In re Snowstone, LLC
| Decision Date | 03 September 2021 |
| Docket Number | 2020-197 |
| Court | Vermont Supreme Court |
| Parties | In re Snowstone, LLC Act 250 Jurisdictional Opinion (Michael Harrington, et al., Appellants) |
On Appeal from Superior Court, Environmental Division Thomas S Durkin, J.
Merrill E. Bent of Woolmington, Campbell, Bent & Stasny P.C., Manchester Center, for Appellants.
Lawrence G. Slason of Law Office of Salmon & Nostrand, Bellows Falls, for Appellee.
David R. Cooper of Facey Goss & McPhee P.C., Rutland, for Appellees/Intervenors Justin and Maureen Savage.
Melanie Kehne, Assistant Attorney General, Montpelier, for Vermont Natural Resources Board.
PRESENT: Robinson, Eaton, Carroll and Cohen, JJ., and Morris, Supr. J. (Ret.), Specially Assigned
¶ 1. In this case, we affirm the Environmental Division's conclusion that a stone quarry on less than an acre of land within a larger unimproved parcel does not constitute "development" in a municipality that has not adopted permanent zoning and subdivision bylaws, and therefore does not require an Act 250 permit.
¶ 2. The Environmental Division made the following findings based on evidence introduced at a merits hearing. Justin and Maureen Savage (landowners) own a 176-acre parcel of undeveloped land in a rural area near Cavendish, Vermont. Snowstone, LLC, seeks to buy a portion of landowners' property to operate a dimensional stone extraction project. To that end, Snowstone and landowners executed a contract whereby, subject to several contingencies, Snowstone would purchase a 0.64-acre portion of landowner's property containing the stone quarry and a 0.29-acre access easement over an existing road within the property. The combined acreage of the proposed project is accordingly 0.93 of an acre, all contained within the 176-acre parcel. There are no other commercial or industrial improvements on the 176 acres or in the vicinity.
¶ 3. After executing the contract, Snowstone requested a jurisdictional opinion from the Act 250 district coordinator to determine whether the project would need an Act 250 permit. See 10 V.S.A. § 6007(c) (authorizing jurisdictional opinions). A group of neighboring landowners (neighbors) filed comments, arguing that the project would require said permit.
¶ 4. The district coordinator issued a jurisdictional opinion, concluding that the proposed project needed an Act 250 permit because the project constituted "development," defined in relevant part as "[t]he construction of improvements for commercial or industrial purposes on more than one acre of land within a municipality that has not adopted permanent zoning and subdivision bylaws." Id. § 6001(3)(A)(ii).[1] Applying this Court's analysis in In re Vitale, which we discuss below, the district coordinator determined that the project land and the remainder of the 176-acre parcel would be controlled by the same person and thus both had to be considered together under § 6001(3)(A)(ii). 151 Vt. 580, 563 A.2d 613 (1989). The district coordinator concluded that both parcels would be controlled by the same person because, in his estimation, the contract between Snowstone and landowners was not an "arms-length transaction" due to the purchase price, a clause granting landowners a right of first refusal to buy back the project land, and a deed restriction precluding any development of the project land after stone extraction was completed. In short, the district coordinator determined that given the nature of their transaction, Snowstone and landowners remained "effectively affiliated for profit in the nature of a joint venture," and that this required the entire 176 acres to be considered under § 6001(3)(A)(ii).
¶ 5. Snowstone appealed the jurisdictional opinion to the Environmental Division (the JO appeal) and presented the court with a revised contract that reduced the purchase price, removed the right of first refusal, and excised the deed restriction. Neighbors successfully intervened, arguing that the two parcels would be controlled by the same person due to the nature of the sales transaction, that the retained parcel would be "involved land"-a term we explain below-and that the project would require a stormwater discharge permit with stormwater treatment facilities that would increase the amount of land necessary to operate the project beyond one acre.
