                                         STATE OF VERMONT
                                     ENVIRONMENTAL COURT

                                                        }
In re: Eastview at Middlebury, Inc.                     }
  (Appeal of Act 250 Permit #9A0314)                    }           Docket No. 256-11-06 Vtec
                                                        }

                                          Decision on the Merits

        Eastview at Middlebury, Inc. (“Eastview”) seeks to develop a multi-level residential
retirement community adjacent to the Porter Hospital on South Street in Middlebury (hereinafter
referred to as the “Eastview Project”). On October 6, 2006, the District #9 Environmental
Commission (“District Commission”) issued Act 250 Permit #9A0314 for the Eastview Project,
together with its Findings of Fact, Conclusions of Law and Order (hereinafter collectively
referred to as the “District Commission Decision”).
        In its Decision, the District Commission announced its determination that the Eastview
Project complied with all applicable Act 250 criteria (10 V.S.A. §§ 6086(a)(1)–(10)). Dr.
Miriam Roemischer, a neighbor to the Eastview Project, filed a timely appeal under several Act
250 Criteria.     Eastview, together with its Co-Applicants, filed a cross-appeal, seeking to
challenge the District Commission determination concerning the amount of land to be covered
by its Permit and whether Dr. Roemischer had standing to challenge the District Commission
determination under 10 V.S.A. § 6086(a)(9)(B)(impact upon primary agricultural soils).
        The Court conducted a site visit and trial over a series of five days, completing the taking
of evidence on August 1, 2007. The parties were thereafter afforded an opportunity to file post
trial memoranda and proposed findings of fact and conclusions of law, after which the Court
began its research and deliberation on the issues preserved for review in these appeals.
        Dr. Roemischer (“Appellant”) has been represented in these proceedings by Stephanie
Kaplan, Esq., with seasonal assistance from David Grayck, Esq. Eastview has been represented
in these proceedings by Mark G. Hall, Esq. Other parties appearing in these proceedings are
Porter Medical Center, Inc., represented by Keith A. Roberts, Esq.; The President and Fellows of
Middlebury College, Inc. (“Middlebury College”),1 represented by Austin D. Hart, Esq.; The


1
   Middlebury College and Porter Medical Center, Inc. are Co-Applicants with Eastview; their status as Co-
Applicants is discussed in more detail in later sections of this Decision. Middlebury College also filed its own
cross-appeal of the District Commission Decision.
Town of Middlebury (“Town”), represented by Karl W. Neuse, Esq.; and the Vermont Agency
of Natural Resources, represented by Catherine Gjessing, Esq.2

I. Procedural History and Determinations.
           The primary parties’3 final post-trial filings included objections to each other’s prior
filings, both for reasons of timeliness and substance. The Court has reviewed the filings by all
parties and has afforded the appropriate weight to these post-trial legal arguments. To the extent
that Eastview’s or Dr. Roemischer’s filings were intended as motions to exclude, those motions
are DENIED.

           A. Party status challenge
           In the Statement of Questions filed in connection with Eastview’s cross-appeal, Eastview
questioned whether Appellant Roemischer “ha[s] standing to oppose the [Eastview] Project
under 10 V.S.A. § 6086(a)(9)(B)?” The District Commission granted Appellant Roemischer
preliminary party status to participate in its proceedings under Act 250 Criteria 1(A)(Air), 1(B),
5, 8, 9(A), 9(B), and 10. District Commission Decision at 4–5. At the close of evidence,
Eastview offered no objection to the District Commission finalizing its party status determination
regarding Dr. Roemischer. Thereafter, the Commission granted Dr. Roemischer final party
status. Id.
           We have previously commented on the interaction of the procedural rules that govern this
Court, including the Vermont Rules of Environmental Court Proceedings (V.R.E.C.P.), the
Vermont Rules of Civil Procedure (V.R.C.P.), the Vermont Rules of Evidence (V.R.E.) and the
Vermont Rules of Appellate Procedure (V.R.A.P.), as well as statutory provisions and rules that
govern state land use proceedings before the various district environmental commissions. See
Route 103 Quarry, Docket No. 205-10-05 Vtec slip op. at 4 (Vt. Envtl. Ct. Nov. 22, 2006)
(Supreme Court appeal pending, Docket No. 2006-546). The starting point for any discussion of
party status in Act 250 appeals is V.R.E.C.P. 5(d)(2), which provides that an appealing party
who participated in the proceedings below is “automatically accorded [party] status when the[ir]
notice of appeal is filed.” Thus, an appealing party who has a “particularized interest . . . that
may be affected by an act or decision by a district commission” need not specifically request
party status in appeals before this Court, even though such was the necessary practice in appeals

2
    At the request of their respective clients, Attorneys Neuse and Gjessing did not play active roles in the court trial.
3
    Eastview and Appellant Roemischer.


                                                             2
governed by former Vermont Environmental Board Rule 14. 10 V.S.A. § 6085(c)(1)(E). Once a
party who participated below files their notice of appeal or enters their timely appearance in a
pending Environmental Court appeal, that party is entitled to present evidence on all issues
preserved for review in the pending appeal, unless and until this Court specifically dismisses that
party on the Court’s own motion or by motion of another party. See V.R.E.C.P. 5(d)(2).
         Appellant Roemischer owns and resides in property across South Street Extension from
the Eastview Project site and the agricultural lands it may impact. She was afforded party status
under Criteria 9(B) by the District Commission. Dr. Roemischer’s standing to challenge the
District Commission determination under Criteria 9(B) flows from her proximity to the project
site and the adjoining agricultural lands. See Re: Putney Paper Company, Inc., Declaratory
Ruling Request #335, Findings of Fact, Conclusions of Law, and Order at 8-9 (Vt. Envtl. Bd.
May 29, 1997) (for standing purposes, contrasting the impact on a potential party’s own interests
with broad, general effects). To the extent that Eastview’s Question #4 in its Statement of
Questions was intended as a request to have Appellant Roemischer’s standing under Criteria
9(B) vacated, that request is DENIED.

        B. Criteria and issues preserved for review in this de novo appeal:
         Act 250 appeals are heard de novo by this Court. 10 V.S.A. § 8504(h). But such a
statement is often misleading, since most Act 250 appeals, such as here, include challenges to
only a limited number of issues. A more precise explanation is that our de novo review is
limited to the issues that have been preserved by the appellants in their respective statements of
questions. See V.R.E.C.P. 5(f) and In re Garen, 174 Vt. 151, 156 (2002) (citing Village of
Woodstock v. Bahramian, 160 Vt. 417 (1993)). We must also bear in mind that the burden of
proof that Act 250 imposes on each party will determine how we view the evidence each party
submits in regards to the Act 250 Criteria that have been properly preserved for our review in
this appeal. We discuss these concepts below.

        1. Scope of review.
         In her Statement of Questions, Appellant initially sought this Court’s review of seven Act
250 Criteria.4 But prior to the start of trial, Dr. Roemischer withdrew her appeal under Act 250


4
  10 V.S.A. §§ 6086(a)(1)–(10) list the ten major criteria of Act 250, but those provisions have many sub-criterion,
raising the number of issues that could be addressed in an Act 250 proceeding to a total of thirty, particularly if one
counts separately the issues of conformance with town and regional plans contained in 10 V.S.A. § 6086(a)(10).


                                                          3
Criteria 1 and 1(B). Thus, the issues Appellant has preserved for our review in this appeal are
the following:
          a. Criterion 5,5 concerning the proposed Project’s impact on traffic;
          b. Criterion 8, concerning the proposed Project’s impact on the aesthetics, scenic or
             natural beauty of the area;
          c. Criterion 9(A), concerning the Project’s impact upon area growth;
          d. Criterion 9(B), concerning the Project’s impact upon primary agricultural soils; and
          e. Criterion 10, concerning the Project’s conformance with the Town Plan.

