State of Vermont ______
LAND USE PERMIT
AMENDMENT
Case No; 4C1163-2 LAWS/REGULATIONS INVOLVED Georgia Mountain Maples, LLC 10 V.S.A. §§ 6001 - 6093 (Act 250) and H.W. Ventures, LLC P.O. Box 2098 Milton, VT 05468
District Environmental Commission #4 hereby issues Land Use Permit Amendment #4C1163-2, pursuant to the authority vested in it by 10 V.S.A. §§ 6001-6093. This permit amendment applies to the lands identified in Book 185, Pages 144-146, of the land records of Milton, Vermont, as the subject of a deed to H.W. Ventures, LLC. This Permit specifically authorizes the utilization of an existing maple sugaring building as an 80-seat banquet hall. The project is located at 345 North Road in Milton, Vermont. Jurisdiction attaches because the Project constitutes a material change to a permitted development, and thus requires a permit amendment pursuant to Act 250 Rule 34. 1. The Permittees, and its assigns and successors in interest, is obligated by this permit to complete, operate and maintain the Project as approved by the District Commission in accordance with the following conditions. 2. The Project shall be completed, operated and maintained in accordance with: (a) the conditions of this permit; (b) Findings of Fact and Conclusions of Law #4C1163-2; and (c) exhibits on file with the District Environmental Commission and other material representations. The approved plans are: Sheet C-1 - “Partial Site Plan, Proposed Banquet Hall Green Mountain Maples, LLC” dated 4/29/14, last revision 12/05/14 (Exhibit #12); and Sheet C-2 – Details Water and Wastewater Systems, Green Mountain Maples, LLC” dated 10/03/11 (Exhibit #13); Sheet C-1 - “Partial Site Plan [Planting Plan], Proposed Banquet Hall Green Mountain Maples, LLC” dated 4/29/14, last revision 12/05/14 (Exhibit #21). 3. All conditions of Land Use Permit #4C1163 and amendments are in full force and effect except as further amended herein. 4. The Permittees shall comply with all of the conditions of the following Agency of Natural Resources Permit: a. Wastewater System and Potable Water Supply Permit #ww-4-3766-1 issued on March 5, 2015 by the ANR Wastewater Management Division.
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5. Any nonmaterial changes to the permit listed in the preceding condition shall be automatically incorporated herein upon issuance by the Agency of Natural Resources. 6. Representatives of the State of Vermont shall have access to the property covered by this permit, at reasonable times, for the purpose of ascertaining compliance with Vermont environmental and health statutes and regulations and with this permit. 7. A copy of this permit and plans shall be on the site at all times throughout the construction process. 8. No change shall be made to the design, operation or use of this project without a permit amendment issued by the District Commission or a jurisdictional opinion from the District Coordinator that a permit is not required. 9. No further subdivision, alteration, and/or development on the tract/tracts of land approved herein shall be permitted without a permit amendment issued by the District Commission or a jurisdictional opinion from the District Coordinator that a permit is not required. 10. Pursuant to 10 V.S.A. § 8005(c), the District Commission may at any time require that the permit holder file an affidavit certifying that the project is in compliance with the terms of this permit. 11. The conditions of this permit and the land uses permitted herein shall run with the land and are binding upon and enforceable against the Permittees and their successors and assigns. 12. There shall be no floor drains installed at the Project without first acquiring the required permit from the ANR Drinking Water and Groundwater Protection Division and/or the Wastewater Management Division. 13. The Permittees and all subsequent owners or lessees shall install and maintain only low- flow plumbing fixtures in any buildings. Any failed water conservation measures shall be promptly replaced with products of equal or better performance. 14. The Permittees shall maintain an undisturbed, naturally vegetated, unmowed 50-foot buffer from the edge of wetlands and any disturbed areas. Snowplowing or storage of materials within this buffer is prohibited. 15. The Permittees and all assigns and successors in interest shall continually maintain the landscaping as approved in Exhibit #12 (Sheet C-1) by replacing any dead or diseased plantings within the season or as soon as possible after the ground thaws, whichever is sooner 16. The installation of exterior light fixtures is limited to those approved in Exhibit #12, (Sheet C-1) and shall be mounted no higher than 12 feet above grade level. All exterior lighting shall be installed or shielded in such a manner as to conceal light sources and reflector surfaces from view beyond the perimeter of the area to be illuminated. 17. The Permittees shall not erect additional exterior signage, other than that shown in Exhibit #12 without prior written approval from the District Coordinator or the Commission, whichever is appropriate under the Act 250 Rules. Signage includes
