In re VERMONT RSA LIMITED PARTNERSHIP d/b/a Verizon Wireless (Neighbors of St. Mary‘s Star of the Sea Church, Appellants)
No. 2005-243
Supreme Court of Vermont
April 2, 2007
181 Vt. 589 | 925 A.2d 1006
¶ 2. In November 2002, Verizon Wireless requested a jurisdictional opinion from the District 7 Environmental Commission to determine whether it required an Act 250 land-use permit to proceed with its proposed project — installing three cellular-panel antennas and three personal-communication-services antennas within the Church‘s existing bell towers and constructing an equipment shelter in the parking lot adjacent to the Church. The Assistant Coordinator issued an opinion, finding that the project was exempt from Act 250 jurisdiction under
¶ 3. In November 2004, Verizon Wireless filed a petition for declaratory ruling with the Board regarding the Act 250 jurisdictional issue. Neighbors requested party status under Act 250 criteria 1 (noise), 5 (traffic safety and congestion), 8 (aesthetics and historic impacts), 9(K) (public investments), and 10 (local and regional planning). See
¶ 4. Neighbors now challenge the Board‘s denial of party status under
¶ 5. First, we consider neighbors’ contention that the Board erred in denying them party status under Act 250 criteria 5 and 9(K). Under Environmental Board Rule (EBR) 14(A)(5) and (6), the Board may grant party status to persons “who demonstrate[] an interest under any of the criteria listed at
¶ 6. We review the Board‘s decision to deny party status to neighbors under Act 250 criteria 5 and 9(K) for abuse of discretion, and will reverse only upon finding that the Board “`withheld its discretion entirely or . . . exercised [discretion] for clearly untenable reasons or to a clearly untenable extent.‘” In re Putney Paper Co., 168 Vt. 608, 609, 714 A.2d 644, 646 (1998) (mem.) (quoting Vt. Nat‘l Bank v. Clark, 156 Vt. 143, 145, 588 A.2d 621, 622 (1991)). Based on the record before us, we cannot say that the Board acted unreasonably in exercising its discretion. Rather, the Board considered the values underlying criteria 5 and 9(K) and, based on the affidavits and evidence presented by both parties, concluded that neighbors had failed to show how Verizon Wireless‘s proposed project would result in a relevant impact on those values. Thus, we discern no abuse of discretion.
¶ 7. Next, we evaluate neighbors’ challenge to the Board‘s final ruling regarding Act 250 jurisdiction over Verizon Wireless‘s proposed project. In considering neighbors’ arguments, “we apply a deferential standard of review.” In re EHV-Weidmann Indus., Inc., 173 Vt. 581, 582, 795 A.2d 1185, 1187 (2002) (mem.). We recognize the Board has “special expertise” to determine whether a project falls within Act 250 jurisdiction and will uphold the Board‘s decision so long as it is not clearly erroneous. In re Stokes Commc‘ns Corp., 164 Vt. 30, 35, 664 A.2d 712, 715 (1995).
¶ 8. It is undisputed by the parties that because the Church was built before 1970 it is a “preexisting development” and is thereby exempt from Act 250 jurisdiction. See
¶ 9. We cannot agree with neighbors that the Board erred when it analyzed Verizon Wireless‘s project under § 6081(b), rather than as a new development. The Board rejected neighbors’ contention that the project should not be grandfathered under § 6081(b) because it is a “new and separate commercial interest that is unaffiliated with the Church,” finding that drawing such distinctions in purpose would “cause identical construction to be treated differently.” More specifically, it would result in the project “be[ing] subject to jurisdiction but identical towers installed by the Church to broadcast religious messages” remaining outside of Act 250 jurisdiction. Such an interpretation of the exemption would lead to an irrational consequence, and the Board was justified in rejecting it. Brawn v. Bd. of Dental Exam‘rs, 167 Vt. 110, 117, 702 A.2d 124, 128 (1997) (“We presume that the Legislature does not intend an interpretation that would lead to absurd or irrational consequences.“). Neighbors’ argument is further undermined by the fact that the Church is a co-applicant here and, as lessor, is entitled to rental payments from the project. In light of our deferential standard of review, and the underlying purpose of Act 250 — to regulate the impacts of development, not the purpose served, nor the parties benefited by the construction — we find no error in the Board‘s determination. See In re Audet, 2004 VT 30, ¶ 14, 176 Vt. 617, 850 A.2d 1000 (mem.) (“[T]he Legislature‘s purpose in enacting Act 250 was to protect and conserve the lands and environment of the state from the impacts of unplanned and uncontrolled changes in land use.“).
