Nehemiah Associates, Inc., In re, 95-561
| Decision Date | 06 December 1996 |
| Docket Number | No. 95-561,95-561 |
| Citation | 166 Vt. 593,689 A.2d 424 |
| Parties | In re NEHEMIAH ASSOCIATES, INC. |
| Court | Vermont Supreme Court |
Before ALLEN, Chief Justice, and GIBSON, DOOLEY, MORSE and JOHNSON, JJ.
Nehemiah Associates, Inc., appeals from a decision of the Environmental Board, which denied Nehemiah's application for an Act 250 permit to subdivide and develop a 3.38-acre lot. Nehemiah argues that the Board improperly applied the doctrine of collateral estoppel to deny a permit amendment. We agree and reverse.
In 1989, Nehemiah purchased twelve acres of land on Route 3 in Pittsford and obtained an Act 250 permit authorizing it to subdivide the land into eleven lots: ten residential lots each less than one acre and a single 3.38-acre lot. Nehemiah proposed to preserve the 3.38-acre lot undeveloped due to the prime agricultural soils, and proposed covenants to protect the farming viability of this land. Condition 9 of the permit states:
The permittee shall, by deed covenant to all lots, include the following restriction:
By acceptance of this deed, Grantees ... acknowledge that ... 3.38 acres ... are retained and made available to third parties for agricultural and related farming purposes ... [and] waive any cause ... of action against Grantor or any person utilizing the said retained lands for agricultural purposes, arising out of or pertaining to odors, run-off, or noise associated with any agricultural operation on said retained lands.
Furthermore, the permittee or subsequent landowners association shall maintain the 3.38 acre agricultural reserve lands as open, cleared, uncluttered, and unencumbered land.
(Emphasis added.) The district commission also found that the 3.38-acre lot "will provide a visual buffer for travellers on Route 3, by helping to maintain the rural character of the area." As of May 1994, Nehemiah had sold nine of the ten residential lots. Each of the deeds contained the paragraph above waiving the grantees' rights to bring actions for agricultural nuisance. None of the deeds contained the second paragraph reserving the open lands.
In November 1992, Nehemiah filed an application for a permit to subdivide the 3.38-acre lot into three residential lots. The permit was denied by the district commission, and Nehemiah appealed to the Environmental Board. In reviewing the application, the Board applied the doctrine of collateral estoppel and concluded that all elements were met. Noting that the doctrine should not be applied as an inflexible rule in administrative proceedings, the Board then balanced policy considerations for and against granting the permit amendment.
The Board concluded that changes in the surrounding area, from rural agricultural to residential, supported amendment of the permit. It also noted that, since the 1989 permit was issued, the Vermont Department of Agriculture had created a program that allows Act 250 applicants to mitigate the impact of developments on agricultural soils by paying fees to an agricultural preservation fund. On the other side of the balance, the Board concluded that Nehemiah had failed to comply with condition 9 of the 1989 permit because it did not include the second paragraph of condition 9 in...
To continue reading
Request your trial
-
In re Hildebrand, 05-537.
...the Environmental Board and upheld by this Court in In re Stowe Club Highlands, 166 Vt. 33, 687 A.2d 102 (1996), and In re Nehemiah Assocs., 166 Vt. 593, 689 A.2d 424 (1996) (mem.), reconsidered after remand, 168 Vt. 288, 719 A.2d 34 (1998) (hereinafter Nehemiah ¶ 6. In Stowe Club Highlands......
-
IN RE NEHEMIAH ASSOCIATES, INC.
...and we reversed and remanded for the Board to balance the policy considerations raised by the parties. See In re Nehemiah Assocs., 166 Vt. 593, 595, 689 A.2d 424, 426 (1996) (mem.) ("Nehemiah I"). Nehemiah contends that on remand the Board: (1) erred because our holding in Nehemiah I mandat......