          Eastview filed a cross-appeal and submitted its own Statement of Questions, later
amended with leave from this Court.                     In its Questions, Eastview also challenged two
determinations of the District Commission: first, the project’s impact upon primary agricultural
soils under Criterion 9(B) and second, what lands would be encumbered by the District
Commission Permit. Eastview’s Co-Applicant, Middlebury College, filed its own cross-appeal
and Statement of Questions, in which it joined Eastview in objecting to the District Commission
determination that other College lands were encumbered by the Eastview Permit, beyond the
immediate confines of the Project site.
          As no other determinations by the District Commission were preserved for our review in
this appeal, all other District Commission determinations remain valid and have become final for
this application. Woodstock v. Bahramian, 160 Vt. at 424 (citing In re Torres, 154 Vt. 233, 236
(1990)).

          2. Burden of proof.
          As both Eastview and Appellant have suggested in their proposed Findings and
Conclusions, Act 250 establishes a specific schedule of who carries the respective burdens of
proof on each of the Act 250 criteria. 10 V.S.A. § 6088. A party’s burden of proof can include
two subsets: the burden of production and the burden of persuasion. The burden of production
requires the obligated party to produce sufficient evidence for a district commission, or this
Court on appeal, to make a factual determination; the burden of persuasion refers to the
obligation of persuading the fact finder that certain facts are more likely true than not. See In re
Denio, 158 Vt. 230, 237-39 (1992) (discussing and applying the burden of proof in the Act 250
context).

5
    Each Act 250 Criterion referenced here is to the specific subsection of 10 V.S.A. § 6086(a).


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         Previous decisions of the Environmental Board suggest that 10 V.S.A. § 6088 speaks
solely to the burden of persuasion and that an applicant always carries the initial burden of
producing some evidence that would allow for positive findings upon each of the applicable Act
250 Criteria. See Re: John J. Flynn Estate and Keystone Development Corp., Docket No.
4C0790-2-EB, Findings of Fact, Conclusions of Law and Order slip op. at 17, n. 4 (Vt. Envtl.
Bd. May 4, 2004) (citing Re: Killington, Ltd. and International Paper Realty Corp., Docket No.
1R0584-EB-1, Findings of Fact and Conclusions of Law and Order slip op. at 21 (Vt. Envtl. Bd.
Sept. 21, 1990).6 We agree that an applicant always carries the initial burden of production.
Pursuant to the statutory directive of 10 V.S.A. § 6088, we note that Appellant here carries the
burden of persuasion on Criteria 5 and 8; Eastview and its Co-Applicants must fulfill the burden
of persuasion on the remaining Criteria in this appeal (i.e., 9(A), 9(B) and 10).
         In light of the evidence admitted at trial, including that evidence put into context by the
site visit the Court conducted with the parties prior to trial, and after determining the credibility
and weight that should be afforded to that evidence, we now announce our factual determinations
and legal conclusions under the Act 250 Criteria preserved for our review in this proceeding.

II. Findings and Conclusions on Act 250 Criteria preserved for our review.

         General Findings:7
1.       The Eastview project is proposed for a forty-acre portion of land, adjacent to the parcel
upon which the Porter Hospital and the Porter Nursing Home are located. The existing and
proposed developments have frontage on two Town maintained roads, known as South Street
and South Street Extension.
2.       Porter Hospital and Porter Nursing Home are owned and operated by Porter Medical
Center, Inc. (Porter Medical); the Porter facilities occupy their land pursuant to a long-term lease
between Porter Medical and the fee owner of the property, Middlebury College.




6
  Pursuant to 10 V.S.A. § 8504(m), decisions of the former Environmental Board are to be given the same
precedential weight and consideration as those of the Environmental Court.
7
   All factual determinations recited here are derived from evidence presented at trial, although many facts,
particularly those recited in this General Findings section, were not particularly disputed and may not have been the
subject of the legal issues preserved for review in this appeal. Some facts, particularly those related to the operation
of Porter Hospital, may not have been important to our legal determinations here; they are provided here to provide
background and context for the Court and its determinations.


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3.       Middlebury College holds title to many parcels of land in the Town and across Addison
County. Much of this land was given or bequeathed to the College, including by families such as
the Porter family, for whom the Porter Medical facilities are named.
4.       Middlebury College uses some of its land to support its undergraduate educational
programs and support services for its students, staff and faculty. In the past, it has often declined
to enter into agreements to sell fee simple title to its properties outright, preferring instead to
retain a remainder interest in its lands, for possible future use or support of its educational
pursuits.
5.       The College has underwritten and subsidized the operation of Porter Hospital for several
years; the Hospital has not been able to generate sufficient income from its operations to fully
defray its operational costs.
6.       When presented with the proposed Eastview Project, the College chose not to sell the
necessary lands to the Project proponents, but rather to lease the land on a long-term basis, much
like the lease agreement concerning the lands occupied by the Porter Medical facilities. The
lease option for the Eastview lands evolved into a multi-staged lease, whereby the lands
necessary for the Eastview Project would be leased by Middlebury College to Porter Medical,
which would in turn lease these lands to Eastview. The sub-lease to Eastview would provide an
income component that would benefit Porter Medical and assist in defraying its operational
costs.
7.       Eastview presented into evidence a draft sub-lease between it and Porter Medical (Exhibit
11), but conceded at trial that it was only a draft and its terms could be revised, pending the
outcome of its permit proceedings. The lease between Porter Medical, as lessee, and Middlebury
College, as lessor, had not been finalized as of trial.
8.       The sub-lease to Eastview, titled “Ground Sublease,” would extend over a period of
ninety-nine years, and provides for Eastview’s exclusive use and possession of the property.
Under the Ground Sublease, Eastview assumes the sole responsibility for the permitting, costs of
development, taxes, insurance, right to sub-lease and other rights and responsibilities over the
forty-acre parcel incident to the ownership or long-term leasing of real property.           Absent
Eastview’s default under the terms of the Ground Sublease, particularly the financial terms,
neither Porter nor Middlebury College retained a right to possess or control activities on the
leased lands.



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9.      The forty acres Eastview proposes to develop are directly adjacent to the Porter Medical
facilities; the forty-acre parcel lies directly south of the Porter facilities, along the eastern edge of
South Street Extension. Where the pavement ends on South Street, just past the southerly edge
of the Porter Medical facilities, the road changes to South Street Extension.
10.     From its northerly intersection with Main Street in the center of Town and the
Middlebury College campus, South Street represents an eclectic collection of residences, College
athletic facilities and the community service facilities of Porter Hospital and Porter Nursing
Home.
11.     The southerly boundary of the Porter lands adjoins a hedgerow which serves as a natural
transition to the agricultural lands to the south. Just past the hedgerow are the lands that are
proposed to be leased to Eastview.
12.     South Street Extension continues after the Porter lands as a dirt road; it travels in a
general southerly direction for about 2 ½ miles, to its intersection with Morse Road, near Piper
Crossing. All along South Street Extension, the scenery and views, particularly of the Green
Mountain range to the east, are majestic. At the Eastview site, and to the south, a traveler along
South Street Extension has a panoramic view of the well-maintained fields, some currently
mowed or used for agricultural purposes in the foreground, with the Green Mountains in the
background.
13.     The fields that comprise the Eastview site and lands to the south are owned by
Middlebury College; the parcel on which the Eastview Project is proposed currently consists of
384± acres. The lands further south of this Middlebury College parcel also contain agricultural
fields with majestic views.
14.     South Street and its Extension transition through three zoning districts: the High Density
Residential District to its north; the Institutional District and the Agricultural/Rural Residential
District to its south.
15.     Appellant owns and occupies a single family home on the west side of South Street
Extension, just south of the Porter Medical facilities. Her home is within a cluster of several
residential properties along the west side of South Street Extension; it is located directly across
from the northerly edge of the proposed Eastview site.
16.     The parcel Eastview proposes to lease will have about 750 feet of frontage along South
Street Extension. The paved portion of the road abuts the northerly portion of the proposed



