Posted by: Patricia Salkin | June 19, 2015

VT Supreme Court Holds Municipality is Not Required to Consider Every Alternative Siting Based on Aesthetics Under Act 250

This case raised the issue of whether Act 250 required consideration of alternative siting in every case in which a party objects to a proposed land-use project on aesthetic grounds, pursuant to 10 V.S.A. § 6086(a)(8), without regard to the presence of competent evidence supporting alternative siting as a reasonable mitigating measure.

A neighboring resident of Goddard College in Plainfield Vermont, challenged the Superior Court, Environmental Division’s grant of an Act 250 permit to Goddard College to build a central woodchip boiler heating system on its campus replacing old individual oil-fired systems (the project included a 2,469–square–foot building, distribution pipeline, woodchip-storage area, and access roadway) arguing that the court failed to properly consider measures to mitigate the aesthetic impact of the project by siting it elsewhere on the college property. That trial court found that while there would be adverse aesthetic impacts from the project, these impacts would not be unduly adverse.

On appeal the Neighbor argued that the court erred in refusing to consider relocation of the project within the project tract, and that its analysis concerning mitigation of the project’s adverse aesthetic impacts was not supported by adequate factual findings that were supported by the record.

The Supreme Court affirmed stating that the Environmental Division determines the credibility of witnesses and weighs the persuasive effect of evidence, and that they would not overturn unless it was clearly erroneous. Act 250 requires the district environmental commission, before granting a permit, to find that the proposed project meets ten statutory criteria. Criterion 8 requires that the project “not have an undue adverse effect on the scenic or natural beauty of the area” or “aesthetics.” Although the applicant has the burden of proof with respect to many of the Act 250 criteria, the burden of proof for Criterion 8 is “on any party opposing the applicant.”

The Neighbor argued that the Environmental Division “refused to” allow presentation of evidence on relocation of the project elsewhere on the campus as a generally available mitigating step. The court stated there was no evidentiary ruling by the trial court denying the neighbor the ability to present evidence of alternative project sites in support of the claim that reasonable, generally available mitigating steps were not taken. The Neighbor next argued that the Environmental Division erred substantively in its Criterion 8 determination that the aesthetic impact of the project would not be unduly adverse. Neighbor asserted that the court’s analysis “lacks sufficient findings, or conclusions derived from evidence in the record, to support the contention that reasonably available mitigation occurred.” Neighbor complained that “missing from the lower court’s analysis” was an indication that the college or the court “thoroughly reviewed” mitigating steps, “including relocation within the project tract.” The court rejected this claim stating that the trial court’s analysis was well-grounded in substantial evidence derived from the record, and it was not arbitrary, capricious, or clearly erroneous. The court’s lack of discussion regarding a relocation of the project to some other site on the college’s campus was not grounds for reversal. It need not decide the question raised by the court during the hearing below: whether alternative siting within a project tract may be considered as a reasonable mitigating measure. Assuming without deciding that the court can consider proposed alternative siting as a reasonable mitigating measure in the undue-impact analysis, the neighbor failed to produce any competent evidence to support an alternative siting argument.

It is the objecting party’s job to adduce substantial evidence showing an unduly adverse effect on aesthetics or scenic views. That burden includes the duty to demonstrate the availability of reasonable mitigating steps to improve the project’s harmony with its surroundings if the failure to take reasonable mitigating steps is a basis for an undue-adverse-impact challenge. Here, neighbor put forth no competent evidence on the issue of alternative siting. Because the neighbor did not present substantial evidence on the issue of siting, they did not decide whether, to what extent, and under what circumstances shifting the location of a proposed project within the same tract may be a mitigating step under Criterion 8. 

In re Goddard Coll. Conditional Use, 111 A3d 1285 (Vt 11/21/2014)

The opinion can be accessed at:

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