                                        STATE OF VERMONT
                                      ENVIRONMENTAL COURT

                                                       }
In re RCC Atlantic, Inc., and Sousa                    }            Docket No. 163-7-08 Vtec
       (Appeal of Jones & Leinoff)1                    }          (Act 250 party status appeal)
                                                       }

                                       Decision on Multiple Motions
        RCC Atlantic, Inc., originally doing business as Unicel (“Applicant”), sought permit
authority to install panel antennas on a pre-existing silo owned by Mary Sousa at 352 Bolton
Road in the Town of Cabot (“Town”). When concern was expressed over the plan to install
equipment inside the silo, Applicant amended its plans by incorporating the recommendation that
it install an equipment shed adjacent to the silo, surrounded by a fence.
        Applicant next sought an Act 250 permit for its proposed wireless communications
facility; the revised plans it submitted to the District 5 Environmental Commission (“District
Commission”) included the recommended relocation of the support equipment into the proposed
equipment shed, to be installed adjacent to the pre-existing silo. Upon review of Applicant’s Act
250 application, schedules, and supporting materials, the District Commission gave notice of its
determination pursuant to Rule 51 of the Act 250 Rules that there was a “demonstrable
likelihood that the project will not present significant adverse impact under any of the 10 criteria
of 10 V.S.A. Section 6086(a)” and that the application would therefore be treated as a minor
application2 and a proposed permit would issue. Act 250 Rules 51(A) and (B).3
        Upon receiving the District Commission’s Rule 51 notice as to its determinations on
Applicant’s Act 250 application, Appellants Wendy Jones and Andrew Leinoff (“Neighbors”)

1
  The Court first captioned this matter as “In re Jones & Leinoff Act 250 Party Status.” We have now corrected the
caption to more accurately reflect the project application and procedural history at issue in this appeal.
2
  One consequence of an Act 250 application being deemed “minor” is that (unless someone requests and is granted
a hearing) the application can be granted and a permit issued without a hearing, based upon the District
Commission’s determination “that the project will not present significant adverse impact under any” Act 250
criteria. Act 250 Rules 51(A) and (B)(3)(a). One further consequence of such a determination is that no findings of
fact or conclusions of law need to accompany the Act 250 permit. Act 250 Rule 51(B)(3)(b).
3
   The Act 250 Rules were promulgated by the Vermont Natural Resources Board pursuant to 10 V.S.A. § 6025(b).
As we have noted in other decisions, the Act 250 Rules replaced the former Environmental Board Rules. See, e.g.,
Dover Valley Trail, No. 88-4-06 Vtec, slip op. at 2 n.3 (Vt. Envtl. Ct. Jan. 16, 2007) (Durkin, J.). The new Act 250
Rules took effect on May 1, 2006, and the latest round of updates to those Rules went into effect on October 3,
2007. Although further amendments to the Act 250 Rules are currently under consideration, we are directed to
“apply[] the substantive standards that were applicable before the tribunal appealed from,” 10 V.S.A. § 8504(h),
which in this case requires us to apply the current version of the Act 250 Rules.


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filed a timely request with the District Commission for a hearing and petitioned that they be
granted party status under Act 250 Criteria 1(A), 1(B), 8, and 10.                                See 10 V.S.A.
                                           4
§§ 6086(a)(1)(A), 1(B), 8, and 10.             After conducting its deliberations on Neighbors’ hearing
request and party status petition, the District Commission issued its July 1, 2008 Memorandum
of Decision, denying Neighbors’ hearing request and party status petition. Neighbors thereafter
filed a timely appeal with this Court.5
         The Court conducted its initial conference in this appeal on September 22, 2008, which
was followed by the initial Scheduling Order of October 7, 2008, in which the Court established
deadlines for the filing of initial pre-trial motions and statements of undisputed material facts. In
response, the parties have filed a joint statement of undisputed material facts, additional
statements of material facts, and three preliminary motions:
    1. Neighbors’ motion for party status;
    2. Applicant’s motion for summary judgment as to Neighbors’ party status; and
    3. Applicant’s motion to dismiss Questions 2 and 3 from Neighbors’ Statement of
       Questions.6
         In light of both parties’ filings and the Joint Stipulation of Undisputed Material Facts that
was submitted, we consider Neighbors’ initial motion for party status as one for summary
judgment on that issue.          See V.R.C.P. 12(c).           Further, we understand both parties to be
recommending that we first address the legal question of whether Neighbors are entitled to party
status in this proceeding, and only then move on to the substantive legal questions of whether
Applicant is entitled to summary judgment on the issues raised in Neighbors’ Statement of
Questions. We intend to follow the parties’ recommendation in our discussion below.7