                                                   7
leased land; the pavement ends just past the house that is to the south of Dr. Roemischer’s
property. The main entrance for the Eastview Project is on the dirt portion of the Street. The
southerly boundary of the leased lands is just over 400 feet south of the Project entrance. South
Street Extension continues from Eastview’s southerly boundary line for about two miles.
17.       Much of the forty acres proposed for the Eastview development consists of open fields,
none of which has recently been used for agricultural purposes, but all of which have been
mowed and well maintained. This portion of the College lands also contains the hedgerow,
mentioned above, and an outcropping of trees in the middle of the project site, which appears to
be an overgrown area where those who long ago worked this field collected rocks and other
debris.
18.       The views enjoyed by residents and travelers along South Street Extension are also
enjoyed by the patients and guests at the Porter Medical facilities.
19.       The Eastview Project is proposed to offer multiple levels of care and independent living
to its residents. The main building in the Project is referred to as an Inn; it will be located
immediately adjacent to the Porter Nursing Home, somewhat set back from the road and
accessed by a common drive from South Street Extension. The Inn will include common dining
and recreation facilities, 18 assisted living units, 16 sanctuary residential units for residents with
memory loss, and 37 independent living apartments, 17 of which will be single occupancy and
20 of which will be double occupancy.
20.       The Project will also include 30 detached single-story cottages, which will each serve as
single family residences. The cottages will be accessed by the same drive that serves the Inn,
along private interior roads. The cottages are clustered around the Inn to its south and east. No
cottage will have direct, individual access from the road.
21.       The cottages will be individually owned by or on behalf of their occupants.            The
underlying land will continue to be held by Eastview, under the long-term Ground Sublease.
22.       Eastview proposes to construct, at its own expense, extensions of the municipal water and
sewer mains and related infrastructure to serve the Inn and cottages, as well as certain off-site
improvements for the calming of traffic along South Street.
23.       The existing water and sewer mains currently extend along South Street, serving the
individual residences and the Porter Medical facilities. These water and sewer mains currently
end on the lands occupied by the Porter Medical facilities, adjacent to the Eastview Project site.



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         We now turn to the specific factual determinations and legal conclusions under each of
the appealed Criteria.

       A. Will the Eastview Project cause unreasonable congestion or unsafe conditions on
area highways?
24.      The Town of Middlebury has been developed in a “wheel-like” fashion in which all
major roads lead to the center of town. South Street is one of the “spokes” in this design; it
serves as access to the many residences, College athletic fields, and institutional structures that
adjoin it as it runs in a generally straight,8 southerly direction, to the neighboring Town of
Cornwall.
25.      South Street experiences the expected amount of vehicle and foot traffic for a road that is
lined with many homes, athletic fields, a hospital and a nursing home. The evidence presented at
trial did not reflect undue traffic congestion or accidents in the vicinity of the Project site.
26.      Where the road transitions from pavement to dirt, and from South Street to South Street
Extension, the use of the road changes from merely serving as access to the Town Village center
to a natural, rural area used by many walkers, bicyclists and travelers in search of beautiful views
of the Vermont countryside.
27.      The Vermont Agency of Transportation (“VTrans”) has established a method of
measuring the quality of roads and intersections, with a Level A level of service (“LOS”) rating
representing minimal delays and little or no accident experiences.
28.      Based upon all traffic expert testimony presented at trial, we reach the following
conclusions regarding area traffic and the impacts upon it by the Eastview Project:
        a. The intersection where the Porter Medical facilities access South Street and the
        intersection where the proposed Eastview Project will access South Street Extension
        current have a VTrans LOS rating of A.
        b. The Eastview Project will generate an estimated thirty-three additional one-way
        vehicle trips during the peak hour9 of traffic along South Street. The traffic that the
        Eastview Project is estimated to generate will include vehicle trips by its administration,




8
   About a mile south of the Eastview site, South Street Extension takes a turn to the east and then returns to its
southerly direction.
9
  In traffic analysis parlance, peak hour of traffic represents the hour when traffic is estimated to be the busiest. The
estimated peak hour of traffic is often used in traffic planning, to denote an estimated worst-case scenario for a
project’s impact upon area traffic.


                                                           9
        staff, other employees, some of its owners and residents,10 vendors and other business
        invitees.
        c. All interior Eastview roads have been designed and will be constructed in accordance
        to Town and State road specifications. The interior roads include many gentle curves, so
        as to discourage speeding; they are aligned close to the clustered cottages so as to
        encourage occupants to walk to and from the cottages and the Inn. Walking paths are
        integrated into the road design plans.
        d. Municipal and emergency service providers have reviewed and approved the
        Eastview road and walkway layouts.
        e. Stopping and sight distances from the intersection of the Eastview drive and South
        Street Extension exceed the minimum distances established by VTrans.
        f. The Eastview Project includes three internal parking areas which will provide
        adequate parking for the proposed Project and the visitor traffic it will generate.

29.     The northerly end of South Street intersects with Main Street, a/k/a Vermont Route 30.
The Eastview Project will generate a minimal increase in the traffic at this intersection.

30.     Despite the relatively high LOS ratings for the traffic intersections along South Street and
the minimal additional traffic the Eastview Project is estimated to generate for that Street and its
intersections, Eastview had offered to implement and finance certain traffic calming and
improvement measures along South Street, all of which are detailed in the plans offered into
evidence in support of Eastview’s application and to which the Town has assented. These
measures include improvements to walkways and sidewalks and “bump-outs” along the
roadway, which serve to narrow the roadway in certain areas so as to encourage traffic to slow
down. The “bump-outs” can also serve to provide small additional patches of green space along
the roadway and make it safer for vehicles to park along the roadway.

        Conclusions as to Criterion 5.
        We are directed by 10 V.S.A. § 6086(a)(5) to determine whether the Eastview Project, as
proposed, will “cause unreasonable congestion or unsafe conditions with respect to the use of the
highways, waterways, railways, airports and airways, and other means of transportation existing
or proposed.” We limit our analysis to Eastview’s impact on Town roadways and walkways,
since those are the only transportation resources referenced in the evidence presented by any
party at trial.


10
  Some of Eastview’s owners and residents are not expected to drive vehicles or travel often in vehicles off of the
Eastview Project.


                                                        10
        Our analysis is limited here because all credible evidence leads to a conclusion that
Eastview will have a minimal impact upon area transportation routes and, when viewed in
connection with the traffic calming measures proposed by Eastview along South Street, it
appears that the project will have a net positive impact on the area roadways and walkways.
        The Co-Applicants’ traffic expert provided a convincing report on Eastview’s estimated
traffic impacts. There was no evidence offered to support a conclusion that the Eastview Project
will negatively impact the VTrans LOS rating for any intersections along South Street or its
Extension. This traffic report reveals that the additional traffic estimated to be generated by the
Eastview Project will be a small fraction of the already existing traffic along those roads. The
traffic calming measures Eastview has volunteered to implement will more likely improve
vehicular and pedestrian traffic safety along area roads and walkways.
        Most of the evidence presented by Appellant in opposition to a positive finding under
Criterion 5 was anecdotal in nature, and more often referred to possible disturbances to the
tranquility that walkers, joggers and bicyclists now enjoy as they walk past the Eastview Project
site and further south along South Street Extension. Such concerns are more appropriately
considered under Criterion 8; which we address below. To the extent that such visitors to South
Street Extension will be disturbed by Eastview traffic, we do not find that the disturbances will
likely cause the “unreasonable congestion or unsafe conditions” prohibited by 10 V.S.A.
§ 6086(a)(5). We reach this conclusion due to several factual conclusions, including that much
of the traffic generated by the Eastview Project will be traveling north on South Street, away
from the portion of South Street Extension so enjoyed by its visitors.
        We therefore conclude that the Eastview Project, as proposed, conforms to Criterion 5.

        B. Will the Eastview Project have an undue adverse impact upon area aesthetics?
31.     Eastview and its planners recognized that they were planning this project for an area
enjoyed and loved by many residents and visitors. It is apparent that their plans, and the various
revisions to those plans, sought to blend the Project into its surroundings and minimize its
adverse impacts upon the scenic natural beauty of the site and the area to its south.
32.     The Eastview site is about one mile from the Town village center; the Project will be
adjacent to the institutional facilities of Porter Medical.




