STATE OF VERMONT
ENVIRONMENTAL COURT
} In re: Unified Buddhist Church, Inc., } Act 250 Permit Application } Docket No. 191-9-05 Vtec (Appeal of Lull’s Brook Watershed Ass’n, et al.) } }
Decision and Order
Appellants Lull’s Brook Watershed Association, John and Amy Zelig, Sterling R. and
Marion Monk, Catherine Bacon, Peter Gordon, and Elaine Brousseau appealed from a
decision of the District 3 Environmental Commission granting Cross-Appellant-Applicant
(Applicant) Unified Buddhist Church, Inc.’s application for an Act 250 Land Use Permit for
the “Green Mountain Dharma Center” on a 148-acre parcel of property in the Town of
Hartland. Appellants are represented by David Grayck, Esq.; Applicant is represented by
James P. W. Goss, Esq.; the Vermont Agency of Natural Resources (ANR) is represented
by Catherine Gjessing, Esq. The Natural Resources Board is represented by John H. Hasen,
Esq.; it has not participated in the trial or filed memoranda on the merits of this application.
A related appeal, Docket No. 253-10-06 Vtec, involving an application for renewal
of the Indirect Discharge permit applicable to the property, is scheduled for trial in late
January 2008.
An evidentiary hearing was held in this matter before Merideth Wright,
Environmental Judge. A site visit was taken in advance of the hearing with the parties and
their representatives. The parties were given the opportunity to submit written
memoranda and requests for findings. Upon consideration of the evidence as illustrated
by the site visit, and of the written memoranda and requests for findings filed by the
parties, the Court finds and concludes as follows.
1 The project property is an approximately 148-acre parcel of land located on Ayers
Lane, off Town Farm Hill Road, in the Town of Hartland. Town Farm Hill Road is a two-
lane gravel Class III town highway. Prior to the property’s transfer to the Unified Buddhist
Church, Inc. it contained two existing houses, three barns and other outbuildings used for
horses and equestrian activities. Since its transfer to the Unified Buddhist Church,
Buddhist monks and nuns have been living in the existing buildings as their primary
residences, and have been making retreat time and space available to the public on a
limited basis, generally for period from a weekend to two to three weeks. The existing
buildings with toilet facilities are served by on-site septic systems, except that the main
house is served by a composting toilet system; the system tanks have been pumped out on
a regular basis and have not failed.
The portion of the project property (the “upper property area”) containing the
buildings and the proposed uses (other than the proposed wastewater system), is located
at an elevation of approximately 900 to 940 feet above sea level. The project property
slopes steeply downward from the upper property area towards the south to Lull’s Brook,
at an elevation of approximately 660 feet above sea level, and includes property southerly
of Lull’s Brook, between the brook and Brownsville Road, where the wastewater disposal
system is proposed to be located (the “lower property area”).
The project property is located in an area of the Town of Hartland characterized as
rural in the Town Plan. However, the project property is not in the most rural area of the
town; rather, it is located near the rural-residential area and near a hamlet in the “Village”
land use area at the intersection of Town Farm Hill Road and Brownsville Road. The area
is characterized by relatively large parcel residential uses, some commercial or residential-
based business uses, and some institutional uses such as the town offices, a school, and
other churches in the nearby hamlet or village area.
No special, unique, or fragile areas are located on or adjacent to the property and
2 none are alleged to be adversely affected by the proposed project. The property is located
in a “headwaters” area as that term is used in Act 250 Criterion 1(A). 10 V.S.A.
§6086(a)(1)(A).
The Unified Buddhist Church, Inc., is a Vermont non-profit corporation. The project
proposed for the property is to renovate existing buildings and structures and to construct
new buildings and structures to provide a Buddhist religious retreat and meditation and
meditation education center (“dharma” or teaching center). The religious and meditation
practices conducted at the project property require a quiet and peaceful environment; the
aim of the project is to create an environment of quiet meditation and reflection which is
environmentally sensitive.
