                                STATE OF VERMONT
                     SUPERIOR COURT — ENVIRONMENTAL DIVISION

                                                         }
In re Barefoot & Zweig Act 250 Application               }               Docket No. 46-4-12 Vtec
                                                         }

                                Decision on Motion for Party Status

        Now before us is a motion for party status by Interested Person Francis Kincaid Perot
(“Ms. Perot”) to participate in an appeal brought by proponents of a project on land adjacent to
land belonging to Ms. Perot. On December 30, 2011, the District 5 Environmental Commission
(“the District Commission”) denied an Act 250 permit application by Applicants Tom Barefoot
III, Joni Zweig, and True North Wilderness Programs, LLC (“Applicants”) to operate a
wilderness therapy program on a 25-acre tract owned by Mr. Barefoot and Ms. Zweig off Dana
Hill Road in the Town of Waitsfield, Vermont. In the District Commission proceeding, Ms.
Perot sought party status under 10 V.S.A. § 6805(c)(1)(E) as an “adjoining property owner or
other person who has a particularized interest protected by [Act 250] that may be affected by an
act or decision by a district commission.” She participated in the proceedings, and the District
Commission granted her final party status under Act 250 Criteria 4 and 10 but denied her party
status under Criteria 1, 1(A), 1(B), 1(E), 2, 3, 5, 8, 8(A), and 9(K).
        Applicants appealed the District Commission’s decision on April 2, 2012, and Ms. Perot
cross-appealed on May 4, 2012. On May 24, 2012, Ms. Perot filed a motion for party status
under Criteria 4 and 10 as well as under Criteria 1, 1(A), 1(B), 1(E), 2, 3, 5, 8, 8(A), and 9(K). She
did so simultaneously with a statement of 27 questions encompassing both preliminary
questions of party status and substantive questions related to her cross-appeal. On July 2, 2012,
Applicants moved to dismiss all of Ms. Perot’s questions. Several rounds of responses and
replies ensued.1

                                         Factual Background
        In order to put the pending motion into context, the Court recites the following facts,
which it understands to be undisputed unless otherwise noted:



1 Response filed on 7/31/12 by Ms. Perot; Reply to Response filed on 8/22/12 by Applicants; Response
to Reply to Response filed 9/25/12 by Ms. Perot; and Reply to Response to Reply to Response filed
10/15/12 by Applicants.
1.        Applicants seek an Act 250 permit to operate a wilderness therapy program on a 25-acre
tract of otherwise undeveloped land owned by Mr. Barefoot and Ms. Zweig off Dana Hill Road
in the Town of Waitsfield, Vermont.         Users of the proposed wilderness therapy program
include up to 24 adolescents with behavioral issues, supervised by up to 15 on-site adult field
guides.
2.        Applicants will use the site, along with adjacent state forested lands, for activities such
as hiking and camping. In the winter, groups may camp on-site continuously, while during the
other three seasons they will camp on-site one to three days per week. During the summer and
fall seasons, “graduation” ceremonies may occur on-site every other week.
3.        The application at issue in this appeal does not include a retreat center, which
Applicants had proposed in the past, but have now chosen to remove from their proposed
plans.
4.        Ms. Perot owns property adjacent to Applicants’ 25-acre tract. She accesses her property
via Dana Hill Road (a Class 4 town road or town trail) and a right-of-way over Applicants’ land.
Dana Hill Road also provides the only vehicular access to the project site.
5.        Applicants note in their application that they anticipate 10 or fewer round trip vehicle
trips per week.
6.        The project includes two campsites identified as the “Creekside” and “Upper” sites.
7.        Applicants seek approval for five as-built structures: two tent platforms, two
composting toilets, and one 20’ diameter yome.2
8.        Applicants also propose two new site improvements: a third, composting vault toilet
and a drilled well and associated storage tank and piping, powered by a photovoltaic pump.
Drinking water is currently carried in from off-site, but Applicants believe that the new well,
having an anticipated yield of 1 gallon per minute, and storage tank will meet the drinking
water needs of the project.
9.        The as-built toilets are constructed of wood and cement and are located 98 and 77 feet
from Ms. Perot’s property line.       The existing Creekside toilet is located 135 feet from an
unnamed stream that forms a portion of the boundary line between Applicants’ and Ms. Perot’s
parcels. The proposed third toilet would be located near the Upper campsite.