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33.       With recent amendments to the zoning regulations and the Town Plan,11 the Project site
and the Porter Medical facilities are located in the Institutional Zoning District. The lands lying
to the south of the project site are located in the Agricultural/Rural Residential Zoning District.
34.       Porter Hospital has evolved in purpose and physical plant much like many other Vermont
hospitals. Its original, 2–3 story red brick structure has seen several additions and renovations.
Several other one- and two-story structures now serve the Porter Medical patients, visitors and
staff.
35.       Many area residents value their proximity to the institutional medical facilities at Porter;
the Court’s recollection is that even Appellant attested to this fact. Porter Nursing Home is an
extension of the medical services provided at Porter Hospital; the proximity of Porter Hospital to
the Nursing Home and area residents is a beneficial characteristic of this area.
36.       The Eastview proponents seek to provide area facilities for individuals entering
retirement with a variety of care needs. Some Eastview residents will live independently in the
cottages; others requiring some regular care but still wanting a degree of independence may seek
residence in the Inn’s apartments; as a person’s medical or other needs increase, Eastview will
afford residential opportunities in the Inn’s other facilities.               Some Eastview residents may
experience an even greater need for medical and other support services, such that they choose to
relocate to Porter Nursing Home.
37.       Portions of the Inn contain two floors; other portions contain a single floor. The Inn is
sited to allow some of the pre-existing views to remain largely intact, particularly from Porter
Nursing Home and the areas south of the Project site along South Street Extension. The Inn is
set back from the road, with many trees and other landscape plantings to minimize its mass and
adverse impact on the area’s beauty. While significant in size, the Inn will not appear greater in
height or mass than the adjacent Porter Medical facilities. It will transform the immediate area
views, but will not completely obscure the majestic views of the Green Mountains in the
background, and will not impact the views a traveler enjoys once past Eastview, particularly
when heading further south along South Street Extension. An example of the estimated site
impact is shown on Eastview Exhibit 25, Bates Stamp pages 398a and 390.
38.       Architectural renderings of the Inn and Cottages, also reflected in Eastview Exhibit 25,
evidence designs that allow the Eastview buildings to incorporate characteristics of the eclectic

11
     The Town Plan amendments are addressed in more detail below in the discussion of Criterion 10.


                                                         12
residences in the area and other rural residences. The use of multiple facades and color tones on
the Inn decrease the visual predominance of the building and allow it to blend into its landscape
and with the nearby Porter Medical structures. When viewed from the south, the Eastview
structures will blend into the surrounding area and do not evidence an adverse distraction from
that setting.
39.     As noted above, the cottages are clustered around the southerly and easterly edges of the
Inn. This design revision12 reduces the visibility of all cottages from South Street Extension.
The cottages are sited so as to allow views to the east to be unobstructed, in intervals within the
Eastview site.
40.     The Eastview Project, both during construction and once completed and in full operation,
complies with the Town noise regulations and will not generate significant or adverse noise
impacts, particularly in light of the primary parties’ Stipulation for Noise Conditions (filed
September 6, 2007), which we will direct to be incorporated as permit conditions.
41.     The Project site was not shown to contain any historic sites, nor were such historic sites
identified in the area.

        Conclusions as to Criterion 8.
        Section 6086(a)(8) directs that we determine whether the Eastview Project, as proposed,
will “have an undue adverse effect on the scenic or natural beauty of the area, aesthetics, historic
sites or rare and irreplaceable areas.” We recognize that Criterion 8 presents a two-part set of
subjective tests and therefore look for guidance from prior decisions of the former
Environmental Board and the Vermont Supreme Court in making our Criterion 8 determinations.
        The starting point in our analysis is the former Environmental Board decision in an
appeal brought by the then-developer of the Quechee Lakes development. The project had its
origins just a short time after the creation of Act 250. See In re: Application of Quechee Lakes
Corp., 130 Vt. 469 (1972). In 1981, the corporation obtained an Act 250 land use permit to build
a twenty-eight unit condominium project on a high ridge overlooking the Quechee valley. See In
re: Quechee Lakes Corporation, 154 Vt. 543, 546 (1990). During construction of the project, the
developer made substantial changes to the project without seeking a permit amendment or other
authority from the district commission. Id. Quechee Lakes ultimately sought an amendment to

12
  At the Town Board’s suggestion, Eastview reduced the number of cottages (from 50 to 30) and brought them into
a more clustered setting around the Inn. The cottages were once sited on a broader expanse along South Street
Extension.

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its permit to authorize the pre-existing changes to construction, which included “the addition of
skylights, the enlargement of sliding glass doors, the addition of clerestory and other windows, a
fourteen-foot increase in the depth of three of the six buildings, the addition of four-foot
overhangs and wrap-around decks, a reduction of roof pitches, and the relocation of some
buildings.” Id. The Court went on to note that the Environmental Board had found that, “taking
the skylights and additional glazing together, approximately two-thirds more glass was visible
than was approved under the original plans; that light from the windows and skylights is visible
from many points in the valley at night; and that reflective glare from these sources results in a
significant visual impact even during cloudy days [and] that some of the other construction
changes increased the perceived mass of the project.” Id. at 547.
        The former Environmental Board took a then-innovative approach in analyzing Quechee
Lakes’s permit amendment application. In 1985, the Board retained a landscape architect as an
expert witness to provide testimony, together with the parties’ witnesses, to explain how
professionals go about evaluating the aesthetic impacts of proposed developments.
        The Board first announced how it had previously defined the required analysis under
Criteria 8 by stating that
          The term "undue" generally means that which is more than necessary --
       exceeding what is appropriate or normal. The word "adverse" means unfavorable,
       opposed, hostile. "Scenic and natural beauty" pertain to the pleasing qualities that
       emanate from nature and the Vermont landscape. In short, through Criterion 8 the
       Legislature has directed that no project within our jurisdiction be approved if it
       has an unnecessary or inappropriate negative impact on the enjoyment of
       surrounding natural and scenic qualities.

        Re: Quechee Lakes Corp., Docket Nos 3W0411-EB and 3W0439-EB, Findings of Fact,
Conclusions of Law and Order slip op. at 17 (Vt. Envtl. Bd. Nov. 4, 1985) (quoting Re:
Brattleboro Chalet Motor Lodge, Inc., Docket No. 4C0581-EB (Vt. Envtl. Bd. Oct. 17, 1984)).
The Board went on to note that “[w]hile this description helps in understanding the terminology
of Criterion 8, it does not identify the process which we believe appropriate in applying this
terminology to specific projects.” Id. The Board then announced a process by which the
aesthetics impact of Act 250 projects continue to be analyzed, more than 22 years later.
        The Supreme Court affirmed the Environmental Board decision.              Quechee Lakes
Corporation, 154 Vt. at 559. While the Court did not announce a specific adoption of what has
later come to be known as the “Quechee test,” the Court noted that the Board “displayed a


                                                14
commendable determination to adhere to the question before it, i.e., the adverse impact, if any,
of” the proposal before it. Id. at 556.
        In later decisions, our Supreme Court has repeatedly announced its approval of a fact
finder’s use of the “Quechee test” in its review of a project’s aesthetic impact. In re McShinsky,
153 Vt. 586 (1990).13 Most recently, the Supreme Court articulated the analysis under the
Quechee test in the following manner:
                The Board employs a two-pronged approach to determine if an application
        complies with Criterion 8. First, it determines if the proposed project will have
        an adverse aesthetic impact, and if so, it considers whether the adverse impact
        would be undue. An adverse impact is considered undue if any one of the three
        following questions is answered in the affirmative: (1) does the project violate a
        clear, written community standard intended to preserve the aesthetics or scenic,
        natural beauty of the area; (2) does the project offend the sensibilities of the
        average person; and (3) has the applicant failed to take generally available
        mitigating steps that a reasonable person would take to improve the harmony of
        the proposed project with its surroundings.

