After the issuance of the Act 250 permit on May 2, 2019, Montpelier residents opposed to the project appealed.  In their court filings in response, SP&F attorneys Joseph McLean and David Rugh argued that the parking garage portion of the project was development for municipal purposes on less than ten acres of land, and thus should not qualify as “development” under Act 250.

In a fifteen-page order, Superior Judge Thomas Walsh agreed and held that the proposed parking garage was development for a municipal purpose on less than ten acres of land.  Accordingly, the Court found that there was no Act 250 jurisdiction over the parking garage and dismissed the appeal.

For a copy of the Environmental Division’s April 15, 2020 Decision, or for assistance navigating Vermont’s myriad regulations pertaining to land development projects, contact David Rugh or Joseph McLean.

Attorney Eric Derry represented the Town of Charlotte in its opposition to the project, working together with the Agency of Natural Resources and the Department of Public Service. The project opponents successfully argued that, given the dramatic rise in elevation of Mount Philo, and the project’s close proximity to the base, it would be virtually impossible to adequately screen the project in the location proposed by the applicant. Furthermore, the opponents established that the project would be a dominant element in the surrounding landscape, particularly as seen from the western summit of Mount Philo, due to the lack of any similar development in the vicinity of the project site.

In denying the application, the Commission agreed with the project opponents, finding that the western viewshed from the summit is a primary attraction of the Park and that sightseeing that view “is precisely the kind of activity the enjoyment of which would be significantly degraded by the presence of the project.” A copy of the final decision in Case Number NM-6691 is available through the Public Utility Commission’s electronic case management system.

For additional information regarding the Public Utility Commission process, including issues with the siting of alternative energy or telecommunications infrastructure, please contact our office.

In late April 2011, the property was inundated by floodwaters due to a combination of rapid snowmelt and a substantial rainstorm. Believing that the proposed commercial development would exacerbate future flooding and potentially lead to floodwaters reaching the Village core, the Village began negotiating with the property owner in the fall of 2011 to purchase the property. The Village’s purchase this past September was the result of a three-year long planning, fundraising and negotiation process, and may ultimately lead to the protection of more than five acres of floodplain in the Village from development.

For more information about this project or for assistance with your municipality’s real property transactions, please contact Robert Fletcher or David Rugh.

As discussed by the Court, Mr. Brouha’s complaint describes the noise from the project’s turbines as “excessively loud” and continuing “unabated for long periods of time during both day and night, including for periods of multiple days at a time.” He alleges that he “experiences extreme and frequent stress and irritability, and the inability to enjoy” activities including working outside, gardening, eating outside, walking, and hiking. Mr. Brouha identifies his property as about one mile from the project, and his property line as about 1,100 feet from the project.

In denying the motion to dismiss filed by the project’s owners, Judge Geoffrey W. Crawford concludes that that PSB did not consider whether the project created excessive noise impacting Mr. Brouha’s use and enjoyment of his property, the claim raised by Mr. Brouha’s complaint. Instead, the Court explains, the PSB’s review of the aesthetic impact of the project examined impact on the community and used a “communal cost-benefit standard” that incorporated the “overall societal benefits” of the project. Because the PSB’s review did not include and rule on Mr. Brouha’s claim, as the Court concludes, his claim can proceed.

A copy of Judge Crawford’s complete decision can be found here: http://law.justia.com/cases/federal/district-courts/vermont/vtdce/5:2014cv00063/24467/18/ For additional information about this case or PSB matters in general please contact Diane Sherman at SP&F.