STATE OF VERMONT
SUPERIOR COURT ENVIRONMENTAL DIVISION
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In re Harvey & West 65-unit Campground }
Act 250 Application } Docket No. 110-7-10 Vtec
(Appeal of True) }
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Decision and Order
Appellant Anne True (Appellant) appealed from the June 4, 2010 decision of
the District 5 Environmental Commission granting Act 250 Land Use Permit 5L1522
to Appellee-Applicants Arjay and Robin West and K.A. Harvey’s Manufactured
Housing, Inc. (Applicants) for a 65-unit campground in Johnson, Vermont. Neither
the town nor the regional planning commission entered an appearance in this
appeal.
Appellant is represented by Richard E. McCormick, Esq.; and Applicants are
represented by James R. Dean Mahoney, Esq. An evidentiary hearing was held in
this matter before Merideth Wright, Environmental Judge. A site visit was taken at
the conclusion of the hearing with the parties and their representatives. The parties
were given the opportunity to submit written memoranda and requests for findings,
and to respond to those filings. Only Appellee-Applicants filed any proposed
findings of fact and conclusions of law; no response was filed either by Appellant’s
counsel or by Appellant herself.
Only Act 250 Criteria 1(B), 3, 4, and 8 are at issue in this appeal. Therefore,
the District Commission’s Findings of Fact, Conclusions of Law, and Order, as well
as Act 250 Land Use Permit 5L1522, to the extent that they relate to any of the other
Act 250 criteria not at issue in this appeal, remain in effect and are hereby
incorporated into this decision.
1
Upon consideration of the evidence as illustrated by the site visit, and of the
proposed findings of fact and conclusions of law filed with the Court, the Court
finds and concludes as follows.
Applicants propose to develop a campground on approximately ten acres of a
78-acre parcel of land in Johnson, Vermont, with frontage along Route 100C. The
Town of Johnson has not adopted a zoning ordinance; it has adopted a town plan
and a noise control ordinance. The campground is proposed to be open for business
during seven months (or less) of each calendar year.1
Route 100C runs in an approximately east-west direction in this location and
is used by trucks and through traffic in this area as well as by local traffic. An
existing house is located on Applicants’ property, close to the roadway and served
by an existing driveway. The project property contains open gently rolling
meadows for about five hundred feet back from the road, and, over the next
thousand feet, rises to an elevation of approximately 80 feet above that of the
roadway, at the treeline of a forested plateau area with maple trees used for syrup
production.2 The campground is proposed to occupy areas on the forested plateau
and in open areas near the treeline. Easterly and beyond the crest of the hill the
property slopes steeply downwards towards Wild Brook. Applicants propose to
leave at least a 100-foot vegetated buffer to the brook. Most of the area designated
for the campsites is not visible from Appellant’s property.
The surrounding property uses are largely residential, with open fields
1 No specific dates or seasons of operation were proposed by Applicants or
approved by the District Commission.
2
A former sugarhouse was removed by Applicants. At trial, Appellant questioned
whether the debris of the sugarhouse had been burned properly and pursuant to a
burn permit. Any environmental enforcement issues are beyond the scope of the
present permit application.
2
located near the road. A fuel distributor’s tank farm (bulk storage) is located to the
west along Route 100C, as is the county fair and field days fairground.
Appellant’s very small lot, containing an existing two-story house located
close to the roadway, is located approximately 400 feet westerly of Applicants’
existing driveway. Appellant’s 150’ x 210’ lot is bounded on its easterly, northerly,
and westerly sides by Applicants’ property. Appellant has lived at her property for
seventeen years, and gardens intensively, raising organic vegetables and herbs.
Appellant’s existing shallow well or spring is located on Applicants’ property
approximately 300 feet northerly of Appellant’s northerly (back) boundary, near a
Class III wetland area and to an existing gravel extraction area in use since before
1970. Appellant’s spring is located approximately 100 feet to the west of the limits of
the gravel extraction area and was located approximately 100 feet from a beaver
pond until the beaver dam was removed at some time in 2010 or the first half of
2011. Appellant’s water line runs to within 50 feet of the gravel extraction area. No
project construction is proposed within more than a 500-foot radius of Appellant’s
shallow well.