¶ 6. The court held a merits hearing on these issues and, after Snowstone's case-in- chief, agreed with the parties to bifurcate the matter. First, the court would determine whether the proposed project would need an Act 250 permit because of the nature of the transaction between Snowstone and landowners, and whether the retained parcel would be involved land. Second, the court would order Snowstone to obtain the necessary stormwater permits, and it would revisit the stormwater issue if the permit requirements indeed increased the land area necessary for the project beyond one acre.
¶ 7. And so, it was. In an initial merits order, the court declined to apply the concept of "involved land" because the term-though present in other sections of Act 250-is absent from § 6001(3)(A)(ii) and, putting aside the stormwater issue, the project would be contained in less than an acre. The court then scrutinized the revised sales contract and determined that, with the excision of the former objectionable provisions, the contract evinced an arms-length transaction such that Snowstone and landowners were not one person. Accordingly, the court concluded that the entire 176 acres did not need to be considered under § 6001(3)(A)(ii) and thus the project did not require an Act 250 permit. The court then directed Snowstone to obtain the necessary stormwater permits and inform the court and neighbors of the permit determination within ten days of that determination. It further ordered:
Within thirty (30) days of [the stormwater permit] determination or withdrawal, any [p]arty to this jurisdictional opinion appeal may request that the [c]ourt conduct a further hearing on whether any stormwater permit determination has a relevancy to the legal issue of whether all activities necessary for the operation of the proposed dimensional stone quarry can occur within the 0.93 [of an acre] that Snowstone proposes to purchase.
The court warned that if no party requested such a hearing, it would issue a final judgment in the JO appeal.
¶ 8. Snowstone applied for the stormwater permit and neighbors intervened in those proceedings, filing questions and comments. On June 12, 2019, the Department of Environmental Conservation granted Snowstone a multisector general permit (MSGP), authorizing the discharge of stormwater with all treatment activities contained within the 0.93 of an acre. Neighbors submit that they never received Snowstone's notification of the permit determination, and the record does not reflect that the notification was provided to the court or to neighbors. However, we take judicial notice that on July 5, 2019, neighbors filed a notice of appeal from the grant of the permit to the Environmental Division in a separately docketed matter (the MSGP appeal). See V.R.E. 201(b) (); Miller v. Miller, 2008 VT 86, ¶ 31 & n.11, 184 Vt. 464, 965 A.2d 524 (). Despite neighbors' knowledge of the permit determination by at least July 5th, the thirty-day deadline to request a hearing in the JO appeal passed, and neighbors did not file a request to conduct a further hearing. However, forty-four days after the permit determination, on July 26, 2019, neighbors filed a motion to consolidate the JO and MSGP appeals. Following neighbors' request for a site visit, landowners sought and were granted intervention in the JO appeal.
¶ 9. In a subsequent order, the court rejected neighbors' contention that their motion to consolidate qualified as a request for a further hearing in the JO appeal, noting that the motion did not specify a request for further hearing and in any event was filed beyond the thirty-day deadline. In the MSGP appeal, the court dismissed the matter for lack of standing. The Environmental Division thus entered judgment for Snowstone in the JO appeal, ruling that, for the reasons noted in its initial merits order, the proposed project did not require an Act 250 permit.[2]
¶ 10. Neighbors now appeal to this Court, advancing two premises for their argument that the proposed project constitutes "development" under 10 V.S.A. § 6001(3)(A)(ii). First, they contend that the landowners' retained parcel is "involved land" because the access easement will provide the only access to the quarry parcel. As a consequence, the entire tract of the retained parcel must be used in calculating the amount of land required for the project. Second, neighbors argue that the two parcels must be considered together because the sales contract was not an arm's-length transaction, such that the parcels are really controlled by one person. Separately, neighbors maintain that the Environmental Division erred in determining that neighbors failed to request an additional hearing in the JO appeal concerning the stormwater treatment and project-footprint issues. Finally, they argue that the court abused its discretion in permitting landowners to intervene.
¶ 11. We first consider whether the proposed project constitutes "development" under § 6001(3)(A)(ii). Our review of the Environmental Division's legal conclusions is nondeferential. In re N.E. Materials Grp., LLC, 2019 VT 55, ¶ 6, 210 Vt 525, 217...
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