NOTICE: This opinion is subject to motions for reargument under V.R.A.P. 40 as well as formal revision before publication in the Vermont Reports. Readers are requested to notify the Reporter of Decisions by email at: JUD.Reporter@vermont.gov or by mail at: Vermont Supreme Court, 109 State Street, Montpelier, Vermont 05609-0801, of any errors in order that corrections may be made before this opinion goes to press.
2020 VT 98
No. 2020-147
In re Diverging Diamond Interchange Act 250 Supreme Court (R.L. Vallee, Inc., Appellant) On Appeal from Superior Court, Environmental Division
September Term, 2020
Thomas G. Walsh, J.
Jon T. Anderson of Primmer Piper Eggleston & Cramer, and Alexander J. LaRosa of MSK Attorneys, Burlington, for Appellant.
Thomas J. Donovan, Jr., Attorney General, and Justin Kolber and Jenny E. Ronis, Assistant Attorneys General, Montpelier, for Appellees State of Vermont, Agency of Transportation, Natural Resources Board, and Agency of Natural Resources.
PRESENT: Reiber, C.J., Robinson, Eaton, Carroll and Cohen, JJ.
¶ 1. REIBER, C.J. Plaintiff R.L. Vallee, Inc. appeals the Environmental Division’s
decision granting an Act 250 permit to the Vermont Agency of Transportation (VTrans) for a
highway project involving the reconfiguration of an interstate exit. Vallee argues that the court
applied the incorrect standard in analyzing phosphorus discharges under Act 250 Criterion 1 and
improperly evaluated the evidence of phosphorus and chloride discharges under Criterion 1. We
conclude that the Environmental Division applied the correct legal standard to evaluate discharges,
and properly considered the evidence before it in determining that the project complies with
Criterion 1. Accordingly, we affirm. ¶ 2. In June 2018, the Environmental Division granted VTrans’s application for an Act
250 permit for the project. Vallee and Timberlake Associates, LLP, appealed.1 In August 2019,
this Court reversed the issuance of the Act 250 permit and remanded the matter for the
Environmental Division to consider whether the project would cause undue water pollution due to
increased phosphorus and chloride discharges. In re Diverging Diamond Interchange SW Permit,
2019 VT 57, ¶ 1, __Vt. __, 218 A.3d 564. The Environmental Division held a three-day trial
considering these questions. In April 2020, the court issued the decision on appeal, in which it
concluded that the project would not cause undue water pollution and granted VTrans’s application
for the Act 250 permit.
¶ 3. In its decision, the Environmental Division found the following facts, which are
undisputed. The project involves a proposed diverging diamond interchange at Exit 16 off I-89 in
Colchester and related construction on U.S. Route 2/7. The project will increase the impervious
surface by 1.2 acres and will increase the roadway by 0.38 lane miles.2 Of the 0.38 new lane miles,
VTrans owns and is responsible for winter maintenance of 0.29 lane miles and the Town of
Colchester owns and is responsible for maintenance of 0.09 lane miles. The project area discharges
stormwater runoff to Sunnyside Brook, which ultimately flows to Lake Champlain. Stormwater
runoff contains phosphorus and chloride, among other constituents. Currently, there is no
permitted stormwater treatment system in the project area. The project will install a stormwater
treatment system. The Vermont Department of Environmental Conservation (DEC) issued a
stormwater discharge permit for the project to address new discharges.
¶ 4. Because the project increases impervious surface, it will increase the discharge of
phosphorus into Sunnyside Brook and, ultimately, to Lake Champlain. VTrans plans to treat the
1 Timberlake Associates, LLP did not participate in this appeal. 2 According to Vallee, a “lane mile” is a term of art. One lane mile is equal to one mile, or 5,280 feet, of roadway with a width of approximately eleven feet. 2 phosphorus discharges through grass channels, which it estimates will remove approximately forty
percent of phosphorus from stormwater runoff.