4
   As noted in more detail below, Neighbors currently seek party status only under Criteria 8 and 10.
5
   Neighbors are represented in this appeal by Jared M. Margolis, Esq.; Applicant is represented by William J.
Dodge, Esq. No other party has entered an appearance in this appeal.
6
    We note that Applicant also requested dismissal of Neighbors’ Question 4 from their Statement of Questions.
Neighbors subsequently agreed to the dismissal of Question 4, which was noted in this Court’s Entry Order of
September 17, 2008.
7
    Applicant asserts another preliminary issue for consideration—namely, that Neighbors’ appeal should be
dismissed for violating the requirement that a motion for party status be filed at the same time as a notice of appeal
in an appeal such as this one. See V.R.E.C.P. 5(d)(2). However, we note that in this particular case, the Court
specifically granted additional time to Neighbors in the October 7, 2008 Scheduling Order, which asked that
Neighbors submit their party status motion (and any other pretrial motions) by October 31, 2008—a deadline that
Neighbors met. Given that our decision below dismisses Neighbors’ appeal based on other grounds, we do not
reach the issue of whether this appeal could also be dismissed under Rule 5(d)(2) of the Vermont Rules of
Environmental Court Proceedings.


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                                                Factual Background8
1.      Mary Sousa owns a developed parcel of land containing about 42.9 acres, improved with
farm structures, at 352 Bolton Road in the Town of Cabot. This property is located in the Low
Density Residential and Agricultural Zoning District.
2.      Applicant is a federally licensed communications provider; the area in which it is
authorized to operate includes the Town of Cabot.
3.      Neighbors own and reside at property located at 561 Bolton Road that adjoins the Sousa
property.9
4.      Applicant is seeking permitting authority to install six panel antennas, each about eight
feet tall, on the exterior face of one of the two pre-existing silos on the Sousa farm property.
Each panel antenna would be flush-mounted on the exterior face of the pre-existing silo, fifteen
feet below the dome of the eighty-foot silo.
5.      Applicant first planned to house the support equipment, including fans, air conditioning,
and back-up power generation equipment, wholly within the silo. A door would be cut into the
base of the silo for access to the support equipment.
6.      When one or more individuals expressed concerns during the municipal permit hearing
about whether the silo’s possible future use for agricultural purposes would be permanently
compromised by the placement of the equipment and cutting of an access door, Applicant agreed
to amend its plans by including a free-standing equipment storage shed, fabricated off-site, next
to the silo. Due to a directive contained in the telecommunications provisions of Article 5 of the
Town of Cabot Zoning Bylaws (“Bylaws”), Applicant included in its plans a six-foot high fence
to surround the proposed 10’ by 12’ equipment storage shed. See Bylaws § 5.7(c).
7.      On March 12, 2008, Applicant filed an application with the Town Zoning Board of
Adjustment (“ZBA”) for a variance and conditional use approval for its proposed installations at
the Sousa property.
8.      Applicant requested a variance from a portion of the Bylaws specifically regulating
telecommunication facilities—Bylaws Article V—which includes a provision that requires “a
telecommunications facility or tower, including guy-wire anchors and protective fencing” to be


8
  All facts recited or referenced here are undisputed unless otherwise noted. In our review of each of the pending
motions, we view the material facts in a light most favorable to the non-moving party. Toys, Inc. v. F.M. Burlington
Co., 155 Vt. 44, 48 (1990).
9
  Neighbors also own nearby property at 208 Bolton Road.


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located no “[c]loser than 1,500’ horizontally to any structure existing at the time of application
which is used as a primary or secondary residence, to the property of any school (both public and
private), or any other public building.” Bylaws § 5.7(M)(2). Mrs. Sousa’s primary residence is
across Bolton Road from the proposed silo site and is about 289 feet from the base of the silo.
The silo upon which the proposed wireless antennas are to be attached is less than 1,500 feet
from Neighbors’ residence and also less than 1,500 feet from a second residence Neighbors are
renovating and plan to lease for residential purposes.
9.       On June 6, 2008, the ZBA granted (with conditions) Applicant’s request for conditional
use approval.       In response to Applicant’s variance request, the ZBA determined that the
placement of the panel antennas on the pre-existing farm silo rendered the impact of this
telecommunications facility of little or no (“de minimus”) impact and therefore not needing a
specific variance. See 24 V.S.A. § 4412(9).
10.      Neighbors and others filed an appeal of both ZBA determinations; that appeal is a
companion case to this matter and has been assigned Docket Number 162-7-08 Vtec. Although
that case was initially removed to the United States District Court for the District of Vermont, it
was recently remanded to this Court.