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banners, flags, and other advertising displays, excepting temporary real estate marketing signs and temporary Grand Opening signs. 18. No outdoor events shall be scheduled during the following days: New Year's Eve and New Year's Day, Martin Luther King's Birthday, President's Day, Easter, Memorial Day, Bennington Battle Day, Columbus Day, Veterans' Day, Thanksgiving and Christmas. (Exhibit #17). 19. Fifty (50) total events are allowed each calendar year. No more than twenty (20) outdoor events shall occur between May 1st and October 31st in any calendar year. (Exhibit #17). 20. Electronic amplification of music, voice or sound shall only be allowed in the banquet hall building. No outdoor music shall be permitted except the use of unamplified (acoustic) music shall be allowed only on the patio on the west side of the banquet hall building (Attachment 1 of Exhibit #17 - map shows patio location in blue) provided such music is no greater than 70 dBA LMax at the property line and 55 dBA LMax measured outside the residences. (Exhibit #17). 21. The clearing located approximately a quarter mile east of the facility and adjacent to the Santo Marotta property, 26 Shotwell Road, Milton, Vermont identified as the "Log and Ag landing" shown on Attachment 2 of Exhibit #17 shall be used exclusively for agricultural/forestry activities and equipment (hereinafter "log and Ag landing"). Box and tractor trailers and similar containers shall not be allowed. Permittees shall remove any box or tractor trailers from the Ag and log landing. Permittees shall limit use in the Ag and log landing to Ag/forestry activities and equipment and Permittees agree there shall be no more than two (2) Ag forestry employee personal vehicles parked in the upper clearing at any one time. (Exhibit #17). 22. Permittees shall plant ten (10) pine trees as described below along the log and Ag landing - Marotta property line on the north side (Permittees’ side of the property line) of the irrigation trench shown in red in Attachment 2 of Exhibit #17. The trees shall be planted no farther than 15 feet apart and should be designed to create a hedgerow when mature. Further, the Permittees shall plant twenty (20) pine trees along Shotwell Road in the area shown on Attachment 2 of Exhibit #17 in red. The new pine trees shall be nursery grown stock approximately six (6) feet in height above ground level when planted. The pine trees shall be well suited to the regional climate conditions of Milton, Vermont. The pine trees planted pursuant to this Condition shall be maintained through the life of the permits and if necessary the Permittees agree to replace as soon as feasible, but in no event later than one calendar year, any dead or dying trees with equally suitable local nursery grown pine trees as specified above. The exact locations for planting the pine trees are shown in Exhibit #21. All trees shall be located on the Permittees' property and shall be properly maintained by the Permittees. Moreover, the Permittees agree to maintain the existing screening buffer along Shotwell Road and the Marrota property line by not trimming or removing any natural growth that occurs within the entire setback area. (Exhibit #17). 23. Noise levels shall not exceed 70 dBA LMax at the property line and 55 dBA LMax as measured outside the residences. (Exhibit #17).
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24. There shall be no open doors or windows on the south and/or east sides of the banquet hall facility during an event. Amplification speakers within ten (10) feet of open doors or windows shall not be directly facing open windows or doors of the banquet hall facility. (Exhibit #17). 25. No tents or other similar structures shall be erected, nor shall any event activities occur on the south and/or east sides of the banquet hall/sugar house facility, except parking. Attachment 1 of Exhibit #17 shows permitted area for outdoor tent locations in orange/red. No amplified music, voice or sound and no unamplified music shall be allowed in tents or similar structures. (Exhibit #17). 26. All events shall end no later than 11:00 p.m. All guests shall be off the premises no later than 11:30 p.m. The operation of the banquet hall facility, including clean up, shall cease, and all lights shall be extinguished no later than 12:00 o'clock midnight and the facility shall remain closed and lights shall remain off until 7:00 o'clock a.m. the following morning. (Exhibit #17). 27. In addition to all remedies allowed under municipal and state laws, the Permittees and interested parties listed in the Findings of Fact, Conclusions of Law and Order #4C1163-2 agree that any party may require mediation in an attempt to enforce the terms and conditions of the Stipulation Agreement. (Exhibit #17) 28. The Permittees shall reference the requirements and conditions imposed by Land Use Permit 4C1163-2 in all deeds of conveyance and leases. 29. The Permittees shall file a Certificate of Actual Construction Costs, on forms available from the Natural Resources Board, pursuant to 10 V.S.A. § 6083a(g) within one month after construction has been substantially completed or two years from the date of this permit, whichever shall occur first. Application for extension of time for good cause shown may be made to the District Commission. If actual construction costs exceed the original estimate, a supplemental fee based on actual construction costs must be paid at the time of certification in accordance with the fee schedule in effect at the time of application. Upon request, the Permittees shall provide all documents or other information necessary to substantiate the certification. Pursuant to existing law, failure to file the certification or pay any supplemental fee due constitutes grounds for permit revocation. The certificate of actual construction costs and any supplemental fee (by check payable to the "State of Vermont") shall be mailed to: Natural Resources Board, National Life Records Center Building, National Life Drive, Montpelier, VT 05620-3201; Attention: Certification. 30. Failure to comply with all of the above conditions may be grounds for permit revocation pursuant to 10 V.S.A. § 6027(g).
