In re Highway Project Bennington Bypass South NH F019-1 (4) and Bennington Bypass North NH F019-1 (5), No. 101-3-06 Bncv (Wesley, J., Aug. 10, 2006)
[The text of this Vermont trial court opinion is unofficial. It has been reformatted from the original. The accuracy of the text and the accompanying data included in the Vermont trial court opinion database is not guaranteed.]
STATE OF VERMONT BENNINGTON SUPERIOR COURT BENNINGTON COUNTY, ss. DOCKET NO. 101-3-06 Bncv
In re Highway Project Bennington ) Bypass South NH F019-1 (4) ) and Bennington Bypass North ) NH F019-1 (5) )
FINDINGS OF FACT , CONCLUSIONS OF LAW, AND JUDGMENT ORDER
The above matter came on for hearing before the Bennington Superior Court, the
Honorable John P. Wesley, Presiding Judge, on May 10 and June 29, 2006 pursuant to a necessity petition filed by the Vermont Agency of Transportation (“VTrans) under 19 V.S.A.
Chapters 5 (Condemnation) and 17 (Limited Access Facilities).
The purpose of the hearing was to determine the necessity of the State of Vermont’s acquisition of certain lands and rights in land in connection with the proposed construction of additional segments of Vermont Route 279, a state highway, in the Town of Bennington. The
State’s proposed improvements are detailed in plans captioned “Highway Project Bennington
Bypass South NH F019-1 (4)” and “Bennington Bypass North NH F019-1 (5),” copies of which were attached to the petition.
VTrans was represented by Assistant Attorney General John K. Dunleavy. At the
1 commencement of the initial day of the hearing, the following interested parties entered notices
of pro se appearance:
John M. Baker (Parcel 46) Angela J. Cannistraci (Parcel 54) Anthony A. Cannistraci (Parcel 54) Janice E. Goodrich (Parcel 28) Steven H. Goodrich (Parcel 28) Francis E. (Butch) Greene, Jr. (Parcel 50) Joshua H. Greene (Parcel 50) Debra L. Harrington (Parcel 37) Lawrence Harrington (Mortgagee, Parcel 34) Michael L. Harrington (Parcel 37) Millie Harrington (Mortgagee, Parcel 34) Melody V. Niles (Parcel 26) George E. Prouty (Parcel 49) Catherine Smith, Co-Administrator, Estate of Scott O. Smith (Parcel 33) Cynthia W. Watson (Parcel 23) Ralph E. Watson (Parcel 23)
Prior to the second day of the continued proceedings, John D. Toscano, Esq. entered his appearance on behalf of the following interested persons:
Mark J. Bleau (Parcel 26) Christopher A. Harrington (Parcel 34) Debra L. Harrington (Parcel 37) Laurie L. Harrington (Parcel 34) Lawrence Harrington (Mortgagee, Parcel 34) Michael L. Harrington (Parcel 37) Millie Harrington (Mortgagee, Parcel 34) Garth A. Maxfield (Parcel 16) Melody V. Niles (Parcel 26) Rita C. Niles (Parcel 14) Philip J. O’Neill (Parcel 105A) George E. Prouty (Parcel 49) Joanne B. Prouty (Parcel 49)
At the conclusion of the evidentiary hearing, the Court left the record open until July 21,
2006 to receive proposed findings of fact and conclusions of law, which were submitted by the
State and by those parties represented by Attorney Toscano. Upon consideration of the petition,
2 the design plans, the representations of counsel and the evidence, the Court makes the following
Findings of Fact, Conclusions of Law and Judgment Order.
Sufficiency of Notice
All interested parties were served with a notice of the highway condemnation
proceedings pursuant to 19 V.S.A.§506(a). 1 The represented parties question the sufficiency of
the notice as it did not include a warning of the default provision of §506(e), “[u]nless an answer
denying the necessity or propriety of the proposed taking is filed by one or more parties served
or appearing in the proceedings on or before the date set in the notice of hearing on the petition,
the necessity and propriety shall be deemed to be conceded, and the court shall so find.” The
Court concludes that the notices served on all parties complied with the statute. Represented
parties have provided no authority that the notice is defective unless it references §506(e). In
any event, as represented parties acknowledge, the State did not move for a default entry based
on the lack of any written opposition by any party, and the Court treated the oral appearances of
1 (a) The agency shall prepare a notice of the necessity hearing. The notice shall include the names of the municipalities in which the lands to be taken or affected are located; the names of all interested persons within the meaning of subdivision 501(2) of this chapter; and a brief statement identifying the proposed project and its location, and the date, time and place of the necessity hearing. The agency shall make service of copies of the petition, the notice of hearing and the survey (for the purposes of this section, "survey" means a plan, profile or cross-section of the proposed project) as follows: (1) Upon interested persons in accordance with the Vermont Rules of Civil Procedure for service of process, except as stated in subsection (b) of this section and in section 519 of this title. The copy of the survey that is served upon interested persons need include only the particular property in which those persons have an interest. (2) One copy each upon the clerk, legislative body and board of listers of each affected municipality by certified mail. The clerk shall record the notice of hearing in the municipal land records, at the agency's expense, and shall enter the names of the interested persons in the general index of transactions affecting the title to real estate.
3 all interested parties who made them at the initial hearing as sufficient to place the burden on the
State to produce evidence as to the necessity of the takings. The Court’s jurisdiction was
unimpaired by any claimed defect in the formalities of notice. See State Highway Board v.
Hazen , 126 Vt. 46 (1966)(property owner who received notice of hearing on necessity petition
not prejudiced because notice refers in general terms to proposed improvement without specific
reference to phase directly affecting property owner).