2 The Court understands that a yome is a yurt-like structure, sometimes made of cloth and shaped in part
like a geodesic dome. Applicants describe a yome as a “round tent structure” in Question 1 of their
Statement of Questions, filed April 23, 2012.


                                                   2
10.     Applicants obtained municipal approval from the Town of Waitsfield Development
Review Board (“DRB”) for their as-built structures on December 20, 2010. The DRB approval
did not include the proposed new well. It also did not include the additional composting toilet,
although the DRB noted that, should Applicants desire in the future to install a third
composting toilet of similar size and design to the first two, the Zoning Administrator could
review that change without the need for additional conditional use review.
11.     Applicants’ Act 250 permit application lists the project as being in a headwaters area.
12.     Applicants hold several waste water permits: Waste Water Permit Nos. WW-5-5562
(Sept. 13, 2010), WW 5-5562-R (Nov. 15, 2010), and WW-5-5562-1 “Corrected Permit.” (Feb. 11,
2011). The latter states, “The 3 composting toilets are permitted for a maximum of 10 persons
per toilet per day with a total maximum of 20 persons per day for the project.”
13.     Applicants propose to have up to 24 students per day onsite, up to 15 staff persons
during the day and 8 staff persons overnight.

                                               Discussion
        Here, we consider Ms. Perot’s motion for party status and Applicants’ motion to dismiss
those of Ms. Perot’s Statement of Questions relating to her requests for party status.3 Party
status before this Court is a preliminary issue of standing that we determine under express
procedural standards. Applicants’ motion to dismiss Ms. Perot’s requests for party status under
these criteria argues, in part, that “Ms. Perot is precluded from litigating such claims and issues
because she raised them or could have raised them in the Waitsfield [Development Review
Board] proceedings.” (Applicants’ Objection to Perot’s Mot. for Party Status at 1, filed July 2,


3  A statement of questions generally encompasses questions posed by an appellant that are to be
answered on the merits of the appeal, while a request for party status is often made by an individual, not
necessarily an appellant, who requests permission to participate in an appeal brought by another party.
Here, however, Ms. Perot appears before us in two capacities: that of a cross appellant, who has raised
legal challenges under certain criteria and, second, an individual who seeks party status that was denied
her by the District Commission. Compare Questions 23 and 26 with Questions 1–10 from Cross-
Appellant Perot’s Statement of Questions, filed May 24, 2012.
   Ms. Perot’s Questions 11 through 20 also ask whether, if she is afforded party status under the criteria
denied her by the District Commission, Applicant’s project conforms to those criteria. Id. Thus, we
understand that by her multi-faceted Statement of Questions, Mr. Perot seeks both party status and, if
granted party status, the appellate right to challenge the proposed project’s conformance to Act 250
Criteria 1, 1(A), 1(B), 1(E) 2, 3, 4, 5, 8, 8(A), 9(K), and 10.
   Procedurally, Applicants’ motion to dismiss those of Ms. Perot’s Questions that relate to her requests
for party status is akin to an opposition to her motion for party status. Statutory standards govern our
review of an opposition to a motion for party status. See 10 V.S.A. § 8504; V.R.E.C.P. § 5(d)(2).


                                                    3
2012.) Preclusion, however, is an affirmative defense. See V.R.C.P. 8(c). The question of
whether preclusion applies to particular claims that a party makes when she comes before us is
distinct from the preliminary matter of party status. We therefore focus on whether Mr. Perot
satisfies the procedural requirements for her to have party status under specific Act 250 criteria.
We reject Applicants’ argument that the doctrine of issue preclusion forecloses Mr. Perot’s right
to seek party status under those claims.