Twenty-four Buddhist monastics (monks and nuns) will live and work year-round
at the property. Ten are proposed to be housed in the existing main house, six in the
existing guest house, and eight in the new dormitory. The activities to be conducted at the
project property include religious and meditation retreats for individual members of the
public, assisted by the presence of the resident monastics, and instruction in Buddhist
teaching and meditation, including the practice of mindfulness meditation, for the general
public. As well as the resident monastics, a maximum of 77 additional overnight
occupants at any one time are proposed to be accommodated on the site in the summer
season, plus an additional 42 daytime visitors. A maximum of 41 additional overnight
occupants at any one time are proposed to be accommodated on the site during the
remainder of the year, plus an additional 30 daytime visitors.
The proposed use of the property is essentially a religious and educational one; the
daily schedule involves sitting and walking meditation sessions, prayer, instruction
sessions, small group discussion sessions, meals and rest periods. The proposed use of the
property is not a commercial use in the nature of a resort, as the modest overnight fees are
set at a rate only to cover the costs of operating the facility, including the teachers,
3 scholarships or reduced fees for those who otherwise would not be able to attend, and
support of the resident monastics,
The project proposes the following residential structures to be capable of
accommodating overnight occupants in all seasons: the renovation of the existing main
house to accommodate ten occupants, the renovation of the existing guest house to
accommodate six occupants, and the construction of a new dormitory building to
accommodate forty-eight1 or forty-nine occupants. In addition, the project proposes the
construction of a residential hut to accommodate visits by Applicant’s spiritual founder:
Thich Nhat Hanh.
The project proposes the following residential structures to be capable of
accommodating overnight occupants in the ninety-two-day summer season only: the
renovation of the pole barn to accommodate twenty summer seasonal occupants, and the
renovation of the sheep barn to accommodate sixteen seasonal occupants (bathroom
facilities in a separate structure).
In addition to the residential facilities, the project proposes the renovation of one
existing barn (the “Lotus Bud Hall Barn”) for classrooms, a library, and a meditation hall;
the renovation of the other existing barn (the “Big Horse Barn”) for meeting rooms,
classrooms, and storage; and the renovation of the existing shed. In addition to the
residential facilities, the project proposes the construction of the following new buildings:
a meeting hall, a children’s building, a bathroom complex, and a kitchen/dining
room/upper bathroom co-housing facility.
The proposed new buildings are clustered on the upper property area near the
existing complex of buildings. They are designed to be similar to the existing New England
1 The wastewater system calculations at the time of the permit application used forty-eight occupants. Evidence reflecting forty-nine may have been intended to include the Thais hut when it was in use.
4 rural architecture of the existing buildings on the site and are proposed to be painted in
earth-tone colors. The buildings on the property are not substantially visible from beyond
the project property or from public roads. The appearance of the lower property area after
installation of the waste disposal system will be similar to its present condition as an open
field, with the addition of manholes, a vent, and a small control panel. The property will
not have a visual aesthetic effect on the public or on adjoining properties different from the
effect of the existing development of the property.
The project proposes a new well for the facility. The project proposes to use flush
toilets and to install a new wastewater disposal system designed to accommodate 9,500
gallons per day, that is, designed for the maximum daily use in the year. This system size
provides a safety factor as the calculated design flow is conservative; the actual flows
experienced for this type of use is generally from 50% to 65% less than the design flows.
The proposed system is expected to experience this full use for which the design flow was
calculated only on the ninety-two days of the year constituting the summer season
The proposed new septic system is designed with septic tanks and grease traps on
the upper property, in which solids will settle out, so that the remaining wastewater from
the facility buildings will be piped downhill and under Lull’s Brook to a subsurface
disposal field on property near Lull’s Brook. The disposal field will operate without
creating odors or noise. The operation and monitoring proposed for the disposal system
is more fully discussed in connection with Criterion 1 below
The project has been issued a Water Supply and Wastewater Disposal permit (#WW-
3-0550-R1) by the ANR. It has also been issued a renewal of its Indirect Discharge Permit
#ID-9-0271-2 by the ANR; this is the permit on appeal in Docket No. 253-10-06 Vtec.
The project proposes the installation of unlighted footpaths on the property, and an
unlighted sign at the intersection of Town Farm Hill Road and Ayers Lane. No area or
space lighting is proposed. The project also proposes the installation of sixty-one gravel
5 parking spaces and areas for the parking of fifty-nine additional vehicles on grass.