Findings of Fact
Introduction
Although a significant number of interested parties appeared to contest the necessity of the project, most of those who had been served acceded to the petition by failing to formally oppose it. The opponents who entered appearances, including those who subsequently retained
Attorney Toscano, focused their objections on the claimed disruption to their neighborhood which they believe will accompany the construction in that residential section of Bennington east of the downtown area of an interchange between the proposed limited access highway and existing Route 9. They principally dispute i) the claim that construction of the highway and interchange as designed will alleviate downtown traffic congestion, arguing that it will simply shift the congestion into their neighborhood; and ii) that the route as proposed is as effective for the claimed purpose as other routes, the consideration of which they claim was inadequate.
Several of the interested parties gave testimony attesting to their opinions to this effect on the initial day of hearing. At the close of that first day of testimony, the Court informed the interested parties that they would have to make disclosure to the State of the identity of any expert expected to give testimony in opposition to the petition, together with a summary of the expected opinion evidence and the basis for it. The interested parties neither disclosed nor
4 proferred any expert witnesses. At the close of the State’s case, neither the represented parties
nor other interested parties offered any further testimony. Their proposed findings are based
either directly, or by claimed extrapolation, from the State’s evidence or asserted lack thereof.
Having given due consideration to the testimony and exhibits, the Court concludes that
all of the State’s proposed findings are supported by the evidence and adopts them by reference.
Nonetheless, the Court will set forth hereafter its specific findings addressing the particular
challenges to the necessity of the project which have been raised by the interested parties who
appeared in opposition.
Project Overview
1. The Vermont Agency of Transportation (“VTrans”), on behalf of the State of Vermont, has filed a petition in this Court under 19 V.S.A. Chapter 5 (Condemnation) and 19 V.S.A.
Chapter 17 (Limited Access Facilities) seeking authority to acquire certain lands and rights in land in connection with “Highway Project Bennington Bypass South NH F019-1 (4)” and
“Highway Project Bennington Bypass North NH F019-1 (5),” the plans of which were attached to the petition. The proposed projects involve construction of additional segments of Vermont
Route 279 (also known as the “Bennington Bypass”). (Testimony of James W. Harris; Exhibits
1-29)
2. The purpose of the Bennington Bypass projects is to relieve significant traffic
congestion in downtown Bennington and Old Bennington, thereby enhancing public access and
use of the commercial center of the village and promoting public safety, to be accomplished by
separating through traffic on U.S. Route 7 and Vermont Route 9 from traffic with a destination
in the Bennington urban core. Existing U.S. Route 7 and Vermont Route 9 both follow historic
highway alignments dating back to the late eighteenth century and early nineteenth century. The
5 Bennington Bypass projects, assuming all are completed, will eventually provide a limited-
access facility along new alignments, beginning at a point on U.S. Route 7 about a mile north of
the Pownal/Bennington town line and then sweeping around downtown Bennington to the east,
north and west to Hoosick, New York. If the projects are not built, the transportation system in
Bennington will continue to deteriorate. (Testimony of James W. Harris; Exhibit 36, pp. I-1 – I-
9)
3. The Bennington Bypass consists of three limited-access highway segments, each with
independent utility. The Western Segment, officially known as the Bennington-Hoosick DPI
0146(1) project, was opened to traffic in October 2004. 2 The Northern Segment, officially
known as the Bennington NH F019-1 (5) project, which is the principal subject of the petition,
begins at a proposed interchange with Vermont Route 9, just east of downtown Bennington, and
proceeds northwesterly for almost three miles to the existing Systems Interchange with U.S.
Route 7. If subsequently approved, the Southern Segment, officially known as Bennington NH
F019-1(4), eventually will extend northward from a point on U.S. Route 7 about a mile north of
the Pownal/Bennington town line to the Vermont Route 9/279 interchange. At this time, the
property acquisitions proposed along the Southern Segment are limited to areas needed for the
“Stage One Sites” for the deposit and expected re-use of excavated materials from the Northern
Segment, together with the connecting haul road off U.S. Route 7. (Testimony of James W.
Harris)
4. As part of the project, VTrans proposes to acquire enough land to eventually build four
lanes (two lanes in each direction), but initial construction will be limited to two lanes (one lane
2 The portion of the Western Segment within Vermont was the subject of a previous necessity proceeding. See In re Highway Project Bennington-Hoosick DPI 0146(1) , Docket No. 194-6-99 Bncv (Bennington Superior Court, Aug. 18, 1999) (Robert J. Grussing, III, Presiding Judge).
6 in each direction), with additional climbing lanes where warranted. (Testimony of James W.
Harris)
5.. As part of the construction of the Northern Segment, a significant amount of earthen material will need to be excavated and removed from the alignment of the Northern Segment.
Finding a location in the Bennington area to accept such a large quantity of material proved to be a challenge, both from environmental and cost perspectives. The Southern Segment highway corridor was identified as an appropriate site, both because it is large enough to accept the volume of additional earth and because the highway profile of the Southern Segment requires additional material to build the roadway to its desired profile. Several locations along the planned Southern Segment corridor have been identified as ideal locations to place this material.
