Harvey and West 65 Unit Campground Act 250 Application

• Court: Vermont Superior Court
• Decided: November 9, 2011
• Docket: 110-7-10 Vtec
• Status: Published

Opinion

STATE OF VERMONT

SUPERIOR COURT ENVIRONMENTAL DIVISION

} In re Harvey & West 65-unit Campground } Act 250 Application } Docket No. 110-7-10 Vtec (Appeal of True) } }

Decision and Order

Appellant Anne True (Appellant) appealed from the June 4, 2010 decision of

the District 5 Environmental Commission granting Act 250 Land Use Permit 5L1522

to Appellee-Applicants Arjay and Robin West and K.A. Harvey’s Manufactured

Housing, Inc. (Applicants) for a 65-unit campground in Johnson, Vermont. Neither

the town nor the regional planning commission entered an appearance in this

appeal.

Appellant is represented by Richard E. McCormick, Esq.; and Applicants are

represented by James R. Dean Mahoney, Esq. An evidentiary hearing was held in

this matter before Merideth Wright, Environmental Judge. A site visit was taken at

the conclusion of the hearing with the parties and their representatives. The parties

were given the opportunity to submit written memoranda and requests for findings,

and to respond to those filings. Only Appellee-Applicants filed any proposed

findings of fact and conclusions of law; no response was filed either by Appellant’s

counsel or by Appellant herself.

Only Act 250 Criteria 1(B), 3, 4, and 8 are at issue in this appeal. Therefore,

the District Commission’s Findings of Fact, Conclusions of Law, and Order, as well

as Act 250 Land Use Permit 5L1522, to the extent that they relate to any of the other

Act 250 criteria not at issue in this appeal, remain in effect and are hereby

incorporated into this decision.

1 Upon consideration of the evidence as illustrated by the site visit, and of the

proposed findings of fact and conclusions of law filed with the Court, the Court

finds and concludes as follows.

Applicants propose to develop a campground on approximately ten acres of a

78-acre parcel of land in Johnson, Vermont, with frontage along Route 100C. The

Town of Johnson has not adopted a zoning ordinance; it has adopted a town plan

and a noise control ordinance. The campground is proposed to be open for business

during seven months (or less) of each calendar year.1

Route 100C runs in an approximately east-west direction in this location and

is used by trucks and through traffic in this area as well as by local traffic. An

existing house is located on Applicants’ property, close to the roadway and served

by an existing driveway. The project property contains open gently rolling

meadows for about five hundred feet back from the road, and, over the next

thousand feet, rises to an elevation of approximately 80 feet above that of the

roadway, at the treeline of a forested plateau area with maple trees used for syrup

production.2 The campground is proposed to occupy areas on the forested plateau

and in open areas near the treeline. Easterly and beyond the crest of the hill the

property slopes steeply downwards towards Wild Brook. Applicants propose to

leave at least a 100-foot vegetated buffer to the brook. Most of the area designated

for the campsites is not visible from Appellant’s property.

The surrounding property uses are largely residential, with open fields

1 No specific dates or seasons of operation were proposed by Applicants or approved by the District Commission. 2 A former sugarhouse was removed by Applicants. At trial, Appellant questioned whether the debris of the sugarhouse had been burned properly and pursuant to a burn permit. Any environmental enforcement issues are beyond the scope of the present permit application.

2 located near the road. A fuel distributor’s tank farm (bulk storage) is located to the

west along Route 100C, as is the county fair and field days fairground.

Appellant’s very small lot, containing an existing two-story house located

close to the roadway, is located approximately 400 feet westerly of Applicants’

existing driveway. Appellant’s 150’ x 210’ lot is bounded on its easterly, northerly,

and westerly sides by Applicants’ property. Appellant has lived at her property for

seventeen years, and gardens intensively, raising organic vegetables and herbs.

Appellant’s existing shallow well or spring is located on Applicants’ property

approximately 300 feet northerly of Appellant’s northerly (back) boundary, near a

Class III wetland area and to an existing gravel extraction area in use since before

1970. Appellant’s spring is located approximately 100 feet to the west of the limits of

the gravel extraction area and was located approximately 100 feet from a beaver

pond until the beaver dam was removed at some time in 2010 or the first half of

2011. Appellant’s water line runs to within 50 feet of the gravel extraction area. No

project construction is proposed within more than a 500-foot radius of Appellant’s

shallow well.