Applicants’ access to the gravel extraction area is from the east, away from
Appellant’s shallow well and water line. The gravel extraction area is fairly flat,
with a slope of less than 3%, so that the risk of erosion is low during the area’s use
for gravel extraction. The gravel extraction area has been and will be used for
material necessary for construction of the project,3 but not for any off-project
purposes, and then will be closed and reclaimed.
Appellant had a new water line put in in December of 2010, as well as having
stone installed around the spring and having the ground around the shallow well
3 The gravel extraction area was used for two to three weeks in the fall of 2010 and
for about a week in the spring of 2011.
3
banked properly to conduct surface water away from the spring. During that work,
the spring and the water line were surrounded by groundwater to such an extent
that the contractor found it necessary to divert and pump the groundwater away
from the area in order to do the work.
As of the fall of 2009 Appellant had a leak in her water line and her drinking
water was contaminated with E. coli bacteria. As of that time beavers had built a
pond within 100 feet of Appellant’s shallow well. Also as of that time heavy
equipment was used in the gravel pit to remove material used in building a road not
then subject to Act 250 jurisdiction. Appellant had the beaver dam and the beavers
removed from the area, and had the shallow well and the water line shocked with
chlorine to disinfect it. During the period while her water supply was unfit to drink,
Appellant hauled in drinking water.
Appellant did not show that the use of the heavy equipment in the gravel pit
caused the break in Appellant’s water line, and did not show whether the
contamination had entered her water supply due to the break in the water line or
due to contamination of the shallow well with contaminated water from the beaver
pond. In any event, Appellant did not claim that the repair of the water line and the
disinfection of the water supply were insufficient to remedy the past contamination.4
The new water line has been located and identified in the field.
Appellants propose to extend the existing driveway up the hill so that it first
curves to the east, away from Appellant’s house, and then curves back to the
northwest to the edge of the treeline. The treeline on Applicants’ property is located
approximately 1300 feet laterally from Appellant’s property; the nearest portion of
the development area is approximately 1200 feet from Appellant’s property.
4 In the present case, the Court must address whether the proposed project will
have an adverse effect on Appellant’s water supply. Responsibility for past
contamination unrelated to this project is beyond the scope of this appeal.
4
Applicants propose to construct a 65-campsite campground primarily within the
wooded area, served by a network of camp roadways.
The campground will be served by a new drilled well and will have two
bathhouses, toilet facilities, and their associated wastewater disposal systems
located up near the active campsite and not down near Appellant’s property. Only
low-flow plumbing fixtures are proposed for the project. No hazardous or toxic
materials are proposed to be used at the campground, other than normal household
or commercial cleaning products and products used at the maintenance shop.
Applicants have obtained Vermont ANR Wastewater System and Potable Water
Supply Permit WW-5-5189-2, Ex. M, approving the amended design and use of the
wastewater disposal system for the project, as well as its potable water supply
system. Neither it nor the original wastewater system and potable water supply
permit was appealed; it became final.
Applicants also have obtained a Transient Non-Community Water System
Source and Construction permit from the Water Supply Division of the ANR, Ex. J,
approving the new drilled well for the campground sufficient to serve the estimated
demand of 6170 gallons per day; it was not appealed and became final. The project
plans meet the well isolation zones required by ANR regulations for the project well
and for Appellant’s and other neighboring water supplies.
The campsites are proposed to be located in clearings within the forested
area. Applicants propose to retain as many of the mature maples as possible,
consistent with the design of the campsite areas. Many of the campsites are located
northeasterly of the height of land and therefore shielded by the height of land from
view from Appellant’s property.