Accordingly, VTrans proposes to acquire these segments of the Southern Segment now so they will be available to receive the earth materials being removed from the Northern Segment. This will be a cost-saving measure for both the Northern and Southern Segments. (Testimony of
James W. Harris; Testimony of Dale E. Gozalkowski)
6. Following reactivation of the Bennington Bypass projects in the mid-1980s, VTrans established a local project office in Bennington to facilitate communication between the Agency and the Bennington community. Meetings of a Project Advisory Committee have been held periodically throughout the development of the projects. The Town of Bennington’s Planning
Commission has been periodically briefed on the status of project plans. Each major plan submission has been provided to the Town of Bennington for its comments. (Testimony of
Stuart A. Hurd and James W. Harris)
7 . The initial build-out (two lanes plus climbing lanes) of the Northern Segment is scheduled to begin in the spring or summer of 2007. Construction likely will extend through
7 2012. Construction of the Southern Segment - which will require acquisition of additional land
and rights pursuant to a separate petition - is planned to follow completion of the Northern
Segment. VTrans anticipates that the remaining lanes along the future alignment of Vermont
Route 279 south of Vermont Route 9 will be built within 15 years. (Testimony of James W.
Harris)
Consideration of Alternatives
8. The National Environmental Policy Act (NEPA), passed in 1969, requires environmental analysis of proposed federal actions, including projects directly undertaken by federal agencies, projects subject to federal regulatory review, and projects funded in part by the federal government. The Bennington Bypass project is subject to NEPA review because it receives funding through the federal-aid highway program. It is subject to the most stringent level of review, for proposed actions that may significantly affect the environment, requiring the approval of an environmental impact statement or “EIS.” (Testimony of John K. Benson; Exhibit
36, pp. I-1 – I-3)
9. The EIS process involves multiple levels of public notice, public hearing and public comment, through the preparation of a draft EIS to the approval of a final EIS. Overall, the objective is to provide a structured process by which an informed decision can be made through evaluation and selection of an alternative or solution which best meets the project’s purpose and need, taking into consideration impacts on both the natural and human environments, including, if appropriate, the “No Action” alternative. (Testimony of John K. Benson)
10. In October 1987, VTrans and FHWA, with the New York Department of
Transportation (NYDOT) as a cooperating agency, published a Draft Environmental Impact
Statement (DEIS) for the Bennington Bypass project. The DEIS included discussion of
8 reasonable project alternatives. Through the subsequent public comment process, this discussion was further refined. In August 1991, VTrans and FHWA, in cooperation with the NYDOT, published the Final Environmental Impact Statement (FEIS) for the Bennington Bypass project.
(Testimony of John K. Benson; Exhibits 36-38)
11. Beginning with the draft EIS in 1987, six alternatives were identified and evaluated:
Alternative 1 No action alternative Alternative 2 Alternative modes of transportation Alternative 3 Rebuild existing US 7 and VT 9 Alternative 4 West Bypass Alternative 5 East Bypass (New York Alignment) Alternative 5A East Bypass (Whipstock Hill Alignment)
Later, during the FEIS stage, NYDOT requested analysis of a seventh alternative, Transportation
System Management. (Testimony of John K. Benson; Exhibit 36, p. V-1 – V-2)
12. The FEIS eventually selected Alternative 5 – the East Bypass on the New York alignment – as the preferred alternative. With further design refinements over the years, as discussed below Alternative 5 represents the proposal which is now before the court in the pending necessity petition. (Testimony of John K. Benson)
13. The FEIS concluded that Alternative 1, No Action, was not a viable alternative.
According to the FEIS, the combination of inadequate existing highways, crash statistics, insufficient passing sight distance, low sufficiency ratings, high traffic volumes, increasing development and conflicting through and local traffic patterns, indicated an absolute need for highway improvement in and around the downtown Bennington area, which is referred to in the
EIS documents at the “Bennington Urban Compact.” (Testimony of John K. Benson; Exhibit 36, pp. V-4 – V-5)
14. The FEIS concluded that Alternative 2, Alternative Modes of Travel, also was non-
9 viable. According to the FEIS, mass transportation, particularly in a rural state such as Vermont, cannot be viewed as an independent alternative. Even the most comprehensive combination of traffic routing and alternate modes of transportation will not decrease traffic and relieve congestion enough to meet the transportation requirements of the area. (Testimony of John K.
Benson; Exhibit 36, pp. V-5 – V-6)
15. The FEIS concluded that Alternative 3, Rebuild Existing, would have seriously affected two National Register Historic Districts – Old Bennington and downtown Bennington – and at least 23 archaeological sites. In addition to impacts on 22 historic buildings, this alternative also would have displaced 43 businesses and adversely affected 124 employees. The combination of historic, economic, and social impacts was considered a very serious drawback.
Most importantly, Alternative 3 was discarded as a practicable alternative when it was determined that it could not meet the stated project objective of reducing congestion in downtown Bennington. (Testimony of John K. Benson; Exhibit 36, pp. V-6 – V-11)
16. The FEIS also analyzed Alternative 4, the West Bypass, which was a refinement of all proposals to route traffic west of downtown Bennington. While this proposal served the central goal of reducing congestion in the urban core, the FEIS concluded that Alternative 4 had too many adverse impacts; displacing many families in two residential housing developments and affecting an estimated 62 persons, as well as taking 127 acres of prime farm land and 55.5 acres of wetland. Because the social impact of this alternative was the highest and the environmental impact was in the order of two-to-four-times greater than all other construction alternatives, the FEIS rejected this alternative. (Testimony of John K. Benson; Exhibit 36, pp. V-
11 – V-16)
17. The FEIS eventually selected Alternative 5, the East Bypass on the New York
10 Alignment. Since a 1969 design report, this corridor has been favored as the most reasonable location for a bypass of the downtown Bennington area. The 1987 DEIS was supported by comparative data indicating that Alternative 5 was preferable to all other alternatives. The FEIS, after considering the body of data accumulated over years of study, evaluating the differences in impacts identified in the 1987 DEIS and considering input gained from public hearings, identified Alternative 5 as the route selected for the Bypass. In addition to providing adequate transportation facilities for the Bennington area through and beyond the design year of 2010,
Alternative 5 provided the best cost/benefit ratio of all alternatives considered for highway transportation improvements in the Bennington area. (Testimony of John K. Benson; Exhibit 36, pp. II-1 – II-11)
18. The FEIS also evaluated a separate alternative not initially identified by the DEIS,
Transportation System Management, also called the Limited Build Alternative. A TSM alternative investigates those activities which maximize the efficiency of the existing roadway network without rebuilding the existing system. On the basis of traffic volumes projected for the design year 2010, the levels of service predicted for the three most important signalized intersections could not be improved upon, even when TSM measures were implemented.