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Dated at Essex Junction, Vermont, this 30th day of March, 2015.
By /s/ Thomas A. Little Thomas A. Little Chair District #4 Commission Members participating in this decision: Marcy Harding Monique Gilbert
Any appeal of this decision must be filed with the Superior Court, Environmental Division within 30 days of the date the decision was issued, pursuant to 10 V.S.A. Chapter 220. The Notice of Appeal must comply with the Vermont Rules for Environmental Court Proceedings (VRECP). The appellant must file with the Notice of Appeal the $265 entry fee required by 32 V.S.A. § 1431. The appellant must also serve a copy of the Notice of Appeal on the Natural Resources Board, Dewey Building, National Life Drive, Montpelier, VT 05620-3201, and on other parties in accordance with Rule 5(b)(4)(B) of the Vermont Rules for Environmental Court Proceedings. Decisions on minor applications may be appealed only if a hearing was held by the district commission. Please note that there are certain limitations on the right to appeal. See 10 V.S.A. § 8504(k). For additional information on filing appeals, see the Court’s website at: http://www.vermontjudiciary.org/GTC/environmental/default.aspx or call (802) 828-1660. The Court’s mailing address is: Vermont Superior Court, Environmental Division, 32 Cherry Street, 2nd Floor, Suite 303, Burlington, VT 05401 w:\nrb\dist4\projects\4c1001-4c1250\4c1163\4c1163-2\4c1163-2 pmt.docx
State of Vermont NATURAL RESOURCES BOARD DISTRICT #4 ENVIRONMENTAL COMMISSION 111 West Street Essex Junction VT 05452
H.W. Ventures, LLC Application #4C1163-2 and Georgia Mountain Maples, LLC Findings of Fact P.O. Box 2098 Conclusions of Law, and Order Milton, VT 05468 10 V.S.A. §§ 6001-6093 (Act 250)
I. INTRODUCTION On December 11, 2014, H.W. Ventures, LLC and Georgia Mountain Maples, LLC filed an application for an Act 250 permit for a project generally described as utilization of an existing maple sugaring building as an 80-seat banquet hall. The tracts of land consist of 646 acres. The Applicant's legal interest is ownership in fee simple described in a deed recorded on Book 185, Pages 144-146 to H.W. Ventures, LLC in the land records of the Town of Milton, Vermont. The application, submitted on December 11, 2104, was deemed complete. The Commission held a hearing on this application on February 23, 2015. The Commission also conducted a site visit that immediately preceded the hearing and placed its observations on the record. At the end of the hearing, the Commission recessed the proceeding pending the submittal of additional information. The Commission adjourned the hearing on March 26, 2015 after receipt of the additional information, an opportunity for parties to respond to that information, and the completion of Commission deliberations. As set forth below, the Commission finds that the Project complies with 10 V.S.A. § 6086(a) (Act 250).
II. JURISDICTION Jurisdiction attaches because the Project is a material change to a permitted development or subdivision, and thus requires a permit amendment pursuant to Act 250 Rule 34.