Criterion 8
The burden of proof is on Appellants with respect to Criterion 8, involving the
aesthetics of the proposed project.
The buildings on the project site are not substantially visible from beyond the site
or from traveled public ways. The proposed buildings are designed to be compatible with
the existing cluster of rural buildings on the site. The portions of the septic system on the
lower project area are designed not to result in odors and will not be visible, except for an
unobtrusive vent and control panel. Its manholes are proposed to be installed flush with
the level of the surrounding ground, so that the area will continue to have the appearance
of an open field. The activities proposed for the upper property, involving mindfulness
meditation while walking or sitting, are proposed to be quiet and peaceful in nature. The
noise of private passenger vehicles entering and existing the site will be occasional and not
unusual for the area.
Because Appellants have not shown any adverse aesthetic effect from the proposed
project, it is unnecessary to analyze the issue of undue adverse aesthetic effect. The
proposal meets Criterion 8 of Act 250 as to aesthetics. 10 V.S.A. §6086(a)(8).
Criterion 10
The burden of proof is on Appellee-Applicant with respect to Criterion 10, involving
the compliance of the proposed project with the Town Plan and any applicable regional
plan.
The applicable regional plan contains no provisions specific to land within the Town
of Hartland, as it had joined the Regional Planning Commission after the date of the
application. The proposal meets the general provisions of the Regional Plan as to land use
6 in rural areas, at pp. 31–32, which generally calls for the preservation of open space, the
clustering of housing, and the development of rural land near villages and hamlet areas in
preference to the development of more remote rural land. The proposed project carries out
these provisions, and is consistent with the plan’s statement that even certain “non-
residential uses [such as] inns are acceptable land uses for rural areas,” provided that they
are relatively small-scale, are not the primary or dominant uses in an area, and do not
unduly affect rural character. Regional Plan, at p. 32.
Unlike many Vermont municipalities, the Town of Hartland has a town plan but has
not adopted zoning to implement the plan. If the Town had zoning, it would be subject to
24 V.S.A. § 4413(a), which limits the degree to which municipalities may regulate certain
uses, including “churches and other places of worship, convents, and parish houses,” and
allows such regulation “only to the extent that regulations do not have the effect of
interfering with the intended functional use” of the facility. This Court has ruled in In re
Appeals of Valsangiacomo, Docket Nos. 130-8-03 Vtec and 64-4-04 Vtec, slip op. at 6–9 (Vt.
Envtl. Ct., October 5, 2004), that this limiting language effectively carries out the federal
Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA), 42 U.S.C. 2000cc
et seq., with respect to Vermont zoning. The former Environmental Board has also
recognized the applicability of RLUIPA to Act 250 decisions. In re: Alodium Church, Land
Use Permit #3W0637-5-EB (Docket No.825), Findings of Fact, Conclusions of Law and
Order, slip op. at 7–9 (Vt. Envtl. Bd., June 30, 2005). This Court is directed by statute to give
the same weight an consideration to prior decisions of the environmental board as it gives
to its own prior decisions. 10 V.S.A. §8504(m).
However, it is not necessary to analyze the effect of RLUIPA unless the proposed
project is inconsistent with the Town Plan; in the present case, the proposed project is not
inconsistent with the Town Plan. The Town Plan categorizes most of the town as rural,
with areas of village and rural-residential use. The Plan primarily discusses the placement
7 of businesses, commercial and industrial uses with reference to the interstate interchange
and the village areas, and the preservation of single family residential and agricultural uses
in the more remote rural districts. The Town Plan is relatively silent as to non-public
schools, churches or other cultural and religious institutional uses. The density proposed
for the site is consistent with the Town Plan’s provisions encouraging clustered residential
development in rural areas to maintain open space and the rural residential character. The
proposal for handling the wastewater for the facility also meets the Town Plan’s policy to
maintain and improve the quality of the Town’s surface waters, protective of Lull’s Brook
(see discussion at Criterion 1, below).
Accordingly, the proposal meets Criterion 10 of Act 250 as to compliance with the
municipal and regional plans. 10 V.S.A. §6086(a)(10).
Criterion 1
The burden of proof is on Appellee-Applicant with respect to the subsections of
Criterion 1 at issue in this case, involving whether the proposal will not result in undue
water pollution. 10 V.S.A. §6086(a)(1)(A)(B) and (E).