I.        Ms. Perot has automatic party status under Criteria 4 and 10.
          When a person wishes to appeal from an Act 250 district commission decision, 10 V.S.A.
§ 8504 and V.R.E.C.P. § 5(d)(2) govern that appellant’s party status claims and challenges. The
latter grants automatic party status before our Court to an aggrieved person who (1) was
granted party status by the district commission pursuant to 10 V.S.A. § 6085(c)(1)(E); (2)
participated in the proceedings before the district commission; and (3) retained party status at
the end of the district commission proceedings. 10 V.S.A. §§ 8504(a) & (d)(1). The appellant’s
participation before the Environmental Division is also limited to issues under those criteria for
which the district commission granted the person party status. V.R.E.C.P. § 5(d)(2).
          Ms. Perot claims party status as an aggrieved person under 10 V.S.A. § 8504(a). She was
granted party status by the Commission pursuant to 10 V.S.A. § 6085(c)(1)(E) under Criteria 4
and 10, participated in the Commission’s proceedings under those criteria, and retained final
party status as to Criteria 4 and 10. Ms. Perot therefore had standing to file her cross-appeal
and has automatic party status under V.R.E.C.P. § 5(d)(2) under those criteria. Applicants have
not presented sufficient reasons for this Court to now revoke Ms. Perot’s party status under
those criteria. See V.R. E.C.P 5(d)(2). Thus, we acknowledge her party status under Criteria 4
and 10.

II.       Ms. Perot’s status under Criteria 1, 1(A), 1(B), 1(E), 2, 3, 5, 8, 8(A), and 9(K).
          Notwithstanding the restrictions in 10 V.S.A. § 8504(d)(1)—that is, even when a person
participated but failed to retain party status for particular criteria at the end of the proceeding—
an aggrieved person may appeal an act or decision of the district commission under those
criteria if this Court determines that one of three statutory circumstances exist, including that
“the decision being appealed is the grant or denial of party status.” 10 V.S.A. § 8504(d)(2)(B).
Persons bringing a claim under 10 V.S.A. § 8504(d)(2) “must assert that claim by motion filed
with the[ir] notice of appeal.” V.R.E.C.P. 5(d)(2).



                                                     4
        Here, one of the decisions being appealed is the District Commission’s denial of Ms.
Perot’s claims of party status under Criteria 1, 1(A), 1(B), 1(E), 2, 3, 5, 8, 8(A), and 9(K). Ms.
Perot has now re-asserted those party status claims by her motion with this Court. Thus, we are
presented with the legal question of whether Ms. Perot meets 10 V.S.A. § 6085(c)(1)(E), i.e.,
whether she is an adjoining property owner with a particularized interest protected by Act 250
who could be affected by a determination on Applicants’ permit application under the
contested criteria. The fact that Ms. Perot is an adjoining property owner is not in dispute; her
parcel shares a boundary with the property at issue in the pending application. Thus, our
analysis focuses on whether she meets her burden on the remainder of the statutory test. For
each Act 250 criteria under which she now seeks party status, she must demonstrate (1) that she
has a particularized interest; (2) that the interest is protected by one of the criteria being
analyzed; and (3) that there is a “reasonable possibility” that our decision on the application
may affect her interest. See In re Granville Mfg. Co., No. 2-1-11 Vtec, slip op. at 6 (Vt. Super. Ct.
Envtl. Div. July 1, 2011) (Durkin, J.).
        The interest protected by one of the Act 250 criteria must be particularized; general
policy concerns shared with the general public are not a sufficient basis for individual party
status. In re Pion Sand & Gravel Pit, No. 245-12-09 Vtec, slip op. at 7 (Vt. Super. Ct. Envtl. Div.
July 2, 2010) (Durkin, J.); see also Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992) (in
federal cases, a plaintiff must allege a “concrete and particularized” injury to have standing);
Hinesburg Sand & Gravel Co. v. State, 166 Vt. 337, 341 (1997) (adopting the federal standing
requirements).
        Finally, the litigant must demonstrate a causal link between a decision on a proposed
project and an alleged harm to his or her particularized interests that may be protected under a
specified criterion. See Granville, No. 2-1-11 Vtec, slip op. at 6. While a sufficient showing
cannot be purely speculative, a litigant seeking party status need simply meet a minimum
factual threshold to satisfy its showing requirement. See In re RCC Atlantic, Inc., No. 163-7-08
Vtec, slip op. at 8 (Vt. Envtl. Ct. May 8, 2009) (Durkin, J.) (litigants seeking party status “must at
least state [that] their fears and concerns have some factual basis and are not based solely on
speculation”); In re Bennington Wal-Mart Demolition/Construction Permit, No. 143-7-09 Vtec,
slip op. at 10, n. 5 (Vt. Super. Ct. Envtl. Div. Apr. 24, 2012) (Walsh, J.) (stating that “the standard
for obtaining party status under Act 250 is a showing of a reasonable possibility that a decision