        In re: Appeal of Times & Seasons, LLC and Benoit, 2008 VT 7, ¶ 8 (citations omitted).
It is indisputable in light of this precedent that we must apply the Quechee test in our analysis of
the Eastview Project under Criterion 8. We therefore will now endeavor to apply our factual
determinations to this test.
        We view Eastview’s potential impact in two components: its impact upon the area to the
north, and its impact upon the area to its south. Eastview’s design and siting make it a suitable
addition to the surrounding developments to the north. This area is a short distance from the
Middlebury village center; residents and visitors often walk the one mile distance to the College
athletic fields and the Porter Medical facilities. The Inn and cottages at Eastview will fit in well
with their neighboring developments to the north. Viewing Eastview from the south and in the
foreground of the Porter Medical facilities will appear as a natural complement to the
development in the area. Eastview will not have an adverse impact on the developed areas along
South Street.
        Viewing Eastview solely in the context of the undeveloped areas that lie south or Porter,
we conclude that the Project will be a significant departure from the pre-existing natural beauty
of the area. In making this determination, we find guidance in the original articulation of the

13
    Although reported in an earlier volume, McShinsky cites to the Quechee Lakes Corporation decision and
specifically announced the Supreme Court’s approval of the “two-pronged analysis developed in an earlier Board
decision . . ..” McShinsky, 153 Vt. at 589, 591.

                                                     15
first “prong” of the Quechee test: a development such as Eastview, considering its mass and
multiple components, is not readily in “harmony” with the surrounding undeveloped lands and
scenic beauty to the south of the project site, which has an undisputable “particular scenic
value.” In re: Quechee Lakes Corp., Docket Nos 3W0411-EB and 3W0439-EB, at 18. We
therefore conclude that the impact of Eastview upon the southerly areas of South Street
Extension will be adverse.
       The question remains: will Eastview’s impact on this area be “unduly adverse,” thereby
rendering it a bar to this development. The Times & Seasons Court, cited above, provided the
necessary guidance here, in its summary of the second prong of the Quechee test.
       First, we note that the Middlebury community has recently revised its community
standards for development in this area. Recent amendments to the Town Zoning Regulations
extended the boundaries of the Institutional Zoning District to include the Eastview Project site.
A development such as Eastview is a permitted use in this District. Both the Middlebury Design
Advisory Committee and the Town Planning Commission determined that the Eastview Project
complied with the applicable Zoning Ordinance provisions, including those relating to building
height, setbacks, density and lot coverage. Recent amendments to the Town Plan specifically
reference a project such as Eastview, at this site. The Plan notes that such a project needs to be
sensitive to the important natural surroundings. Most important in our analysis, we note that we
have not been presented with any “written community standard” that the Eastview Project
specifically violates, so as to render it an unduly adverse development in this area. In re: Appeal
of Times & Seasons, LLC and Benoit, 2008 VT 7, ¶ 8.
       We understand the concerns Appellants and some of her neighbors have sincerely
expressed about the change to their neighborhood that Eastview will bring. But to suggest, as
some witnesses or affiants did, that Eastview would lead to a complete destruction of the area’s
natural beauty is, quite frankly, not credible. The Eastview design, particularly after several
revisions, incorporated Town suggestions and design characteristics from area homes, including
Appellant’s, and provides a complement and not an offense to the area. In this regard, we note
that the concerns expressed by Appellant’s expert were based upon a distorted rendering of the
Eastview Inn and lacked credibility. While Eastview will now be in the foreground of a portion
of the scenic views from South Street Extension, it has been designed, landscaped and integrated
into the area so as to not obscure all views. A visitor to South Street Extension will still enjoy a



                                                16
broad expanse of scenic beauty. The sensibilities of the average person will not be offended by
Eastview.
        Lastly, we note that Eastview has solicited suggestions from Town officials and others
for ideas on how the impacts from its Project can be mitigated. It has incorporated many of
those mitigation suggestions into its design revisions. The number of cottages has been reduced;
their siting is more clustered and encroaches upon a reduced area along South Street Extension,
thereby affording a greater distance in which visitors may enjoy the scenic beauty of the area to
it south. Traffic mitigation measures to be employed by Eastview along South Street may
actually bring improvement to, rather than degradation of traffic flow and aesthetic appearance
of the neighborhood. Landscaping, color schemes and design patterns will disguise the mass of
the Eastview buildings and bring them into context with the abutting neighborhood. These
mitigation steps taken by Eastview are commendable; they will improve the harmony of the
proposed project with its surroundings.
        For all these reasons, we conclude that the Eastview Project will have an adverse impact
on the scenically beautiful areas of South Street Extension, however, such impact will not be
undue, because of the mitigation steps, conformance with established community standards and
absence of offense to an average person’s sensibilities. The Project conforms with and is not
adverse to its surroundings to the north. The Project as a whole conforms to Act 250 Criterion 8.

     C. Will the Eastview Project significantly affect the community’s capacity to
accommodate area growth?
42.     Estimates placed the Town’s population as of the 2000 National Census at about 8,183
individuals. Reliable estimates, using data from the Vermont Department of Health and the
Addison County Regional Planning Commission, place the Town’s population at about 8,500 for
2005.
43.     Eastview has offered its independent residential units for “pre-sale,” thereby providing
some picture of where its residents will come from to live at the Eastview Project. About 70% of
these pre-permit purchasers are currently residents of Middlebury or other Addison County
towns. Even if all Eastview residents were from out of Town, which appears very unlikely, the
Project would cause a very minor population increase in Town, estimated at around 1.6%.
44.     Although Eastview is established as a not-for-profit entity, it has not requested exemption
from local property taxes, which were reliably estimated at trial to be about $300,000 per year.
Given its intended purpose, the Project is not likely to add school-age children to the Town

                                                17
population. The Town, both through the written determinations of its Planning Commission and
the trial testimony of its Planning Director/Zoning Administrator, provided reliable evidence that
the net financial impact of Eastview upon the Town will be positive.
45.    As noted above, Eastview has proposed to pay for an extension to its site of the municipal
water and sewer lines that now end at the adjacent Porter Medical facilities. Eastview will also
pay for the traffic mitigation measures, described above, along South Street.
46.    Eastview’s extension of the municipal water and sewer lines will allow the existing
homes across from the Project site to hook up to the municipal lines, at the homeowners’
election. These homes are currently served by on-site wells and sewage disposal systems.
47.    Because the municipal water and sewer lines are only being extended from the adjacent
lot, Eastview’s plan is unlikely to encourage further development along South Street Extension.
Growth is sometimes encouraged when municipal services are extended over a multi-lot
distance, thereby making development more attractive and affordable on the intervening lots.
Eastview will not cause such secondary impact to the area’s growth. For purpose of this
conclusion, we also note that all immediate area to the south is owned by Middlebury College.
The past practices and expressed future plans for this College land make further private
development in this area unlikely, particularly as a direct or secondary consequence of the
Eastview Project.
48.    Just beyond the Eastview site, the zoning district changes to Agricultural/Rural
Residential, with lands farther south in the Flood Hazard District. These zoning districts have
restrictions on development not found in the Institutional District.
49.    Once construction is complete, Eastview will employ about 45 full-time staff, most of
whom are expected to be residents from the area.
50.    Officials from the area’s police, fire and other emergency responding services have all
provided written confirmation of their ability to serve Eastview’s anticipated needs.

       Conclusions as to Criterion 9(A).
       Section 6086(a)(9)(A) directs that, “tak[ing] into consideration the growth in population
experienced by the town and region” we determine whether the Eastview Project, as proposed,
“would significantly affect [the town and region’s] existing and potential financial capacity to
reasonably accommodate both the total growth and the rate of growth otherwise expected for the
town and region . . ..” With this perspective in mind, we conclude that the Eastview project will


                                                 18
not likely restrict the area’s ability to accommodate its expected growth. In fact, all credible
evidence leads us to conclude that Eastview will bring a net financial benefit to the Town.
        Municipal improvements will need to be made to accommodate the Eastview Project.
Yet, the Town will not shoulder the costs for these improvements, because Eastview has
committed to pay for them. The traffic mitigation measures Eastview proposes are not driven
wholly by the increase in traffic along South Street that Eastview may cause. Thus, particularly
since Eastview has committed to pay for these improvements, the Town will enjoy the benefit of
traffic mitigation along this roadway that is currently enjoyed by many travelers, including
walkers, bicyclists, college students and residents.
        Employment during Eastview’s construction and operation will provide additional full-
time jobs for area workers.           But several of the characteristics of a completed residential
development that often cause added expenses to a host municipality will not be evident at
Eastview. Only some of its residents are expected to own private vehicles; none of its residents
are expected to enroll in area public schools, so as to add to the Town’s educational expenses.
Since most Eastview workers are expected to already be area residents, their children are not
expected to add significantly to the educational expenses of area towns.
        Eastview is unlikely to be the direct or indirect cause of future growth, given the
characteristics of the project and its residents, and the pre-existing restrictions that Middlebury
College has historically placed upon the surrounding lands that it owns. Since the municipal
water and sewer lines extension is limited to one lot (the Eastview lot) and will not travel over
other lands, Eastview is unlikely to encourage secondary growth from the mere extension of
municipal services to its Project site.
        In sum, Eastview is unlikely to burden the Town with growth expenses and will likely
bring a net financial benefit to Town coffers. Eastview serves as a beneficial complement to the
Town’s expected and desired growth. As proposed, Eastview conforms to Act 250 Criterion
9(A).