First, with regard to the subsections of Criterion 1 relating to erosion and
stormwater, the project will not create any significant impervious or paved areas, and an
adequate erosion control plan is in effect to successfully deal with the potential for erosion
during construction. No appeal has been filed of the project’s construction general permit,
its stormwater discharge permit, or its stream crossing permit. Accordingly, the proposal
meets Criterion 1 of Act 250 as to issues relating to erosion and stormwater.
The project has received a Potable Water Supply and Wastewater Disposal Permit
from the Agency of Natural Resources, which has not been appealed, and has received an
Indirect Discharge Permit, the renewal of which is on appeal in Docket No. 253-10-06 Vtec.
Because of the pendency of the Indirect Discharge Renewal Permit appeal, it is
8 particularly important to note the differences in the presumptions and standard of proof
applicable to this Act 250 appeal compared to those applicable in the appeal of the ANR’s
decision on Applicant’s Indirect Discharge Renewal Permit. In this appeal of the Act 250
permit, under 10 VSA § 8504(i) any technical determinations of the ANR are to be accorded
the same deference as they are accorded by a district environmental commission under 10
VSA § 6086(d), which provides that “technical determinations of the agency shall be
accorded substantial deference.”
Thus, in this Act 250 appeal, the Agency’s technical determinations associated with
its work on the Indirect Discharge Renewal Permit must be accorded “substantial
deference” by this Court, even though the appeals statute accords no such deference in the
related appeal from the ANR’s own decision on the Indirect Discharge Renewal Permit,
which is de novo before the Court. The fact that the Court allowed evidence to be
presented Criterion 1 under NRB Rule 19(F) did not constitute any kind of ruling on the
merits of the Indirect Discharge Renewal Permit,2 it merely shifted the burden of proof to
Applicant to show compliance with Criterion 1. Under that rule the Indirect Discharge
Renewal Permit can still be submitted as evidence of compliance; under 10 VSA § 8504(i)
the ANR’s technical determinations on that permit are still to be accorded substantial
deference.
2 Thus, legal questions arising with respect to the Indirect Discharge Renewal Permit must be resolved in the appeal of that permit and not in the present appeal, such as whether the VWQS 1-04.A.2 alternatives analysis applies to an indirect discharge permit application, or whether or under what circumstances multiple disposal systems or innovative systems with separate greywater treatment may ever be considered for approval under 10 V.S.A. §1259(h) and Indirect Discharge Rule §14-203. If proceedings on the Indirect Discharge Renewal Permit (or any future 5-year renewal of that permit) were to substantially change an aspect of the system, then at that time a determination would have to be made as to whether this Act 250 permit would have to be amended. No such issues are before this Court at this time.
9 The wastewater system is designed to handle a flow of 9,500 gallons per day, which
is the design flow calculated to occur only during summer seasonal use of the facility on
ninety-two days out of the year.
The domestic wastewater (including from toilets, sinks, baths, and showers) is
proposed to flow to septic tanks and grease traps on the upper portion of the project
property, in which solids will settle out and be periodically removed or pumped out. The
remaining wastewater is proposed to flow through an underground pipe down to the level
of Lull’s Brook. Applicant has received a permit to install the pipe underneath the Brook
so that the pipe will cross under the Brook, and distribute the wastewater into the leach
field proposed to be located in the field southerly of Lull’s Brook, between the brook and
Brownsville Road.
As explained in footnote 2, above, this Act 250 case does not reach the question of
whether or what extent an analysis of alternatives is required under the Indirect Discharge
Rules. For the purposes of Act 250, in which substantial deference is given to the technical
determinations of ANR, the analysis of the topography and test pits on the upper property
area, together with the existence and location of at least two surface water ponds, one
perennial and two intermittent streams, and a drinking water supply, was sufficient to
suggest that suitable locations were not available on the upper property area for the
disposal of any more than about two thousand gallons per day, and certainly not for the
9,500 gallons of effluent per day required for the proposed use.