¶ 5. Sunnyside Brook is not currently listed as impaired for phosphorus. Lake
Champlain, however, is currently listed as impaired for phosphorus. In total, the main lake
segment of Lake Champlain receives about 359,000 pounds of phosphorus each year. In 2016, the
United States Environmental Protection Agency (EPA) adopted a Total Maximum Daily Load
(TMDL) for phosphorus entering Lake Champlain. A TMDL creates a “pollution budget” that
calculates how much pollution a water body can manage while maintaining appropriate water
quality standards. The Lake Champlain phosphorus TMDL does not prohibit future development
or discharges, but it does require “developed land” to reduce discharges in a manner that offsets
future growth. The State of Vermont has adopted an Implementation Plan to comply with the
phosphorus TMDL. While neither regulation binds the project, the Environmental Division
acknowledged that they “provide helpful context on Vermont’s approach to phosphorus pollution,
and guidance on [the Vermont Agency of Natural Resources’] current policies and priorities.”
¶ 6. The project will also cause an increased discharge of chloride into Sunnyside
Brook. Both VTrans and the Town of Colchester use chloride as part of routine winter
maintenance to remove snow and ice from the roadways. Once applied to the roads, chloride is
discharged into waterways as a part of stormwater runoff. Chloride cannot be removed from
stormwater.
¶ 7. Sunnyside Brook is currently listed as impaired for chloride. The 2011 Vermont
Water Quality Standards do not specifically address chloride. There is no chloride TMDL in effect
for the Sunnyside Brook watershed, although the DEC is currently preparing one. In 2014,
Vermont adopted two chloride standards set by the EPA. The acute standard, at 860 mg/L, is the
highest concentration of chloride to which aquatic life can be exposed for a short period—usually
one hour, once every three years—without deleterious results. The chronic standard, at 230 mg/L,
3 is the highest concentration of chloride to which aquatic life can be exposed for an extended
period—usually four days, once every three years—without deleterious effects.
¶ 8. In its analysis, the Environmental Division first considered whether the project
would cause undue phosphorus pollution in Lake Champlain. It defined “undue” to mean “more
than necessary—exceeding what is appropriate or normal.” The court found that the project
complied with all applicable regulations, weighing in favor of compliance with Criterion 1.
¶ 9. The court next determined that the project would create an “exceedingly small
amount” of additional phosphorus pollution when compared to the total amount of phosphorus
discharged into Lake Champlain on a yearly basis. In making this determination, the court
acknowledged conflicting testimony by VTrans’s and Vallee’s experts as to the amount of
additional phosphorus discharge created by the project. Based on their different projections,
VTrans’s expert calculated that the project would increase phosphorus discharge by 0.11 pounds
per year, while Vallee’s expert found that the project would increase phosphorus discharge by 1.62
pounds per year. While the court “found both experts credible,” it held that Vallee’s expert failed
to refute VTrans’s claim that his estimate was overinclusive or explain why VTrans’s method was
inaccurate. However, it concluded that under either estimate, the likely amount of additional
phosphorus pollution was extremely small. The court agreed that Criterion 1 contains no
“automatic allowance for de minimis water pollution,” but noted that the “amount of the pollution”
was an important factor, and here the amount of pollution was small. The court thus found this
factor weighed in favor of compliance with Criterion 1.
¶ 10. The court next looked to the floodplains and their ability to support phosphorus
disposal. Again, the experts presented conflicting evidence about the capacity of wetlands and
floodplains to retain phosphorus, but they agreed that phosphorus could be retained in some
circumstances. Based on this evidence, the court found that the floodplain had capacity to retain
phosphorus on some occasions, but “afford[ed] little weight to this conclusion.”
4 ¶ 11. The court next looked to mitigation measures that could reduce the amount of
pollution discharged. VTrans’s experts testified that the grass channels could remove forty percent
of the phosphorus discharge, while Vallee’s expert testified that the channels could remove around
nine percent. Even accepting Vallee’s expert’s conclusion, the court found that the channels
effectively reduced phosphorus pollution. Vallee’s expert also presented evidence that additional
mitigation measures were available, but the court afforded little weight to this evidence for two
reasons. First, Vallee’s expert testified that using a different filter material in the channels would
increase mitigation, but he did not quantify the amount of additional phosphorus that could be
removed through this measure. Second, Vallee introduced a memorandum that discussed
additional off-site treatment practices but argued that these practices would require an amended
Act 250 application and remand. Accordingly, the court determined that these measures were not
“reasonably available” to VTrans. As such, the court determined that VTrans presented evidence
of sufficient mitigation measures, and Vallee failed to demonstrate that additional mitigation was
needed.