Accordingly, the FEIS concluded that limited TSM improvements to the existing system would not adequately correct identified roadway deficiencies nor meet the stated project need.
(Testimony of John K. Benson; Exhibit 36, pp. V-2 – V-3)
19. Notwithstanding the record of decision indicating approval of the FEIS in late 1991, planning for the Bypass continued to require additional regulatory review, and this necessitated ongoing efforts to refine and develop plans for the proposed interchange between the Bypass and
Vermont Route 9. Several additional alternatives were identified in 1993 including one called
11 the “Willie Morse Line” (originally proposed by a longtime Bennington resident and contractor, the late William H. Morse). This proposal contemplated a ramp directly from Route 9 to the
Bypass through an undeveloped area northeasterly of the route identified in the FEIS, intersecting Route 9 easterly of the Bennington urban compact area and also easterly of where
Route 9 crosses the Waloomsac River. In May 1993, Town Manager Stuart A. Hurd, on behalf of the Bennington Planning Commission, asked VTrans to look at the Morse interchange concept. (Testimony of James W. Harris; Testimony of Stuart A. Hurd). This is the proposal that many of the interested and represented parties believe was given insufficient consideration.
20. VTrans responded to the Town’s request by noting that the Morse Line idea appeared to have merit and would be subject to early review. In 1993-1994, VTrans’ environmental consultant, DuBois & King, Inc., performed a biological study of two alternatives for the
Vermont Route 9/ Bypass interchange not previously identified in the FEIS process, one similar to the Morse Line and the other referred to as the “Richter Line,” both of which lay northeasterly of the route recommended in the FEIS. Of these two, the DuBois & King study recommended the Richter Line because it had less environmental impact. However, due to the potential affect on wildlife habitat and undeveloped forest lands, the Vermont Agency of Natural Resources continued to express preference for an alignment west of the Richter Line. (Testimony of James
W. Harris)
21. In April 1994, VTrans dropped consideration of the Morse Line because the Richter
Line was similar but had fewer impacts on wildlife habitat. VTrans continued with further analysis of the Richter Line as compared with other viable alternatives. (Testimony of James W.
Harris, citing internal VTrans memo)
22. In May 1994, a consultant working for VTrans, Bryant Associates, Inc., issued a draft
12 report evaluating five interchange alternatives, including the Richter Line plus the FEIS alternative. The May 1994 report recommended what was referred to as the “EIS (MOD)” alternative. (Testimony of James W. Harris)
23. In August 1994, former VTrans engineer Mark O. Page performed a “Time Travel
Study” of Bypass/Vermont Route 9 interchange alternatives. The Page study concluded that the
EIS interchange alternative, because of the “backtracking” needed for westbound traffic to access the Bypass indirectly by way of the EIS Spur Road, would fail to provide adequate westbound travel time savings, thereby failing to meet one of the purposes or satisfy the need for the project. The Page study ranked the other five interchange alternatives from most efficient to least efficient. (Testimony of James W. Harris)
24. In July 1995, in anticipation of an upcoming Project Advisory Committee meeting,
VTrans mailed a letter to property owners along Vermont Route 9 and other interested parties requesting comments on interchange alternatives. In December 1995, based on a floodplain analysis, VTrans developed a “Modified A” alternative and asked the Town of Bennington for comments. The Town issued written approval for this alignment. (Testimony of James W.
Harris)
25. In February 1996, VTrans’ consultant Bryant Associates, Inc. issued a revised
Summary Report of Alternatives for the Route 9 Interchange. The report recommended what was referred to as “EIS (MOD),” which shortened the Spur Road needed to reach the interchange from Vermont Route 9. (Testimony of James W. Harris)
26. In February 1996, VTrans reached agreement with the Army Corps of Engineers – which has jurisdiction over construction in wetlands – on the limits of floodplain boundaries along the Roaring Branch of the Walloomsac River. The stipulations as to these boundaries
13 meant that as to three of the Bypass/Vermont Route 9 interchange alternatives longer bridges would be necessary, increasing the cost estimates for these alternatives. Based on consideration of a number of factors, including construction cost, right-of-way acquisition needs, resource impacts, and potential to divert traffic from downtown Bennington, VTrans proposed to move forward with what was referred to as the “Modified ‘A’ Interchange Alternative.” (Testimony of
James W. Harris)
27. At this stage of regulatory review, the proposed project as then reflected by the
“Modified ‘A’ Interchange Alternative” became the subject of a 19 V.S.A. § 502 public hearing held on April 17, 1997. Seven potentially affected landowners presented concerns at the hearing, which VTrans subsequently investigated and analyzed. Certain details of the project plans were modified to varying degrees in response to a number of the concerns raised in this process.