                                                  5
on the proposed project may affect a person’s particularized interest”) (emphasis added). An
adequate threshold showing must describe the evidence or testimony to be introduced at the
merits hearing and must be sufficiently concrete for the Court to understand the materiality of
the evidence or testimony. Id. at 8–9 (internal quotation omitted). We emphasize, however,
that when the pending legal issue is limited to a party status claim, the claimant need only show
that the impact may occur; whether it will occur is a matter to be addressed at a merits hearing.
        With these standards in mind, we review Ms. Perot’s claim for party status under
Criteria 1, 1(A), 1(B), 1(E), 2, 3, 5, 8, 8(A), and 9(K).

        A. Criteria 1, 1(A), and 1(B)
        Criterion 1 requires a determination of whether an applicant has shown that his or her
proposed development “[w]ill not result in undue water or air pollution.”              10 V.S.A.
§ 6086(a)(1). To determine compliance with Criterion 1, a reviewing body must at least consider

        the elevation of land above sea level; and in relation to the flood plains, the
        nature of soils and subsoils and their ability to adequately support waste
        disposal [for the project]; the slope of the land and its effect on effluents; the
        availability of streams for disposal of effluents; and the applicable health and
        environmental conservation department regulations.
10 V.S.A. § 6086(a)(1).

        Criterion 1(A), concerning impact upon headwaters, requires applicants to show that a
development “will meet any applicable health and environmental conservation department
regulation regarding reduction of the quality of the ground or surface waters flowing through
or upon lands which are not devoted to intensive development and which lands are:

        (i)     headwaters of watersheds characterized by steep slopes and shallow
                soils; or
        (ii)    drainage areas of 20 square miles or less; or
        (iii)   above 1,500 feet elevation; or
        (iv)    watersheds of public water supplies designated by the agency of natural
                resources; or
        (v)     areas supplying significant amounts of recharge waters to aquifers.
10 V.S.A. § 1(a)(1)(A).

        Criterion 1(B) requires an applicant to demonstrate that the proposed development “will
meet any applicable health and environmental conservation department regulation regarding