Applicants propose to construct a welcome center building and a future
swimming pool just southerly of the treeline, and to construct a maintenance shop
just against the treeline farther to the east. The project buildings have been designed
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in the style and exterior finish materials to resemble a vernacular sugar house or
barn expected in such a setting. An underground electric utility line will provide
electric service from the highway to the project site. Only the pool area is proposed
to be illuminated by pole-mounted electric lights. These lights are proposed to be
shielded to prevent glare from being visible beyond the area intended to be
illuminated, and the shielding will prevent glare from being visible from
Appellant’s property. Exterior lighting on the bathhouses, welcome center, and
entry gate, necessary for security purposes, will be supplied by wall-mounted,
downward-directed cut-off fixtures with compact fluorescent or LED bulbs. The
exterior lighting on the bathhouses is proposed to be motion sensitive, so that it will
only be lit when necessary. Each campsite will be supplied with an electric supply
pedestal with a small, shielded compact fluorescent fixture mounted on the face of
the pedestal.
Approximately 3.2 acres of the site will be disturbed during construction, and
approximately one-and-a-half acres of impervious area will be created by the new
buildings, roadways, and camping pads. The project will be constructed so that
each area of 10 to 15 campsites served by a given loop road will be constructed and
stabilized before the next area is begun. The soils on the site are generally well-
drained. The development areas typically have slopes of less than 8%. The
application includes an erosion control plan, based on which Applicants have
obtained ANR approval of coverage under Construction General Permit 3-9020, Exs.
Q, R, for erosion prevention and sediment control due to the flow of stormwater
during construction.
Once the project is constructed, stormwater falling on the site will flow across
vegetated surfaces and infiltrate into the soil, so that no stormwater detention
system is necessary to prevent erosion. No evidence was presented that any
stormwater falling on the developed area of the site would reach the area of
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Appellant’s existing shallow well or water line, or reach Appellant’s property.
Because of the topography of the project property in relation to Appellant’s
property, sounds generated up at the location of the campground have the potential
to be heard at the location of Appellant’s property. Nevertheless, as illustrated
during the site visit, earthmoving machinery operated at the location of the
proposed welcome center and maintenance building is unobtrusive when
experienced from Appellant’s property, especially in comparison to the louder
sounds of traffic passing by Appellant’s property on Route 100C.
An area of existing trees and scrub is located on Applicants’ property near
Appellant’s boundary. In the fall of 2010, Applicants supplemented the screening
capacity of this existing vegetation by planting five additional white pine trees on
their property near Appellant’s boundary to fill in the gaps in the visual screening of
the campground from her property. The pines are not in the exact locations as
shown in the planting plan in evidence as Ex. Y, but Appellant did not show that
any supplemental plantings will be necessary to be added to provide adequate
screening from Appellant’s house.
Appellant’s bedroom is in the middle of the north (rear) side of the upper
floor of her house; until the trees grow taller and wider, some vehicle lights and
some sounds from the campground will be respectively visible and audible from her
bedroom windows. She is able to see only the lower portion of the project property
up to the welcome center and the maintenance shop, not the areas of the campsites
themselves. Nevertheless, even the elements of the project site that are visible or
audible from Appellant’s house are nearly a quarter-mile away and, with the
proposed conditions and lighting plan, will not be unduly adverse when
experienced from Appellant’s property. At Appellant’s property, sounds at the
campsite will be much less noticeable than the traffic passing by on the roadway, but
will have to be regulated during the nighttime hours in order not to be obtrusive at
7
Appellant’s property.
Applicants propose a set of fourteen unnumbered “Rules & Procedures” for
the operation of the campground, to be distributed to all guests at the time they
check in to the campground. (Applicants’ Ex. 2.) To prevent undue noise, the Rules
& Procedures include provision for “quiet hour[s]” from 10:00 p.m. to 7:00 a.m.,
stating that “[v]oices, music[,] and other sounds can travel,” requiring campground
guests to “[r]espect your neighbors and maintain a quiet level,” and stating that the
campground management is “very strict on this.” However, the Rules & Procedures
do not specifically state that this limitation includes a prohibition on the noise of
operating generators during those hours, although Applicants propose to comply
with the District Commission’s inclusion of generator noise as an unacceptable noise
source during the “quiet time.” Findings of Fact, Conclusions of Law, and Order, at
12. Electricity is available at each campsite so that the running of generators during
the nighttime quiet hours will not be necessary to the guests’ use of the camping
facilities.