¶ 12. Finally, the court considered the nature of the pollution and the affected area. The
court noted that while the goal of Act 250 is to protect and conserve Vermont’s environment, the
statute balances environmental protection against the need for development and does not prohibit
all discharges of pollutants. Even though Lake Champlain is impaired for phosphorus, the
Phosphorus TMDL likewise does not prohibit all discharges. Accordingly, the court determined
that Vallee’s argument that any phosphorus discharge into Lake Champlain is necessarily undue
“direct[ly] contraste[ed] with the governing law and policy on the matter.” Instead, the court
weighed the Criterion 1 factors and determined that “[t]he cumulative evidence . . . weighs in
VTrans’[s] favor,” concluding that the project’s phosphorus discharges did not create undue water
pollution.
5 ¶ 13. The court next considered whether the project would cause undue chloride pollution
in Sunnyside Brook. As with phosphorus, the project is not bound by specific chloride discharge
standards. The court’s analysis of chloride pollution differed from its phosphorus analysis,
however, because no chloride TMDL existed and the court had “no information regarding
Vermont’s present or future chloride pollution plans or policies.” The court thus weighed the
project’s chloride discharges in the context of VTrans’s duty to maintain safe roads during the
winter and Sunnyside Brook’s status as impaired for chloride.
¶ 14. Vallee’s expert studied Sunnyside Brook’s chloride levels for two years. He found
that chloride levels in the brook nearly always exceed the chronic standard and exceeded the acute
standard on thirty-two occasions. He estimated that 360.7 tons of chloride is currently applied per
year in the Sunnyside Brook watershed, and VTrans currently applies 79.4 tons. He calculated
that VTrans would add an additional 3.3 tons of chloride per year in maintaining the 0.29 additional
lane miles created by the project. He also calculated that the Town of Colchester would add an
additional ton of chloride per year in maintaining the 0.09 additional lane miles created by the
project.
¶ 15. The court found that VTrans uses chloride in winter road maintenance to fulfill its
statutory duty to keep state highways safe for travel. In carrying out this duty, VTrans presented
evidence showing its “history of chloride reduction and a commitment to further improvement.”
VTrans’s Snow and Ice Control Plan contains several best management practices to reduce
chloride, and implementation of the plan corresponded with a nine-percent reduction in VTrans’s
average salt use. The project’s Chloride Management Plan was created in accordance with the
statewide Snow and Ice Control Plan, and the court found that VTrans’s expert testified credibly
about VTrans’s compliance with the plan and ongoing commitment to reduce chloride use. The
court also found that the Chloride Management Plan was developed in accordance with the Town
of Colchester’s Snow and Ice Removal Plan.
6 ¶ 16. Vallee argued that VTrans had additional mitigation measures available to reduce
chloride discharges and had to implement these measures to show that the project would not cause
undue water pollution. VTrans’s expert testified that VTrans was currently implementing or
testing several of these measures. However, he also explained that some of the proposed site-
specific best management practices posed safety concerns. Because VTrans’s expert was “directly
responsible for VTrans’[s] winter maintenance activities,” the court gave great weight to his
testimony. The court reiterated that permit applicants are not required to take all available
mitigation measures to show that pollution is not undue. Further, Vallee did not present evidence
quantifying the amount of chloride reduction that would result from implementing these measures.
In weighing these factors, the court concluded that the project’s chloride discharges did not create
undue water pollution. Accordingly, the court found that the project complied with Criterion 1
and granted VTrans’s application for an Act 250 permit for the project. This appeal followed.
¶ 17. On appeal, Vallee argues that (1) the Environmental Division improperly applied a
de minimis standard in evaluating phosphorus pollution under Criterion 1 and accordingly erred
in finding that the phosphorus discharge would not cause undue pollution, and (2) the
Environmental Division erred in finding that the chloride discharge would not cause undue
¶ 18. “We review the Environmental Division’s legal conclusions de novo and its finding
of facts for clear error.” In re N.E. Materials Grp., LLC, 2019 VT 55, ¶ 6, ___ Vt. ___, 217 A.3d
541. We give significant deference to the Environmental Division’s factual findings. In re Route
103 Quarry, 2008 VT 88, ¶ 4, 184 Vt. 283, 958 A.2d 694. We will determine that the court’s
factual findings are clearly erroneous only if there is no credible evidence to support them. In re
Korrow Real Estate, LLC Act 250 Permit Amendment Application, 2018 VT 39, ¶ 17, 207 Vt.