                                                     6
the disposal of wastes, and will not involve the injection of waste materials or any harmful or
toxic substances into ground water or wells.” 10 V.S.A. § 6086(a)(1)(B).
        The particularized interests that Ms. Perot alleges are protected by Criteria 1, 1(A), and
1(B) are her interests in ensuring that Applicants’ adjacent project complies with health and
environmental conservation department regulations regarding waste disposal, so as to prevent
the pollution of her own land and water by untreated human effluent. She additionally alleges
that such pollution could jeopardize her ability to maintain water quality on her land in
compliance with the Vermont Family Forest Program. These are not general policy concerns
shared with the general public; rather, they are interests particular to Ms. Perot under these
criteria.
        Ms. Perot alleges a reasonable possibility that a decision on these criteria could affect her
particularized interests. She states that her adjoining property is “down-slope” from the project
and that harmful substances could migrate onto her property or into her wells if the project
does not meet health and environmental standards or if it involves the injection of waste
materials or harmful or toxic substances into ground water or wells. (Ms. Perot’s Mot. for Party
Status at 13, filed May 24, 2012.) Specific to her protected interests under Criterion 1(A), Ms.
Perot alleges that both her property and Applicants’ property are located in a headwaters area
and that slopes in the vicinity of one of the project’s vault toilets exceed 30%. (Ms. Perot’s Mot.
for Party Status at 16, filed May 24, 2012). More generally, she alleges that the project’s vault
toilets lie close to her property but could be re-located with a greater buffer zone. Id. at 15. She
also claims that pollution at the Creekside site could imperil her ability to maintain stewardship
of her land as the Vermont Family Forest Program requires her to do. Id. at 18. In support of
her assertions, Ms. Perot submitted orthophotos (although these do not show the locations of
the campsites or to the proposed or existing vault toilets) as well as photos purporting to depict
views of the project from Ms. Perot’s property. (Exhibits P-1 – P-17; see also Ms. Perot’s Mot.
for Party Status at 9–10, filed May 24, 2012). Applicants’ application includes a site plan dated
April 28, 2011 that we understand to depict the as-built toilets as being located 98 and 77 feet
from Ms. Perot’s property line. The existing Creekside toilet appears to be located 135 feet from
an unnamed stream that forms a portion of the boundary line between Applicants’ and Ms.
Perot’s parcels. The proposed third toilet would be located near the Upper campsite.




                                                 7
        Applicants claim that the location of their composting toilets precludes the possibility of
any impact on the water sources that Ms. Perot fears could be contaminated. (Applicants’
Objection to Perot’s Mot. for Party Status at 9, filed Jul. 2, 2012.) They contend that two of these
toilets operate under a prior permit from the Vermont Department of Environmental
Conservation and are subject to routine maintenance, and thus any harm from the project is
merely speculative. Id. However, Ms. Perot alleges that a permit violation is likely because the
number of people that Applicants propose will use the site exceeds the number of people
allowed in the wastewater permit. (Ms. Perot’s Resp. to True North’s Aug. 22, 2012 filing at 3,
filed Sept. 25, 2012.)
        In seeking party status, a litigant need only demonstrate that a decision on a proposed
project may harm his or her particularized interests. See Bennington Wal-Mart, No. 158-10-11,
slip op. at 9 (internal citations omitted). Ms. Perot has shown a reasonable possibility that a
decision on the proposed project may affect her particularized interest in avoiding the
migration of pollution onto her land and in assuring that the project complies with relevant
regulations related to water and waste. We conclude that Ms. Perot has met her threshold
showing requirement by including photographs, maps, an affidavit by a professional engineer,
and by pointing to the absence of a wastewater permit that covers the maximum per-day
number of users that Applicants propose to use the land. We therefore GRANT her motion for
party status on Criteria 1, 1(A), and 1(B).

        B. Criterion 1(E)
        Criterion 1(E) requires an applicant to demonstrate that the proposed development “of
lands on or adjacent to the banks of a stream will, whenever feasible, maintain the natural
condition of the stream, and will not endanger the health, safety, or welfare of the public or of
adjoining landowners.” 10 V.S.A. § 6086(a)(1)(E).
        The particularized interest protected by Criterion 1(E) that Ms. Perot alleges may be
impacted is her interest in maintaining the natural condition of a stream running across her
property that she regularly walks along, observes, and maintains for the use of wildlife. This is
a particularized interested protect by Criterion 1(E).
        Ms. Perot alleges a reasonable possibility that a decision on this criterion could affect her
particularized interests. She alleges that stormwater and sediment from the Creekside campsite
could degrade the stream due to its location; indeed, she alleges that Applicants’ use of the site



                                                 8
has already caused erosion on Ms. Perot’s property. (Ms. Perot’s Mot. for Party Status at 18,
filed May 24, 2012); see also (Aff. of Juila S. Moore, P.E. at 4, filed Sept. 25, 2012.) Based upon
these representations, we GRANT Ms. Perot’s motion for party status on Criterion 1(E).