(Testimony of James W. Harris)
28. In 1999, VTrans commissioned a value engineering study of the proposed
Bypass/Vermont Route 9 interchange. “Value engineering” is a process whereby the sponsor of a public works project reviews a project’s features and looks for ways to improve quality, foster innovation, and lower costs. This particular value engineering study was performed by an independent VTrans’ consultant, Ventry Engineering, LLC. One of Ventry Engineering’s recommendations was to substitute a Single-Point Urban Interchange (SPUI) (also referred to as a “Single-Point Diamond Interchange (SPDI)”) in place of the “Modified ‘A’ Interchange
Alternative.” The SPDI design subsequently was approved to replace the “Modified A” alignment, based on the conclusion that it would be more efficient at regulating traffic flow at the interchange and that it would cost less to engineer and construct.
29. FHWA regulations regarding NEPA compliance require re-evaluation of an FEIS
14 before further approvals may be granted if major steps to advance the action (for example, authority to undertake final design, authority to acquire a significant portion of the right-of-way, or approval to advance to construction) have not occurred within three years of approval of the
FEIS. In the case of the Bennington Bypass project, several re-evaluations of the 1991 FEIS have been prepared, the most recent of which was in April 2004. (Testimony of John K. Benson;
Exhibit 39)
30. The April 2004 Re-evaluation included analysis of changes to the preferred alternative alignment of the Bennington Bypass since publication of the FEIS in 1991. From a right-of-way standpoint, the most significant such change involved substitution of the SPDI design for the Bypass/Vermont Route 9 interchange. The April 2004 Re-evaluation recognized that the SPDI design not only improves travel efficiency by providing direct access between
Vermont Route 9 and the proposed Bypass (Vermont Route 279), but also reduces the need to acquire new right-of-way, reduces wetland impacts, and avoids interference with passage of floodwaters on the Roaring Branch. (Testimony of John K. Benson; testimony of James W.
Harris; Exhibit 39, pp. 4, 12, 14, 24)
31. Throughout the history of the Bypass project, there have been many meetings with the local Project Advisory Committee. Moreover, VTrans has continued to solicit comment and input from the Town regarding proposed alternatives. As noted above, there was also an opportunity for community participation and input at the 19 V.S.A. § 502 public hearing held on
April 17, 1997. There have also been two sets of meetings with individual affected property owners, the most recent set of meetings having been held in February and March 2004.
(Testimony of James W. Harris)
32. The consideration of alternatives, including the “Morse line” and the “Richter line”
15 has been thorough, and undertaken consistently with the regulatory procedures necessary to
solicit and respond to public comment. The Town of Bennington, by its elected and appointed
officials, has certified its approval of the present design of the Northern Segment of the Bypass.
The review and selection process has included consideration of the myriad engineering and
environmental impact issues associated with the highly regulated procedures required of a
federally funded limited-access highway construction project. Although the interested and
represented parties urge the Court to find that insufficient consideration was given to locations to
the north and east of the route specified by the petition, there is no evidence to support this
proposition.
Northern Segment – Design Features
33. The new Vermont Route 279 will cross over the existing Vermont Route 9 (also
referred to as Main Street or Town Highway #2) at a point approximately 1.6 miles east of the
U.S. Route 7/Vermont Route 9 intersection in downtown Bennington. This intersection, at the
heart of Bennington’s commercial and retail district, is sometimes referred to as “The Four
Corners” or “Putnam Square.” In connection with the pending project, VTrans proposes to
construct the northern portions of the Bypass/Vermont Route 9 interchange and to reconstruct
the Vermont Route 9 approaches to the interchange. From Vermont Route 9, the Northern
Segment will extend northwesterly approximately three miles to the existing Systems
Interchange with U.S. Route 7. (Testimony of Gregory A. Edwards; Exhibits 1-23)
34. All structures ( i.e., bridges and culverts) where the Northern Segment crosses watercourses have been designed in accordance with current federal and state regulatory standards to accommodate appropriate design flows for floods and periods of high water. The
Northern Segment includes bridges over the Roaring Branch of the Waloomsac River and
16 Furnace Brook. (Testimony of Gregory A. Edwards)
35. Construction of the Northern Segment will require closure of several existing roads
which cross the proposed alignment of the new Vermont Route 279, including Quarry Road, and
two unnamed pent roads. VTrans proposes to partially mitigate for these closures by building a
new access road which will run along the easterly side of the new Vermont Route 279 between
Quarry Road and Chapel Road (Town Highway #16). (Testimony of Gregory A. Edwards)
36. Most of the Northern Segment construction will be on new alignment, with minimal
impact to the traveling public. During construction in the vicinity of the Systems Interchange,
the Vermont Route 9 interchange, and the Chapel and East Road crossings, traffic will be
maintained during the construction period through use of on-site detours and short-term lane
closures. (Testimony of Gregory A. Edwards)
37. Because the Northern Segment is a new facility, it cannot be built without acquiring
land and rights outside existing highway rights-of-way. The proposed alignment was designed to
minimize the need to acquire private homes. Where possible, the design has been further refined
to avoid going through the middle of properties. (Testimony of Gregory A. Edwards)
