2008 VT 7


In re Appeal of Times &
Seasons, LLC (2005-409)
2008 VT 7
[Filed 01-Feb-2008]
 
NOTICE:  This opinion is
subject to motions for reargument under V.R.A.P. 40
as well as formal revision before publication in the Vermont Reports. 
Readers are requested to notify the Reporter of Decisions, Vermont Supreme
Court, 109
  State Street, Montpelier, Vermont05609-0801
of any errors in order that corrections may be made before this opinion goes to
press.

 

2008 VT 7

 

No. 2005-409

 

In re Appeal of Times &
  Seasons, LLC and


Supreme Court


Hubert K. Benoit


 


 


On Appeal from


 


Environmental Board


 
 


 
May Term, 2007


 


 


 


 


Patricia
  Moulton Powden, Chair


 


David
  L. Grayck of Cheney, Brock & Saudek, P.C., Montpelier,
  for Appellant.
 
Geoffrey H. Hand and Rebecca
  Boucher of Shems Dunkiel
  Kassel & Saunders PLLC,
  Burlington, for Appellee
  Royalton Planning Commission.
 
William H. Sorrell, Attorney General,
  and Rebecca Ellis, Assistant Attorney General,
  Montpelier,
  for AmicusCuriaeState of Vermont.

 
 
PRESENT:  Reiber, C.J.,
Dooley, Johnson, Skoglund and Burgess, JJ.
 