III. PARTY STATUS AND FRIENDS OF THE COMMISSION A. Parties by Right Parties by right to this application pursuant to 10 V.S.A. § 6085(c)(1)(A)-(D) who attended the hearing are: 1. The Applicants were represented by Kevin Harrison and Peter Garceau, P.E. 2. The Town of Milton was represented at the hearing by Jacob Hemmerick. 3. The Chittenden County Regional Planning Commission (“CCRPC”) was represented through an Entry of Appearance, dated February 5, 2015, by Charlie Baker, Executive Director. B. Interested Parties Any person who has a particularized interest protected by Act 250 that may be affected by an act or decision of the Commission is also entitled to party status. 10 V.S.A. § 6085(c)(1)(E). i. Preliminary Party Status Determinations Pursuant to Act 250 Rule 14(E), the District Commission made preliminary determinations concerning party status at the commencement of the hearing on this application. The following persons requested Findings of Fact, Conclusions of Law, and Order #4C1163-2 Page 2 of 7 party status pursuant to 10 V.S.A. § 6085(c)(1)(E), and were either admitted as parties or denied party status, as indicated below: 4. Nicolas Nyirjesy, 23 Shotwell Road, Milton. The Chair granted preliminary party status under Criteria 5 (traffic) which requires that the proposed project will not cause unreasonable congestion or unsafe conditions with respect to use of highways, waterways, railways, airports, and other means of transportation existing or proposed; 8 (aesthetics) which requires that the proposed project will not have an undue adverse effect on the scenic or natural beauty of the area; and 10 (local and regional plans) which requires that the proposed project is in conformance with any duly adopted local or regional plan or capital program under chapter 117 of Title 24. 5. Santo Marotta, 26 Shotwell Road, Milton. The Chair granted preliminary party status under Criteria 5 (traffic); 8 (aesthetics); and 10 (local and regional plans). ii. Final Party Status Determinations Prior to the close of hearings, the District Commission re-examined the preliminary party status determinations in accordance with 10 V.S.A. § 6086(c)(6) and Act 250 Rule 14(E) and found no reason to change its preliminary determinations.
IV. FINDINGS OF FACT AND CONCLUSIONS OF LAW The District Commission initiated the review process on this application as a Minor application under Act 250 Rule 51 on December 16, 2014. The Commission distributed a notice and proposed permit establishing a deadline of January 20, 2015 by which parties, or the Commission on its own motion, could request a hearing on this matter. The Commission received timely requests for a public hearing from Nicolas Nyirjesy and Santo Marotta under Criteria 5, 8 and 10. On January 26, 2015 the Commission issued a Memorandum and Notice of Hearing indicating that a public hearing would be held because substantive issues were raised on Criteria 5, 8, and 10. Pursuant to Act 250 Board Rule 51(F), the Commission need only prepare Findings of Fact and Conclusions of Law on those criteria or subcriteria at issue during the hearing. Therefore, the following Findings of Fact are limited to Criteria 5, 8 and 10. The findings of fact are based on the application, Exhibits #1 - #21, and other evidence in the record. Findings made in this decision are not limited to the specific criterion in which they appear, and may apply to other sections of the decision. Under Act 250, projects are reviewed for compliance with the ten criteria of Act 250, 10 V.S.A. § 6086(a)(1)-(10). Before granting a permit, the District Commission must find that the Project complies with these criteria and, therefore, is not detrimental to the public health, safety or general welfare. The burden of proof under Criteria 1 through 4 and 9 and 10 is on the applicant, and on the opponent under Criteria 5 through 8, and 9A if the municipality does not have a duly adopted capital improvement program.
General Findings: 1. A Wastewater System and Potable Water Supply Permit (#ww-4-3766) was issued on December 8, 2011 for construction of the maple sugar processing facility for six employees utilizing an on- site water supply and wastewater disposal system. On February 6, 2012, the District #4 Coordinator determined that adding water and wastewater facilities to the existing building did not trigger the need for an Act 250 permit. 2. The current proposal is to allow use of the facility as a banquet hall with 80 seats. Food is to be brought in by a caterer and cleaning of dishes and silverware will occur off-site. Exhibit #1. Findings of Fact, Conclusions of Law, and Order #4C1163-2 Page 3 of 7
3. Wastewater System and Potable Water Supply Permit (#ww-4-3766-1) was issued on March 5, 2015 to allow a banquet hall with a maximum of 50 events per year. Exhibit #19. 4. The opponents to this Project also appealed the Town of Milton’s decision on this conditional use to the Environmental Division of the Superior Court. The parties mutually agreed to a Stipulation Agreement to end the appeal of the local decision. The Stipulation Agreement is incorporated herein as a finding. Exhibit #17.