38. The Northern Segment does not affect agricultural lands. (Testimony of Gregory A.
Edwards; Testimony of Dale R. Robertson)
39. The horizontal and vertical alignments of the Northern Segment were designed to blend into the natural surroundings where feasible. The existing topography and vegetation screen view of the road. Near VT 279 Sta. NB 7+160.000, a pedestrian underpass will be installed for the Green Mountain Club’s existing Bald Mountain Trail, which leads from North
Branch Street to the Green Mountain National Forest. No other recreational facilities are affected by construction of the Northern Segment. (Testimony of Gregory A. Edwards)
17 40. The geometric design features of the new highway, including widths of travel lanes, climbing lanes, shoulders, safety clear zones, slopes and guardrails, are consistent with its planned speed limit, which will be 55 miles per hour. (Testimony of Gregory A. Edwards)
41. Stormwater drainage features along the proposed Northern Segment include grass- lined swales, stone-lined channels, cross culverts, curbing, and a closed drainage systems with drop inlets along the reconstructed Vermont Route 9. All drainage features have been designed in accordance with the Vermont Agency of Natural Resources’ Vermont Stormwater
Management Manual (April 2002). (Testimony of Gregory A. Edwards)
Bennington Bypass South NH F019-1 (4) – “Stage One Sites”
42. The Northern Segment, because it passes through many cuts, will generate approximately 210,000 cubic meters of excess excavated material, which must be removed from the Northern Segment alignment. The Southern Segment, by contrast, includes extensive embankments, thus requiring material to be brought in from off-site sources. To address this imbalance without the need for heavy trucks to use residential streets or other low-capacity highways, VTrans proposes to strategically place excess material from the Northern Segment in selected areas of future embankment construction (referred to as the “Stage One Sites”) along the route of the Southern Segment. Approximately 210,000 cubic meters of material will be excavated from the Northern Segment and moved to the Southern Segment. (Testimony of Dale
E. Gozalkowski; Testimony of James W. Harris; Exhibits 24-28)
43. VTrans has identified four “Stage One Sites” located south of Vermont Route 9, along the future Southern Segment corridor. Two of these sites are located on property now owned by the New England Tropical Conservatory, Inc. (NETC) between Fuller Road (Town
Highway #50) and Middle Pownal Road (Town Highway #49). The other two sites are located
18 immediately north of Middle Pownal Road. (Testimony of Dale E. Gozalkowski)
44. Excess material generated by construction of the Northern Segment will be trucked from the project south along the existing U.S. Route 7 to Fuller Road. Hauling will continue north from Fuller Road to the various Stage One Sites by way of a haul road constructed along the Southern Segment corridor. The average roundtrip haul distance will be approximately 11 miles, traversing three miles of haul road and eight miles of predominately National Highway
System roadway. (Testimony of Dale E. Gozalkowski)
45. As fill is placed, the Stage One Sites will be seeded and stabilized in accordance with the requirements of the Vermont Agency of Natural Resources and VTrans’ Standard
Specifications for Highway Construction . In the vicinity of town highway intersections, the haul road will be removed so that it does not tempt unauthorized use. (Testimony of Dale E.
Gozalkowski)
Traffic Information
46. The 1991 FEIS included analysis of traffic volumes in the vicinity of the project. In the late 1990s, VTrans retained the engineering firm of Clough Harbour & Associates, LLP
(CHA) to conduct a traffic study of the Greater Bennington Area to assess the traffic impacts of the cumulative construction of three Bypass segments: (a) the Western Segment, (b) the
Northern Segment, and (c) the Southern Segment. This study was completed in January 1999 and was relied upon by VTrans and FHWA in their April 2004 re-evaluation of the FEIS.
(Testimony of Michael R. Wieszchowski; Exhibit 39, Attachment E, pp. 1-10)
47. In the 1999 traffic study, CHA forecast traffic impacts of the Bypass segments using
VTrans’ statewide TRANPLAN model, which simulates the travel activities of population and employment centers to estimate daily travel patterns and traffic volumes on the transportation
19 system in the Bennington region, as well as throughout the state. VTrans has a local
TRANPLAN model, specific to the Bennington region, which CHA used to develop traffic volumes both for 2000, the estimated time of construction (ETC), and 2020, the design year
(ETC+20). (Testimony of Michael R. Wieszchowski)
48. CHA’s 1999 traffic study concluded that traffic volumes within the downtown area would be significantly reduced if the Bypass were constructed and opened to traffic. Some local roadways could see volume reductions of 50% or more, with significantly less congestion at many of the local intersections. Importantly, the study noted that because the Bypass segments will be constructed to modern geometric standards that can easily accommodate large trucks, virtually all “through” trucks—that is, trucks without a reason to stop in Bennington—will use the Bypass as an alternative to driving through downtown Bennington. With less traffic in the downtown Bennington area, the construction of the Bypass will reduce the crash potential not only at high-crash locations but at all locations with reduced traffic volumes. (Testimony of
Michael R. Wieszchowski)
49. Urban streets and intersections typically have higher crash rates than limited-access facilities because of the conflicts created by stopped vehicles, turning vehicles, pedestrians, restricted sight distances, roadside obstructions, etc. Reducing the number of vehicles at the local intersections by diverting them to the Bypass will reduce the number of traffic conflicts on the local roadways, thereby reducing the crash potential within the town resulting from those conflicts. Since the Bypass is a limited-access facility build to modern geometric standards, significantly fewer conflicts would exist on that facility than on the local street network. Fewer conflict points on the Bypass, combined with the higher design standards used for limited-access facilities, will result in a reduced crash potential for vehicles diverted to the Bypass. (Testimony
20 of Michael R. Wieszchowski)
50. The 1999 traffic study concluded that a two-lane Bypass will adequately accommodate the 2020 design year traffic volumes, but that expansion to a four-lane facility may be required in the future. It also stated that climbing lanes and speed-change lanes are warranted and should be provided to facilitate movement of through traffic and promote operation safety along the Bypass. (Testimony of Michael R. Wieszchowski)
51. Recently, CHA performed a re-evaluation of the 1999 traffic study to determine if its analysis and findings are still applicable. To do this, recent traffic volume data were obtained at several area locations. These traffic volumes were recorded by VTrans count stations in 2004 and 2005, after the opening of the Western Segment. Comparing these traffic volumes to the
Western Segment diversions projected in the 1999 traffic study, CHA confirmed that the diversions forecast in the 1999 traffic study are consistent in both magnitude and directionality with the actual 2004-2005 traffic data. (Testimony of Michael R. Wieszchowski)
52. CHA also has reviewed anticipated traffic conditions in the vicinity of the proposed
Bypass/Vermont Route 279 interchange. Based on traffic conditions at the SPDI in the 2020 design year, the interchange will operate at an overall level of service “B” in the 2020 design year. Level of service is a measure of delay encountered by vehicles passing through an intersection and ranges from “A” to “F”, with “A” indicating “no delays” and “”F” indicating extreme delays. Delays on mainline Vermont Route 9 at the proposed interchange will average no more than 15 seconds per vehicle for through traffic and no more than 25 seconds per vehicle for left-turning traffic. The 95% percentile queue—which is typically used by highway designers and generally considered a length that rarely will be exceeded—is anticipated to be approximately 185 feet (approximately seven car lengths) in the westbound direction and 255
21 feet (approximately 10 car lengths) in the eastbound direction. These queue lengths do not extend back past any driveways accessing Vermont Route 9 and will not block access to the eastbound right-turn slip ramp onto the Bypass. (Testimony of Michael R. Wieszchowski)
53. The construction proposed by VTrans in connection with the necessity petition now before the Court includes only the northern half of the Bypass/Vermont Route 9 interchange.