¶ 10. Finally, we uphold the Board‘s decision that Verizon Wireless‘s proposed project does not amount to a substantial change to the Church and is therefore exempt from Act 250 jurisdiction. Once a project is determined to fall within § 6081(b), the burden shifts to the proponents of jurisdiction to demonstrate that the project represents a substantial change to the preexisting development. In re Hale Mountain Fish Game Club, Declaratory Ruling # 435, memorandum of decision, at 2-4 (Sept. 24, 2004). A “substantial change” is defined as “any change in a development . . . which may result in significant impact with respect to any of the [Act 250] criteria.” EBR 2(G). We have repeatedly upheld the Board‘s two-pronged substantial-change test. Under the test, the Board first determines whether a cognizable change to the preexisting development will result from the project, and, if so, whether it has the potential for significant impact under one or more of the Act 250 criteria enumerated in
¶ 11. Under prong one of the test, the Board found that “both the installation of the antennas in the bell towers and the construction of the equipment building” were cognizable changes to the Church; the Board then went on to analyze the potential for significant impacts on aesthetics and historic value of the site (criterion 8), and conformance with the city plan (criterion 10) under the second prong of the test. At a site visit conducted in June 2005, the Board viewed the Church property, including nonfunctioning antennas in the west tower installed by Verizon Wireless at the request of the District Commission, and
¶ 12. Concerning any impacts on the historic value of the Church, the Board noted in its analysis that the only documentary evidence presented on the issue was a letter from the Vermont Division for Historic Preservation opining that the project “will have no adverse effect to this historic resource.” Thus, the Board concluded that neighbors had failed to meet their burden of proof as to that criterion.
¶ 13. Lastly, as to criterion 10, the Board found that neither party indicated any particular section of the Newport City Plan that would be applicable to the proposed project, but rather focused on sections of the city‘s zoning bylaws. The Board thus cited to the Environmental Court‘s ruling in a related case on the issue of the project‘s compliance with the local zoning bylaws, which indicated that any claims neighbors might raise as to the city plan relevant to criterion 10 were not likely to rise to the level necessary to find jurisdiction under the Board‘s substantial-change test. In re Curtis, Docket No. 231-12-03 Vtec (Jan. 24, 2005). While the Environmental Court‘s ruling was, at the time, being appealed to this Court, we have since upheld that decision in In re Curtis, 2006 VT 9, 179 Vt. 620, 896 A.2d 742 (mem.), finding that the proposed project complies with local zoning regulations, and that neighbors failed to identify any part of the city plan with which the project conflicts. Given that neighbors argued before the Board that the proposed project failed to conform with the city‘s zoning bylaws, they cannot now, on appeal, raise the distinct issue that the Church parking lot‘s nonconforming use (with potential impacts on Verizon Wireless‘s project) violates the city plan. In re Whitney, 168 Vt. 209, 214, 719 A.2d 875, 879 (1998) (“We will not consider issues raised for the first time in this Court.“). In any event, the Board appropriately analyzed the potential for significant impacts on the aesthetics and historic value of the site, and conformance with the city plan based on the evidence before it, and determined that the second prong of the substantial-change test was not met with regard to Verizon Wireless‘s project.
¶ 14. We fail to find error with the Board‘s substantial-change analysis under criteria 8 and 10 of Act 250. The Board‘s conclusions were based on the evidence presented by the parties and the Board‘s own site visit to the Church. Neighbors had the burden of proving that Verizon Wireless‘s project would create a substantial change to the Church with regard to its aesthetics and historic value, or compliance with the city plan, and they did not meet that burden. On appeal, neighbors have not presented sufficient evidence of error to override our deference to the Board‘s Act 250
Affirmed.