¶ 1.            
REIBER, C.J.  Applicant Times and Seasons, LLC, appeals from
the Environmental Board’s denial of its request for an Act 250 permit to
construct a large gift shop and deli on Dairy Hill Road in the Town of
Royalton.  Applicant argues that the Board erred in concluding that its
project would have an undue adverse aesthetic impact; that it would
significantly reduce the agricultural potential of the primary agricultural
soils; and that it did not comply with the town plan.  We affirm the
Board’s decision on the first two grounds, and reverse  on the
third.  
¶ 2.            
John Lefgren owns real property in Royalton,
and he is the sole owner of Times and Seasons.  In March 2004, Times and
Seasons sought approval under Act 250 to construct an approximately
4,800-square-foot gift shop and deli on Dairy Hill Road in Royalton, near the
Joseph Smith Birthplace Memorial.  It appears that at the time of the
application, Hubert Benoit owned the land on which applicant proposed to
construct the new gift shop, although the parties had entered into an agreement
for Mr. Lefgren to purchase 41.6 acres of Mr.
Benoit’s land.[1]
 Mr. Benoit was thus listed as “landowner” on the application. 
District Environmental Commission #3 denied the application, as did the
Environmental Board.  
¶ 3.            
As discussed in additional detail below, the Board first concluded that
the proposed project would have an undue adverse aesthetic effect under
Criterion 8 of Act 250 because it did not fit within the context of the area
and it violated a clear, written community standard intended to preserve the
aesthetics or scenic beauty of the area.  See 10 V.S.A.
§ 6086(a)(8).  The Board additionally found that the project would
have an undue adverse aesthetic effect because applicant failed to take
generally available mitigating steps that a reasonable person would take to
improve the harmony of the project with its surroundings.  
¶ 4.            
The Board next concluded that the proposed project did not comply with
Criterion 9(B), 10 V.S.A. § 6086(a)(9)(B), which at
that time required that the project would “not significantly reduce the
agricultural potential of the primary agricultural soils,” or if a significant
reduction exists, that four subcriteria set forth in
10 V.S.A. § 6086(a)(9)(B)(i)-(iv) were
satisfied.[2] 
The Board found that there were 2.8 acres of primary agricultural soils on the
7.3-acre project tract, and that the project would significantly reduce the
agricultural potential of 1.9 acres of these primary agricultural soils. 
Having found that this constituted a significant reduction, the Board turned to
the four subcriteria, and concluded that applicant
failed to carry its burden of proof as to all four.  
¶ 5.            
Finally, the Board concluded that applicant failed to meet Criterion 10,
which requires that the project conform to “any duly adopted local or regional
plan(s).”  10 V.S.A. § 6086(a)(10).  The Board found that the
project did not comply with the following provision in the town plan: “Where
feasible, commercial development shall be located within or close to South
Royalton Village or Royalton Village, re-using existing sites where possible,
or in other locations specifically recommended in this plan and its
amendments.”  The Board determined that “feasible” in this context meant
possible or capable of being done, with a high burden on applicant to
investigate all possible alternatives to its proposed project.  It also
concluded that the phrase “where feasible” (particularly because of the word
“where”) was more related to physical considerations than economic
concerns.  Thus, it reasoned that while it would not be feasible for
certain types of enterprises to be located in the town center, a project such
as this one, which was a typical and traditional commercial use and one that
would require fewer than two acres for its building and parking areas, could
find a home in the area of the town that the plan noted as suitable for
commercial development.  Even if it were to construe the term “feasible”
in terms of economic and financial considerations, the Board continued,
applicant failed to meet its burden of showing that the project would not be
financially feasible if located as directed by the town plan.  The Board
therefore concluded that the project did not comply with Criterion 10. 
Applicant filed a motion to alter, which the Board denied in material
part.  This appeal followed.  
¶ 6.            
On review, we presume that decisions made within the Board’s expertise
are “correct, valid and reasonable” and we “will normally defer to its
determinations.”  In re Denio, 158 Vt.
230, 239, 608 A.2d 1166, 1171 (1992) (quotation omitted).  The Board’s
findings of fact are conclusive “if based on ‘substantial evidence,’ 10 V.S.A.
§ 6089(c), which is evidence properly before the Board that is relevant and
which a reasonable person might accept as adequate to support a
conclusion.”  Id. at 236, 608 A.2d at 1170 (citing In re McShinsky, 153 Vt. 586, 589, 572 A.2d 916, 919
(1990)).  We will affirm the Board’s legal conclusions when “they are
rationally derived from a correct interpretation of the law” and supported by
the findings.  In re S-S Corp./Rooney Hous. Devs., 2006 VT 8, ¶ 5, 179 Vt. 302, 896 A.2d 67
(quotation omitted).  
¶ 7.            
Applicant first argues that the Board erred in concluding that its
project would have an undue adverse effect on the aesthetics of the area. 
It maintains that neither the town plan nor the regional plan provides a “clear
written community standard” that should be applied to its project. 
According to applicant, the Board erred by piecing together different parts of
the town plan, and the “laundry list” of scenic areas identified as visual
assets by the town was too general and too broad to describe exactly what
locations were intended to be protected.  Applicant also complains that
the plan does not contain any standards for what types of development, if any,
could occur within identified scenic areas.  
¶ 8.            
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.  McShinsky,
153 Vt. at 591, 572 A.2d at 919-20.  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.  Id. at 592, 572 A.2d at 920; see also In
re Halnon, 174 Vt. 514, 515, 811 A.2d 161, 163
(2002) (mem.) (same) (citing McShinsky,
153 Vt. at 592, 572 A.2d at 920).  
¶ 9.            
In this case, the Board concluded that the project would have an undue
adverse aesthetic impact not only because it violated a clear, written standard
but also because applicant failed to take generally available mitigating steps
that a reasonable person would take to improve the harmony of the project with
its surroundings.  As the Board explained, applicant had proposed to plant
fifteen trees as screening for its project—twelve white pines near the
intersection of the project’s driveway and Dairy Hill Road and three white
pines directly adjacent to the project building.  Applicant had not
proposed other screening for views of the project from Dairy Hill Road. 
The Board found this mitigation inadequate.  It explained that although
the proposed trees would provide some visual buffer for a neighboring property,
it would not screen views of the project from Dairy Hill Road.  The Board
stated that if it were to approve the project, it would require that applicant
provide better and more diverse screening for travelers coming up Dairy Hill
Road from Route 14, and such screening would need to be planted on the downhill
side of the access driveway.  The Board thus found that applicant failed
to take available mitigation measures to minimize the aesthetic impact of the
project.  
¶ 10.        
Applicant does not challenge this finding on appeal.  Because this
finding alone supports the Board’s conclusion, we need not address applicant’s
challenge to the Board’s finding that the project violated a clear, written
community standard.  See McShinsky, 153
Vt. at 593, 572 A.2d at 920-21 (where record supported Board’s finding that
proposed project would offend sensibilities of average person, this Court need
not examine Board’s finding that the applicant also failed to take generally
available mitigating steps because an affirmative finding on any one of three
inquiries establishes that project will have undue adverse aesthetic
impact).  We note that applicant asserts that it is willing to add more
trees to screen the project and that it would do so in the context of a motion
for reconsideration if the Court reverses the Board’s decision under Criterion
8 and Criterion 10.  However, this argument is irrelevant to the specific
issue before the Court in this appeal—namely, whether the Board erred in
concluding that the proposed project did not comply with Criterion 8.  The
Board made a finding of fact that is not challenged.  This Court can
review only what the Board actually decided in this case and determine if it erred
in doing so.  Cf. In re S.B.L., 150 Vt. 294, 297, 553 A.2d 1078,
1081 (1988) (appellant must demonstrate “how the lower court erred warranting
reversal”).  The Board’s unchallenged finding regarding lack of mitigation
supports its conclusion that the project does not comply with Criterion 8, and
therefore, its conclusion must be affirmed on appeal.  See S-S
Corp./Rooney Hous. Devs.,
2006 VT 8, ¶ 5 (Board’s findings are conclusive if supported by substantial
evidence, and this Court will affirm Board’s legal conclusions where rationally
derived from correct interpretation of the law and findings of fact based on
substantial evidence).  
¶ 11.        
Applicant next argues that the Board erred in concluding that its
project did not comply with Criterion 9(B).  Criterion 9(B) provides that
a permit will be granted for the development of primary agricultural soils
“only when it is demonstrated by an applicant that, in addition to all other
applicable criteria, either the . . . development will not significantly reduce
the agricultural potential of the primary agricultural soils,” or that four
specific subcriteria are satisfied.  10 V.S.A.
§ 6086(a)(9)(B).  As noted above, the Board found that the project
would significantly reduce the agricultural potential of 1.9 acres of the 2.8
acres of primary agricultural soils on the project tract and that the loss of
two-thirds of the primary agricultural soils on the site constituted a
significant reduction in the agricultural potential of such soils.  
¶ 12.        
Applicant appears to argue that the Board should have considered 44.9
acres of “prime agricultural soils” owned by Mr. Benoit in evaluating Criterion
9(B).  Applicant suggests that the Board should have used this larger
acreage because there were 44.9 acres of agricultural soils at the time it
filed its application with the district environmental commission, and there
were 44.9 acres of agricultural soils at the time that Mr. Lefgren
and Mr. Benoit appealed to the Board.  Applicant asserts that this figure
should be binding, notwithstanding the fact that Mr. Lefgren
never intended to purchase nor did he actually purchase this property from Mr.
Benoit in December 2004.  Alternatively, applicant argues that even if the
Board correctly determined that there were only 2.8 acres of primary
agricultural soils on the property, there was undisputed expert testimony from
its project engineer, Richard DeWolfe, that the
project would have an impact only on .5 acres, thereby leaving 2.3 acres of
soils available for agriculture.  
¶ 13.        
These arguments are without merit.  First, it is not clear exactly
what applicant is referring to in its discussion of 44.9 acres of “prime
agricultural soils,” nor does this argument appear to have been raised with any
specificity below.  In its brief, applicant cites to prefiled
testimony of Mr. DeWolfe, who confusingly states: 
The
Project will affect 1.9 +/- acres of marginal prime agricultural soils out of a
total of the 44.9 +/- acres of prime agricultural soils owned by Hubert Benoit
at the time of conveyance to John Lefgren, and result
in the actual loss of only 0.5 +/- acres of the 1.9 +/- acres due to the
Project’s construction of new impervious surfaces.  
 