274, 187 A.3d 1125.
7 ¶ 19. Under Criterion 1, Act 250 permit applicants must show that the development will
not cause “undue water or air pollution.” 10 V.S.A. § 6086(a)(1). Criterion 1 does not define
when pollution is “undue.” However, it does require consideration of “at least” the following
factors:
the elevation of land above sea level; and in relation to the flood plains, the nature of soils and subsoils and their ability to adequately support waste disposal; the slope of the land and its effect on effluents; the availability of streams for disposal of effluents; and the applicable Health and Environmental Conservation Department regulations.
Id. As we have previously explained, whether pollution is undue is a highly fact-specific inquiry.
Diverging Diamond Interchange SW Permit, 2019 VT 57, ¶ 44. The court can consider “any
factors relevant to a determination of whether a proposed project will cause undue pollution.” Id.
¶ 45. The Environmental Division typically considers “the nature and amount of the pollution, the
character of the surrounding area, whether the pollutant complies with certain standards or
recommended levels, and whether effective measures will be taken to reduce the pollution.” See
N.E. Materials Grp., LLC, 2019 VT 55, ¶ 28 (quotation omitted).
¶ 20. We begin with Vallee’s argument that the court erroneously applied a de minimis
standard under Criterion 1. Vallee contends that because the court characterized the amount of
phosphorus discharged by the project as “exceedingly small,” the court improperly created a de
minimis exception to the analysis under § 6086(a)(1). We disagree. In North East Materials
Group., LLC, we explained that Criterion 1 is a “highly fact specific” inquiry that depends on
many factors, including “the nature and amount of the pollution.” 2019 VT 55, ¶ 28 (quotation
omitted). In evaluating this factor, the Environmental Division considered testimony from both
parties’ experts regarding the amount of phosphorus the project would discharge. Although the
experts presented different estimates, the court found that even under Vallee’s higher estimate, the
amount of phosphorus discharged was small, representing .00045 percent of the total amount of
8 phosphorus entering Lake Champlain annually. This factual finding is supported by the record
and is entitled to substantial deference. Route 103 Quarry, 2008 VT 88, ¶ 4.
¶ 21. Thus, the court did not apply a de minimis standard, and Vallee’s argument
mistakenly characterizes the court’s factual finding as a legal standard.3 In fact, the court agreed
with Vallee that “there is no . . . automatic allowance for de minimis water pollution under
Criterion 1.” The court properly engaged in a multi-factor inquiry to determine whether the project
caused undue phosphorus pollution.4 See N.E. Materials Grp., LLC, 2019 VT 55, ¶ 28 (listing
factors). The court’s finding that the project would cause an “exceedingly small” increase in
phosphorus discharge was only one factor supporting the court’s conclusion. The court also
weighed the project’s compliance with applicable regulations, the ability of the floodplains to
retain phosphorus, and available mitigation measures. Based on the evidence presented by both
parties’ experts, the court found that the project would discharge a small amount of phosphorus
and VTrans planned to implement measures to effectively mitigate some of this discharge.
3 Vallee argues that it is improper for courts to apply a de minimis exception to pollution control regulations, citing Conservation Law Foundation v. Burke. 162 Vt. 115, 121, 645 A.2d 495, 499 (1993). We find this argument unavailing in this case, as the air pollution regulations at issue in Burke are not comparable to § 6086(a)(1). In Burke, the applicable regulations set an emissions limit for certain contaminants and prohibited emissions exceeding that limit. ANR granted an air pollution permit even though the emissions exceeded those limits because the excess was de minimis. This Court found that granting a permit in such circumstances was “inconsistent with the structure and obvious intent of the regulation.” Id. By contrast, § 6086(a)(1) does not prohibit pollution above a certain numerical level. Instead, it directs courts to consider “applicable Health and Environmental Conservation Department regulations,” among other factors. 10 V.S.A. § 6086(a)(1). Given the statutory differences, Burke does not govern here—and in any event, the court did not apply a de minimis standard. 4 Under 10 V.S.A. § 6086(d), a valid permit may entitle an applicant to a rebuttable presumption of compliance with Act 250 criterion. See Diverging Diamond Interchange SW Permit, 2019 VT 57, ¶ 43. Recognizing that the project’s stormwater permit was approved in accordance with regulations that did not set specific standards for phosphorus or chloride, the Environmental Division did not rely on this presumption of compliance and instead evaluated the project’s phosphorus and chloride discharge on the merits. Accordingly, we review the court’s decision based on its determination under these factors without any presumption of compliance. 9 ¶ 22. Vallee does not challenge these findings as erroneous. Instead, Vallee argues that
any additional amount of phosphorus discharge represents “an unnecessary increase in
impairment” and that all mitigation measures must be employed to find that pollution is not undue.