Applicants’ access to the gravel extraction area is from the east, away from

Appellant’s shallow well and water line. The gravel extraction area is fairly flat,

with a slope of less than 3%, so that the risk of erosion is low during the area’s use

for gravel extraction. The gravel extraction area has been and will be used for

material necessary for construction of the project,3 but not for any off-project

purposes, and then will be closed and reclaimed.

Appellant had a new water line put in in December of 2010, as well as having

stone installed around the spring and having the ground around the shallow well

3 The gravel extraction area was used for two to three weeks in the fall of 2010 and for about a week in the spring of 2011.

3 banked properly to conduct surface water away from the spring. During that work,

the spring and the water line were surrounded by groundwater to such an extent

that the contractor found it necessary to divert and pump the groundwater away

from the area in order to do the work.

As of the fall of 2009 Appellant had a leak in her water line and her drinking

water was contaminated with E. coli bacteria. As of that time beavers had built a

pond within 100 feet of Appellant’s shallow well. Also as of that time heavy

equipment was used in the gravel pit to remove material used in building a road not

then subject to Act 250 jurisdiction. Appellant had the beaver dam and the beavers

removed from the area, and had the shallow well and the water line shocked with

chlorine to disinfect it. During the period while her water supply was unfit to drink,

Appellant hauled in drinking water.

Appellant did not show that the use of the heavy equipment in the gravel pit

caused the break in Appellant’s water line, and did not show whether the

contamination had entered her water supply due to the break in the water line or

due to contamination of the shallow well with contaminated water from the beaver

pond. In any event, Appellant did not claim that the repair of the water line and the

disinfection of the water supply were insufficient to remedy the past contamination.4

The new water line has been located and identified in the field.

Appellants propose to extend the existing driveway up the hill so that it first

curves to the east, away from Appellant’s house, and then curves back to the

northwest to the edge of the treeline. The treeline on Applicants’ property is located

approximately 1300 feet laterally from Appellant’s property; the nearest portion of

the development area is approximately 1200 feet from Appellant’s property.

4 In the present case, the Court must address whether the proposed project will have an adverse effect on Appellant’s water supply. Responsibility for past contamination unrelated to this project is beyond the scope of this appeal.

4 Applicants propose to construct a 65-campsite campground primarily within the

wooded area, served by a network of camp roadways.

The campground will be served by a new drilled well and will have two

bathhouses, toilet facilities, and their associated wastewater disposal systems

located up near the active campsite and not down near Appellant’s property. Only

low-flow plumbing fixtures are proposed for the project. No hazardous or toxic

materials are proposed to be used at the campground, other than normal household

or commercial cleaning products and products used at the maintenance shop.

Applicants have obtained Vermont ANR Wastewater System and Potable Water

Supply Permit WW-5-5189-2, Ex. M, approving the amended design and use of the

wastewater disposal system for the project, as well as its potable water supply

system. Neither it nor the original wastewater system and potable water supply

permit was appealed; it became final.

Applicants also have obtained a Transient Non-Community Water System

Source and Construction permit from the Water Supply Division of the ANR, Ex. J,

approving the new drilled well for the campground sufficient to serve the estimated

demand of 6170 gallons per day; it was not appealed and became final. The project

plans meet the well isolation zones required by ANR regulations for the project well

and for Appellant’s and other neighboring water supplies.

The campsites are proposed to be located in clearings within the forested

area. Applicants propose to retain as many of the mature maples as possible,

consistent with the design of the campsite areas. Many of the campsites are located

northeasterly of the height of land and therefore shielded by the height of land from

view from Appellant’s property.