¶ 14.        
It does not appear that this argument was properly raised below or
preserved for appeal.  Even assuming that it was preserved, however,
applicant offers no legal support whatsoever for its assertion that the Board
erred by failing to consider land owned by Mr. Benoit in evaluating criterion
9(B).  Mr. Benoit was listed as a “landowner” on the Act 250 application
solely because he and Mr. Lefgren had not yet
finalized the sale of the project tract.  That transaction was completed
in December 2004, well before the commencement of the de novo hearing before
the Board.  Moreover, applicant’s own expert, Mr. DeWolfe,
testified at the March 2005 hearing that of the 41 acres actually
conveyed to Mr. Lefgren by Mr. Benoit in December
2004, 2.8 acres (all of which was located on the project lot) were considered
prime agricultural land.  Mr. DeWolfe stated
that the project would have an impact on 1.9 acres of the 2.8 acres, which he
conceded was a significant impact on prime agricultural land.  
¶ 15.        
Notwithstanding this testimony, applicant now argues that the Board erred
in finding that the 1.9 acres at issue were “primary agricultural soils.” 
According to applicant, these soils do not “support and contribute to an
existing economic agricultural operation.”  Applicant contends that Mr.
Benoit’s agricultural use of this land was marginal and not profitable. 
The Board did not address applicant’s argument that the soils on the site were
not “primary agricultural soils,” because applicant raised the argument for the
first time in its motion to alter, which was impermissible under Board rules
and Board precedent.  See Environmental Board Rule 31(A)(1), 6 Code of
Vermont Rules 12 003 001-28 (2004).  The Board noted, however, that the
argument was contrary to the testimony of applicant’s own witness, Mr. DeWolfe.
¶ 16.        
Given applicant’s failure to preserve this argument, we similarly need
not address it on appeal.  We agree with the Board, however, that
applicant’s argument contradicts the testimony of its own expert witness. 
It also relies upon an inaccurate definition of primary agricultural
soils.  The Board applied the correct definition of this term in its
decision, see 10 V.S.A. § 6001(15) (Cum. Supp. 2005) (defining “primary
agricultural soils”), and the record supports the Board’s finding that there
were 2.8 acres of primary agricultural soils on the project tract, and that the
project would significantly reduce the agricultural potential of 1.9 of the 2.8
acres, which constituted a significant reduction of the agricultural potential
of such soils.  See In re Spear St. Assocs., 145 Vt. 496, 499, 494
A.2d 138, 140 (1985) (explaining that determination of whether a site contains
primary agricultural soils is essentially a factual one, which this Court
reviews for clear error).  We thus find no error in the Board’s conclusion
that the project did not comply with 9(B).  
¶ 17.        
We similarly reject applicant’s challenge to the Board’s evaluation of
the four subcriteria set forth in 10 V.S.A. §
6086(a)(9)(B)(i)-(iv).  These subcriteria are:  
(i) the applicant can realize a reasonable return on the
fair market value of his land only by devoting the primary agricultural soils
to uses which will significantly reduce their agricultural potential; and 
 
