Landowners of nearby parcels appealed the grant of an Act 250 land-use permit for a 180-foot telecommunications tower on a parcel of land that had housed telecommunications equipment for twenty-five years. The crux of their argument was that the construction would have undue adverse effect on the aesthetics of the area in violation of the statute; they specifically claimed that the project is in violation of a clear written community standard intended to preserve aesthetics and that the developer should have decreased the tower’s height to have a less detrimental impact on its surroundings. The Vermont Supreme Court affirmed the lower court finding that there would not be an undue adverse effect. Criterion 8 of Act 250 mandates projects not have an undue adverse effect on . . . aesthetics . . .” The appeal focused on the determination that the effect would be “undue.”
The Court explained that determining whether an adverse effect is “undue” requires consideration of three factors: (1) if it “violates a clear written community standard intended to preserve the aesthetics or scenic, natural beauty of the area, (2) offends the sensibilities of the average person, or (3) the applicant has failed to take generally available mitigating steps that a reasonable person would take to improve the harmony of the proposed project with its surroundings.” The second factor was not at issue. With respect to factor 1, the Court explained that the neighbors’ interpretation of the standard mentioned in the Hardwick Town Plan is overbroad. The standard, “[m]aintaning a rural and natural skyline” would bar any nonrural structure that blighted the skyline such as telecommunications towers. The Town Plan does state that it permits some telecommunications towers, and therefore, the Court explained that there was no clear violation. All of the neighbors’ other arguments were based on the failure of Rinkers to take mitigating steps. Generally available mitigating steps must be reasonably foreseeable and may not frustrate the project’s purpose or Act 250’s goals. Rinkers had made efforts to decrease the tower’s height and decreasing it further would be a detriment to the purpose of the endeavor (expanding coverage). It would also be contradictory to the Town Plan’s “preference for co-location of such services”.
Lastly, the Court explained that while the neighbors might have decided the case differently than the lower court based upon their own opinion of the evidence, such a disagreement does not mandate reversal. The finding of the Environmental Court was not clearly erroneous.
In re Rinkers, Inc. and Shepard Act 250 Land Use Permit, 2011 WL 2899571 (Vt.7/13/2011)
The opinion can be accessed at: http://info.libraries.vermont.gov/supct/current/eo2010-446.html