The Rules & Procedures also ask the guests to “[p]lease stay within the
campground property” and to “[h]ave respect for our neighbors[‘] privacy.” In
addition, Applicants propose to comply with Condition 14 of Land Use Permit 5L-
1522 as imposed by the District Commission, requiring them to post and maintain
signs along the northern, western, and eastern boundaries of the project property “in
order to discourage entry by campers onto neighboring lands.”
With regard to the staffing of the campground in case of non-emergency
problems or complaints, the Rules & Procedures provide that “[s]taff attendant(s)
are available at the welcome center during business hours” and that such attendants
are at campsite #1 or at another designated campsite (posted at the welcome center)
“during the evenings.” It does not provide a staff or contact person during the
hours of 10:00 p.m. to 7:00 a.m.
8
Scope of Appeal and Burden of Proof
Although Question 1 of Appellant’s Statement of Questions asks generally
whether the Act 250 permit should be denied, Appellant only had standing before
the District Commission as to criteria 1(B), 3, 4, and 8 of Act 250. 10 V.S.A.
§ 6086(a)(1)(B), (a)(3), (a)(4), and (a)(8). As she did not appeal the District
Commission’s party status ruling regarding any of the other Act 250 criteria, the
appeal is therefore limited to criteria 1(B), 3, 4, and 8. Applicants have the burden of
proof as to Criteria 1(B), 3, and 4, while Appellant has the burden as to Criterion 8.
Criterion 1(B) (Waste Disposal) and Criterion 4 (Erosion)
Act 250 Criterion 1(B) (Waste Disposal), 10 V.S.A. § 6086(a)(1)(B), requires the
project to comply with ANR regulations and not to cause the injection of waste
materials or harmful or toxic substances into groundwater or wells. Act 250
Criterion 4 (Erosion), 10 V.S.A. § 6086(a)(4), requires that the project not cause
unreasonable soil erosion or a reduction in the capacity of the land to hold water so
that a dangerous or unhealthy condition may result.
Although 10 V.S.A. § 6088(a) places the burden of proof with respect to these
criteria on the applicant, 10 V.S.A. § 6086(d) and Act 250 Rule 19 provide that the
relevant ANR permits, if provided by the applicant, create a rebuttable presumption
that the application meets these Act 250 criteria and is not detrimental to the public
health and welfare. See 10 V.S.A. § 6086(a)(1)(B), (a)(4); Act 250 Rule 19(E)(1)(a),
(E)(6). In addition, the technical determinations of the ANR in such approvals or
permits are to be accorded substantial deference by the District Commissions and
hence by this Court in Act 250 proceedings. 10 V.S.A. § 8504(i).
Applicants in the present case also have obtained coverage under the ANR
General Permit (Construction General Permit 3-9020) for the stormwater runoff and
9
the erosion prevention and sediment control necessary during construction of the
project, giving them the benefit of the presumption as to Act 250 Criterion 4 and as
to Criterion 1(B) to the extent that it relates to waste or runoff carried by stormwater.
See 10 V.S.A. § 6086(a)(1)(B), (a)(4); Act 250 Rule 19(E)(6). Appellant has failed to
come forward with expert or other evidence to rebut the presumption or to
overcome the deference due to the technical determinations of coverage under the
ANR Construction General Permit.
Applicants in the present case have obtained ANR Wastewater System and
Potable Water Supply Permit WW-5-5189-2 approving the amended design and use
of the project’ wastewater disposal system. That permit gives Applicants the benefit
of the § 6086(d) presumption as to Act 250 Criterion 1(B) to the extent that it relates
to the wastewater produced by the campground’s operation, including the operation
of its septic systems and wastewater disposal fields. See 10 V.S.A. § 6086(a)(1)(B);
Act 250 Rule 19(E)(1)(a). Appellant has failed to come forward with expert or other
evidence to rebut the presumption or to overcome the deference due to the technical
determinations of the ANR wastewater permit.