Criterion 5 - Traffic: Findings of Fact 5. The Project is not in a Transportation Improvement District (TID). 6. The estimated traffic from the banquet hall is 225 trips per day and 27 vehicle trips at either the PM or AM peak hour. North Road has the capacity to accommodate this additional traffic. No nearby intersections are experiencing congestion. Exhibit #3. 7. There are 43 parking spaces already constructed at the Project site. No additional parking spaces are proposed or are needed for this change in use. Exhibit #3. 8. The Project does not incorporate transportation demand management strategies. 9. The Stipulation Agreement specifies that: “No outdoor events shall be scheduled during the following days: New Year's Eve and New Year's Day, Martin Luther King's Birthday, President's Day, Easter, Memorial Day, Bennington Battle Day, Columbus Day, Veterans' Day, Thanksgiving and Christmas.” Exhibit #17. 10. The Stipulation Agreement specifies that: “Fifty (50) total events are allowed each calendar year. No more than twenty (20) outdoor events shall occur between May 1st and October 31st in any calendar year.” Exhibit #17. Conclusions of Law Prior to granting a permit, the Commission must find that the Project “will not cause unreasonable congestion or unsafe conditions with respect to use of the highways...” See 10 V.S.A. § 6086(a)(5). Notwithstanding the requirement for a positive finding, the Commission may not deny a permit solely on the reasons set forth under Criterion 5. See 10 V.S.A. § 6087(b). The Commission may, however, attach reasonable conditions to alleviate traffic burdens. Id. The Commission concludes that with the restrictions on the number and occurrence of events, the Project will not cause unreasonable congestion or unsafe conditions with respect to use of roads, highways, waterways, railways, airports, and other existing or proposed means of transportation. The Project complies with Criterion 5(A). Given the type, scale and transportation impacts of this project, transportation demand management measures are not appropriate. The Project complies with Criterion 5(B).
Criterion 8 - Aesthetics, Historic Sites and Rare and Irreplaceable Natural Areas: Findings of Fact Aesthetics, Scenic or Natural Beauty 11. The present site is forested with an active lumbering and sugaring operation. The surrounding area is generally forested with rolling terrain. Exhibit #3. Findings of Fact, Conclusions of Law, and Order #4C1163-2 Page 4 of 7
12. Exterior lighting will consist of wall mounted fixtures (not higher than 12 feet) with LED lamps on the building’s exterior and on the retaining wall and along the driveway will be LED lamps (26 watt) on ten-foot poles. All fixtures will have concealed light sources. Exhibits #3 and #12. 13. The existing sign is located as shown on Exhibit #12 (Sheet C-1) and will be unlighted. 14. The Stipulation Agreement specifies that: “Electronic amplification of music, voice or sound shall only be allowed in the banquet hall building. No outdoor music shall be permitted except the use of unamplified (acoustic) music shall be allowed only on the patio on the west side of the banquet hall building (Attachment 1 [Exhibit #17] - map shows patio location in blue) provided such music is no greater than 70 dBA LMax at the property line and 55 dBA LMax at residences.” Exhibit #17. 15. The Stipulation Agreement specifies that: “The clearing located approximately a quarter mile east of the facility and adjacent to the Santo Marrota property, 26 Shotwell Road, Milton, Vermont identified as the "Log and Ag landing" shown on Attachment 2 [Exhibit #17] shall be used exclusively for agricultural/forestry activities and equipment (hereinafter "log and Ag landing"). Box and tractor trailers [sic] and similar containers shall not be allowed. Applicants shall remove any box or tractor trailers from the Ag and log landing. Applicants shall limit use in the Ag and log landing to Ag/forestry activities and equipment and Applicants agree there shall be no more than two (2) Ag forestry employee personal vehicles parked in the upper clearing at any one time.” Exhibit #17. 16. The Stipulation Agreement specifies that: “Applicants agree to plant ten (10) pine trees as described below along the log and Ag landing - Marotta property line on the north side (Applicant's side of the property line) of the irrigation trench shown in red in Attachment 2. The trees shall be planted no farther than 15 feet apart and should be designed to create a hedgerow when mature. Further, the Applicants shall plant twenty (20) pine trees along Shotwell Road in the area shown on Attachment 2 in red. The new pine trees shall be nursery grown stock approximately six (6) feet in height above ground level when planted. The pine trees shall be well suited to the regional climate conditions of Milton, Vermont. The pine trees planted pursuant to this section shall be maintained through the life of the permits and if necessary the Applicants agree to replace as soon as feasible, but in no event later than one calendar year, any dead or dying trees with equally suitable local nursery grown pine trees as specified above. The exact locations for planting the pine trees shall be determined and staked out by mutual agreement of the Parties at a site visit and jointly supported in writing to the Environmental Division and District IV Commission before the issuance of any permits. All trees shall be located on the Applicants' property and shall be properly maintained by the Applicants. Moreover, the Applicants agree to maintain the existing screening buffer along Shotwell Road and the Marrota [sic] property line by not trimming or removing any natural growth that occurs within the entire setback area.” Exhibit #17. 