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In re Zaremba Group Act 250 Permit

Supreme Court of Vermont

June 26, 2015

In re Zaremba Group Act 250 Permit (Shawn Cunningham, Michele Bargfrede, Cindy Farnsworth, Richard Farnsworth, Gail Gibbons, Robert Gibbons, Diane Holme, John Holme, Janice Housten, Leonard Lisai, Scott Morgan, Donald Payne, Stephanie Payne, Kathy Pellett, William Reed, Kathy Schoendorf, Claudio Veliz, Bonnie Watters and Lew Watters, Appellants)

On Appeal from Superior Court, Environmental Division November Term, 2014 Thomas G. Walsh, J.

James A. Dumont of Law Office of James A. Dumont, P.C., Bristol, and Charlotte B. Ancel of Sheehey Furlong & Behm PC, Burlington, for Appellants.

William H. Sorrell, Attorney General, and Justin Kolber, Assistant Attorney General, Montpelier, for Appellees Agency of Natural Resources and Natural Resources Board.

David R. Cooper of Kenlan, Schwiebert, Facey & Goss, P.C., and Alan Biederman of Biederman Law Office, Rutland, for Appellee Zaremba Group, LLC.

PRESENT: Dooley, Skoglund, Robinson and Eaton, JJ., and Morris, Supr. J. (Ret.), Specially Assigned


¶ 1. Neighbors of a plot of land in Chester appeal the environmental division’s decision to grant an Act 250 permit amendment to appellee Zaremba Group to build a Dollar General store (“the Project”) on that plot. We affirm.

¶ 2. The trial court found the following facts relevant to this appeal. Zaremba is the owner of the 10.08-acre plot of land in question. The proposed building site lies within the floodway of Lovers Lane Brook (“the Brook”). The Project would result in a loss of flood-water storage of 1, 305 cubic yards, but is designed to include a flood-mitigation cut area, which would provide additional flood-water storage of 2, 544 cubic yards. The Project would narrow the Brook floodway at two points, but both of these areas are at least as wide as the Brook’s narrowest section, which is just south of the Project site. The Project includes a minimum fifty-foot buffer along the Brook.

¶ 3. The Project is located in Chester’s Residential Commercial District. The area 0.6 miles to the northwest of the Project site is a historical, dense, and walkable village center, while a contemporary, less dense mixed-use area lies to the south of the site. Buildings directly around the Project site are mostly set back from roadways with individual driveways and parking lots. Several properties in the immediate area of the site have large parking lots in front of their respective buildings. Views looking out from the Project site include some dense vegetation, a diner, and a building containing a gas station, mini market, and liquor outlet. The Project’s highest point is thirty-five feet, and its footprint dimensions are seventy-feet wide by 130-feet deep. Its overall size is bigger than neighboring buildings, but the surrounding area includes buildings larger than the Project, such as the American Legion, St. Joseph’s Church, and a self-storage facility. These buildings vary in architectural styles, sizes, and ages, with different roof pitches, building materials, numbers of stories, colors, and numbers and sizes of windows.

¶ 4. Despite this diversity among nearby buildings, the Project is distinct in several respects. The Project is intended to appear similar to a backyard barn, but its warehouse-like features shine through. It has large faux windows on each side of the front entrance, while no other buildings in the area have faux windows. The front entrance is comprised of full-length glass doors, while the sides of the building have no windows. It has a cupola, as some other buildings in the area have, but its cupola is located off-center, toward the front of the building and closer to Route 103, unlike those of nearby buildings. Finally, the Project’s building has a large, undifferentiated mass. The Project, and especially these features, will be visible to travelers on Route 103.

¶ 5. To subdivide the lot for the Project, Zaremba applied to the District #2 Environmental Commission for an amendment to the existing Act 250 permit on that property. The Commission gave neighbors-the appellants here-as well as the Agency of Natural Resources (ANR) and Natural Resources Board, interested-person status. The Commission ultimately granted the permit amendment. Neighbors appealed that decision to the environmental division, claiming the proposed construction failed to meet the following Act 250 Criteria: 1(D), “Floodways”; 5, “Traffic Safety and Congestion”; 8, “Aesthetics”; and 10, “Conformance with Local and Regional Plans.” Following trial, the environmental division affirmed the Commission’s grant of the permit. Neighbors now appeal that decision to this Court, claiming that the environmental division’s findings as to Criteria 1(D), “Floodways” and 8, “Aesthetics” were clearly erroneous. We affirm.

¶ 6. Neighbors must overcome a deferential standard of review to prevail on appeal in this case. “ We will defer to the [environmental division’s] factual findings and uphold them unless taking them in the light most favorable to the prevailing party, they are clearly erroneous.” In re Application of Lathrop Ltd. P’ship I, II, III, 2015 VT 49, ¶ 21, ___ Vt. ___, ___ A.3d ___ (quotation omitted). Its factual findings are clearly erroneous only if they are supported by no credible evidence that a reasonable person would rely upon to support the conclusions. In re Eastview at Middlebury, Inc., 2009 VT 98, ¶ 10, 187 Vt. 208, 992 A.2d 1014; In re Bennington School, Inc., 2004 VT 6, ¶ 11, 176 Vt. 584, 845 A.2d 332. “ Although we review the environmental [division]’s legal conclusions de novo, we will uphold those conclusions if they are reasonably supported by the findings.” Lathrop, 2015 VT 49, ¶ 21 (quotation and citation omitted).

¶ 7. Criterion 1(D) requires the applicant to show, and the environmental division to find, the project’s impacts on floodways will not endanger the public. That provision addresses two distinct flooding hazards: (i) inundation flooding, resulting from diversion or restriction of floodwaters; and (ii) erosion hazards, caused by “significantly increas[ing] the peak discharge” of the waterway. See 10 V.S.A. § 6086(a)(1)(D). ANR also plays an important role in cases involving Criterion 1(D). ANR has authority, pursuant to Act 250, to determine whether a particular project will fall within a floodway. In re Woodford Packers, Inc., 2003 VT 60, ¶ 13, 175 Vt. 579, 830 A.2d 100 (mem.) (interpreting 10 V.S.A. §§ 6001(6) and (7)). Moreover, at an environmental-division trial, ANR may, as intervenor, present evidence relevant to its expertise, which the environmental division may rely upon in deciding the case. See id. ¶ 17 (noting that while burden of proof remains on applicant, environmental division may rely on evidence presented by ANR); see also 10 V.S.A. § 8504(n) (allowing persons granted interested-party status by District Commission to intervene in appeals to environmental division).

¶ 8. At trial, two experts testified as to the Project’s potential floodway impacts: one from ANR and one on behalf of Zaremba. Neighbors presented no evidence with respect to Criterion 1(D), so their arguments on appeal are limited to showing the inadequacy of ANR’s and Zaremba’s expert testimony. Neighbors do not challenge the environmental ...

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