        C. Criterion 2
        Criterion 2, in pertinent part, requires the district commission to find that the proposed
development has “sufficient water available for the reasonably foreseeable needs of the . . .
development.” 10 V.S.A. § 6086(a)(2).
        The interest that Ms. Perot alleges is in having sufficient water for her own needs.
Criterion 2 does not protect this interest directly; it merely specifies that the development
should have sufficient water available for the development’s needs. Ms. Perot does not allege
that the project will not have enough water for its needs, and the question of whether the
project’s water usage could deprive Ms. Perot of her access to water is more properly addressed
under Criterion 3, as explained below. As Ms. Perot fails to allege a particularized interest
protected under Criterion 2, we DENY her motion for party status on Criterion 2.

        D. Criterion 3
        Criterion 3 requires the district commission to find that the proposed development
“[w]ill not cause an unreasonable burden on an existing water supply, if one is to be utilized.”
10 V.S.A. § 6086(a)(3). Criterion 3 is concerned with “impacts on the ability to meet demand of
neighboring wells or water sources if those other wells or water sources share the same basic
source of water.” Re: MBL Assocs., No. 4C0948-EB (Altered), Findings of Fact, Conclusions of
Law, and Order, at 28 (Vt. Envtl. Bd. May 2, 1995). Criterion 3 does not govern possible
contamination of existing water supplies. In re Pion Sand & Gravel Pit, No. 245-12-09 Vtec, slip
op. at 7.
        Ms. Perot alleges an interest in having sufficient clean water for her own needs from “a
spring reservoir located on the 25-acre Project tract which feeds her camp via a spring line.”
(Ms. Perot’s Mot. for Party Status at 19, filed May 24, 2012.) She alleges that Applicants’
proposed drilled well could affect her water supply “if the spring line is broken,4 or there is
contamination from the leach field.”        Id.   She also claims that Applicants have failed to
demonstrate that their project will not affect her water supply. Id.

4 She states that the line is currently broken and she obtains water through other temporary means. (Ms.
Perot’s Mot. for Party Status at 19, filed May 24, 2012.)


                                                   9
       To the extent that Ms. Perot claims to have an interest based on potential contamination,
Criterion 3—with its focus on water quantity, not quality—does not cover that interest. Ms.
Perot does have a particularized interest under Criterion 3 in ensuring that Applicants’ use will
not deplete the shared reservoir to the extent that she can no longer obtain water for her needs.
       However, Ms. Perot fails to allege a reasonable possibility that the quantity of water
Applicants will use (1 gpm, according to their application) would affect her interest. It is not
enough to allege that Applicants have failed to show that their proposal will not affect her
water supply; to obtain party status, the burden is on Ms. Perot to show at least a reasonable
possibility that the project will affect her interest.        See In re Bennington Wal-Mart
Demolition/Construction Permit, No. 143-7-09 Vtec, slip op. at 8–9 (stating that an adequate
threshold showing must describe the evidence or testimony to be introduced at the merits
hearing and must be sufficiently concrete for the Court to understand the materiality of the
evidence or testimony). An individual seeking party status must offer “some factual basis” for
the Court to rely upon “that their fears and concerns [about a proposed project] have some
factual basis and are not based solely on speculation.” In re RCC Atlantic, Inc., No. 163-7-08
Vtec, slip op. at 8 (Vt. Envtl. Ct. May 8, 2009) (Durkin, J.). Because Ms. Perot fails to make a
minimal factual showing that a decision on the project will jeopardize her interest in having
enough water to meet her needs, we DENY her motion for party status under Criterion 3.

       E. Criteria 5 and 9(K).
       Criterion 5, in pertinent part, requires the district commission to find that the proposed
development “[w]ill not cause unreasonable congestion or unsafe conditions with respect to use
of the highways . . . and other means of transportation existing or proposed.”           10 V.S.A.
§ 6086(a)(5).
       Criterion 9(K), in pertinent part, directs the district commission to grant a permit for a
development on or adjacent to public lands upon a demonstration that the development “will
not unnecessarily or unreasonably endanger the public or quasi-public investment” in the lands
or “materially jeopardize or interfere with the function, efficiency, or safety of, or the public’s
use or enjoyment of or access to” the lands. This criterion “seeks to protect state and local
governments from adverse fiscal impacts on public facilities and investments that are adjacent
to the proposed project.” In re St. Albans Grp. & Wal-Mart Stores, Inc., No. 6F0471-EB, Mem. of
Decision, at 9 (Vt. Envtl. Bd. Apr. 15, 1994).



