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In re Goddard College Conditional Use

Supreme Court of Vermont

November 21, 2014

In re Goddard College Conditional Use; In re Goddard College Act 250 Reconsideration (Karen Bouffard, Appellant)

Editorial Note:

This Opinion is subject to motion for reargument or formal revision before publication. See V.R.A.P. 40

On Appeal from Superior Court, Environmental Division. Thomas G. Walsh, J.

Brice Simon of Breton & Simon, PLC, Stowe, for Appellant.

Geoffrey H. Hand and Elizabeth H. Catlin of Dunkiel Saunders Elliott Raubvogel & Hand, PLLC, Burlington, for Appellee.

William H. Sorrell, Attorney General, and Robert F. McDougall and Scot L. Kline, Assistant Attorneys General, Montpelier, for Amicus Curiae Vermont Natural Resources Board.

Present: Reiber, C.J., Dooley, Skoglund and Robinson, JJ., and Maley, Supr. J., Specially Assigned

OPINION

Page 1286

Robinson, J.

[¶1] This case raises the issue of whether Act 250 requires consideration of alternative siting in every case in which a party objects to a proposed land-use project on aesthetic grounds, pursuant to 10 V.S.A. § 6086(a)(8), without regard to the presence of competent evidence supporting alternative siting as a reasonable mitigating measure. Appellant Karen Bouffard (neighbor), a neighboring resident, challenges the Superior Court, Environmental Division's grant of an Act 250 permit to Goddard College to build a woodchip heating system on its campus in Plainfield, arguing that the court failed to properly consider measures to mitigate the aesthetic impact of the project by siting it elsewhere on the college property. We affirm.

[¶2] The college obtained an Act 250 permit from District Environmental Commission No. 5 in 2012, authorizing it to replace individual oil-fired systems in each of twenty-three campus buildings with a new central woodchip boiler system on its campus in Plainfield. The project includes a 2,469-square-foot building, distribution pipeline, woodchip-storage area, and access roadway.

[¶3] Several area residents appealed to the Environmental Division for de novo review. Residents raised several claims, and the court rejected each of them in an April 2013 decision on the college's motion for summary judgment and a January 2014 decision on the merits. With respect to Criterion 8 of Act 250, the court found that while there would be adverse aesthetic impacts from the project, these impacts would not be unduly adverse. Neighbor now appeals, challenging the Environmental Division's conclusions with respect to the aesthetics criterion. In particular, neighbor argues that the court erred in refusing to consider relocation of the project within the project tract, and that its analysis concerning mitigation of the project's adverse aesthetic impacts was not supported by adequate factual findings that are themselves supported by the record.

[¶4] The Environmental Division " determines the credibility of witnesses and weighs the persuasive effect of evidence, and we will not overturn its factual findings unless, taking them in the light most favorable to the prevailing party, they are clearly erroneous." In re Vill. Assocs. Act 250 Land Use Permit, 2010 VT 42A, ¶ 7, 188 Vt. 113, 998 A.2d 712 (quotation omitted). We review " the environmental court's rulings on questions of law or statutory interpretation de novo." In re Grp. Five Invs. CU Permit, 2014 VT 14, ¶ 4, 195 Vt. 625, 93 A.3d 111.

[¶5] Act 250 requires the district environmental commission, before granting a permit, to find that the proposed project meets ten statutory criteria. 10 V.S.A. § 6086(a). Criterion 8 requires, among other things, that the project " not have an undue adverse effect on the scenic or ...


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