                                                   Discussion
         In this Act 250 appeal, Neighbors have expressed the following two general concerns
about Applicant’s proposed facility:10
      1. Will noise produced by the fan, cooling systems, and back-up generator in the
         equipment shed violate Act 250 Criterion 8 (10 V.S.A. § 6086(a)(8))? Neighbors
         specifically ask, “How will noise be controlled, especially if the equipment is not
         in the silo?”11
      2. Will characteristics of the proposed wireless facility and supporting equipment
         violate provisions of the Town of Cabot Town Plan (“Town Plan”) and thereby be
         in violation of Act 250 Criterion 10 (10 V.S.A. § 6086(a)(10))? In particular, do
         the following aspects of the project violate the Town Plan: (i) the proximity to
         nearby residences; (ii) the aesthetics of the fence surrounding the proposed
         equipment shed; and (iii) the potential negative impact upon property values, due
         to alleged negative perceptions the general public may have as to wireless
         facilities, including the potential harm from electromagnetic emissions?


10
   We have summarized these concerns from Neighbors’ Statement of Questions, their motion for party status, the
parties’ Joint Stipulation, and Neighbors’ Responsive Statement of Material Facts.
11
   Joint Stipulation Ex. LJ-1 (Neighbors’ May 1, 2008 request for a hearing and party status, filed with the District
Commission Assistant Coordinator).


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        Although Neighbors’ initial letter to the District Commission expressed concerns
regarding Act 250 Criteria 1(A) (headwaters) and 1(B) (waste disposal), Neighbors no longer
seek party status under those criteria. Indeed, Neighbors’ Statement of Questions only raises
noise and aesthetics issues under Criterion 8 and issues regarding conformance with the Town
Plan under Criterion 10.
        As we have often noted, this Court can only address those issues that have been preserved
for our review in a Statement of Questions. V.R.E.C.P. 5(f); see also Vill. of Woodstock v.
Bahramian, 160 Vt. 417, 424 (1993). Thus, our review here is limited to the specific issues
raised by Neighbors under Criteria 8 and 10.
        In response to Neighbors’ expressed concerns about noise, Applicant filed the
manufacturer’s specifications concerning the noise levels to be emitted by the proposed support
equipment. In response to Neighbors’ concerns about aesthetics and conformance with the Town
Plan, Applicant filed documents detailing the fencing required by the ZBA, and an appraiser’s
report that suggests that recent area sales data do not show a negative impact upon property
values attributable to existing or recently installed wireless facilities.
        We are asked in this appeal to first address the preliminary question of whether
Neighbors should be afforded party status and thereafter permitted to participate in a hearing on
the merits of Applicant’s Act 250 application. Our analysis of this preliminary procedural issue
is governed by the applicable Act 250 Rules.
        The means by which Act 250 applications are reviewed differs from land use litigation in
general and municipal appeals in particular. Pursuant to Act 250 Rule 51, a district commission,
assisted by its district coordinator, is directed to first determine whether a pending application
contains sufficient supporting documentation so that it may be reviewed as a “minor
application.” Act 250 Rule 51(A). In making this determination, a district commission is
directed to consider the following:
    1. whether there are any “cognizable issues” under any of the applicable Act 250
       criteria left unaddressed by the application;
    2. whether any additional state permits identified under Act 250 Rule 19 have or will
       be obtained by the applicant;
    3. the extent to which the project has been reviewed by an appropriate municipal
       panel, pursuant to its land use regulations;
    4. whether the district commission can draft a proposed permit and permit
       conditions that address any potential areas of concern; and


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   5. whether the applicant has thoroughly addressed each of the applicable Act 250
      criteria.