                                                 10
       The particularized interest protected by Criteria 5 and 9(K) that Ms. Perot alleges
concerns Dana Hill Road, which the Town of Waitsfield classifies as Class 4-B town road.
Insofar as she regularly uses Dana Hill road and accesses her property through it, she has a
particularized interest under these criteria distinguishable from that of the general public.
       Ms. Perot fails to allege, however, a reasonable possibility that a decision on this
criterion could affect her interests under Criteria 5 and 9(K). Ms. Perot merely states her fears
that the increased traffic due to the project could cause unsafe road conditions including
“washouts, rutted road surface, damage to water bars and proper drainage or erosion of the
road surface.” (Ms. Perot’s Mot. for Party Status at 21, filed May 24, 2012.) She provides no
factual basis for these fears, nor does she describe sufficiently concrete evidence or testimony to
be introduced at the merits hearing. Similarly, she fails to show a reasonable possibility that the
10 or fewer round trips per week that Applicants’ application estimates that the project will
generate would “materially jeopardize or interfere with the function, efficiency, or safety of, or
the public’s use or enjoyment of or access to” the road under Criterion 9(K). Neither under
Criterion 5 nor under Criterion 9(K) does Ms. Perot make a minimally adequate threshold
showing of the possibility that Applicants’ use of the road will degrade it.
       Ms. Perot also fails to show a reasonable possibility that state or local governments
would experience adverse fiscal impacts on this Class 4-B road under Criterion 9(K),
particularly since the Town has discretion over maintenance expenditures on Class 4-B roads.
Ms. Perot admits that the town “has no obligation to provide maintenance” for Class 4-B roads
but may choose to do so. (Ms. Perot’s Mot. for Party Status at 21-22, filed May 24, 2012.) She
states that on one occasion a combination of money from local landowners, the town, the
Vermont Agency of Natural Resources, and unspecified grants funded improvements totaling
$13,688.5 Id. She alleges that the increased traffic related to Applicants’ project will jeopardize
that particular investment and will necessitate future maintenance costs. Id. However, any
fiscal impact on state or local governments on this Class 4-B road would be predicated on the
town’s choice to provide maintenance, repairs, or improvements, even though it has no
obligation to do so. It would be mere speculation to assume that the state or local government




5Ms. Perot’s contribution was $134; the Town contributed $1,000; and the ANR gave in-kind services
worth $1,500.


                                                11
would make such a choice if degradation did indeed occur. We therefore DENY Ms. Perot’s
motion for party status on Criteria 5 and 9(K).

       F. Criterion 8
       Criterion 8 requires the district commission to find that the proposed development
“[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).     “While
generalized harm to the forest or the environment will not alone support standing, if that harm
in fact affects the recreational or even the mere aesthetic interests of the [neighbor], that will
suffice [for granting party status].” Champlain Marina, No. 28-2-09 Vtec, slip op. at 6 (quoting
Summers v. Earth Island Inst., 55 U.S. 488, 494 (2009)); see also Lujan, 504 U.S. at 562–63 (“The
desire to use or observe an animal species, even for purely aesthetic purposes, is undeniably a
cognizable interest for purposes of standing.”); Entergy Nuclear, No. 89-4-06 Vtec, slip op. at 8–
9 (finding that allegations that a permit amendment would adversely affect fishing, boating,
bird watching, and ecological activities were sufficiently specific “to establish threat of injury to
individuals’ particularized interests”).