However, given the anticipated traffic volumes, the reduced number of signal phases required, and the lower number of conflicting traffic movements, traffic operations during the interim period of partial build-out of the interchange will be no worse than after full build-out and in all likelihood even better. (Testimony of Michael R. Wieszchowski).
54. Represented parties urge that the traffic studies are outdated, that they fail to account for traffic patterns in the neighborhood most directly affected by the interchange at Route 9 and the Bypass, and that they ignore earlier findings that East Main St. is a “high accident location”.
The Court rejects all these proposals as unsupported by the evidence. Contrary to the represented parties’ proposed findings, despite vigorous efforts made on cross-examination to suggest that these conclusions ought to be obvious, the State’s traffic expert was steadfast in his insistence that they were contradicted by his own analysis and conclusions. He disputed the interpretation suggested from the scant documentary evidence on which represented parties relied, and the Court concludes that none of the State’s own studies either contradict the findings stated above regarding the traffic impact at the interchange, or support the arguments of the represented parties. Other than arguing that the State’s expert misinterpreted the data available to him, interested and represented parties have put forth no countervailing expert opinion to support their claims that the interchange will be unduly disruptive to a neighborhood long characterized by the heavy flow of traffic along Route 9.
22 Right-of-Way Issues
55. The proposed project will require the acquisition of approximately 191.435 acres of land outside existing highway rights-of-way. This breaks down to approximately 148.98 acres of woodland, approximately 34.753 acres of residential land, .082 acres of commercial land, and
7.62 acres of industrial land. In addition to several properties already purchased by VTrans through advance acquisition, two houses need to be acquired for the proposed project. Although construction of the relocated Quarry Road/Pent Road will mitigate much of the loss of access that otherwise would occur, some loss of access may be unavoidable and will have to be addressed in the compensation stage. (Testimony of Dale R. Robertson)
56. VTrans’ preliminary estimate for the cost of additional right-of-way to be acquired for the proposed projects is $1,075,000. The resulting annual property tax loss to the Town of
Bennington will be approximately $15,966, against the Town’s 2006 total property tax revenues of $16,561,068. (The latter figure excludes property tax revenues attributable to the downtown improvement district and the two incorporated villages of Old Bennington and North
Bennington). This loss, which is about one-tenth of one percent, will not be significant.
(Testimony of Dale R. Robertson)
Conclusions of Law
The requirement of “necessity” derives from the following provision of the Vermont
Constitution:
That private property ought to be subservient to public uses when necessity requires it, nevertheless, whenever any person's property is taken for the use of the public, the owner ought to receive an equivalent in money.
Vt. Const., ch. I, art. 2. For proceedings involving acquisition of additional land for the state highway system, “necessity” has been statutorily defined as follows:
23 (1) “Necessity” shall mean a reasonable need which considers the greatest public good and the least inconvenience and expense to the condemning party and to the property owner. Necessity shall not be measured merely by expense or convenience to the condemning party. Due consideration shall be given to the adequacy of other property and locations and to the quantity, kind and extent of cultivated and agricultural land which may be taken or rendered unfit for use by the proposed taking. In this matter the court shall view the problem from both a long range agricultural land use viewpoint as well as from the immediate taking of agricultural lands which may be involved. Consideration also shall be given to the effect upon home and homestead rights and the convenience of the owner of the land; to the effect of the highway upon the scenic and recreational values of the highway; and to effect upon town grand lists and revenues.
19 V.S.A. § 501(1).
In Agency of Transportation v. Wall Management , 144 Vt. 640 (1984), the Vermont
Supreme Court explained the standards to be used in interpreting 19 V.S.A. § 501(1): “This
Court has previously stated that the term “necessity,” as used in the statute, does not mean an absolute or imperative necessity “but only that the taking be reasonably necessary to the accomplishment of the end in view under the particular circumstances.” Cersosimo v. Town of
Townshend , 139 Vt. 594, 597 (1981); Latchis v. State Highway Board , 120 Vt. 120, 123 (1957).
