Wildlife Wonderland, Inc., In re

• Decision Date: 07 October 1975
• Docket Number: No. 218-74,218-74
• Citation: 133 Vt. 507,346 A.2d 645
• Court: Vermont Supreme Court
• Parties: In re WILDLIFE WONDERLAND, INC.

Page 645

346 A.2d 645

133 Vt. 507

In re WILDLIFE WONDERLAND, INC.

No. 218-74.

Supreme Court of Vermont.

Oct. 7, 1975.

Whalen & O'Dea, Manchester Center, for plaintiff.

M. Jerome Diamond, Atty. Gen., and Benson D. Scotch, Asst. Atty. Gen., Montpelier, for Agency of Environmental Conservation.

Edward R. Kiel, Springfield, for William Marshall.

Parisi & Broderick, Castleton, for Town of Mount Holly Planning Comm.

Benjamin W. Partridge, Jr., West Townshend, for Weston Planning Comm. Jonathan N. Brownell, Montpelier, for amici curiae Vermont Natural Resources Council, et al.

Before BARNEY, C. J., and SMITH, DALEY, LARROW and BILLINGS, JJ.

DALEY, Justice.

This is an appeal from a decision of the Vermont Environmental Board denying a land use permit to Wildlife Wonderland, Inc. for the construction and commercial operation of a game farm in the town of Mount Holly, Vermont. The applicant Wildlife, owner of six hundred and twenty-seven acres in the towns of Mount Holly and Weston, sought and was granted a permit by the District Environmental Commission, which found in its favor upon criteria (1) through (10) of 10 V.S.A. § 6086, as amended.

The proposal, for which the applicant obtained District Commission land use approval, is a wild animal farm similar to the Catskill Game Farm in the State of New York. Initially some three hundred wild and domestic animals would be kept for viewing by the paying public in three compounds; each compound, although not definitely located upon the grounds, would encompass an area of three to five acres. The project would entail the construction of a public building with restaurant facilities, a ticket booth, pathways, a miniature railroad amusement ride, and parking facilities for approximately 910 automobiles.

The game farm, utilizing approximately sixty-five acres of the total tract, will set back from Route 155 a distance of not less than 350 feet and will essentially not be visible from the highway. Projected attendance figures are approximately one hundred thousand paid admissions per season, which will run during the late spring, summer, and early fall. While the game farm would be closed during the winter months, commercial recreational use would be made of the land, such as cross-country skiing. Lands surrounding Wildlife's acreage consist of a 300-acre tract owned by the Weston Priory and used for monastic purposes; a 400-acre tract owned by appellee Marshall presently used for family and friends, recreational and residential in character; and the Green Mountain Natural Forest, a public park. The general area, including the lands of Wildlife, is essentially forest land and commercially undeveloped. The sixty-five-acre parcel has varied topography and is generally wooded. Two main streams, pristine and essentially free from any visible or measurable pollutants, run through this parcel and are headwaters of the West River. The game farm would be located on the easterly side of Route 155, approximately six and one-half miles north of the center of the business district of Weston.

Opponents of Wildlife's application appealed the granting of a land use permit to the Environmental Board. In accordance with procedures set forth in 10 V.S.A. § 6089 governing appeals, de novo hearings were held by the Board upon all criteria of § 6086(a). The Board filed findings and conclusions of law and issued an order vacating the permit previously issued by the District Commission. The denial was based upon the Board's conclusions that there is a reasonable probability that the development will result in undue air and water pollution, 10 V.S.A. § 6086(a)(1); that it will cause unreasonable soil erosion and a reduction in the capacity of the land to hold water, 10 V.S.A. § 6086(a) (4); that it will have an undue adverse effect on the scenic, natural beauty of the area, 10 V.S.A. § 6086(a)(9); that it will unnecessarily and unreasonably endanger the public investment in public lands and will materially interfere with the public's use and enjoyment of public lands, 10 V.S.A. § 6086(a)(9)(K); and that the proposed development is detrimental to the public health, safety and general welfard, 10 V.S.A. § 6087(a).