Act 250 Rule 51(A)(1)–(5).
       When a district commission makes the necessary Rule 51 conclusions, the pending
application is approved in a summary fashion: no hearing is held, no findings or conclusions are
rendered, and a proposed permit is circulated to parties entitled to notice. Act 250 Rule 51(B).
       An interested person may request a hearing upon an application being approved under
these summary proceedings. Act 250 Rule 51(D). Such a hearing request “shall state the criteria
or subcriteria at issue, why a hearing is required and what evidence will be presented at the
hearing.” Act 250 Rule 51(B)(3)(d). The request for a hearing must also be accompanied by a
petition for party status. Act 250 Rule 51(B)(3)(e).
       When a hearing is requested, the district commission must follow specific steps in
response:
       Upon receipt of a request for a hearing, the district commission shall determine
       whether or not substantive issues have been raised under the criteria and shall
       convene a hearing if it determines that substantive issues have been raised. If the
       district commission determines that substantive issues have not been raised, the
       district commission may proceed to issue a decision without convening a hearing.
       If a hearing is convened, it shall be limited to those criteria or sub-criteria
       identified by a statutory party, successful petitioner for party status, or by the
       district commission.

Act 250 Rule 51(D).
       These provisions of Rule 51 govern this Court’s review of Neighbors’ party status and
hearing requests, since this Court is directed to “apply[] the substantive standards that were
applicable before the [district commission and] shall hold a de novo hearing on those issues
which have been appealed.”        10 V.S.A. § 8504(h).      While the right to appeal a district
commission determination is generally restricted to one who obtained party status and
participated in the district commission proceedings, 10 V.S.A. § 8504(d)(1), a person denied
party status by the district commission is entitled to appeal that determination to this Court under
10 V.S.A. § 8504(d)(2)(B).
       Neighbors have requested that we summarily determine that they are entitled to party
status in this proceeding; Applicant has requested that we summarily determine that Neighbors
are not entitled to party status. Thus, we have competing motions for summary judgment. In
situations where both parties move for summary judgment, we must analyze each motion


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separately and grant all reasonable doubts and inferences to the party opposing that particular
motion. See, e.g., In re Morris 7-Lot Subdiv., No. 71-4-07 Vtec, slip op. at 7 (Vt. Envtl. Ct. Nov.
26, 2007) (Wright, J.) (citing Alpine Haven Prop. Owners Ass’n, Inc. v. Deptula, 2003 VT 51,
¶ 8, 175 Vt. 559); In re Ilges Zoning Permit, No. 232-9-06 Vtec, slip op. at 3 (Vt. Envtl. Ct. Apr.
27, 2007) (Durkin, J.) (citing Toys, Inc. v. F.M. Burlington Co., 155 Vt. 44, 48 (1990)).
          In our search for whether a dispute as to a material fact exists, we look to the parties’
representations.     But in determining whether a representation presents a legitimate factual
dispute, we are mindful that parties cannot rely “on mere allegation . . . to rebut credible
documentary evidence or affidavits” presented by the moving party. Robertson v. Mylan Labs.,
Inc., 2004 VT 15, ¶ 15, 176 Vt. 356 (citing Gore v. Green Mountain Lakes, Inc., 140 Vt. 262,
266 (1981)). Rather, to survive summary judgment, the non-moving party “must respond with
specific facts that would justify submitting her claims to a factfinder.” Id. (citing V.R.C.P.
56(e)).
          If a non-moving party does not present “specific facts” to refute the material facts
presented by the moving party, and the moving party’s facts are sufficient to satisfy the legal
standard at issue, we understand the directive of Robertson to be that summary judgment must be
entered for the moving party.         Id.   Here, Applicant’s motion for summary judgment is
accompanied by supporting affidavits and documentation.             Neighbors therefore faced an
increased duty under Robertson to present credible documentation or affidavits to support their
allegations. If they fail to do so, we must render summary judgment in Applicant’s favor.
          Our analysis of the parties’ representations here leads us to the conclusion that Neighbors
have failed to present specific facts to refute Applicant’s representations and that the applicable
law directs that we deny Neighbors’ request for party status. See id.
          The parties have spent considerable effort debating whether the burden of proof on the
ultimate legal issues has shifted from Applicant to Neighbors. We believe the legal issue here to
be of a more preliminary nature. In an instance where a district commission determines that Act
250 Rule 51 has been satisfied, such that the applicant’s presentation is so complete as to render
a hearing unnecessary, an opposing party is afforded an opportunity to contest that
determination, but may only succeed in receiving that hearing upon a showing of “what evidence
will be presented at the [requested] hearing” to refute the materials put forth by the applicant.
Act 250 Rule 51(B)(3)(d). The burden of making this initial evidentiary showing is placed upon



