)(5). No

section of the municipal Bylaws specifically regulates aesthetics, as distinct from the

effect of the proposed project on scenic landscape.

       The methodology to be applied to determine whether Criterion 8’s aesthetics

standard is met is found in In re Quechee Lakes Corp., Permit Nos. 3W0411-EB &

3W0439-EB, Findings of Fact, Concl. of Law & Order, at 18–20 (Vt. Envtl. Bd. Nov. 4,

1985) (describing the method of analysis under Criterion 8). It is important to note that

the project analyzed in the Quechee Lakes decision involved the effect of several

building projects on various specific areas of landscape. For that reason, issues of the

project’s effect on aesthetics and on scenic and natural beauty were analyzed together

rather than separately.     Nevertheless, the Quechee Lakes methodology shows that

aesthetics is a broader and different category than scenic and natural beauty —

depending on its surroundings, a project could have an adverse effect on aesthetics

without having an adverse effect on scenic or natural beauty.
                                               6
      Adverse Effect

      The Quechee test first requires the Court to determine whether the proposed

project will have any adverse effect, made by analyzing whether it will be “in harmony

with its surroundings.” This determination is based on the following factors:

   1. What is the nature of the project's surroundings? Is the project to be
      located in an urban, suburban, village, rural or recreational resort area?
      What land uses presently exist? What is the topography like? What
      structures exist in the area? What vegetation is prevalent? Does the area
      have particular scenic values?
   2. Is the project's design compatible with its surroundings?           Is the
      architectural style of the buildings compatible with other buildings in the
      area? Is the scale of the project appropriate to its surroundings? Is the
      mass of structures proposed for the site consistent with land use and
      density patterns in the vicinity?
   3. Are the colors and materials selected for the project suitable for the
      context within which the project will be located?
   4. Where can the project be seen from? Will the project be in the viewer's
      foreground, middleground or background? Is the viewer likely to be
      stationary so that the view is of long duration, or will the viewer be
      moving quickly by the site so that the length of view is short?
   5. What is the project's impact on open space in the area? Will it maintain
      existing open areas, or will it contribute to a loss of open space?

In re Quechee Lakes Corp., Permit Nos. 3W0411-EB & 3W0439-EB, Findings of Fact,

Concl. of Law & Order, at 18 (Vt. Envtl. Bd. Nov. 4, 1985).

      The first stage of the Quechee analysis requires the Court to consider factors

related to aesthetics that may not be related to the project’s effect on the town’s scenic

landscape, such as the compatibility of the architectural style of a proposed project with

surrounding structures, or the compatibility of the scale of a project with the land use

and density patterns in the vicinity. Because of the difference in the methodology used

for the aesthetics analysis under Act 250 Criterion 8, compared with the scenic

landscape analysis under the municipal Bylaws, and because of the distinction between

                                            7
aesthetics and scenic landscape, the aesthetics issue in the present Act 250 appeal is not

the same as the issue resolved in the municipal appeal regarding the lack of an undue

adverse impact on the town’s scenic landscape.

       Appellee-Applicants argue that the standards applicable to conditional use

approval, together with the standards specific to telecommunications facilities in § 4.15,

also preclude litigation of aesthetics issues in the present appeal. Section 5.2(E)(2) of the

Bylaws requires the reviewing body to consider the effect of the proposed project on the

“character of the area.” This requirement is not synonymous with “aesthetics.”

       “Aesthetics” has been defined by the former Environmental Board as involving

“all the senses, including sound, smell, and overall perception. Aesthetics involves the

sense of place and the quality of life that a place affords. The aesthetics of a Vermont

village environment include all of the qualities that make it attractive and desirable to

live in and visit.” Re OMYA, Inc., Permit No. 9A0107-2-EB, Findings of Fact, Concl. of

Law, & Order, at 22 (Vt. Envtl. Bd. May 25, 1999). By contrast, “character of the area” is

defined by the “purpose or purposes of the zoning district within which the project is

located, and [by the] specifically stated policies and standards of the municipal plan.”

