                                     State of Vermont
                          Superior Court—Environmental Division

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                   ENTRY REGARDING MOTION
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In re Highland Crossing Subdivision Act 250 Reconsideration        Docket No. 97-7-12 Vtec
Title: Motion for Partial Summary Judgment (Filing No. 3)
Filed: July 8, 2013
Filed By: Vermont Agency of Agriculture, Food, and Markets
Response in support of Agency of Agriculture’s Motion filed on 7/10/2013 by Vermont Natural
   Resources Board
Response in opposition to Agency of Agriculture’s Motion filed on 8/1/2013 by Appellants
   Elizabeth and Jeffery Goldberg
Reply to Appellants’ Response filed on 8/13/2013 by the Agency of Agriculture

     Granted                  X Denied              ___ Other

        The Vermont Agency of Agriculture has moved for partial summary judgment against
Elizabeth and Jeffery Goldberg (Appellants) in their appeal of a decision by the District 4
Environmental Commission (District Commission) issued on February 10, 2012. Appellants
own a parcel of land of approximately 12.88 acres located at 1760 Dorset Street in South
Burlington, Vermont that they desire to subdivide, and they appeal the District Commission’s
determinations that the land contains approximately eight acres of primary agricultural soils
and that Appellants do not qualify for off-site mitigation. The Agency of Agriculture now seeks
partial summary judgment on the issue of whether the site contains primary agricultural soils.
                                           Discussion
        We begin our analysis with a basic premise: that summary judgment may only be
granted to a moving party upon a showing that “there is no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter of law.” V.R.C.P. 56(a); V.R.E.C.P.
5(a)(2). We must “accept as true the [factual] allegations made in opposition to the motion for
summary judgment” and give the non-moving party the benefit of all reasonable doubts and
inferences. Robertson v. Mylan Labs., Inc., 2004 VT 15, ¶ 15, 176 Vt. 356 (internal citation
omitted); see V.R.C.P. 56(c) (laying out summary judgment procedures). In considering a
motion for summary judgment, our function is “not to make findings on disputed factual
issues.” Blake v. Nationwide Ins. Co., 2006 VT 48, ¶21, 180 Vt. 14; Gettis v. Green Mtn. Econ.
Dev. Corp., 2005 VT 117, ¶ 19, 179 Vt. 117. The Court does not judge the credibility of the
parties or their witnesses or the weight of the facts offered through the affidavits submitted on
summary judgment. Provost v. Fletcher Allen Health Care, Inc., 2005 VT 115, ¶ 15, 179 Vt. 545
(stating that summary judgment is not warranted simply because a movant offers facts that
appear more plausible than those tendered in opposition, or if one party appears unlikely to
prevail at trial).
       “Primary agricultural soils” are:
       soil map units with the best combination of physical and chemical characteristics
       that have a potential for growing food, feed, and forage crops, have sufficient
In re Highland Crossing Subdiv. Act 250 Permit, No. 97-7-12 Vtec (EO on Mot. for Summ. J.) (8-19-13) Pg. 2 of 2.

         moisture and drainage, plant nutrients or responsiveness to fertilizers, few
         limitations for cultivation or limitations which may be easily overcome, and an
         average slope that does not exceed 15 percent. Present uses may be cropland,
         pasture, regenerating forests, forestland, or other agricultural or silvicultural
         uses. However, the soils must be of a size and location, relative to adjoining land
         uses, so that those soils will be capable, following removal of any identified
         limitations, of supporting or contributing to an economic or commercial
         agricultural operation. Unless contradicted by the qualifications stated in this
         subdivision, primary agricultural soils shall include important farmland soils
         map units with a rating of prime, statewide, or local importance as defined by
         the Natural Resources Conservation Service (N.R.C.S.) of the United States
         Department of Agriculture (U.S.D.A.).
10 V.S.A. § 6001(15) (emphasis added).
         It appears undisputed that the impacted soils are Vergennes B, Vergennes C, and
Covington soils with an N.R.C.S. ratings of prime, statewide, or local importance. The question
thus becomes whether other qualifications in 10 V.S.A. § 6001(15) contradict the presumption
that the land contains primary agricultural soils; Applicants state their intent to offer evidence
to this effect at trial. The parties dispute many facts that are material to our consideration of the
qualifications of 10 V.S.A. § 6001(15), each supporting their assertions with submissions proper
under V.R.C.P. 56. For example, the parties dispute whether insurmountable drainage
problems exist, whether the agricultural soils on the site are contiguous, and whether the area is
too small to support or contribute meaningfully to an economic or commercial agricultural
operation. We cannot weigh parties’ evidence or otherwise make findings of fact on summary
judgment.
                                                 Conclusion
        For the reasons detailed above, we DENY the Agency of Agriculture’s motion for partial
summary judgment. Unless the parties resolve their dispute before then, we will proceed with
the trial that has been scheduled for October 29 and 30, 2013.




_________________________________________                                        August 19, 2013
       Thomas G. Walsh, Judge                                                        Date
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Date copies sent: ____________                                               Clerk's Initials: _______
Copies sent to:
  James E. Knapp, Esq. for Applicant-Appellants Jeffrey Goldberg and Elizabeth Goldberg
  Melanie Kehne , Esq. for Interested Person Natural Resources Board
  Amanda Lafferty, Esq. for Interested Person City of South Burlington
  David W. Rugh, Esq. Co-council for Interested Person City of South Burlington
  Diane Zamos, Esq. for Interested Person Agency of Agriculture
  Robert McDougall, Esq., Co-council for Interested Person Agency of Agriculture