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the requesting party, so that the district commission (in the first instance) or this court on appeal
may “determine[] that substantive issues have been raised.” Act 250 Rule 51(D).
       Neighbors express concerns that initially appear to be sincere and legitimate, both as to
the noise that might be produced by Applicant’s support equipment and the fear that its presence
may devalue their property in violation of the Town Plan. But the record is void of documents or
affidavits from Neighbors that provide a factual foundation for those allegations, or even an offer
of proof as to “what evidence [Neighbors would] present[] at the hearing.” Act 250 Rule
51(B)(3)(d). Applicant, on the other hand, has presented manufacturer documentation on the
specific noise emission estimates for the proposed equipment, an affidavit from the construction
manager for the installation company, specifically referring to the estimated noise emissions, and
an appraisal report and supporting market data refuting Neighbors’ assertion that the proximity
of this wireless transmission facilities will have a negative impact on property values.
       We have found no documents or affidavits presented by Neighbors in response to these
filings. Although Neighbors make reference in a footnote in their response brief that if called
upon to substantiate their concerns about noise, “they would most likely produce a noise study.”
This general reference leaves us to wonder whether Neighbors have yet to commission such a
study, and what its findings could possibly be. This type of statement on its own is insufficient
to meet the requirements of Act 250 Rule 51(B)(3)(d).
       Neighbors are correct that they do not face a specific directive to commission a noise
study simply to be granted party status. Rather, as with any offer of proof, all that is required at
this stage is a showing that evidence exists, “not a submission of the evidence itself.” R.E. Bean
Constr. Co. v. Middlebury Assocs., 142 Vt. 1, 7 (1982). But if there is to be any meaning to the
requirement in Act 250 Rule 51(B)(3)(d) that a party requesting a hearing must state what
evidence would be presented at that hearing, Neighbors must at least state that their fears and
concerns have some factual basis and are not based solely on speculation. Here, the record is
devoid of any representation as to what Neighbors would most likely produce at a hearing. We
are left to speculate upon whether there is any factual basis for Neighbors’ concerns, since they
have presented no affidavit, documentation, or other submission that provides at least some
degree of specificity as to what their evidence would be. Indeed, our Supreme Court has stated
that this type of threshold showing, containing some degree of factual specificity, is required
when called upon to make an offer of proof:



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        [A]n offer of proof must be specific and concrete. It must indicate what further
        testimony or evidence will be introduced, to show what particular circumstances
        or conditions, and for what purpose it is offered. An offer must be sufficiently
        explicit to give the trial court an understanding of the materiality of the [to-be-]
        offered evidence. These standards are generally taken to require that witnesses’
        names and addresses be given, that acts or items be specifically described, and
        that the matter to be proved be carefully delineated.
Id. (internal citations omitted).
        In the absence of any specific evidence put forth by Neighbors, by way of credible
documentation or affidavit, or even an affidavit or other offer of proof as to what evidence would
be produced at a hearing and what that evidence would say regarding cognizable issues under
Criteria 8 or 10, we must conclude that Neighbors have failed to fulfill the offer of proof
requirements imposed upon them by Act 250 Rule 51. We therefore conclude that Neighbors’
requests for party status under Act 250 Criteria 8 and 10 must be DENIED.12

                                                Conclusion
        For all the reasons more fully discussed above, we GRANT summary judgment to
Applicant and DENY Neighbors’ request for party status. We therefore DECLINE to direct that
a hearing be held in this matter, and we conclude that the proposed Act 250 permit circulated by
the District Commission should be issued.
        This concludes the current proceedings in this appeal before this Court. A Judgment
Order accompanies this Decision.

        Done at Newfane, Vermont, this 8th day of May 2009.




                                          ______________________________________
                                             Thomas S. Durkin, Environmental Judge




12
   Having reached this conclusion based upon Act 250 Rule 51 and V.R.C.P. 56, we need not reach the question of
whether Neighbors’ claim for party status based upon an alleged negative impact upon property values from a
perceived fear of electromagnetic transmissions is preempted by the Telecommunications Act of 1996 (47 U.S.C.
§ 332(c)(7)(B)(iv)).


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