Source: Burlington Free Press reverses Colchester land ruling

By Joel Banner Baird, Free Press Staff Writer • Monday, June 21, 2010

MONTPELIER -- Developers will not be required to pay compensation for about 11 acres of prime agricultural land they paved over in Colchester last year, the Vermont Supreme Court has ruled.

The decision reverses an earlier ruling by the state Environmental Court, which found that a forested swath of what is now Brookside Village merited the payment of "mitigation fees," which normally are invested in off-site land or housing conservation projects.

The $9.6 million complex sits next to the Winooski city line. It was developed by Village Associates LLC and completed earlier this year.

Without disputing the quality of the soils on the property, the Supreme Court's 4-1 decision states the Environmental Court did not adequately address the developer's claim that the cost of removing trees would present an insurmountable obstacle for any subsequent farm enterprise.

The Environmental Court was ordered to revisit the case.

Associate Justice Denise Johnson, who wrote the majority opinion, released Friday, noted that prime agricultural land legally includes land that can be forested -- and that trees, rather than an impediment to farming, might be considered a valuable crop.

Johnson also invoked a key phrase in Vermont law that likely will prompt further debate: Agricultural land to be protected must have "few limitations for cultivation or limitations which may be easily overcome."

The goals of Act 250, she wrote in the decision, "have always been balanced against the economic necessity of development, and the result has been collaboration between environmental and business interests as well as a practical approach to regulation."

Chief Justice dissented from the majority opinion, stating it "misinterprets the plain meaning and legislative intent of Act 250 by allowing cost to determine whether soils may be classified as primary agricultural soils."

"As cost is not a limitation the statute allows us to consider, the expense of overcoming a limitation is not open to consideration either," he wrote. Reiber also took issue with the majority's contention that development might trump the need for farmland, either now or in the future.

The process of classifying valuable soils is not supposed to be a compromise, he wrote, adding: "While the mitigation provision itself does allow primary agricultural soils to be destroyed in certain areas to permit smart, concentrated development, the majority overlooks the fact that, in enacting the mitigation provision, the Legislature was in no way lessening or weakening protections of primary agricultural soils."

Brookside Village was created through a partnership between Champlain Housing Trust and Housing Vermont. It consists mostly of townhouse-style duplexes and triplexes.

Contact Joel Banner Baird at 660-1843 or [email protected].

Read more: http://www.burlingtonfreepress.com/article/20100621/NEWS02/6210309/1007/Vermont- Supreme-Court-reverses-Colchester-land-ruling#ixzz0rbaRkmAQ