(ii) there are no
nonagricultural or secondary agricultural soils owned or controlled by the
applicant which are reasonably suited to the purpose; and 
 
(iii) the
subdivision or development has been planned to minimize the reduction of
agricultural potential by providing for reasonable population densities,
reasonable rates of growth, and the use of cluster planning and new community
planning designed to economize on the costs of roads, utilities and land usage;
and 
 
(iv) the
development or subdivision will not significantly interfere with or jeopardize
the continuation of agricultural or forestry on adjoining lands or reduce their
agricultural or forestry potential.  
 
Id. 

¶ 18.        
Turning to the first subcriterion, the Board
found that applicant failed to establish the fair market value of its
land.  It explained that under Board precedent, sales price was not a
valid measure of fair market value, although it agreed that a bona fide sale
could, under defined circumstances, establish a fair market value for
subsection (i) purposes.  Here, however,
applicant merely presented evidence that a sale occurred; it did not describe
the circumstances surrounding the sale, and it failed to demonstrate that the
sale was bona fide.  Thus, the Board could not accept the sales price as
evidence of the project tract’s fair market value.  The Board noted that
even if applicant could use the sales price to establish the project tract’s
fair market value, applicant failed to meet the other elements of subsection (i): it failed to demonstrate that it could realize a
reasonable return on the fair market value of the land only by devoting
the primary agricultural soils to uses that would significantly reduce their
agricultural potential; it did not suggest a reasonable rate of return; and it
did not explore or present any alternative projects that would not have impacts
on primary agricultural soils as great as the ones created by the proposed
project.  
¶ 19.        
As to the second subcriterion, the Board found
that applicant presented no evidence concerning the suitability of the
approximately 44.5 acres to the west of the project tract, owned by Mr. Lefgren, other than a statement that setting the proposed
project near the existing residence would raise aesthetic concerns. 
Finally, the Board found that applicant merely offered conclusory
statements from its engineer that “the project complies with the elements of
the alternative test set forth at sub-parts (i)-(iv)
of Criterion 9(B),” but presented no other evidence as to subcriteria
(iii) and (iv).  The Board thus found that applicant did not meet its
burden on these subcriteria.  
¶ 20.        
Applicant offers no basis to disturb the Board’s findings. 
Applicant simply reiterates the same conclusory
arguments that it made before the Board, arguments that the Board rejected both
in its original decision and in its order denying applicant’s motion to
alter.  Applicant asserts, for example, that “Mr. Lefgren
showed that the $75,000 he paid Mr. Benoit was a bona fide sale and that the
Project was the only means to earn a reasonable return on the
investment.”  The Board found otherwise, and “it is not for this Court to
reweigh conflicting evidence, reassess the credibility or weight to be given
certain testimony, or determine on its own whether the factual decision is
mistaken.”  In re Wildlife Wonderland, Inc., 133 Vt. 507, 511, 346
A.2d 645, 648 (1975).  Applicant’s remaining arguments are similarly conclusory and equally unpersuasive.  We find no error
in the Board’s evaluation of the subcriteria set forth
in Criterion 9(B).  
¶ 21.        
Finally, we turn to applicant’s challenge to the Board’s evaluation of
Criterion 10, 10 V.S.A. § 6086(a)(10), which requires compliance with a duly
adopted town or regional plan.  Applicant argues that the provision cited
by the Board is unclear and ambiguous and therefore cannot be applied to its
project.  According to applicant, the requirement that commercial
development be located “close to” South Royalton Village or the Royalton
Village is a relative term and it is too vague to provide property owners with
notice regarding where development can occur.  Similarly, applicant argues
that because the term “feasible” is not defined, property owners cannot discern
what steps they must take to gain Act 250 approval.  Alternatively,
applicant argues that its project does comply with the requirement that “where
feasible,” projects be located “close” to the town villages.  It states
that its proposed development is “close” to the village under a reasonable
understanding of that word, and that it presented evidence that it was not
“feasible” to construct the gift shop in the village, however the term
“feasible” is defined.  
¶ 22.        
As we recently explained: 
we
will affirm the Board’s determination of nonconformity [with a town or regional
plan] when based on a specific policy set forth in the plan, and stated in
language that is clear and unqualified, and creates no ambiguity.  Broad
policy statements phrased as nonregulatory
abstractions, however, may not be given the legal force of zoning laws, which
are designed to implement the town plan, and may provide meaning where the plan
is ambiguous.  
 