24 V.S.A. § 4414(3)(A)(ii). Reviewing a proposed development’s compatibility with the

character of the area requires an evaluation of the purposes of and future plans for the

zoning district, and a determination of whether the proposed development is

appropriate in light of those purposes and plans. Aesthetics, therefore, has a much

broader definition than “character of the area,” and, because of these different

meanings, a proposed project that has no undue adverse effect on the character of the

area may nevertheless have an undue adverse effect on aesthetics.

       Therefore, as to aesthetics, the issue raised in the present Act 250 appeal as to

whether the project will have an adverse effect on aesthetics is not the same as the

issues addressed in the municipal appeal, and Appellants have not had a full and fair

opportunity to litigate it.
                                             8
      Undue Adverse Effect

      The second step in the Quechee analysis, if a proposed project is found to have

an adverse effect, is to determine whether the adverse effect is “undue,” by analyzing

the following three questions:

   1. Does the project violate a clear, written community standard intended to
      preserve the aesthetics . . . of the area? Such standards may, for example,
      be set forth in the local or regional plan . . . .
   2. Does the project offend the sensibilities of the average person? . . . It is not
      enough that we might prefer to see a different design or style of building,
      or that we might prefer a different type of land use, but that the project,
      when viewed as a whole, is offensive or shocking, because it is out of
      character with its surroundings, or significantly diminishes the scenic
      qualities of the area.
   3. Has the Applicant failed to take generally available mitigating steps
      which a reasonable person would take to improve the harmony of the
      proposed project with its surroundings? . . .

In re Quechee Lakes Corp., Permit Nos. 3W0411-EB & 3W0439-EB, Findings of Fact,

Concl. of Law & Order, at 19–20 (Vt. Envtl. Bd. Nov. 4, 1985); cf. In re UPC Vermont

Wind, LLC, 2009 VT 19, ¶ 24 (affirming the former Environmental Board’s use of the

Quechee test); In re Times & Seasons, LLC, 2008 VT 7, ¶¶ 8–10, 183 Vt. 336 (same); In re

Halnon, 174 Vt. 514, 515 (2002) (mem.) (same); In re McShinsky, 153 Vt. 586, 591–92

(1990) (same). If any one of the three questions above is answered affirmatively, the

adverse effect is considered “undue” under Criterion 8.

      The municipal case did not resolve the question of whether there is a clear,

written community standard intended to preserve the aesthetics of the area, either

within the Town Plan or from another source.

      The municipal appeal determined that the Town Plan was not incorporated into

the zoning bylaws so as to be independently enforceable. In re Appeal of Shaw, No. 4-

1-05 Vtec, slip op. at 6 (Vt. Envtl. Ct. Oct. 2, 2006) (quoting In re Appeal of Wesco, 2006

                                             9
VT 52, ¶ 33, 180 Vt. 520); cf. In re JAM Golf, LLC, 2008 VT 110, ¶ 16 (concluding that

incorporation of city plan into town bylaws is an authorized method of zoning

regulation). While a municipal plan that has not been incorporated into the zoning

bylaws has no independent regulatory effect in the municipal context, such a plan can

still provide evidence of a “clear, written community standard” for purposes of the

Quechee analysis under Act 250 Criterion 8. The question of whether the proposed

project violates “a clear, written community standard” regarding aesthetics, whether

stated in the Town Plan3 or elsewhere, was not addressed in the municipal appeal.

Appellants have not had a full and fair opportunity to show whether a clear, written

community standard exists that is intended to preserve the aesthetics of the project area.

