In re Snowstone, LLC Act 250 Jurisdictional Opinion

Citation274 A.3d 42
Decision Date11 February 2022
Docket Number20-197
Parties IN RE SNOWSTONE, LLC ACT 250 JURISDICTIONAL OPINION (Michael Harrington, et al., Appellants)
CourtUnited States State Supreme Court of Vermont

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.

Thomas J. Donovan, Jr., Attorney General, and Melanie Kehne, Assistant Attorney General, Montpelier, for Vermont Natural Resources Board.

Jamey Fidel and Jon Groveman, Montpelier, for Amicus Curiae Vermont Natural Resources Council (on reargument).

James A. Dumont of Law Office of James A. Dumont, PC, Bristol, for Amicus Curiae Darby Bradley, Elizabeth Courtney, Jon Groveman, Marcey Harding, Stephen Reynes, Ronald Shems and Diane Snelling (on reargument).

PRESENT: Robinson1 , Eaton, Carroll and Cohen, JJ., and Morris, Supr. J. (Ret.), Specially Assigned


¶ 1. In this case, the Environmental Division concluded that Snowstone, LLC, did not need an Act 250 permit to operate a small dimensional-stone extraction operation on a 0.93-acre parcel of land to be purchased from landowners Justin and Maureen Savage. It found the proposed sale between landowners and Snowstone was an arm's-length transaction and that neither party would exercise "control" over the land to be held by the other such that they should be considered one "person" for Act 250 purposes. Neighbors challenge these conclusions on appeal and challenge other aspects of the court's merits decision as well. We affirm.2

I. Underlying Proceedings

¶ 2. The record indicates the following. Landowners own a 176-acre parcel of undeveloped land in Cavendish, Vermont, a municipality that does not have permanent zoning and subdivision bylaws. Snowstone, LLC, seeks to buy a small portion of landowners’ property to operate a dimensional-stone extraction project. Snowstone and landowners executed a contract whereby, subject to several contingencies, Snowstone would purchase a 0.64-acre portion of landowners’ property and a 0.29-acre access easement over an existing road on the property. The combined acreage of the proposed project will be 0.93 acres. 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. See 10 V.S.A. § 6007(c) (authorizing jurisdictional opinions). Neighbors filed comments, arguing that an Act 250 permit was required. The district coordinator concluded that the proposed project constituted "development," defined here as "[t]he construction of improvements for commercial or industrial purposes on more than one acre of land" given that Cavendish is "a municipality that has not adopted permanent zoning and subdivision bylaws." Id. § 6001(3)(A)(ii). Relying on In re Vitale, 151 Vt. 580, 563 A.2d 613 (1989), 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 parcels must be considered together for purposes of determining Act 250 jurisdiction.

¶ 4. Snowstone appealed to the Environmental Division (the JO appeal) and asked the court to decide whether: (1) the proposed quarry constituted "development" for a commercial purpose on more than one acre of land; and (2) the entire tract of land should be considered as owned by a single "person" for purposes of determining Act 250 jurisdiction. Snowstone submitted a revised version of its contract with landowners that reduced the purchase price, removed a right of first refusal, and excised a deed restriction. Neighbors participated in the appeal as intervenors, arguing that an Act 250 permit was required and that the project would also require a stormwater discharge permit that would increase the amount of land necessary to operate the project beyond one acre.

¶ 5. At the parties’ request, the court agreed to bifurcate the matter and first determine if the proposed project required an Act 250 permit. It would then order Snowstone to obtain the necessary stormwater permits and it would revisit the stormwater issue if the permit requirements increased the land area necessary for the project beyond one acre.

¶ 6. Accordingly, the court first determined that the project did not constitute "development" as defined in 10 V.S.A. § 6001(3)(A)(ii) and thus, no Act 250 permit was required. In its initial merits order, the court reached a legal conclusion with respect to the applicability of the doctrine of "involved land" in "one-acre towns," i.e., towns without permanent zoning and subdivision regulations. Following a motion to alter or amend by the Natural Resources Board, the court issued a revised decision, finding it unnecessary to decide if the doctrine of "involved land" applied to one-acre towns because the proposed project would be contained on a tract of land totaling less than one acre, which fell below the jurisdictional threshold set forth in 10 V.S.A. § 6001(3)(A)(ii).