17. The Stipulation Agreement specifies that: “Noise levels shall not exceed 70 dBA LMax at the property line and 55 dBA LMax at residences.” Exhibit #17. 18. The Stipulation Agreement specifies that: “There shall be no open doors or windows on the south and/or east sides of the banquet hall facility during an event. Amplification speakers within ten (10) feet of open doors or windows shall not be directly facing open windows or doors of the banquet hall facility.” Exhibit #17. 19. The Stipulation Agreement specifies that: “No tents or other similar structures shall be erected, nor shall any event activities occur on the south and/or east sides of the banquet hall/sugar house Findings of Fact, Conclusions of Law, and Order #4C1163-2 Page 5 of 7
facility, except parking. Attachment 1 shows permitted area for outdoor tent locations in orange/red. No amplified music, voice or sound and no unamplified music shall be allowed in tents or similar structures.” Exhibit #17. 20. The Stipulation Agreement specifies that: “All events shall end no later than 11:00 p.m. All guests shall be off the premises no later than 11:30 p.m. The operation of the banquet hall facility, including clean up, shall cease, and all lights shall be extinguished no later than 12:00 o'clock midnight and the facility shall remain closed and lights shall remain off until 7:00 o'clock a.m. the following morning.” Exhibit #17. 21. The Stipulation Agreement specifies that: “In addition to all remedies allowed under municipal and state laws, the Parties agree that either Party (i.e. Applicants or Appellants) may require mediation in an attempt to enforce the terms and conditions of this Stipulation.” Exhibit #17. 22. There are no historic sites or rare and irreplaceable natural areas which will be affected by this Project. Exhibit #3. Conclusions of Law Prior to granting a permit, the Commission must find that the subdivision or development under Criterion 8 "will not have an undue adverse effect on the scenic or natural beauty of the area, aesthetics, historic sites or rare and irreplaceable natural areas." 10 V.S.A. § 6086(a)(8). This Project involves concerns under Criterion 8 related to aesthetics and noise. The Commission uses a two-part test to determine whether a Project meets the portion of Criterion 8 relating to aesthetics and noise. First, it determines whether the Project will have an adverse effect. Second, it determines whether the adverse effect, if any, is undue. In re Rinkers, Inc., No. 302-12-08 Vtec, Decision and Order at 12 (Vt. Envtl. Ct. May 17, 2010)(citations omitted); see also, Re: Quechee Lakes Corporation, #3W0411-EB and #3W0439-EB, Findings of Fact, Conclusions of Law, and Order at 18-20 (Vt. Envtl. Bd. Nov. 4, 1985); In re Halnon, 174 Vt. 514 (mem.)(applying Quechee test in Section 248 context). The burden of proof under Criterion 8 is on any party opposing the Project, 10 V.S.A. § 6088(b), but the applicant must provide sufficient information for the Commission to make affirmative findings. In re Rinkers, No. 302-12-08 Vtec, Decision and Order at 10-11 (Vt. Envtl. Ct. May 17, 2010)(citing Re: Susan Dollenmaier, #3W0125-5-EB, Findings, Conclusions and Order at 8 (Vt. Envtl. Bd. Feb. 7, 2005); In re Eastview at Middlebury, Inc., No. 256-11-06 Vtec, slip op. at 5 (Vt. Envtl. Ct. Feb. 15, 2008), aff’d, 2009 VT 98. “Either party's burden, however, may be satisfied by evidence introduced by any of the parties or witnesses…” In re McShinsky, 153 Vt. 586, 589 (1990) (quoting In re Quechee Lakes Corp., 154 Vt. 543, 553–54 (1990)). 1. Adverse Effect To determine whether the Project will have an adverse aesthetic effect, the Commission looks to whether the Project will "fit" the context in which it will be located. In making this evaluation, the Commission examines a number of specific factors, including: the nature of the project’s surroundings; the compatibility of the project’s design with those surroundings; the suitability of the colors and materials selected for the project; the locations from which the project can be viewed; and the potential impact of the project on open space. Quechee Lakes Corp et al. #3W0411-EB and #3W0439-EB Findings of Fact, Conclusions of Law and Order at 18 (Vt. Envtl. Bd., Nov. 4, 1985)(cited in Rinkers, No. 302-12-08 Vtec, Decision and Order at 12-13). The Project is in an area that is predominately rural with some commercial/industrial operations. The Husky Injection Molding Systems, Ltd. campus is located across North Road. The Project will occur Findings of Fact, Conclusions of Law, and Order #4C1163-2 Page 6 of 7 within an existing building. No external construction is proposed for this Project. Therefore we conclude that the building and its use are not out of character in the neighborhood. The Superior Court approved- Stipulation Agreement is assuring that the impacts from the events will not be adverse on the adjacent landowners. Noise and frequency of events have been restricted. We conclude that the Project is compatible with its surroundings and with strict adherence to the Stipulation Agreement will have no adverse aesthetic impact. Accordingly, it complies with Criterion 8.