Applicants propose to construct a welcome center building and a future

swimming pool just southerly of the treeline, and to construct a maintenance shop

just against the treeline farther to the east. The project buildings have been designed

5 in the style and exterior finish materials to resemble a vernacular sugar house or

barn expected in such a setting. An underground electric utility line will provide

electric service from the highway to the project site. Only the pool area is proposed

to be illuminated by pole-mounted electric lights. These lights are proposed to be

shielded to prevent glare from being visible beyond the area intended to be

illuminated, and the shielding will prevent glare from being visible from

Appellant’s property. Exterior lighting on the bathhouses, welcome center, and

entry gate, necessary for security purposes, will be supplied by wall-mounted,

downward-directed cut-off fixtures with compact fluorescent or LED bulbs. The

exterior lighting on the bathhouses is proposed to be motion sensitive, so that it will

only be lit when necessary. Each campsite will be supplied with an electric supply

pedestal with a small, shielded compact fluorescent fixture mounted on the face of

the pedestal.

Approximately 3.2 acres of the site will be disturbed during construction, and

approximately one-and-a-half acres of impervious area will be created by the new

buildings, roadways, and camping pads. The project will be constructed so that

each area of 10 to 15 campsites served by a given loop road will be constructed and

stabilized before the next area is begun. The soils on the site are generally well-

drained. The development areas typically have slopes of less than 8%. The

application includes an erosion control plan, based on which Applicants have

obtained ANR approval of coverage under Construction General Permit 3-9020, Exs.

Q, R, for erosion prevention and sediment control due to the flow of stormwater

during construction.

Once the project is constructed, stormwater falling on the site will flow across

vegetated surfaces and infiltrate into the soil, so that no stormwater detention

system is necessary to prevent erosion. No evidence was presented that any

stormwater falling on the developed area of the site would reach the area of

6 Appellant’s existing shallow well or water line, or reach Appellant’s property.

Because of the topography of the project property in relation to Appellant’s

property, sounds generated up at the location of the campground have the potential

to be heard at the location of Appellant’s property. Nevertheless, as illustrated

during the site visit, earthmoving machinery operated at the location of the

proposed welcome center and maintenance building is unobtrusive when

experienced from Appellant’s property, especially in comparison to the louder

sounds of traffic passing by Appellant’s property on Route 100C.

An area of existing trees and scrub is located on Applicants’ property near

Appellant’s boundary. In the fall of 2010, Applicants supplemented the screening

capacity of this existing vegetation by planting five additional white pine trees on

their property near Appellant’s boundary to fill in the gaps in the visual screening of

the campground from her property. The pines are not in the exact locations as

shown in the planting plan in evidence as Ex. Y, but Appellant did not show that

any supplemental plantings will be necessary to be added to provide adequate

screening from Appellant’s house.

Appellant’s bedroom is in the middle of the north (rear) side of the upper

floor of her house; until the trees grow taller and wider, some vehicle lights and

some sounds from the campground will be respectively visible and audible from her

bedroom windows. She is able to see only the lower portion of the project property

up to the welcome center and the maintenance shop, not the areas of the campsites

themselves. Nevertheless, even the elements of the project site that are visible or

audible from Appellant’s house are nearly a quarter-mile away and, with the

proposed conditions and lighting plan, will not be unduly adverse when

experienced from Appellant’s property. At Appellant’s property, sounds at the

campsite will be much less noticeable than the traffic passing by on the roadway, but

will have to be regulated during the nighttime hours in order not to be obtrusive at

7 Appellant’s property.

Applicants propose a set of fourteen unnumbered “Rules & Procedures” for

the operation of the campground, to be distributed to all guests at the time they

check in to the campground. (Applicants’ Ex. 2.) To prevent undue noise, the Rules

& Procedures include provision for “quiet hour[s]” from 10:00 p.m. to 7:00 a.m.,

stating that “[v]oices, music[,] and other sounds can travel,” requiring campground

guests to “[r]espect your neighbors and maintain a quiet level,” and stating that the

campground management is “very strict on this.” However, the Rules & Procedures

do not specifically state that this limitation includes a prohibition on the noise of

operating generators during those hours, although Applicants propose to comply

with the District Commission’s inclusion of generator noise as an unacceptable noise

source during the “quiet time.” Findings of Fact, Conclusions of Law, and Order, at

12. Electricity is available at each campsite so that the running of generators during

the nighttime quiet hours will not be necessary to the guests’ use of the camping

facilities.

The Rules & Procedures also ask the guests to “[p]lease stay within the

campground property” and to “[h]ave respect for our neighbors[‘] privacy.” In

addition, Applicants propose to comply with Condition 14 of Land Use Permit 5L-

1522 as imposed by the District Commission, requiring them to post and maintain

signs along the northern, western, and eastern boundaries of the project property “in

order to discourage entry by campers onto neighboring lands.”

