                                 STATE OF VERMONT

                             ENVIRONMENTAL COURT

                                           }
In re Brosseau/Wedgewood                   }        Docket No. 260-11-08 Vtec
       Act 250 PRD Application             }
                                           }



                Decision and Order on Motion for Summary Judgment

      Appellant-Applicants    Lauretta         Brosseau   and   Wedgewood       Development

Corporation appealed from a decision of the District 4 Environmental Commission

(District Commission) denying their application for an Act 250 permit for a proposed

Planned Residential Development (PRD) in the Town of Colchester. Appellant-

Applicants (Applicants) are represented by Robert C. Roesler, Esq.; the Agency of

Agriculture, Food and Markets is represented by Diane E. Zamos, Esq.; and the Town

of Colchester is represented by Thomas G. Walsh, Esq. The Land Use Panel of the

Natural Resources Board entered an appearance represented by John H. Hasen, Esq.,

but has not filed memoranda on the present motion. The Agency of Natural Resources

has requested informational status only.

       Applicants have moved for summary judgment on some of the questions in the

Statement of Questions. The following facts are undisputed unless otherwise noted.



      In August 2008, Applicants1 applied for an Act 250 permit for a proposed 29-lot

Planned Residential Development on the easterly side of Jasper Mine Road in the Town

of Colchester. The project is proposed to consist of 26 single-family house lots and


1The application was filed by Applicants, together with Daniel and Christie Fitzgerald,
who own a 1.75-acre parcel that is part of the project tract, but is not involved in the
proposed PRD. The Fitzgeralds have not entered an appearance in this appeal.
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three common area lots. The project tract is 36.15 acres in area, of which 34.4 acres are

involved in the proposed PRD. The District Commission determined that the proposed

project did not comply with Criterion 9(B) of Act 250, 10 V.S.A. § 6086(a)(9)(B), and

denied the application in October 2008.



       If primary agricultural soils are located on a proposed project site, Criterion 9(B)

requires the applicant to demonstrate either that the proposed project will not reduce

the agricultural potential of such soils, or that the proposed project will comply with

subcriteria (i)–(iv). 10 V.S.A. § 6086(a)(9)(B). Primary agricultural soils are defined for

the purposes of Act 250 review in 10 V.S.A. § 6001(15) as:

       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 moisture and drainage, plant nutrients or
       responsiveness to fertilizers, few limitations for cultivation or limitations
       which may easily be 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.).
       In the present appeal, of the 27.4 acres of the project tract having a rating of

prime, statewide, or local as defined by the N.R.C.S., the parties do not dispute that at

least 15.3 acres of such soils will be impacted by the proposed project. The Agency

identifies an additional 2.8 acres, for a total of 18.1 acres that it argues are primary

agricultural soils. However, material facts are in dispute as to the area of these 18.1




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acres, if any, that meets the other elements of the definition of primary agricultural soils

contained in 10 V.S.A. § 6001(15).



       Question 6 of the Statement of Questions

       Question 6 of the Statement of Questions asks the Court to determine whether

“the soils on the [p]roject [s]ite have few limitations for cultivation or limitations which

may be easily overcome.” Applicants argue that the existing forest cover on the project

site constitutes a limitation to cultivation that cannot be easily overcome, and that the

soils therefore do not meet the definition of primary agricultural soils. This argument is

based on the cost of removing the trees on the property, which Applicants argue is so

high that agricultural use is not feasible.

       The Court rejected a similar argument in In re Village Associates Act 250 Land

Use Permit, No. 6-1-08 Vtec, slip op. at 6–8 (Vt. Envtl. Ct. Apr. 30, 2009) (Wright, J.).2 As

explained in that decision, additions to the statutory language that specifically include

soils in present use as “regenerating forests” or “forestland,” together with “the overall

structure of the statutory treatment of primary agricultural soils[,] show[] that the cost

of overcoming a limitation for cultivation was not intended to be considered in

determining whether such a limitation may ‘easily’ be overcome.” Id. at 7.

       In the present case, Applicants have not alleged that there are any limitations to

cultivation other than the presence of mature trees on the project site. No physical or

technical impediments to the removal of trees on the project site have been identified.

Because the cost of removing trees alone does not constitute a limitation that cannot be

easily overcome, as explained in Village Associates, Applicants’ Motion for Summary




2The decision is available at:
http://www.vermontjudiciary.org/GTC/Environmental/ENVCRT%20Opinions/08-
006.VillageAssoc.dec.pdf.
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Judgment as to Question 6 is DENIED, and summary judgment is GRANTED to the

Agency of Agriculture, Food and Markets on Question 6.



       Remaining Issues in Motion for Summary Judgment

       Material facts are in dispute as to the rest of the issues raised in Applicants’

Motion for Summary Judgment, which is therefore denied except as to Question 6. The

disputed material facts include whether the location of the soils is suitable for

agriculture, and whether the soils would be capable of supporting or contributing to an

economic or commercial agricultural operation at that location. As may be seen in the

Village Associates decision, evidence regarding whether soils are capable of supporting

or contributing to an economic or commercial agricultural operation requires a showing

of more than the mere distance between the location and the nearest farm.              The

disputed material facts also include whether a 1.8-acre portion and another 1-acre

portion of the subject soils are so isolated from the remaining soils rated as prime or

statewide that those 2.8 acres should not be considered primary agricultural soils.

Material facts are disputed, or at least have not been provided, as to what “wetlands

and other features” “segregate” the site’s agricultural soils from other soils on the site.

Finally, material facts are disputed, or at least have not been provided, as to whether

the project is planned to minimize the project soils’ reduction in agricultural potential,

10 V.S.A. § 6086(a)(9)(B)(iii); whether suitable mitigation has been proposed,

§ 6086(a)(9)(B)(iv); and whether “appropriate circumstances” for off-site mitigation

exist under § 6093(a)(3)(B).



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

that Applicants’ Motion for Summary Judgment is DENIED, and that summary

judgment is GRANTED in part to the Agency of Agriculture, Food and Markets as to

Question 6.
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      A telephone conference is scheduled for July 8, 2009 (see enclosed notice) to

discuss mediation and to discuss scheduling an evidentiary hearing if necessary to

resolve the remaining issues.



      Done at Berlin, Vermont, this 9th day of June, 2009.




                    _________________________________________________
                          Merideth Wright
                          Environmental Judge




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