        D. What impact will the Eastview Project have on primary agricultural soils?
51.     The Eastview site contains 40 acres, 30 acres of which Eastview proposes to develop for
its project. Of the 30 acres to be developed, about 20 acres14 can be described as primary

14
   Several admitted exhibits, including the Mitigation Agreement (Exhibit 40) referenced in ¶ 58, below, suggest
that the Eastview site contains 30 acres of primary agricultural soils. We conclude that this includes the 10 acres
Eastview has pledged to leave undeveloped and about 20 acres of the to-be-developed lands. Some of the lands

                                                        19
agricultural soils. While most of the soils on the Eastview site, and most of the surrounding
lands, are classified with an agricultural rating of 6, on a scale of 1 to 8, and are thereby valuable,
some of the lands on the Eastview site are occupied by wetlands and rock-ledge.
52.      The Eastview site had historically been mowed and well maintained by the College, but
had not often or frequently been used for agricultural purposes. In the recent past, some of the
Eastview site and surrounding lands have been leased for agricultural purposes, although at a
per-acre rate far below the market rate. Nonetheless, it appears indisputable that the majority of
the Eastview site and much of the Middlebury College lands to the south constitute primary
agricultural soils.
53.      Eastview does not own, lease or have an option on any other area lands.
54.      Eastview’s rights to develop lands of Middlebury College are limited to the 40-acre
Project site. Eastview does not have the right to occupy, enter upon, develop or manage any
other lands of Middlebury College.
55.      Extensive un-contradicted and reliable testimony was offered at trial that Middlebury
College’s other undeveloped land holdings consist of approximately 1,500 acres, most of which
contain primary agricultural soils and none of which will have the needed access to municipal
and medical facilities contemplated by Eastview.
56.      Eastview has committed to imposing a condition upon all of its residents, in consideration
of their use of the Eastview facilities, that the residents shall not protest or otherwise object to the
reasonable agricultural use of adjacent lands, thereby removing the potential of future Eastview
residents interfering in such use of adjacent primary agricultural soils.
57.      Eastview originally planned to lease and develop 30 acres of Middlebury College land. It
then agreed to increase the leased land to 40 acres. Ten acres of the total 40-acre parcel will not
be developed. Eastview also reduced the total number of units from 116 to 101 and further
clustered the to-be-developed area, so as to reduce the amount of agricultural soils impacted.
58.      Eastview entered into negotiations with two entities,15 the result of which was an
agricultural Mitigation Agreement (Eastview Exhibit 40).                      This document evidences that
Eastview will pay the sum of $62,666.40 to the Vermont Housing and Conservation Board,


Eastview proposes to develop contain several wetlands and rock outcroppings, making the agricultural use of these
portions difficult. Our estimate of the primary agricultural soils is supported by trial testimony, including that put
into context by the site visit.
15
   The Vermont Agency of Agriculture, Food & Markets and the Vermont Housing and Conservation Board.


                                                         20
which monies are to be used in furtherance of the goals of “maintaining an active agricultural
and forest industry, including the transfer of development rights, and farmer assistance programs
as set forth in 24 V.S.A. § 4302(a) . . ..” Exhibit 40, Bates Stamp page 501.
59.    The Eastview payment referenced in the Mitigation Agreement was based upon a
doubling of the per acre price “determined by the Vermont Agency of Agriculture, Food and
Markets and based upon information provided by the Vermont Land Trust to be the cost to
purchase conservation easements on productive agricultural lands in the Middlebury area in close
proximity to the [Eastview] Project site . . ..” Id. This agreement reasonably assures that
primary agricultural soils of equal or greater value than those on the Eastview site, in an acreage
amount of up to double that on the Eastview site, will be preserved for agricultural use.

       Conclusions as to Criterion 9(B).
       Section 6086(a)(9)(B) directs that we determine whether the Eastview Project, as
proposed, “will . . . result in any reduction in the agricultural potential of the primary agricultural
soils . . ..” If we determine that it does cause such an impact, the project may still conform to
Criterion 9(B), if certain sub-criteria are met. Thus, we first address the Project’s impact on
primary agricultural soils.
       The extensive evidence at trial revealed an undisputed fact: that as much as 30 acres of
the Eastview site contains primary agricultural soils and that the Eastview Project will
permanently convert 20 acres of those agricultural soils to residential and institutional uses. We
therefore conclude that the Eastview project will result in a “reduction in the agricultural
potential of primary agricultural soils….” 10 V.S.A. § 6086(a)(9)(B). Conformance with Act
250 Criterion 9(B) can therefore only be had if the Eastview Project complies with the sub-
criteria of § 6086(a)(9)(B). Those sub-criteria specify that:
       (i) the development or subdivision will not significantly interfere with or
       jeopardize the continuation of agriculture or forestry on adjoining lands or reduce
       their agricultural or forestry potential; and
       (ii) except in the case of an application for a project located in a designated
       growth center, there are no lands other than primary agricultural soils owned or
       controlled by the applicant which are reasonably suited to the purpose of the
       development or subdivision; and
       (iii) except in the case of an application for a project located in a designated
       growth center, the subdivision or development has been planned to minimize the
       reduction of agricultural potential of the primary agricultural soils through
       innovative land use design resulting in compact development patterns, so that the


                                                  21
       remaining primary agricultural soils on the project tract are capable of supporting
       or contributing to an economic or commercial agricultural operation; and
       (iv) suitable mitigation will be provided for any reduction in the agricultural
       potential of the primary agricultural soils caused by the development or
       subdivision, in accordance with section 6093 of this title and rules adopted by the
       land use panel.

       Conformance with Criterion 9(B) may only be had if all four of these conditions are met.
We conclude that they are. No aspect of the Eastview project will interfere with the adjoining
agricultural lands, particularly those owned by Middlebury College. Eastview has secured no
right to enter upon these lands or develop them in any way. The ten-acre portion of the Eastview
parcel that will remain undeveloped will serve as a buffer between the development and the
adjoining agricultural lands; the Eastview development has been designed and redesigned so as
to be aligned closely with the already developed adjoining lands of Porter Medical. Eastview has
even committed to binding its future residents to a restriction on protesting or otherwise
objecting to the reasonable agricultural use of adjacent lands, thereby removing the potential of
future Eastview residents interfering in such use of adjacent primary agricultural soils.
       Recent amendments to the Town Plan, discussed in more detail under Criterion 10,
suggest that the Town has expanded its designated growth center to include the Eastview site.
But even if we were to conclude that the prior Town Plan, with its designated growth center not
including Eastview, was applicable here, we conclude that the remaining sub-criteria of
§ 6086(a)(9)(B) have been met. Neither Eastview, nor its Co-Applicant, Middlebury College,
own lands, other than primary agricultural lands, that are suitable for the Eastview Project. No
other lands even remotely register the benefits of access to municipal services and hospital
facilities that the planned Eastview site enjoys.
       The Eastview lands reserved from development are capable of contributing to an
economic or commercial agricultural operation, particularly if joined with the other agricultural
lands located nearby. In anticipation of concerns about Eastview’s impact upon the remaining
agricultural lands on its site, Eastview has entered into a Mitigation Agreement that is crafted to
assure the security of nearby agricultural lands that could be double in size to the lands Eastview
impacts. We therefore conclude that subsections 10 V.S.A. §§ 6086(a)(9)(B)(i)–(iv) have been
met and that Eastview, as proposed, is in conformance with Act 250 Criterion 9(B).