Furthermore, the scope of review for consideration of the administrative determinations of the agency vested with laying out new highways is a limited one. The statute gives the state highway board broad discretion, “in determining what land it deems necessary for the particular location and route to be followed....and we will not interfere with that determination as long as it is made in good faith and is not capricious” Latchis v. State Highway Board, supra , 120 Vt. at125.. See also Rossetti v. Chittenden County Transportation Auth., 165 Vt. 61, 66-67, 674 A.2d 1284,
1288 (1996); State Transportation Board v. May , 137 Vt. 320 (1979); In re Chittenden Solid
Waste Dist., 163 Vt. 185, 191, 657 A.2d 197, 201 (1995) (interpreting Landfill Condemnation
Statute, 24 V.S.A. §§ 2299c and 2299d).
24 The Latchis opinion offers further guidance as to the deference owed to administrative discretion::
The argument that “the state doesn't need to take my land” merely because some one else’s land might be taken has no validity. After all, if there is to be a road, it of necessity has to go somewhere, some one’s property has to be taken. If imperative or absolute necessity were the test, there would be no practical way in which the crooked road could be made straight. It could always be said “The state already has a road.” To justify a taking, the interests of the State must require it, and it must be so shown, but only to the extent that it is reasonably necessary to accomplish the end in view after weighing all the circumstances which bear on any given situation.
Latchis v. State Highway Board , 120 Vt. at 124-25.
Bearing these precepts in mind, the Court turns to represented parties’ plea that it exercise its authority under 19 V.S.A.§507(a) to “find from the evidence that another route or routes are preferable” and to direct the agency to reopen the §502 proceedings - in effect, to return to square one as regards the design of the Northern Segment of the Bypass. Notably, interested and represented parties do not contest the claim that the Bypass is needed to relieve congestion in the downtown core and to promote safer management of traffic, particularly large trucks. Rather, they insist that the present design, especially the location of the interchange with
Route 9, will not accomplish the needed goal; rather, only a relocated route and interchange will suffice.
As our Supreme Court has made plain, in exercising its authority to determine that an alternative route “is preferable”, this Court must not lightly substitute its judgment for the conclusions produced by the lengthy and multi-level administrative process. Indeed, a court- ordered return to the §502 process at this juncture would doubtless undo the years of planning represented by the 1991 FEIS, and the mandatory reviews that have taken place since its approval, and force resubmission of the proposal for an alternate route to the federal NEPA
25 process. It would also necessitate renegotiation with the Corps of Engineers for federal approval
of design developments impacting watercourses. Yet, the complex reviews required by these
federal procedures have already settled on the route identified in the petition, and no challenge to
the adequacy of those procedures was mounted by the interested parties appearing here, or any
others. Had such a challenge arisen, the scope of review under federal law would have been
much the same as prescribed by our statutes and caselaw.
Common sense also teaches us that the ‘detailed statement of alternatives' cannot be found wanting simply because the agency failed to include every alternative device and thought conceivable by the mind of man.... It is enough that the defendants here considered the alternatives that they did in the way that they did. The plaintiffs' desire to have the R-RRT alternative explored in yet greater detail contravenes the proper deference that the court must give to the technical decisions made by the agencies. It is of course always possible to explore a subject more deeply and to discuss it more thoroughly ... but it is the proper role of the agencies to determine where to draw the line.
Geer v. Federal Highway Admin ., 975 F.Supp. 47, 59 -60 (D.Mass.,1997)(sustaining agency
action on design of Charles River tunnel project against claim that NEPA requirement to
thoroughly investigate alternatives was not followed); see, also, Cannon v. State 807 A.2d 556,
561 -562 (Del.Supr.,2002)(recognizing the interconnection between the state and federal planning process, and sustaining determination of necessity of highway project taking which gave significant deference to the fact that proposed location was “readily acceptable to the
Corps”).
The interested and represented parties have failed to produce evidence that any alternative route is either feasible or preferable. More importantly, they have failed to demonstrate that the systematic process by which VTrans identified the route and interchange proposed in the petition was inadequate. Based on the authorities discussed above, the Court would have to conclude that the agency’s selection of the present route, to the exclusion of
26 others more preferable to the present opponents, was arbitrary and capricious. To the contrary, it was based on strict adherence to all state and federal requirements for public participation.
Furthermore, the selection of the proposed route as the one most likely to achieve the goal of reducing congestion and promoting public safety was arrived at by consideration of many factors, including engineering and regulatory constraints, as well as the need to balance likely impact on multiple aspects of the human and natural environment.
Based on the foregoing discussion of the applicable legal standards, and applying them to the facts set forth in the preceding findings as established by the evidence, the Court concludes that VTrans has sustained its burden of proof and is entitled to an order of necessity under 19
V.S.A. § 507. The Agency has considered the greatest public good and the least inconvenience and expense to the abutting property owners. It has given due consideration to effects on cultivated and agricultural lands, homes and homestead rights, convenience to the various landowners along the areas of the two projects, scenic and recreational values, and the grand list of the Town of Bennington. The project, as proposed, will provide a modern, limited-access facility which will allow through traffic, including large trucks, to avoid conflicts with local traffic and pedestrians in downtown Bennington and Old Bennington. In proposing this project, the Agency of Transportation has acted in good faith, without caprice.
27 ORDER
Accordingly, it is hereby ORDERED that the petition filed by the Agency of
Transportation is GRANTED . The Court concludes as a matter of law that there is a reasonable
need for the project and for the Agency of Transportation to acquire the land and rights more
particularly described in the Appendix.
Dated at Bennington, Vermont, this th day of August, 2006.
John P. Wesley Presiding Judge
28