With regard to the staffing of the campground in case of non-emergency

problems or complaints, the Rules & Procedures provide that “[s]taff attendant(s)

are available at the welcome center during business hours” and that such attendants

are at campsite #1 or at another designated campsite (posted at the welcome center)

“during the evenings.” It does not provide a staff or contact person during the

hours of 10:00 p.m. to 7:00 a.m.

8 Scope of Appeal and Burden of Proof

Although Question 1 of Appellant’s Statement of Questions asks generally

whether the Act 250 permit should be denied, Appellant only had standing before

the District Commission as to criteria 1(B), 3, 4, and 8 of Act 250. 10 V.S.A.

§ 6086(a)(1)(B), (a)(3), (a)(4), and (a)(8). As she did not appeal the District

Commission’s party status ruling regarding any of the other Act 250 criteria, the

appeal is therefore limited to criteria 1(B), 3, 4, and 8. Applicants have the burden of

proof as to Criteria 1(B), 3, and 4, while Appellant has the burden as to Criterion 8.

Criterion 1(B) (Waste Disposal) and Criterion 4 (Erosion)

Act 250 Criterion 1(B) (Waste Disposal), 10 V.S.A. § 6086(a)(1)(B), requires the

project to comply with ANR regulations and not to cause the injection of waste

materials or harmful or toxic substances into groundwater or wells. Act 250

Criterion 4 (Erosion), 10 V.S.A. § 6086(a)(4), requires that the project not cause

unreasonable soil erosion or a reduction in the capacity of the land to hold water so

that a dangerous or unhealthy condition may result.

Although 10 V.S.A. § 6088(a) places the burden of proof with respect to these

criteria on the applicant, 10 V.S.A. § 6086(d) and Act 250 Rule 19 provide that the

relevant ANR permits, if provided by the applicant, create a rebuttable presumption

that the application meets these Act 250 criteria and is not detrimental to the public

health and welfare. See 10 V.S.A. § 6086(a)(1)(B), (a)(4); Act 250 Rule 19(E)(1)(a),

(E)(6). In addition, the technical determinations of the ANR in such approvals or

permits are to be accorded substantial deference by the District Commissions and

hence by this Court in Act 250 proceedings. 10 V.S.A. § 8504(i).

Applicants in the present case also have obtained coverage under the ANR

General Permit (Construction General Permit 3-9020) for the stormwater runoff and

9 the erosion prevention and sediment control necessary during construction of the

project, giving them the benefit of the presumption as to Act 250 Criterion 4 and as

to Criterion 1(B) to the extent that it relates to waste or runoff carried by stormwater.

See 10 V.S.A. § 6086(a)(1)(B), (a)(4); Act 250 Rule 19(E)(6). Appellant has failed to

come forward with expert or other evidence to rebut the presumption or to

overcome the deference due to the technical determinations of coverage under the

ANR Construction General Permit.

Applicants in the present case have obtained ANR Wastewater System and

Potable Water Supply Permit WW-5-5189-2 approving the amended design and use

of the project’ wastewater disposal system. That permit gives Applicants the benefit

of the § 6086(d) presumption as to Act 250 Criterion 1(B) to the extent that it relates

to the wastewater produced by the campground’s operation, including the operation

of its septic systems and wastewater disposal fields. See 10 V.S.A. § 6086(a)(1)(B);

Act 250 Rule 19(E)(1)(a). Appellant has failed to come forward with expert or other

evidence to rebut the presumption or to overcome the deference due to the technical

determinations of the ANR wastewater permit.

Even without the benefit of the presumptions, Appellant did not present any

credible evidence to suggest that stormwater runoff from the project or the

wastewater disposal system of the project will cause any unreasonable soil erosion,

will cause a reduction in the capacity of the land to hold water so that a dangerous

or unhealthy condition may result, or will cause the injection of waste materials or

harmful or toxic substances into groundwater or wells. Accordingly, the proposed

project meets Act 250 Criteria 1(B) (Waste Disposal) and 4 (Erosion). 10 V.S.A.

