In re Village Associates Act 250 Land Use Permit, 2010 VT 42 (Vt. 5/21/2010)

• Decision Date: 21 May 2010
• Docket Number: No. 2009-171, December Term, 2009.,2009-171, December Term, 2009.
• Court: Vermont Supreme Court
• Parties: In re Village Associates Act 250 Land Use Permit.

Page 1

2010 VT 42

In re Village Associates Act 250 Land Use Permit.

No. 2009-171, December Term, 2009.

Supreme Court of Vermont.

May 21, 2010.

On Appeal from Environmental Court, Merideth Wright, J.

Heather Rider Hammond of Gravel and Shea, Burlington, for Appellant.

William H. Sorrell, Attorney General, and Diane E. Zamos, Assistant Attorney General, Montpelier, for Appellee.

PRESENT: Reiber, C.J., Dooley, Johnson, Skoglund, and Burgess, JJ.

JOHNSON, J.

¶ 1. Appellant/developer appeals imposition of an off-site mitigation fee assessed pursuant to 10 V.S.A. § 6086(a)(9)(B)(iv) because of the presence of 10.85 acres of "primary agricultural soils" on the site of a proposed affordable housing development.¹ Developer contends that the Environmental Court erred by refusing to consider the cost of removing trees from the land in assessing whether it should be classified as primary agricultural soils. Because we agree with developer that the Environmental Court erred in its interpretation of the statute, we reverse and remand to the Environmental Court for a decision consistent with the standard set forth in this opinion.

¶ 2. The relevant facts are as follows. Developer proposed to construct a multi-unit affordable housing development known as Brookside Village on a 25.8-acre parcel of land located in the towns of Colchester and Winooski. The property is bordered by the Winooski River to the west and Morehouse Brook to the north. The property is adjacent to a grid of residential streets to the east. Several miles north of the property, however, there are several agricultural operations, including a dairy farm, an equine operation, and a small fruit and vegetable stand. There are currently access roads leading to the parcel from two residential streets (West Street and Hickok Street) located on the eastern side of the land. In addition, there are a total of 300 feet of frontage onto Malletts Bay Avenue, located on the northeast corner of the parcel. The project contemplates future access to the development through two existing residential lots along Malletts Bay Avenue.

¶ 3. Developer applied for and was ultimately granted an Act 250 permit by the Agency of Agriculture, Food and Markets (the Agency). The Agency, however, determined that 12.88 acres of the project site contained "primary agricultural soils," of which 2.03 acres were located such that they were unusable, leaving a total of 10.85 acres of primary agricultural soils. The 10.85 acres at issue currently contain "a healthy eastern woodland, including some stands of mature trees as well as regenerating eastern woodland of predominantly hardwood species." The land was apparently clear of trees and used for farming at one point many years ago. Because developer conceded that the project would result in a loss of these soils, it was subsequently assessed an off-site mitigation fee pursuant to 10 V.S.A. §§ 6086(a)(9)(B)(iv) and 6093.

¶ 4. Developer appealed only the assessment of the mitigation fee to the Environmental Court. Following a de novo hearing, the Environmental Court reached the same conclusion as the Agency, holding that 10.85 acres of the project site contained primary agricultural soils, thus requiring an off-site mitigation fee. The Environmental Court based its decision on its interpretation of § 6001(15), which, in addition to setting forth a scientific definition of primary agricultural soils, requires soils to have "few limitations for cultivation or limitations which may be easily overcome" to meet the statute's definition. 10 V.S.A. § 6001(15).

¶ 5. The Environmental Court noted that because the Legislature explicitly included forestland in its list of present uses of land that could be considered primary agricultural soils, the presence of trees could not be classified as a limitation to cultivation not easily overcome. The court also rejected developer's argument that the cost of tree removal, a necessary prerequisite to the site's conversion to agricultural use, should be considered. Instead, the court adopted a narrow analysis of whether a limitation can be easily overcome, limiting its inquiry to the "practical or technical difficulty of overcoming the limitation, such as whether waterlogged soils may be drained, or whether the existence of a gully prevents logging equipment from reaching the site, rather than the economics of removing [the limitation] for agriculture as compared with removing it for development." Based on this interpretation of § 6001(15), the court concluded that "[t]here is no technical or physical impediment to the removal of trees from the 10.85-acre portion of the project property" and that "the limitation posed by the forest cover for the use of the 10.85-acre portion of the project property for agriculture is a limitation that may be easily overcome." Finally, the court concluded that the parcel was capable of supporting or contributing to an economic or commercial agricultural operation because there were several agricultural operations nearby, and agricultural machinery could enter the property from Malletts Bay Avenue or from West Street.

