McShinsky, In re, 88-312

• Decision Date: 09 February 1990
• Docket Number: No. 88-312,88-312
• Citation: 153 Vt. 586,572 A.2d 916
• Parties: In re Robert B. and Deborah J. McSHINSKY.
• Court: Vermont Supreme Court

Page 916

572 A.2d 916

153 Vt. 586

In re Robert B. and Deborah J. McSHINSKY.

No. 88-312.

Supreme Court of Vermont.

Feb. 9, 1990.

Mayer, Berk & Obuchowski, South Royalton, for appellants.

Jeffrey L. Amestoy, Atty. Gen. and Conrad W. Smith, Asst. Atty. Gen., Montpelier, for amicus curiae.

Before ALLEN, C.J., and PECK, GIBSON, DOOLEY and MORSE, JJ.

GIBSON, Justice.

Plaintiffs appeal from the Environmental Board's denial of an Act 250 land-use permit to construct a recreational vehicle (RV) campground on the shores of the White River. We affirm.

I.

Plaintiffs seek to build an RV campground on a 4.3-acre parcel of land located in the Village of South Royalton between Route 14 and the White River. The campground would accommodate up to twenty recreational vehicles between mid-April and mid-October each year. The project would entail (1) the construction of a road to serve the campground; (2) the construction of lot sites for 20 RVs; (3) the expansion of an existing building to provide showers and bathrooms; (4) the addition of water lines, sewer lines, and a dump station; and (5) the expansion of an existing leachfield. Several of the RV lot sites would be located within twenty feet of the river bank and forty feet of the river. The site of the proposed project is now an open meadow bounded on the south and west by the river, on the north by the highway, and on the east by a working farm. A small commercial building and a mobile home are currently located on the field, which is separated from the river by low-lying vegetation and several mature trees.

Plaintiffs initially filed an Act 250 permit application with the District # 3 Environmental Commission, which denied the request after a hearing. Plaintiffs appealed to the Environmental Board (Board), which also denied the permit application following a de novo hearing and a guided site visit. The Board concluded that the proposed project failed to satisfy the Act 250 criteria in four respects: (1) the project would have an undue adverse impact on the scenic and natural beauty of the area, (2) plaintiffs' proposal would neither effectively screen the campground from the water nor protect the river bank from erosion, (3) the project would interfere with the public's access to and enjoyment of the river, and (4) it would not conform with the local regional plan. On appeal to this Court, plaintiffs contend that the Board's findings and conclusions were not supported by the evidence presented at the hearing.

II.

Before discussing the evidence, we first address the burdens imposed by Act 250, the type of evidence the Board may rely on, and the standard by which we review appeals from the Board's decisions. Under 10 V.S.A. § 6088, any party opposing a project has the burden of showing an undue adverse impact on aesthetics, while the applicant has the burden as to the other criteria. Either party's burden, however, may be satisfied by evidence introduced by any of the parties or witnesses, In re Quechee Lakes Corp., No. 87-108, slip op. at 11 (Vt. Sept. 22, 1989), or by evidence gathered during a site visit as long as it does not constitute the exclusive basis for the Board's decision. Id. slip op. at 8.

Moreover, this Court applies a deferential standard of review where the sufficiency of the evidence is challenged on review. Id., slip op. at 11. 10 V.S.A. 6089(c) provides that "[t]he findings of the board with respect to questions of fact, if supported by substantial evidence on the record as a whole, shall be conclusive." Evidence is substantial if it isrelevant and a reasonable person might accept it as adequate to support a conclusion. Id., slip op. at 11-12. Further, where there is conflicting evidence, resolution of the conflict lies with the Board as the trier of fact. In re Southview Associates, --- Vt. ----, ----, 569 A.2d 501, 504-05 (1989); Quechee, slip op. at 12. " 'Thus, it is not for this Court to reweigh conflicting evidence, reassess the credibility or weight to be given certain testimony, or determine on its own whether the factual decision is mistaken.' " Quechee, slip op. at 12 (quoting In re Wildlife Wonderland, Inc., 133 Vt. 507, 511, 346 A.2d 645, 648 (1975)).

A.

Three of the four Act 250 criteria at issue touch upon the Board's central concern: that plaintiffs' proposed project is incompatible with the surrounding environment because it would detract from the natural beauty of the immediate area as well as the recreational uses that flourish therein.

The Board first concluded that plaintiffs had failed to satisfy criterion 1(F). Under 10 V.S.A. § 6086(a)(1)(F), the applicant must demonstrate that a proposed shoreline development "must of necessity be located on a shoreline in order to fulfill [its] purpose," and that the development will, "insofar as possible and reasonable in light of its purpose," (i) retain the shoreline in its natural state, (ii) allow continued recreational access to the water, (iii) provide vegetation that will screen the development from the waters, and (iv) stabilize the bank from erosion with vegetation cover. The Board did not address whether plaintiffs had shown that the development needed to be located on a shoreline, but instead concluded that plaintiffs had not met subcriteria (iii) and (iv). Plaintiffs claim that the findings do not support the Board's conclusion that plaintiffs' proposed tree plantings would be insufficient to screen the campground, and that the banks of the river would erode as a result of foot traffic from the campground. Plaintiffs also contend that the Board should have analyzed the "possible and reasonable" language of the statute and that it could have retained jurisdiction in order to evaluate the screening at a later date and impose conditions if necessary.

Upon reviewing the evidence, we conclude that the Board could reasonably have determined that plaintiffs had not met their burden of demonstrating, "insofar as possible and reasonable in light of its purpose," that the project would be screened from the water and would protect shoreline vegetation. We do not believe the phrase "insofar as possible and reasonable in light of its purpose" means that the Board must accept every proposed shoreline development project, regardless of its purpose and impact on the shoreline, merely because the applicant is doing what he or she feels is possible or reasonable. See In re Southview Associates, 153 Vt. at ----, 569 A.2d at 503 (statutory language should not be construed so as "to render the legislation ineffective or irrational"). Nor must the Board design an adequate project for an applicant or issue a permit and retain oversight to assure that the applicant is doing all that is "reasonable and possible" to meet the relevant subcriteria. Rather, criterion 1(F) requires that the Board make its own determination that a development need be located on the shoreline and that, considering the purpose of the development, "possible and reasonable" measures have been taken to protect the shoreline. There...