                                                    22
        E. Does the Eastview Project conform to the applicable Town Plan?16
60.     Eastview first filed its Act 250 application several months before the then-existing Town
Plan expired by its terms. An amended Town Plan was then adopted on June 21, 2005 (the
“2005 Town Plan”). The 2005 Town Plan was further revised, along with the adoption of
interim zoning amendments referred to in the revised Plan. We refer to this next Plan as the
“Amended 2005 Town Plan.”               It was this Amended 2005 Town Plan that the District
Commission relied upon in rendering its Decision.
61.     The Town enacted further amendments to its Town Plan which became effective on June
19, 2007 (the “2007 Town Plan”)
62.     The Amended 2005 Town Plan and related zoning amendments place the Eastview
Project wholly within the Institutional Zoning District.
63.     The 2005 Town Plan expressly contemplates the Eastview Project (at its present
location), encourages its development, and specifically notes the suitability of this location for a
project such as Eastview. Amendments in 2005 and 2007 did not change these Town Plan
provisions.
64.     In making specific reference to the Eastview Project, the 2007 Town Plan specifically
notes that the Eastview Project, “operated in conjunction with the [Porter] Nursing Home and of
financial benefit to Porter, is in conformance with the Town Plan and is desirable both for the
Porter Medical Center and for the community’s needs for assisted living facilities for its aging
population.” 2007 Town Plan § 9.8 (pages 99–100; Eastview Exhibit 49, Bates Stamp 1394–5).
65.     No credible evidence was offered of a specific provision in the 2005 Town Plan, the
Amended 2005 Town Plan, or the 2007 Town Plan that the Eastview Project contradicts.
66.     The 2007 Town Plan also clarified and revised the scenic road designation of South
Street Extension by noting that the designation began “south of the Institutional Zone.” Id. at p.
132; Bates Stamp 1427. This change resulted in the scenic road designation beginning only after
one travels beyond the Eastview Project site.



16
   10 V.S.A. § 6086(A)(10) directs that a determination be made of whether a proposed project conforms “with any
duly adopted local or regional plan or capital program under chapter 117 of Title 24.” However, Appellant’s
Statement of Questions only preserves for our review the issue of Eastview’s conformance with the “municipal
plan.” Appellant’s Statement of Question No. 7. Thus, we only address Eastview’s conformance with the
applicable Middlebury Town Plan; the District Commission determinations as to the applicable regional plan or
capital program remain unchallenged.


                                                      23
       Conclusions as to Criterion 10.
       A town plan can be the most important document that a community crafts, as it can
establish the community’s short- and long-term goals for growth and preservation. Because
town plans often use advisory language, some portions of town plans have been held to be more
abstract in their content and not of sufficient specificity to give adequate notice of land use
restrictions. Times & Seasons, 2008 VT 7, ¶ 21. Zoning ordinances are the municipal document
that provides specific notice of land use restrictions. See id. at ¶ 22 (contrasting specific,
enforceable zoning laws with unspecific, advisory, but not enforceable town plans)(quoting In re:
John A. Russell Corp., 2003 VT 93, ¶ 16, 176 Vt. 520)). Nonetheless, 10 V.S.A. §6086(a)(10)
directs that we determine if the Eastview project, as proposed, conforms or is in specific conflict
with the provisions of the applicable town plan.
       We must first determine which town plan applies. While often an easy determination, as
the general rule is that the plan in effect when the applicant submitted its complete application is
the plan that applies, In re: Appeal of Jolley Associates, 2006 VT 132, ¶ 11 (citing Smith v.
Winhall Planning Comm’n, 140 Vt. 178, 181–82 (1981) and In re Raymond F. Ross, 151 Vt. 54
(1989)), the procedural scenario that accompanies the Eastview Project application is not so
simple. For the reasons noted below, we conclude that the 2007 Town Plan is what must be
applied to the Eastview Act 250 application.
       Where a community has taken affirmative steps to amend its local plan to support a
proposed project, as occurred here, it would appear imprudent for those revisions to be ignored
in the review of a pending application. Here, the community sought to amend its local plan
twice during the pendency of the Eastview applications, each time to add plan language
expressing the need for such a facility and the desirability of locating it adjacent to the Porter
Medical facilities. Our conclusion that the Eastview Project conforms to the local plan applies to
the 2007 Town Plan, the Amended 2005 Town Plan and the 2005 Town Plan. We find no
specific provision in any of these town plans that the Eastview Project, as currently proposed,
offends.
       Eastview has expressed its consent and preference that the 2007 Town Plan be the
document that governs its application. Nearly ten years ago, the former Environmental Board
established that “Town Plan amendments which occur after the application date and which favor
an applicant . . . govern . . . [when the applicant] has requested that his Project be governed by


                                                24
the [subsequent] Town Plan.” Re: Peter S. Tsimortos, Docket No. 2W1127-EB, Findings of
Fact, Conclusions of Law and Order slip op. at 18 (Vt. Envtl. Bd., April 13, 2004) (citing Re:
Fred and Laura Viens, Docket No. 5W1410-EB, Memorandum of Decision slip op. at 4–5 (Vt.
Envtl. Bd., Sept. 3, 2003) and Re: Juster Development Corp., Docket No. 1R0048-8-EB,
Findings of Fact, Conclusions of Law and Order slip op. at 33 (Vt. Envtl. Bd., Dec. 19, 1988)).
We agree with the Environmental Board’s rationale here and conclude that the 2007 Town Plan
is the plan that is applicable to the Eastview project.17 We further conclude that the Eastview
project is in conformance with all applicable provisions of the 2007 Town Plan and thus
conforms to Act 250 Criterion 10.

         F. What constitutes “involved land” for the Eastview Project?
67.      Eastview proposes to possess, develop and occupy its 40-acre site pursuant to the draft
Ground Sublease. Exhibit 11.
68.      Eastview represents that Porter Medical, as the lessor under the Ground Sublease, will be
authorized to lease the site to Eastview pursuant to a long term land lease from the current fee
owner of the property, Middlebury College.                 The Middlebury College lease to Porter will
contemplate and authorize the sublease to Eastview of the exclusive rights to possess, develop,
occupy, and otherwise conduct the Eastview project.
69.      Middlebury College has agreed to lease the Eastview site under the terms represented by
Porter Medical and Eastview, for a term of 99 years.
70.      The College will retain ownership and control over its remaining 344± acres of land.
Current plans for this land are for it to remain undeveloped, subject to agricultural leases to area
farmers. Neither Porter nor Eastview will have authority to enter upon, develop or control any
portion of the College’s lands in any way.
71.      Upon financial default, Eastview, its successors or assigns could lose the right to possess,
develop, occupy and otherwise operate the Eastview Project.                       Such rights would only be
involuntarily transferred by way of a legal action in the appropriate court.




17
   Our conclusion here is not particularly important to our analysis, as we find no provision of any of the applicable
plans could be viewed as a barrier to the Eastview Project. We decline to adopt Appellant’s argument that the 2005
Town Plan, or even its predecessor from 2000, should apply to the Eastview Project, since we conclude that
Appellant’s legal analysis on this point lacks merit.