This misstates applicable precedent. It is undisputed that Lake Champlain is impaired for
phosphorus. However, the plain language of § 6086(a)(1) does not prohibit all discharges. Instead,
the multi-factor analysis required by § 6086(a)(1) reflects Act 250’s policy of balancing economic
development with environmental protection. See In re Village Assocs. Act 250 Land Use Permit,
2010 VT 42A, ¶ 17, 188 Vt. 113, 998 A.2d 712 (“[T]he conservation goals of Act 250 have always
been balanced against the economic necessity of development . . . .”). Similarly, the Phosphorus
TMDL—though not binding on this project—anticipates new development and does not bar new
discharges. Instead, these policies rely upon stormwater permitting to ensure compliance with the
TMDL. In sum, the discharge of a pollutant into an impaired waterbody does not inevitably render
that pollution undue under Criterion 1’s fact-based balancing inquiry.
¶ 23. We further disagree that the mere possibility of additional mitigation measures,
without more, necessarily requires a finding that pollution is undue in this instance. Under
Criterion 1, courts may consider, among other factors, “whether effective measures will be taken
to reduce the pollution.” N.E. Materials Grp., LLC, 2019 VT 55, ¶ 28. In this case, VTrans
provided evidence of a “carefully designed stormwater treatment system” that uses grass channels
to remove phosphorus. Vallee’s expert testified that additional mitigation measures were available
but could not quantify the expected reduction in phosphorus load or offer an opinion as to the
effect of the reductions. The Environmental Division properly weighed this evidence and
determined that VTrans’s proposal will effectively mitigate phosphorus pollution. Vallee’s
argument provides no grounds to disturb this conclusion.
¶ 24. We next consider Vallee’s argument that the Environmental Division erroneously
found that the project would not cause undue chloride pollution. Vallee first asserts that the court
10 improperly afforded VTrans a presumption of compliance based on the stormwater permit. We
disagree. The project’s stormwater permit vested in regulations that did not include specific
standards for phosphorus or chloride discharges. Because these pollutants are at issue, the court
was “concerned about the strength of a presumption arising under these circumstances.” The court
expressly evaluated each pollutant on the merits, rather than relying upon a presumption.
¶ 25. Vallee next argues that the court improperly shifted the burden of proof to Vallee.
However, the court’s decision shows that it properly assigned the burden of proof to VTrans. The
court considered all the evidence presented by VTrans, including the statewide Snow and Ice
Control Plan, the project’s Chloride Management Plan, and “extensive expert testimony.” Based
on this evidence, the court concluded that VTrans satisfied its burden. The court then considered
Vallee’s evidence, and concluded that it was insufficient to disturb that conclusion. This reasoning
did not erroneously shift the burden of proof to Vallee. In essence, Vallee seeks to revive its
argument that any discharge to an impaired water body is categorically undue. For the same reason
that this argument failed with phosphorus, it also fails with chloride.
¶ 26. Vallee next contends that the court lacked evidence about the Town of Colchester’s
chloride use and thus could not evaluate the project’s chloride pollution. The town is responsible
for maintaining 0.09 lane miles of the project. The court did not make specific findings about the
town’s chloride application. During the hearing, VTrans tried to admit the town’s Snow and Ice
Removal Plan, but Vallee objected because VTrans provided no witness from the Town to go
through the details of the plan, and the court sustained that objection.
¶ 27. However, the court found that the project’s Chloride Management Plan
incorporated by reference the town’s Snow and Ice Removal Plan, and that the project’s plan was
consistent with the town’s plan. A VTrans witness testified that the town’s plan was reasonable
and accords with VTrans’s statewide Snow and Ice Control Plan. VTrans also has a finance and
maintenance agreement with the Town of Colchester, which details the town’s responsibility to
11 perform winter maintenance on its roads. Moreover, the order granting the project’s Act 250
permit provides that the project must abide by the conditions imposed by the District Commission.