Criterion 10 – Town and Regional Plans: Findings of Fact 23. The municipal plan that applies to this application is Town of Milton Comprehensive Plan (2013). Exhibit #3. 24. The Property is located in the East Milton Planning Area. Exhibit #3. 25. The Town of Milton has issued a permit for the Project. Exhibit #3. 26. The regional plan that applies to this application is Chittenden County Regional Plan (2013). Exhibit #3. Conclusions of Law Before issuing a permit the District Commission must find that the Project is in conformance with any duly adopted local or regional plan or capital program. 10 V.S.A. § 6086(a)(10). The Commission has reviewed the Town of Milton’s Comprehensive Plan and has determined that the Town Plan is sufficiently specific. Re: The Mirkwood Group #1R0780-EB, Findings of Fact, Conclusions of Law, and Order at 19 (Vt. Envtl. Bd. August 19, 1996). Because the Town Plan is clear and unambiguous it is unnecessary to review the zoning bylaws. See In re Frank A. Molgano Jr. 163 Vt. 25 (1994). In Act 250 proceedings in which the provisions of a regional plan or a municipal plan are relevant to the determination of any issue: (1) the provisions of the regional plan shall be given effect to the extent that they are not in conflict with the provisions of a duly adopted municipal plan; (2) to the extent that such a conflict exists, the regional plan shall be given effect if it is demonstrated that the project under consideration in the proceedings would have a substantial regional impact. 24 V.S.A. § 4348(h). Maple Tree Place Associates, #4C0775-EB, Findings of Fact, Conclusions of Law, and Order at 53 (Vt. Envtl. Bd. June 25, 1998). The Burden of Proof under Criterion 10 is on the Applicant. Issuance of the Town permit is evidence that the Project complies with the Town plan. No citations of Town regulations or standards were submitted by the opposition to the Project. The Commission determines that the Project complies with Criterion 10.
V. SUMMARY CONCLUSION OF LAW Based upon the foregoing Findings of Fact, the Commission concludes that the Project, if completed and maintained as represented in the application and other representations of the Applicant, and in accordance Findings of Fact, Conclusions of Law, and Order #4C1163-2 Page 7 of 7 with in the findings and conclusions of this decision and the conditions of Land Use Permit #4C1163-2, will comply with the Act 250.
VI. ORDER Based upon the foregoing Findings of Fact and Conclusions of Law, Land Use Permit #4C1163-2 is hereby issued.
DATED at Essex Junction, Vermont, this 30th day of March, 2015.
By /s/ Thomas A. Little Thomas A. Little, Chair District #4 Environmental Commission Commissioners participating in this decision: Marcy Harding, Vice Chair Monique Gilbert
Any party may file a motion to alter with the District Commission within 15 days from the date of this decision, pursuant to Act 250 Rule 31(A). Any appeal of this decision must be filed with the Superior Court, Environmental Division within 30 days of the date the decision was issued, pursuant to 10 V.S.A. Chapter 220. The Notice of Appeal must comply with the Vermont Rules for Environmental Court Proceedings (VRECP). The appellant must file with the Notice of Appeal the $265 entry fee required by 32 V.S.A. § 1431. The appellant must also serve a copy of the Notice of Appeal on the Natural Resources Board, Dewey Building, National Life Drive, Montpelier, VT 05620-3201, and on other parties in accordance with Rule 5(b)(4)(B) of the Vermont Rules for Environmental Court Proceedings. Decisions on minor applications may be appealed only if a hearing was held by the district commission. Please note that there are certain limitations on the right to appeal. See 10 V.S.A. § 8504(k). For additional information on filing appeals, see the Court’s website at: http://www.vermontjudiciary.org/GTC/environmental/default.aspx or call (802) 828-1660. The Court’s mailing address is: Vermont Superior Court, Environmental Division, 32 Cherry Street, 2nd Floor, Suite 303, Burlington, VT 05401. w:\nrb\dist4\projects\4c1001-4c1250\4c1163\4c1163-2\4c1163-2 ff.docx
