Barker Sargent Corp., In re, 76-73

• Decision Date: 04 December 1973
• Docket Number: No. 76-73,76-73
• Citation: 313 A.2d 669,132 Vt. 42
• Parties: In re Environmental Application of BARKER SARGENT CORPORATION.
• Court: Vermont Supreme Court

Page 669

313 A.2d 669

132 Vt. 42

In re Environmental Application of BARKER SARGENT CORPORATION.

No. 76-73.

Supreme Court of Vermont.

Dec. 4, 1973.

Motion for Reargument Denied Dec. 19, 1973.

David L. Cleary, of Richard E. Davis Associates, Barre, for Barker Sargent Corp.

John J. Long, Jr., of Black & Plante, White River Junction, for Adjoining Property Owners.

Before BARNEY, SMITH, KEYSER and DALEY, JJ., and LARROW, Superior judge.

SMITH, Justice.

This is an appeal by adjacent landowners from a decision of the Vermont Environmental Board granting a land use permit to a sanitary landfill in the Town of Thetford. The site is a rural area adjacent to Post Mills Village, the local airport, and two hundred and fifty feet to three hundred feet from the East Branch of the Ompompanoosuc River.

The case below was tried by the parties as being properly within the jurisdiction of the Vermont Environmental Board as a 'Development' under 10 V.S.A. § 6001. Assuming, but not deciding that a landfill operation is a development under the provisions of the statute just cited, we proceed to a determination of the issues in the case. Important to the determination of the question presented is 10 V.S.A. § 6086:

Issuance of permit; conditions

(a) Before granting a permit the board or district commission shall find that the subdivision or development:

(1) Will not result in undue water or air pollution. In making this determination it shall at least consider: 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 water resources department regulations.

(2) Does have sufficient water available for the reasonably foreseeable needs of the subdivision or development.

(3) Will not cause an unreasonable burden on an existing water supply, if one is to be utilized.

(4) Will not cause unreasonable soil erosion or reduction in the capacity of the land to hold water so that a dangerous or unhealthy condition may result.

(5) Will not cause unreasonable highway congestion or unsafe conditions with respect to use of the highways existing or proposed.

(6) Will not cause an unreasonable burden on the ability of a municipality to provide educational services.

(7) Will not place an unreasonable burden on the ability of the local governments to provide municipal or governmental services.

(8) Will not have an undue adverse effect on the scenic or natural beauty of the area, aesthetics, historic sites or rare and irreplaceable natural areas.

(9) Is in conformance with a duly adopted development plan, land use plan or land capability plan.

(10) Is in conformance with any duly adopted local or regional plan under chapter 91 of Title 24.

Nine conclusions of law made by the Environmental Board have been certified to this Court on the record in the case for us to determine whether there was error in any or all of such findings made by the governmental agency.

10 V.S.A. § 6089(c) provides:

No objection that has not been urged before the board may be considered by the court, unless the failure or neglect to urge such objection shall be excused because of extraordinary circumstances. The findings of the board with respect to questions of fact, if supported by substantial evidence on the record as a whole, shall be conclusive.

Resolution of controverted issues of fact is the responsibility of the trier of the facts subject only that such determination had appropriate evidentiary support. Villeneuve v. Commissioner of Taxes, 128 Vt. 356, 357, 264 A.2d 774, 775 (1970).

Only five of the nine issues certified by the Environmental Board have been briefed here by the appellants and our determination of the matter must be confined to the issues so raised by the brief of the appellants.

The first briefed exception is to the finding of the Board:

The proposed development will not result in undue water or air pollution. The applicant shall comply with the attached condition which provides for the monitoring of the quality of the water in the East Branch of the Ompompanoosuc River.

The burden of proof on this issue was on the applicant. 10 V.S.A. § 6088(a). The evidence before the Board was that the proposed landfill site consisted of seventeen acres, of which only four or five acres would be used for the sanitary landfill operation. The landfill was to consist of trenches eight feet in depth into which the waste material was to be compacted, covered with soil, and with the top layer so constructed that surface water would run off the area without permeating to the waste material beneath.

It was determined by the various departments of the Vermont Environmental Agency as well as the United States Department of Agriculture's Soil Conservation Service, after studies and site inspection, that the soil on the site and ground water conditions would not render the site unsuitable for a sanitary landfill.

The proposed landfill site is from twenty to twenty-five feet higher than the normal water level of the East Branch of the Ompompanoosuc River and at a distance of from two hundred and fifty to three hundred feet from such waterway. The applicant offered expert testimony that such landfill would not result in undue pollution of the river. Expert testimony offered by the parties agreed that there was no danger from bacterial contamination of the river, but the appellant's expert testified that at some future time there might be a deposit of minerals in the river from the eventual leaching of moisture from the landfill into the river. It was the testimony of Mr. King, a professional engineer called as an expert by the applicant, that if the landfill operation was operated as planned there would be no undue discharge of effluent into the waters of the State of Vermont, or any undue pollution thereof. Other professional experts, called as witnesses by the...