       Ms. Perot alleges a particularized interest under Criterion 8 in preserving the scenic or
natural beauty of her adjoining property and the forested land that surrounds it. (Ms. Perot’s
Mot. for Party Status at 23, filed May 24, 2012.) Ms. Perot alleges a reasonable possibility that a
decision granting the permit allowing students and their supervisory staff to use this forested
area could affect the aesthetics of the area. Indeed, Ms. Perot alleges that Applicants’ current
use of the property has already disturbed the peace and tranquility that she formerly enjoyed.
(Ms. Perot’s Mot. for Party Status at 24, filed May 24, 2012.) Of course, the ultimate burden of
proof at trial with respect to Criterion 8 is on Ms. Perot to demonstrate an undue adverse effect.
See In re Denio, 158 Vt. 230, 237 (1992); 10 V.S.A. § 6088(b). For the preliminary matter of
standing, however, Ms. Perot’s showing is adequate for us to GRANT her motion for party
status under Criterion 8.

       G. Criterion 8(A)
       Criterion 8(A) forbids the district commission from granting a permit if any party
opposing the application demonstrates that the proposed development “[w]ill destroy or
significantly imperil necessary wildlife habitat or any endangered species” and that party can
additionally show that either (i) the public benefit does not outweigh the loss from the


                                                  12
destruction or imperilment of the habitat or species, (ii) the proponent of the project has not or
will not apply all feasible and reasonable means of preventing or lessening the negative effects
of the project or (iii) the applicant owns and could develop on a reasonable alternative site. 10
V.S.A. § 6086(a)(8)(A). “Necessary wildlife habitat” is defined at 10 V.S.A. § 6001(12) as a
“concentrated habitat which is identifiable and is demonstrated as being decisive to the survival
of a species of wildlife6 at any period in its life including breeding and migratory periods.”
        The particularized interest protected by Criterion 8(A) that Ms. Perot alleges is her
interest in observing and enjoying area wildlife on and near her property. Specifically, she
seeks to preserve bird and other wildlife habitat in a stand of northern hardwoods. (Ms. Perot’s
Mot. for Summ. J. at 23, filed May 24, 2012.) She alleges that Applicants’ use of the property by
groups of students and staff would entail activities, traffic, and noise that would interfere with
wildlife habitat and wildlife. With her request for party status, Ms. Perot includes a letter from
a wildlife ecologist supporting her contentions and a photo purporting to depict bear claw
marks on a red pine tree on Ms. Perot’s property. (Exhibits P-19 and P-17 respectively, filed
May 24, 2012.) In this preliminary party status determination, this constitutes a sufficient
threshold showing of a reasonable possibility that a decision on this criterion could affect Ms.
Perot’s particularized interests; thus, we GRANT her motion for party status under Criterion
8(A).
                                               Conclusion
        For the reasons stated above, we GRANT Ms. Perot’s motion for party status as to Act
250 Criteria 1, 1(A), 1(B), 1(E), 4, 8, 8(A), and 10 and we DENY her motion for party status as to
Act 250 Criteria 2, 3, 5, and 9(K). This decision answers Questions 1-10 and 21, 22, 24, and 25 in
Ms. Perot’s Statement of Questions (relating to her motion for party status), making Applicants’
motion to dismiss Ms. Perot’s Statement of Questions moot as to those questions. Furthermore,
Ms. Perot’s Questions 15, 16, 17, and 20 pose substantive questions on criteria for which we
have determined that she lacks standing. As we are thus without jurisdiction to hear those
questions, we GRANT Applicants’ motion to dismiss Ms. Perot’s Questions 15, 16, 17, and 20.




6 The Vermont Supreme Court further clarified that a “necessary wildlife habitat” under Act 250 need
merely be decisive to the survival of the population of the species using the habitat at issue, not
necessarily to the survival of the entire population of the species within the state. In re Killington, Ltd.,
159 Vt. 206, 216 (1992) (citing In re Southview Assocs., 153 Vt. 171, 177, (1989)).


                                                     13
In a subsequent opinion, we will address Applicants’ motion to dismiss the remaining portions
of Ms. Perot’s Statement of Questions: Questions 11–14, 18, 19, 23, 26, and 27.

       Done at Newfane, Vermont, this 13th day of March, 2013.


                                     _________________________________________
                                            Thomas S. Durkin, Environmental Judge




                                               14