§§ 6086(a)(1)(B), (a)(4).

Criterion 3 (Water Supply)

Act 250 Criterion 3, 10 V.S.A. § 6086(a)(3), requires that the proposed project

10 “not cause an unreasonable burden on an existing water supply, if one is to be

utilized.” The project uses a new water supply, rather than an existing one, and has

received a Transient Non-Community Water System Source and Construction

permit from ANR for the construction and use of that new water supply. Technical

determinations of the ANR in such approvals or permits are to be accorded

substantial deference by the District Commissions and hence by this Court in Act

250 proceedings. 10 V.S.A. § 8504(i). Appellant has failed to come forward with

expert or other evidence to overcome the deference due to the technical

determinations of the ANR water source permit that the new well will not cause an

unreasonable burden on an existing water supply due to the withdrawal of the

quantity of water demanded by the project. In fact, Appellant’s existing shallow

well is located at least 1000 feet from the project’s new well, that is, more than twice

as far away from the new well as necessary5 to avoid any effect on the quantity of

water in Appellant’s well due to the withdrawal of water from the project well.

Nevertheless, it is also necessary to analyze under Criterion 3 whether any

other aspect of the project will cause an unreasonable burden on any existing water

supply, and, in particular, on Appellant’s existing shallow well, especially given the

past contamination of that well which Appellant has experienced.

With regard to contamination, in addressing the current application the Court

need not determine whether the source of past contamination of Appellant’s

drinking water was the beaver pond, nor whether the contamination entered by way

of Appellant’s then-existing shallow well or a broken pipe in Appellant’s water line,

nor whether use of machinery in the gravel extraction area for an earlier project

caused the break in the water line. Instead, it is the Court’s responsibility to

5 The required distance of at least 500 feet used in the project application was calculated based on the demand of the project’s water supply.

11 determine whether, if the project is completed as proposed, it will not cause an

unreasonable burden on Appellant’s existing water supply.

Appellant’s existing shallow well water supply was improved in 2010 by

putting in a new water line and spring, and banking up the earth and stones around

it so that surface water does not flow into it. Appellant’s water supply has been

disinfected and, as of the date of trial, was about to be again disinfected to eliminate

any remaining coliform bacteria and render it safe to use as a drinking water source.

The location of the water line on Applicants’ property has been marked in the field

to enable Applicants’ workers to conform to a fifty-foot setback between the water

line and any gravel extraction activities during the course of the project. The

imposition of a condition requiring a 100-foot undisturbed buffer between gravel

extraction activities and Appellant’s existing shallow well, and requiring a 50-foot

undisturbed buffer between gravel extraction activities and Appellant’s water line,

will adequately protect Appellant’s existing water supply during construction. In

any event, the gravel extraction area will be closed, seeded, and mulched at the

conclusion of the project’s construction, and will no longer pose any risk to

Appellant’s water supply.

The proposed campground project therefore will not cause an unreasonable

burden on Appellant’s or any other existing water supply, and, with Condition 13 as

imposed by the District Commission in Land Use Permit 5L-1522, meets Act 250

Criterion 3. 10 V.S.A. § 6086(a)(3).

Criterion 8 (Aesthetics)

Act 250 Criterion 8 (Aesthetics) requires that the project will not have an

undue adverse effect on aesthetics. 10 V.S.A. § 6086(a)(8). With respect to Criterion

8, the burden of proof is on Appellant to show an undue adverse effect. See In re

Denio, 158 Vt. 230, 237 (1992); 10 V.S.A. § 6088(b).

12 The so-called Quechee test, named for a 1985 decision of the former

Environmental Board, In Re Quechee Lakes Corp., Nos. 3W0411-EB and 3W0439-EB,

Findings of Fact, Conclusions of Law, and Order, at 17–20 (Vt. Envtl. Bd. Nov 4,

1985), provides a two-step methodology for analyzing whether a project will have

an undue adverse effect on aesthetics, that is, whether it will fit its context and be in

harmony with its surroundings. See In re McShinsky, 153 Vt. 586, 591–93 (1990)

(adopting the analysis employed by the former Environmental Board when

determining compliance under Act 250 Criterion 8). As recently described by the

Vermont Supreme Court in In re Times & Seasons, LLC, 2008 VT 7, ¶ 8, 183 Vt. 336,

the Court must take the following two-pronged approach to determine if an

application complies with Act 250 Criterion 8 as to aesthetics: first, the Court must

determine if the project will have an adverse aesthetic impact, and, if so, it must then

determine whether the adverse impact will be undue.