In
re John A. Russell Corp., 2003 VT 93, ¶ 16, 176 Vt. 520, 838 A.2d 906
(quotations omitted).  Thus, “while we generally accord great deference to
the Board’s decision, we have not hesitated to reverse a finding of
nonconformity where the plan sets forth an abstract policy . . . but provides
no specific standards to enforce the policy, or is at best, ambiguous and in
conflict with applicable zoning provisions.”  Id. ¶ 17 (quotations
omitted).    
¶ 23.        
We conclude that the provision at issue here is too ambiguous to be
enforced against applicant.  As noted above, the plan states that “[w]here
feasible, commercial development shall be located within or close to South
Royalton Village or Royalton Village, re-using existing sites where possible,
or in other locations specifically recommended in this plan and its
amendments.”  Even if we give the words “where feasible” their plain and
ordinary meaning, it remains uncertain if the drafters of the town plan
intended this phrase to refer to economic feasibility, physical feasibility,
some combination of both, or perhaps some other measure of feasibility
altogether.  We agree with the dissenting Board members that such
ambiguity and uncertainty renders the words meaningless, and therefore
unenforceable under Criterion 10.  See id. ¶ 19 (reversing Board’s
finding of noncompliance where town plan lacked specific policies or standards
and citing similar cases).  Given our conclusion, we need not address
applicant’s remaining challenges to the Board’s evaluation of Criterion
10.  
Affirmed in part
and reversed in part.
 

 


 


 
FOR THE COURT:


 


 


 


 


 


 


 


 


 


 


 


Chief
  Justice

 





[1]  The
parties apparently entered into this agreement in September 2003, but the
transaction was not completed until December 2004.  In its Act 250
application, applicant explained that Mr.
Benoit owned an approximately 100-acre farm, which was to be subdivided along
Dairy Hill Road such that the farm retained approximately 60 acres, and the
remaining 40 acres would be subdivided into an eight-acre lot for the gift shop
and a deferred lot.  As noted above, in December 2004, Mr. Lefgren completed his purchase, buying a 7.3-acre lot and a
34.3-acre lot from Mr. Benoit.  The lots were described in two separate
deeds, and they are located immediately to the west of and fronting on Dairy
Hill Road.  Mr. Lefgren proposed to build
the gift shop on the 7.3 acre lot.  Given the completion of this sale, Mr.
Benoit’s role in this case appears to be limited to that of an adjoining
landowner.  It is not clear why counsel filed a notice of appeal on his
behalf.
 


[2]  This statute has since been amended.  