Condition 2 requires the project to comply with “the permit application, plans, and exhibits on file
with the [DEC] and other material representations,” which includes the Chloride Management
Plan. In sum, we conclude that the Environmental Division had a sufficient evidentiary basis to
consider the town’s chloride application. Further, the above evidence belies Vallee’s claim that
the town’s chloride use is “unregulated.” Based on this evidence, the court did not clearly err in
finding that the project will not cause undue water pollution.
¶ 28. Vallee’s final argument is that the Environmental Division failed to join the Town
of Colchester as a necessary co-applicant. Act 250 Rule 10 provides that the record owner of a
tract of land shall be a co-applicant, “unless good cause is shown to support waiver of this
requirement.” Act 250 Rules, Rule 10(A), Code of Vt. Rules 12 004 060,
http://www.lexisnexis.com/hottopics/codeofvtrules. Good cause can include a showing that the
applicant “effectively controls” part of the land at issue through an agreement that “allow[s] the
imposition of appropriate permit conditions by the District Commission to mitigate adverse
impacts under [Act 250].” Id. If the applicant is a state agency with the power to condemn the
land, no other parties need be joined. Id. The District Commission may also join a non-record
owner if that person’s property interest “is of such significance, therefore demonstrating a lack of
effective control by the applicant,” that the party must be joined. Id. This rule serves three
purposes by ensuring that conditions imposed are enforceable on the record owner, that the record
owner consents to the activity, and that the record owner has the opportunity to participate in the
proceedings. Re: Mark and Pauline Kisiel and Thomas and Cheryl Kaminski, No. 5W1151-1-EB,
Mem. of Decision at 4 (Vt. Envtl. Bd. Feb. 3, 2005),
https://nrb.vermont.gov/sites/nrb/files/documents/5w1151-1-mod_0.pdf [https://perma.cc/9NSR-
CLDD].
12 ¶ 29. The District Commission has discretion to join a party as a necessary co-applicant.
See In re Pilgrim P’ship, 153 Vt. 594, 597, 572 A.2d 909, 911 (1990) (finding that Board acted
within its discretion to order joinder). In appeals to the Environmental Division, the court
“appl[ies] the substantive standards that were applicable before the [District Commission].” 10
V.S.A. § 8504(h).5 Accordingly, we review the court’s decision for abuse of discretion. In re
Appeal of MDY Taxes, Inc., 2015 VT 65, ¶ 7, 199 Vt. 248, 123 A.3d 1184.
¶ 30. In its order, the Environmental Division reasoned that, as a state agency with the
power to condemn, Rule 10(A) permits VTrans to proceed as the sole applicant. The court also
determined that the portion of the project controlled by the town is not sufficiently significant to
require joinder. The court concluded that VTrans can adequately manage water quality for the
project without the Town’s involvement in the proceedings.
¶ 31. We conclude that the court did not abuse its discretion in denying Vallee’s motion
to join the Town of Colchester, but for a different reason than relied upon by the court. See
Caledonian-Record Pub. Co. v. Vt. State Colls., 2003 VT 78, ¶ 7, 175 Vt, 438, 833 A.2d 1273
(affirming trial court’s decision “based on different reasoning”). The record showed that VTrans
effectively controlled the land such that appropriate permit conditions could be imposed on the
project. The court found that the project’s Chloride Management Plan accords with VTrans’s
statewide Snow and Ice Control Plan, and also incorporates the town’s Snow and Ice Removal
Plan by reference. VTrans’s expert testified that the town’s plan was reasonable. The project’s
Act 250 permit requires VTrans to perform winter road management in accordance with the
Chloride Management Plan. In turn, the finance and management agreement requires the town to
5 Vallee appears to have raised the Town of Colchester’s party status in the first instance in the Environmental Division. For purposes of this appeal, we assume without deciding that when determining whether to order the joinder of a necessary co-applicant in the first instance, the Environmental Division applies the same standards as the District Commission under the Act 250 Rules. 13 abide by the Chloride Management Plan. As such, the facts demonstrate that the agreement will
ensure the town’s compliance with the permit conditions. The court therefore did not abuse its
discretion in not joining the town.
Affirmed.
FOR THE COURT:
Chief Justice