      The present appeal is distinguishable in this respect from In re Hartland Group

North Avenue Permit, 2008 VT 92, ¶¶ 7–8, in which the District Commission’s finding

that a proposed project was “in conformance” with the Town Plan under Act 250

Criterion 10 had preclusive effect in a subsequent municipal appeal in which the issue

of the proposed project’s “substantial conformance” with the Town Plan was raised

under the zoning bylaws. In Hartland Group, the issue of the project’s compliance with

the Town Plan was the same under the municipal zoning ordinance as under Criterion

10. In the present appeal, the Town Plan has a different function, if used to demonstrate


3
   In fact, the only reference to the Town Plan in § 4.15(F)(5) is in subsection (a)(vi),
which requires the reviewing body to consider the impacts of a project on “the
sensitivity or unique value of a particular view,” which in turn can be determined either
through a specific site assessment, or through the Town Plan’s identification of “scenic
features or landscapes.” The Hardwick Town Plan does not identify scenic features or
landscapes for protection with sufficient specificity to provide guidance to the ZBA
under § 4.15(F)(5)(a)(vi). In re Appeal of Shaw, 2008 VT 29, ¶ 18 (mem.) (citing In re
Wesco, Inc., 2006 VT 52, ¶ 33, 180 Vt. 520 (mem.)); and see also In re JAM Golf, LLC,
2008 VT 110, ¶ 17.
. However, this use of the Town Plan to identify the unique value of a particular view is
distinct from and does not preclude its use in the Quechee test methodology to
demonstrate a clear, written community standard regarding aesthetics.
                                           10
a clear written community standard under Criterion 8, as opposed to its use in

§ 4.15(F)(5)(a)(vi) of the Bylaws.

       The municipal case also did not resolve the inquiry under the Quechee test of

whether the applicant has “failed to take generally available mitigating steps which a

reasonable person would take to improve the harmony of the proposed project with its

surroundings.”      The Bylaws do require consideration of certain preferences.

Specifically, § 4.15(F)(5)(c) creates a preference for siting telecommunications facilities in

forested settings “wherever feasible,” and § 4.15(F)(5)(e) requires such facilities to “be

designed to blend into the surrounding environment,” also to the “greatest extent

feasible.”   The municipal Bylaws do not replicate Act 250’s requirement that an

applicant must take “generally available mitigating steps which a reasonable person

would take to improve the harmony of the proposed project with its surroundings.”

Appellants therefore have not had a full and fair opportunity to litigate the issue of

generally available mitigation measures to improve the project’s harmony with its

surroundings, beyond the two requirements of the Bylaws.

       In addition, the municipal appeal did not address whether the proposed project

would “offend the sensibilities of the average person,” or specifically whether the

project, “when viewed as a whole, is offensive or shocking.”



       Because the third and fourth factors for issue preclusion are not met in the

present appeal, the Court need not address the fifth factor, regarding the fairness of

applying issue preclusion.



       Of course, specific factual findings made in the municipal appeal are precluded

from being relitigated. On or before September 18, 2009, the parties may submit an

agreed statement of such factual findings material to the present case, taken from the

Environmental Court decision in In re Appeal of Shaw, No. 4-1-05 Vtec (Vt. Envtl. Ct.
                                             11
Oct. 2, 2006) (Durkin, J.), and may submit separate statements of any such factual

findings about which they disagree. The Court will rule as to whether any disputed

factual findings are or are not precluded at the outset of the trial.



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

that Appellee-Applicants’ Motion for Summary Judgment is DENIED. The trial is now

scheduled for September 23, 24 and 25. Please note that the parties’ schedules did not

allow a site visit to be held in advance of the trial dates, so that the site visit will be held

on September 23, 2009, beginning at 9:00 a.m. At the conclusion of the site visit, the

participants will proceed to the courthouse in St. Johnsbury to commence the trial.

Please advise any witnesses who will not be attending the site visit that the trial will

have a delayed start time.



       Done at Berlin, Vermont, this 19th day of August, 2009.




                      _________________________________________________
                            Merideth Wright
                            Environmental Judge




                                              12