With the plantings, exterior lighting, and signage plans now specified by

Applicants, and if the campground’s guests comply with the quiet hours and anti-

trespassing provisions imposed by the campground’s Rules & Procedures, the

project will not have an adverse aesthetic impact. That is, if these plans are carried

out there will not be an adverse aesthetic impact from noise, from campers

wandering onto neighboring property, or from lights from campground buildings

and vehicles, in particular because the developed area of the campground is remote

from potential observers.

However, the potential for adverse impact remains for two reasons. First,

although Applicants propose to comply with the District Commission’s statement

that the operation of generators must be prohibited during the quiet hours from

10:00 p.m. to 7:00 a.m., the Rules & Procedures have not been amended to so specify.

Second, no responsible staff attendant or other responsible contact person is

provided in the Rules & Procedures during the hours of 10:00 p.m. to 7:00 a.m, to

13 whom Appellant, other neighbors, or other concerned campground guests could

direct any complaints about excessive noise.

The Court must therefore turn to the remainder of the Quechee analysis to

determine if this potential for adverse impact is undue. Under that analysis, an

adverse impact is undue if the project “violates a clear, written community standard

intended to preserve the aesthetics or scenic, natural beauty of an area”; if the

project “offend[s] the sensibilities of the average person”; or if the applicant has

“failed to take generally available mitigating steps which a reasonable person would

take to improve the harmony of the proposed project with its surroundings.” Times

& Seasons, LLC, 2008 VT 7, ¶ 8.

The Town of Johnson has no zoning ordinance; its noise ordinance is its only

clear written community standard relevant to this application. There is no reason

why the operation of the campground as designed, and in accordance with its Rules

& Procedures, should violate the noise ordinance. The project therefore does not

violate a clear written community standard. Nor does any of the evidence support a

conclusion that the proposed campground will offend the sensibilities of the average

person.

Finally, Applicants have taken generally available mitigating measures to

improve the harmony of the proposed project with its surroundings. They have

selected a site for the campsites and associated buildings that is relatively distant

from the roadway and from Appellant’s property, preserving the open meadows.

They have committed to planting screening vegetation, to installing lights designed

to prevent glare and unnecessary night-time lighting, and to posting signs to

discourage trespass onto neighboring property. The Rules & Procedures of the

campground also provide mitigating measures for potential noise impacts from the

campground, as long as they are amended to specify that the use of generators is

prohibited during the 10:00 p.m. to 7:00 a.m. quiet hours, and are also amended to

14 provide a mechanism for reporting and remedying guests and neighbors’

complaints about nighttime noise at the time that it is occurring.

Therefore, with the conditions imposed by the District Commission, and the

following additional conditions imposed by this decision, the project will not have

an undue adverse effect on aesthetics. The additional conditions are that 1)

Applicants shall comply with the planting, lighting, and signage plans submitted in

evidence in this proceeding; 2) Applicants shall add to the quiet hours section of the

Rules & Procedures a specific prohibition against the use of generators, including

the engines of stationary recreational vehicles, during those hours (10:00 p.m. to 7:00

a.m.); and 3) Applicants shall state in the Rules & Procedures, post in the Welcome

Center, and provide to Appellant and, on request, to any other neighbor, the contact

information for a staff attendant or other responsible contact person with authority

to deal with complaints about excessive noise during the hours of 10:00 p.m. to 7:00

a.m.

Accordingly, based on the foregoing, it is hereby ORDERED and ADJUDGED

that approval is GRANTED to Appellee-Applicants’ application for the Maple

Woods Campground project, with the conditions as imposed by the District 5

Environmental Commission and the additional conditions as stated in this decision.

The District 5 Environmental Commission shall perform the ministerial task of

producing a revised Act 250 Land Use Permit reflecting the additional conditions.

15 Done at Berlin, Vermont, this 9th day of November, 2011.

_________________________________________________ Merideth Wright Environmental Judge