In re Sugar Mountain Holdings, LLC
| Docket Number | 23-AP-239 |
| Decision Date | 15 December 2023 |
| Parties | In re Sugar Mountain Holdings, LLC Act 250 Permit Amendment (Paul Adkins*) |
| Court | Vermont Supreme Court |
In the case title, cm asterisk (*) indicates an appellant and a double asterisk (**) indicates a cross-appellant. Decisions of a three-justice panel are not to be considered as precedent before any tribunal.
APPEALED FROM: Superior Court, Environmental Division CASE NO. 22-ENV-00117 Trial Judge: Thomas G. Walsh
ENTRY ORDER|
In the above-entitled cause, the Clerk will enter:
Neighbor appeals pro se from the trial court's decision that applicant's proposal satisfies Criterion 8 of Act 250 with respect to noise levels. We affirm.
The District #2 Environmental Commission approved in part and denied in part applicant's application for an Act 250 permit application to convert an existing ski base lodge in Dummerston, Vermont, into a brewery, distillery, and tasting room, with the ability to host outdoor functions of up to 150 guests with amplified music. Following a four-day trial before the Environmental Division, all parties except neighbor agreed to a revised permit amendment and they submitted a stipulated order to the court. Neighbor disputed only the project's compliance with Criterion 8 of Act 250, 10 V.S.A. § 6086(a)(8), and specifically, noise. In a written order, the court concluded that the proposed project satisfied Criterion 8.
The court made numerous findings, including the following. Applicant owns an approximately 375-acre property in Dummerston, which includes a defunct ski area. The ski resort predated the adoption of Act 250 and did not initially require an Act 250 permit. In July 1987, the ski area obtained an Act 250 permit to make changes to the lodge. In February 2020, applicant applied for an Act 250 permit amendment.
Among other activities, applicant sought to host catered events such as weddings with up to 150 guests and outdoor amplified music. Applicant proposed to use the area year-round. The outdoor amplified music would be on the western side of the existing ski lodge, on the north side of a patio. Speakers would be directed southerly. Performances would include smaller solo to trio-style musicians or larger bands. A whiskey barrel on the property would be placed in a way such that the longer side of the building will run east to west to assist in sound mitigation. When bands larger than a trio played, applicant would either construct a temporary shell behind the musicians or install temporary panels on the northwestern, northern, and northeastern sides of a gazebo-like structure in which the band would play. Either option would, at minimum, block the line of sight from the closest residences to the north of the property. The southern edge of the patio was approximately 92 feet from the source of the music, and applicant would limit the sound level there to 83 decibels (dBA). Outdoor music would conclude by 10:00 p.m. on weeknights and 11:00 p.m. on weekends.
Applicant presented expert testimony and evidence regarding noise levels from Eddie Duncan, a noise-control engineer with RSG. Mr. Duncan conducted a noise assessment in the form of a sound model. He also relied on background sound-level monitoring, which recorded background noise on the property over two days. The monitoring showed the representative background noise levels at the property and the closest residence. The court found that background noise levels at the property were largely related to traffic noise from Vermont Route 30, which ran north to south along the property. During daytime hours, the average background sound levels were approximately 64 dBA. Between 8:00 p.m. and 11:00 p.m., average sound levels ranged from 53 to 63 dBA, although the average was inflated when cars passed along Route 30. These measurements represented "the average sound pressure over a period of time and [were] generally representative of the overall sound to which a person is exposed."
The noise assessment modeled two scenarios relative to outdoor music at the property. The first scenario modeled a solo to trio set of musicians and the second modeled a larger band playing outside. The second scenario included use of the temporary band shell/barrier. The highest modeled noise level under both scenarios at a residence was 55 dBA. The project would not, under either scenario, exceed 70 dBA at the property line. Applicant provided sound modeling for neighbor's property. Sound levels at his property would be at or below 45 dBA under either scenario.
Based on these and other findings, the court considered if the project, as proposed, satisfied Criterion 8. Criterion 8 requires that a project "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." 10 V.S.A. § 6086(a)(8). "Aesthetics" encompasses noise impacts. In re Lathrop Ltd. P'ship I, 2015 VT 49, ¶ 9, 199 Vt 19. If an applicant meets its initial burden of production then the ultimate burden of proving that a project does not conform with Criterion 8 rests upon the project's opponents. 10 V.S.A. § 6088(b). The critical question, as asked by the trial court here, is whether the proposed project would "be in harmony with its surroundings," that is, whether it will" 'fit' the context in which it...
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