Appellants argued that it would be possible to place multiple in-ground septic
systems on the upper site, and that such systems would be more protective of Lull’s Brook
as they would be a greater distance from it. However, the evidence instead supported
Applicant’s and the ANR’s analysis that the hydrogeologic capacity of the upper area on
the property was insufficient to support adequate treatment, even in multiple smaller
systems. Further, due to the existence of small surface water ponds and small streams on
10 the upper property, in-ground systems on the upper property would not be able to meet
the required degree of treatment to afford protection to those much smaller and closer
water courses under the Indirect Discharge Rules.
The proposed leach field at the lower property area is designed as a dual alternating
system, so that each half of the total disposal area is in use only every other year, allowing
the unused half of the system to recover during the off year. Several features of this system
are conservative in that they provide more treatment capacity than will be required by the
actual amount of effluent that will be sent into the system. Beyond the fact that the system
is designed to accommodate an amount of effluent that will only be generated during full
use of the facility in the summer season, the flows for which the system is designed are
calculated to be higher than actual flows, resulting in a larger leach field area for treatment
of the effluent. The low application rate required in the Indirect Discharge Rules of 0.9
gallons per day per square foot results in the spreading of the effluent for treatment over
a larger leach field area. The fact that the system is a 100% dual alternating system means
that the treatment area is twice as large as required for the design flow, resulting in
additional spreading out over a larger area over time. Moreover, the requirement that a
three-foot unsaturated zone exist beneath the leach field during periods of seasonal high
groundwater allows for effluent renovation in the soils within that zone, prior to the
effluent’s reaching the groundwater. The system is placed so as to provide approximately
two-and-a-half years of travel time within the soils before the renovated effluent leaving
the leach field trenches would reach Lull’s Brook. These elements of the design of the
Indirect Discharge system mean that it has been designed with enough redundancy to be
protective of Lull’s Brook.
In addition, the monitoring required for the system is designed to reveal any
problems with the operation of the system in ample time to institute corrective measures
or to cease the discharge before it could have a significant impact on water quality and well
11 before any untreated effluent could reach Lull’s Brook. Monitoring is required of the
effluent itself, of the groundwater downgradient of the disposal field, of the surface water
in Lull’s Brook both upstream and downstream of the discharge, plus biological monitoring
of the stream. The latter requirement of indirect discharge systems is very stringent, as it
requires a showing that the operation of the system results in no significant alteration of
the aquatic biota in the stream.
Appellants argued that the groundwater monitoring locations are insufficient to
assure that the groundwater monitoring will actually intercept the effluent plume.
However, because certain components of the effluent such as chloride are not attenuated
in the treatment system, their presence (or absence) in the groundwater monitoring wells
after the system begins operation will provide an early check on whether the effluent
plume is intercepted by the monitoring wells.
Appellants presented evidence to support their argument that phosphorus would
not be adequately treated in the system and the soils, so that the system would inevitably
result in phosphorus pollution of Lull’s Brook. However, the application of this calculation
method or theoretical model to other existing wastewater disposal systems that have been
operating for an extended period of time in Vermont would also suggest that many, if not
most of these systems should be experiencing similar failures in phosphorus treatment.
Although the failure of such regulated systems would be reported to ANR, only one of
210 systems is leaking phosphorus, and that system is not comparable in type to the one
proposed in the present case. (Of the eight most comparable systems, one was tested and
appears to show a high degree of removal, depending on the degree to which chloride can
be used as a marker for phosphorus removal.) The fact that more Vermont systems are not
showing phosphorus breakthrough after long periods of operation supports Applicant’s
and the ANR’s evidence that the system can be expected to function well as designed.
Accordingly, the proposal meets Criterion 1 of Act 250 that it will not result in
12 undue water pollution. 10 V.S.A. §6086(a)(1)(A)(B) and (E).
Based on the foregoing, it is hereby ORDERED and ADJUDGED that Applicant’s
application for a Land Use Permit under Act 250 is approved with the same conditions as
imposed by the District Commission, concluding this appeal. In the conference now
scheduled for January 8, 2008, please be prepared to discuss whether the parties wish to
suspend the issuance of a final judgment order in this case until the conclusion of the
appeal of the Indirect Discharge Renewal Permit.
Done at Berlin, Vermont, this 2nd day of January, 2008.
_________________________________________________ Merideth Wright Environmental Judge