¶ 7. The court's merits decision rested on its conclusion that the proposed sale was an arm's-length transaction and that one person would not control the 176-acre tract. It described the circumstances leading to the sale, explaining that the parties did not previously know one another and had no prior personal or business dealings. Landowners did not have, and would not acquire, any ownership interest in Snowstone. Snowstone's principal, Jason Snow, learned of the existence of a small quarry on landowners’ property from an acquaintance, eventually leading to a discussion with landowners about purchasing the property. Both parties sought to keep the quarry area small. Landowners intended to use the remaining property as their principal residence; Snow did not wish to acquire any more property than he needed to operate his business and he was also aware that, if the project was kept under a certain size, he might avoid the need to obtain an Act 250 permit.

¶ 8. Snow consulted with an engineer and attorney and hired a surveyor to identify the exact area to be sold to Snowstone. The surveyor identified the stone quarry site as containing 0.64 acres of land. The surveyor identified an old road to the site in passable condition and he plotted out the location of an access easement over landowners’ property from the quarry site to a public road. Landowners decided to sell, and Snowstone decided to buy, the stone quarry site and access easement covering a total area of 0.93 acres. The parties negotiated a contract, which they later revised in response to the Act 250 district coordinator's decision. The agreement did not call for or allow landowners to retain any ownership or controlling interest over the lot or easement to be conveyed to Snowstone. The revised contract did not include a right of first refusal or a restriction on future development, terms that had concerned the district coordinator. The court found the testimony of Snow, landowner Justin Savage, and Savage's surveyor credible and noted that neighbors had no evidence to contradict the assertion that the proposed sale was an arm's-length transaction.

¶ 9. Applying a common-sense definition of "control," the court found that Snowstone would control only the 0.93-acre parcel to be conveyed to it and it would have no control, domination, or governance over any of landowners’ remaining property. Landowners similarly would have no control, ownership, or governance over either Snowstone or the property to be conveyed. The court recognized that the parties’ negotiations involved some common goals, one of which was to "avoid" Act 250 jurisdiction, but it found no attempt by the parties to unlawfully "evade" the law as in Vitale. It thus concluded that the jurisdictional threshold for Act 250 was not satisfied.

¶ 10. The court directed Snowstone to obtain necessary stormwater permits and inform the court and neighbors within ten days of the permit 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 acres 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.

¶ 11. 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 acres. 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) (authorizing judicial notice of facts "capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned"); Miller v. Miller, 2008 VT 86, ¶ 31 n.11, 184 Vt. 464, 965 A.2d 524 (taking judicial notice of family court order issued during pendency of appeal and of fact that party was sentenced in federal court). Despite neighbors’ knowledge of the permit determination by at least July 5, the thirty-day deadline to request a hearing in the JO appeal passed, and neighbors did not request a...

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2 cases
  • In re Katzenbach A250 Permit #7R1374-1
    • United States
    • United States State Supreme Court of Vermont
    • September 9, 2022
    ...court that were not clearly erroneous); see also In re Snowstone, LLC Act 250 Jurisdictional Op., 2021 VT 72A, ¶ 14, ––– Vt. ––––, 274 A.3d 42 (explaining that findings are clearly erroneous if "there is no credible evidence to support them" (quotation omitted)). Otherwise, the conditions a......
  • In re Katzenbach A250 Permit #7R1374-1
    • United States
    • United States State Supreme Court of Vermont
    • September 9, 2022 environmental court that were not clearly erroneous); see also In re Snowstone, LLC Act 250 Jurisdictional Op., 2021 VT 72A, ¶ 14, Vt., 274 A.3d 42 (explaining that findings are clearly erroneous if "there is no credible evidence to support them" (quotation omitted)). Otherwise, the cond......

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