Wildlife attacks the Board's decision upon the following grounds: that the conclusions of the Board of undue water pollution, unreasonable soil erosion, and reduction in the capacity of the land to hold water are not supported by substantial evidence; that the findings of the Board of undue air pollution are predicated upon unlawful and improper considerations and are not supported by substantial, relevant evidence; that the Board acted unlawfully when it failed to issue its findings under subdivisions (9) and (10) of 10 V.S.A. § 6086 within twenty days of the final hearing day of the appeal on these subdivisions; that the Agency of Environmental Conservation was not an appropriate party to proceedings before the Board; that the appellants to the Environmental Board lacked standing to be heard; and, that the Environmental Board considered matters not within its jurisdiction and beyond its delegated powers. Each of these claims will be treated infra.

I.

Under 10 V.S.A. § 6088(a), Wildlife has the burden of proving that the proposed development will cause no undue water pollution, 10 V.S.A. § 6086(a) (1), no unreasonable soil erosion, and no reduction in the capacity of the land to hold water. 10 V.S.A. § 6086(a)(4). The Board's order denying Wildlife's permit, supported by findings and conclusions of law, indicates that Wildlife did not successfully meet this burden.

10 V.S.A. § 6089(c) provides that if findings of the Board with respect to questions of fact are supported by substantial evidence on the record as a whole they shall be conclusive. Where a conflict in the evidence develops, its resolution falls within the Board's jurisdiction, for the Board is the proper trier of fact. In re Barker Sargent Corp., 132 Vt. 42, 313 A.2d 669 (1973). The trier of fact has the right to believe all of the testimony of any witness, or to believe it in part and disbelieve it in part, or to reject it altogether. Ohland v. Dubay, 133 Vt. 300, 336 A.2d 203 (1975). 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. Vermont Terminal Corp. v. State Highway Board, 132 Vt. 1, 313 A.2d 12 (1973).

Voluminous testimony was presented by expert witnesses of all parties. Wildlife offered the testimony of the president of the appellant-corporation; a civil engineer employed by Kinsey Associates, a New Jersey corporation; and two other civil engineers. It claims that these witnesses 'established beyond any reasonable doubt the following facts: (1) Terrain and subsoil conditions are such that the development can be and has been designed and engineered so as to prevent undue water pollution and unreasonable soil erosion; (2) the development has been designed, engineered and laid out in such manner that there will be no undue water pollution, no unreasonable soil erosion, and no reduction in the capacity of land to hold water; (3) proper maintenance and operation of the facilities of the development will be necessary to prevent undue water pollution and unreasonable soil erosion; and (4) the applicant will conduct proper maintenance and operation of the facilities.'

The Board, however, made the following findings of fact. Animals housed within the compounds would deposit their waste on the ground, and certain portions of this waste would be absorbed in the ground or bedding materials. Some undetermined amount of fecal matter would remain in the surface run-off attributable to rain or melting snow, although some animal waste would percolate into the soil in the compounds. Wildlife proposes to control surface run-off from compound areas and the parking lots by use of swales or ditches. Such a system could reduce sedimentation reaching streams, but could not serve as treatment of the effluent coming from the compounds. No system for treatment of run-off was proposed by Wildlife. There is a reasonable probability that contaminants, including fecal coliform bacteria, nutrients, and disease organisms from animal wastes and sedimentation would reach the streams running through the area. The two streams in the project area are without visible or measurable pollution, are upland streams, and should be classified as Class A waters. The proposed project will degrade the water quality of the existing streams and proposed ponds. The siltation, nutrients, and phosphates that would be introduced into the streams would be eutrophic, or relatively polluted. Because of the nature of the soil and the presence of fragipan and slopes on the site, limited ground retention of nutrients may be anticipated. Soil erosion from the three compounds, each three to five acres in area, may be anticipated in the first year in the range of 300 tons to material per acre with a loss of 2 1/2 to 2 3/4 inches of soil. Manure and other material from the compounds will be transported to exposed compost piles, the location of which was not established. Dead animals, including diseased animals, may be disposed of in the piles. A reasonable probability exists that both animal and human wastes will reach the streams on the property.

The record contains ample supporting testimony for the Board's findings of fact in the form of testimony by appellees' witnesses, qualified as experts before the Board. Their testimony, much of which was adopted by the Board in findings of fact, sufficiently supports the Board's conclusions of undue water pollution, unreasonable soil erosion, and reduction in the capacity of the land to hold water.

The appellant also claims that the Board arbitrarily and summarily disqualified certain of its witnesses. The record discloses no support for the proposition that any...