EXHIBIT LIST FOR APPLICATION #4C1163-2 Page 1 ______E | DATE | E | A = Applicant X | R | N | T = Town H | E | T | O = Opponent I | C | E | RPC = Regional Planning Commission B | E | R | ANR = Agency of Natural Resources I | I | E | VTRANS = Vt. Agency of Transportation T | V | D | DPS = Department of Public Services | E | | M = Municipality | D | | DHP = Division for Historic Preservation | | | WMD = Wastewater Management Division N | | B | L = Landowner O.| | Y | | | | Nature of Exhibit and Date Entered ___|______|___|______
EX 1 12/11/14 A Cover Sheets
EX 2 “ “ Schedules A, E, F & G
EX 3 “ “ Schedule B – Response to the 10 Criteria and Subcriteria
EX 4 “ “ Photos of Existing Building
EX 5 “ “ Email from Drinking Water & Groundwater Protection Division (12/02/14)
EX 6 “ “ Dept of Agriculture Summary and Conclusions Letter (12/11/13)
EX 7 “ “ Dept of Agriculture Letter Re: Prime Ag Soils (12/02/14)
EX 8 “ “ Fish and Wildlife Letter (12/01/14)
EX 9 “ “ Economic Analysis Dec, 2014
EX 10 “ “ VT Gas Ability to Serve Letter (12/04/14)
EX 11 “ “ Application Distribution COS
EX 12 “ “ Partial Site Plan, C-1 (Rev 12/05/14)
EX 13 “ “ Details Plan, C-2 (10/03/11)
EX 14 1/15/15 O Letter by Nicolas Nyirjesy, Adjoining Landowner re Request for Hearing and Party Status (Undated)
EX 15 “ “ Letter by Santo Marotta, Adjoining Landowner re Request for Hearing and Party Status (Undated)
EX 16 2/5/15 A Letter by Charlie Baker, Exec. Dir., CCRPC re Comments of Project (2/5/15)
EX 17 2/23/15 “ State of Vermont Superior Court Stipulation Dated February 22, 2015
EX 18 3/10/15 “ Cross Consulting Letter re Additional Information as Requested in HRO Dated February 26, 2015
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EXHIBIT LIST FOR APPLICATION #4C1163-2 Page 2
EX 19 3/10/15 A Wastewater System and Potable Water Supply Permit WW-4-3766-1 Issued March 5, 2015
EX 20 03/20/15 ANR Historic Preservation Comments (03/19/15)
EX 21 03/26/15 A Plan and Aerial Photo Showing Pine Tree Plantings Highlighted
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CERTIFICATE OF SERVICE
I hereby certify on this 30th day of March, 2015, a copy of the foregoing ACT 250 LAND USE PERMIT #4C1163- 2, FINDINGS OF FACT, CONCLUSIONS OF LAW, AND ORDER were sent by U.S. mail, postage prepaid to the following individuals without email addresses and by email to the individuals with email addresses listed.
Note: any recipient may change its preferred method of receiving notices and other documents by contacting the District Office staff at the mailing address or email below. If you have elected to receive notices and other documents by email, it is your responsibility to notify our office of any email address changes. All email replies should be sent to [email protected] Please note you can now fill out and submit the Act 250 survey online at: http://permits.vermont.gov/act250-survey instead of printing and mailing the attached pdf version.
Georgia Mountain Maples, LLC and HV Ventures, LLC Elizabeth Lord, Land Use Attorney c/o Janet Harrison Agency of Natural Resources PO Box 2098 National Life Drive, Davis 2 Georgia, VT 05468 Montpelier, VT 05602 [email protected] [email protected]
Kevin Harrison Barry Murphy 209 Forest Heights Vt. Dept. of Public Service Sheldon, VT 05483 112 State Street, Drawer 20 Montpelier, VT 05620-2601 Pete Garceau [email protected] Cross Consulting Engineers, P.C. 103 Fairfax Road Craig Keller St. Albans, VT 05478 Utilities & Permits/VTrans [email protected] One National Life Drive, Drawer 33
Montpelier, VT 05633 Chair, Selectboard/Chair Planning Commission [email protected] Jacob Hemmerick, Town Planner Town of Milton - PO Box 18 Milton, VT 05468 Act 250 Coordinator [email protected] Vt. Agency of Agriculture, Food & Markets 116 State Street, Drawer 20 Nicolas Nyirjesy Montpelier, VT 05620-2901 23 Shortwell Road [email protected] Milton, VT 05468 Division for Historic Preservation Santo Marotta National Life Building, Drawer 20 26 Shotwell Road Montpelier, VT 05620 Milton, VT 05468 [email protected] [email protected] Charlie Baker, Exec. Dir./Regina Mahony, Sr. Planner Chittenden County Regional Planning Commission 110 West Canal Street, Suite 202 FOR YOUR INFORMATION Winooski, VT 05404 [email protected] DISTRICT #4 ENVIRONMENTAL COMMISSION [email protected] Thomas A. Little, Chair Marcy Harding, Vice Chair/Monique Gilbert 111 West Street Essex Junction, VT 05452
Dated at Essex Junction, Vermont, this 30th day of March, 2015.
/s/ Barbara J. Cady [email protected] 879-5614
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