                                                         25
       Conclusions as to “Involved Land”.
       The final dispute to address in this proceeding is whether all adjoining lands of
Middlebury College are controlled by any permit that may issue from these proceedings. The
District Commission so ruled in its Decision; both Eastview and Middlebury College, as its Co-
Applicant, appealed from that determination and now seek an opposite conclusion from this
Court. To address this issue, we again turn to prior decisions of our Supreme Court and the
former Environmental Board.
       Since the birth of Act 250, developers have attempted to avoid its jurisdiction and limit
its scope, perhaps mostly due to the costs associated with obtaining a state land use permit. One
area of continuing dispute has been the question of what lands are encumbered by an Act 250
permit. Any “construction of improvements on a tract or tracts of land, owned or controlled by a
person, involving more than 10 acres of land . . . in a municipality that has adopted permanent
zoning and subdivision bylaws” is defined as “development” for purposes of Act 250
proceedings. 10 V.S.A. § 6001(3)(A)(i). Those intending to construct a development must
obtain an Act 250 permit. 10 V.S.A. § 6081(a).
       What constitutes a “tract or tracts of land” that can be encumbered by an Act 250 permit
has been the source of much litigation. See In re Gerald Costello Garage, 158 Vt. 655 (1992)
(mem.), Committee to Save the Bishop’s House, Inc. v. Medical Ctr. Hospital of Vt., 137 Vt. 142
(1979), and In re Stokes Communications Corp., 164 Vt. 30 (1995). The Supreme Court has
affirmed the Environmental Board determination that a “tract of land” for jurisdictional purposes
includes all contiguous land in common ownership, regardless of the functional relationship
between the parcels. Costello Garage, 158 Vt. at 656. Thus, in this proceeding, the District
Commission deemed all contiguous lands of Middlebury College, the present owner of record of
the proposed Eastview parcel, as well as the adjoining 344± acres of undeveloped land, to be
subject to its Permit. The College is a Co-Applicant in this proceeding for the sole reason that it
is the current owner of the Eastview site and the adjoining lands; the College does not intend to
participate in the Eastview development in any manner, other than offering the site for lease to
Eastview.
       The Vermont Supreme Court has concluded that in some instances, the land encumbered
by an Act 250 permit cannot be limited to lands leased from the owner.                  In Stokes
Communications, 164 Vt. at 37, the Court reasoned that a lease of one acre of a ninety-three-and-


                                                26
one-half-acre parcel, for a term of thirty years, for the purpose of installing a 303-foot
telecommunications tower did not equate “to ownership and control of the parcel.” 164 Vt. at
37. We find the facts of Stokes not analogous to the more extensive control rights to be enjoyed
by Eastview in this case.
        Eastview will enjoy exclusive control and possession of all lands needed in its proposed
development. While all facts concerning Stokes Communications’s lease of one acre from the
landowner are not expressed in the Supreme Court decision, we find it difficult to believe that
Stokes’s extensive communication facilities, with multiple support structures and access to the
hillside site, would all occur on the one-acre leased parcel. Stokes, 164 Vt. at 32-33. The Stokes
Court also wrestled with a separate legal principle: Stokes attempted to secure a determination
that only its one acre of leased land should be considered, so that it could avoid Act 250
jurisdiction. Id. at 37. Eastview is making no such argument here. We do not find the precedent
of Stokes controlling here.
        We note that the Legislature has directed that agricultural lands devoted to farming
activities, as defined in 24 V.S.A. § 6001(22), shall not be included as involved lands when a
development is proposed for a separate portion of the agricultural parcel.                24 V.S.A.
§ 6001(3)(E). Some, although not all, of the College’s remaining lands fit this exclusionary
definition, since about 140 acres will continue to be leased for agricultural purposes.
        The Environmental Board has established precedent to relieve applicants of absurd
results that could follow a draconian application of the involved land doctrine. The applicant in
Re: West River Acres/Winchester Stables/Nicholas Mercedes, Docket No. 2W1053-EB,
Findings of Fact, Conclusions of Law, and Order (Vt. Envtl. Bd. July 16, 2004) sought permit
approval to alter a cattle barn and reconstruct a demolished barn on his Newfane-area horse farm.
Mr. Mercedes and members of his family had extensive land holdings in the area. Due to their
farm’s pre-existence, it had not previously been required to obtain Act 250 approval. When
addressing whether it was appropriate to consider all of the Mercedes’s area land holdings as
involved land, the Environmental Board concluded that it was not, reasoning that “the occasional
use of the contiguous parcels by boarders or members of the general public [while riding horses
boarded at the Mercedes’s facilities] has virtually no environmental impact under the Act 250
Criteria.” Id. at 10.




                                                27
        The Board in West River Acres relied upon its own precedent in Stonybrook
Condominium Owner’s Association, Declaratory Ruling #385, Findings of Fact, Conclusions of
Law, and Order (Vt. Envtl. Bd. May 18, 2001). The Board in Stonybrook reasoned that in those
instances in which the permittee establishes that only a smaller portion of its tract has a nexus to
or is actually impacted or affected by the proposed construction, a limiting of the lands
encumbered by the permit was appropriate. Id. at 17. The Board reasoned that if it were to
require that “without exception, . . . the entire tract be included,” even when “a small project was
proposed on a large tract . . . inequitable or absurd results could follow.” Id. at 17–18.
        We see such an absurdity resulting from the inclusion of the College’s remaining 344±
acres. In our above analysis of the Act 250 Criteria appealed in this proceeding, the facts have
directed us to a set of consistent conclusions: no activity connected to the Eastview Project will
occur on or impact upon the remaining 344± acres of College land. We therefore conclude that a
proper conclusion here is to limit the permit’s encumbrance to only the lands to be leased to
Eastview for its project, since no other portion of the College’s lands will be included in the
Eastview development.
        In considering this issue, Appellant has made much of the possibility that, in the event of
financial default, Eastview may lose its rights to the developed parcel and the improved lands
could revert to Middlebury College. Act 250 permits, findings and conclusions run with the land
and bind successors in interest. Act 250 Rule 33(C)(3).18 It appears safe to assume that in the
history of Act 250, many projects were made possible by mortgage financing; some of those
projects may have defaulted on their mortgage terms, resulting in title being involuntarily
transferred to the mortgage holders. Despite this reality, Act 250 Rules and the applicable
provisions of Title 10, Chapter 151 do not require that current or future mortgage holders be
named as co-applicants. We conclude that the continued jurisdiction over Middlebury College
and its undeveloped lands is no more necessary here than to have an applicant’s mortgage holder
named as a co-applicant in the initial permit proceedings.

III. Order.
        For all the reasons stated above, we conclude that the Eastview project, as proposed, will
not cause or result in a detriment to the public health, safety or general welfare under the

18
   The Vermont Natural Resources Board has promulgated rules that govern district commission proceedings. We
are directed to apply “the substantive standards that were applicable before the tribunal appealed from . . ..” 10
V.S.A. § 8504(h). Rule 33(C)(3) has remained unchanged since prior to Eastview’s filing of its Act 250 application.


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applicable Act 250 Criteria preserved for our review in this appeal, provided its operation
conforms with Eastview’s application and all exhibits submitted, and provided that its
construction and operation conform to the terms and conditions referenced in the Permit that we
direct be issued.
       We specifically remand these proceedings back to the District #9 Environmental
Commission, pursuant to V.R.E.C.P. 5(j), so that the District Commission may complete the
ministerial act of issuing a Permit which incorporates the provisions of this Decision and the
provisions of its October 6, 2006 Permit that were not appealed in these proceedings. The
Commission is directed to incorporate into this new Permit the necessary conditions to enforce
the provisions of this Decision, including the Stipulation for Noise Conditions, referenced in
¶ 40, above, the Agricultural Mitigation Agreement, referenced in ¶ 58, above, and that the
Ground Sublease and long-term land lease between Middlebury College, Porter Medical Center
and Eastview be finalized in a form as represented and be fully executed, with memoranda of
leases recorded in the Middlebury Land Records, before construction on the Eastview site
commences.
       All admitted trial exhibits are on file with the Environmental Court and will be
transferred to the District Commission upon the expiration of all applicable appeal periods, upon
Eastview’s specific request. Eastview, its successors and assigns are directed to maintain a
complete copy of its application and all admitted exhibits for so long as its Project is in
operation, unless and until otherwise directed by this Court or the District Commission.
       A V.R.C.P. 58 Judgment Order accompanies this Decision.               This completes the
proceedings pending before this Court in this appeal.

       Done at Berlin, Vermont this 15th day of February, 2008.


                                             ___________________________________
                                              Thomas S. Durkin, Environmental Judge




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