¶ 6. On appeal, developer makes two arguments: (1) the Environmental Court erred in failing to consider the cost of removing the trees as a limitation to potential cultivation; and (2) the Environmental Court erred in concluding that there was adequate access to the parcel that could support agricultural use. We address each argument in turn.

¶ 7. Under our standard of review, the Environmental Court "determines the credibility of witnesses and weighs the persuasive effect of evidence," and we will not overturn its factual findings "unless, taking them in the light most favorable to the prevailing party, they are clearly erroneous." In re Route 103 Quarry, 2008 VT 88, ¶ 4, 184 Vt. 283, 958 A.2d 694 (citation omitted); see also In re Miller Subdivision Final Plan, 2008 VT 74, ¶ 13, 184 Vt. 188, 955 A.2d 1200. We review issues of law or statutory interpretation de novo. See In re Gulli, 174 Vt. 580, 582, 816 A.2d 485, 488 (2002) (mem.) ("Questions of law are reviewed de novo, allowing us to proceed with a nondeferential, on-the-record review.").²

I.

¶ 8. Developer contends that the cost of tree removal would be so expensive as to preclude conversion of the parcel to any sort of agricultural enterprise, thus amounting to a limitation not easily overcome under the statute. Developer argues that the court erred in refusing to consider cost as a hindrance to overcoming the presence of trees. Further, by failing to consider whether the land could ever actually be converted into a farm, developer contends that the court ignored the purpose of Act 250—to mitigate the effect of development projects on the agricultural potential of primary agricultural soils. We agree.

¶ 9. The crux of the issue before us lies in the interpretation of the statutory definition of primary agricultural soils. We note that in interpreting any statute, our primary goal is to give effect to the legislative intent and that we first look to the plain meaning of the statute. See In re Ambassador Ins. Co., 2008 VT 105, ¶ 18, 184 Vt. 408, 965 A.2d 486 ("In construing a statute, we aim to implement the intent of the Legislature and will `presume the Legislature intended the plain, ordinary meaning of the statute.'" (quoting Swett v. Haig's, Inc., 164 Vt. 1, 5, 663 A.2d 930, 932 (1995))).

¶ 10. Recognizing that Vermont's small farms were in danger of being swallowed by unrestrained commercial development, the Legislature has made it clear that part of the environmental protection and conservation goals of Act 250 is the protection of land that could be put to agricultural use. 1973, No. 85, § 7(a)(2) ("Preservation of the agricultural and forestry productivity of the land, and the economic viability of agricultural units . . . are matters of the public good. Uses which threaten or significantly inhibit these resources should be permitted only when the public interest is clearly benefited thereby."). Act 250's Criterion 9(B) addresses this goal by imposing an off-site mitigation fee on projects that will threaten the agricultural potential of land identified as primary agricultural soil.³ Analysis under Criterion 9(B), however, is triggered only upon a threshold determination as to whether the proposed project contains primary agricultural soils. It is this threshold determination that is at the heart of the matter before us.

¶ 11. Thus, we turn to 10 V.S.A. § 6001(15), which defines primary agricultural soils as follows:

"Primary agricultural soils" means soil map units with the best combination of physical and chemical characteristics that have a potential for growing food, feed, and forage crops, have sufficient moisture and drainage, plant nutrients or responsiveness to fertilizers, few limitations for cultivation or limitations which may be easily overcome, and an average slope that does not exceed 15 percent. Present uses may be cropland, pasture, regenerating forests, forestland, or other agricultural or silvicultural uses. However, the soils must be of a size and location, relative to adjoining land uses, so that those soils will be capable, following removal of any identified limitations, of supporting or contributing to an economic or commercial agricultural operation.

10 V.S.A. § 6001(15).

¶ 12. The definition essentially has three separate parts: (1) a requirement of a scientific determination as to the soil composition and a determination that "soil map units . . . have . . . few limitations for cultivation or limitations that may be easily overcome"; (2) a list of acceptable present uses of the land that do not preclude a determination that primary agricultural soils exist, including regenerating forests and forestland; and (3) a requirement that the soils be of a size and location such that they would be capable of supporting or contributing to an agricultural enterprise...