Even without the benefit of the presumptions, Appellant did not present any
credible evidence to suggest that stormwater runoff from the project or the
wastewater disposal system of the project will cause any unreasonable soil erosion,
will cause a reduction in the capacity of the land to hold water so that a dangerous
or unhealthy condition may result, or will cause the injection of waste materials or
harmful or toxic substances into groundwater or wells. Accordingly, the proposed
project meets Act 250 Criteria 1(B) (Waste Disposal) and 4 (Erosion). 10 V.S.A.
§§ 6086(a)(1)(B), (a)(4).
Criterion 3 (Water Supply)
Act 250 Criterion 3, 10 V.S.A. § 6086(a)(3), requires that the proposed project
10
“not cause an unreasonable burden on an existing water supply, if one is to be
utilized.” The project uses a new water supply, rather than an existing one, and has
received a Transient Non-Community Water System Source and Construction
permit from ANR for the construction and use of that new water supply. Technical
determinations of the ANR in such approvals or permits are to be accorded
substantial deference by the District Commissions and hence by this Court in Act
250 proceedings. 10 V.S.A. § 8504(i). Appellant has failed to come forward with
expert or other evidence to overcome the deference due to the technical
determinations of the ANR water source permit that the new well will not cause an
unreasonable burden on an existing water supply due to the withdrawal of the
quantity of water demanded by the project. In fact, Appellant’s existing shallow
well is located at least 1000 feet from the project’s new well, that is, more than twice
as far away from the new well as necessary5 to avoid any effect on the quantity of
water in Appellant’s well due to the withdrawal of water from the project well.
Nevertheless, it is also necessary to analyze under Criterion 3 whether any
other aspect of the project will cause an unreasonable burden on any existing water
supply, and, in particular, on Appellant’s existing shallow well, especially given the
past contamination of that well which Appellant has experienced.
With regard to contamination, in addressing the current application the Court
need not determine whether the source of past contamination of Appellant’s
drinking water was the beaver pond, nor whether the contamination entered by way
of Appellant’s then-existing shallow well or a broken pipe in Appellant’s water line,
nor whether use of machinery in the gravel extraction area for an earlier project
caused the break in the water line. Instead, it is the Court’s responsibility to
5 The required distance of at least 500 feet used in the project application was
calculated based on the demand of the project’s water supply.
11
determine whether, if the project is completed as proposed, it will not cause an
unreasonable burden on Appellant’s existing water supply.
Appellant’s existing shallow well water supply was improved in 2010 by
putting in a new water line and spring, and banking up the earth and stones around
it so that surface water does not flow into it. Appellant’s water supply has been
disinfected and, as of the date of trial, was about to be again disinfected to eliminate
any remaining coliform bacteria and render it safe to use as a drinking water source.
The location of the water line on Applicants’ property has been marked in the field
to enable Applicants’ workers to conform to a fifty-foot setback between the water
line and any gravel extraction activities during the course of the project. The
imposition of a condition requiring a 100-foot undisturbed buffer between gravel
extraction activities and Appellant’s existing shallow well, and requiring a 50-foot
undisturbed buffer between gravel extraction activities and Appellant’s water line,
will adequately protect Appellant’s existing water supply during construction. In
any event, the gravel extraction area will be closed, seeded, and mulched at the
conclusion of the project’s construction, and will no longer pose any risk to
Appellant’s water supply.
The proposed campground project therefore will not cause an unreasonable
burden on Appellant’s or any other existing water supply, and, with Condition 13 as
imposed by the District Commission in Land Use Permit 5L-1522, meets Act 250
Criterion 3. 10 V.S.A. § 6086(a)(3).
Criterion 8 (Aesthetics)
Act 250 Criterion 8 (Aesthetics) requires that the project will not have an
undue adverse effect on aesthetics. 10 V.S.A. § 6086(a)(8). With respect to Criterion
8, the burden of proof is on Appellant to show an undue adverse effect. See In re
Denio, 158 Vt. 230, 237 (1992); 10 V.S.A. § 6088(b).
12
The so-called Quechee test, named for a 1985 decision of the former
Environmental Board, In Re Quechee Lakes Corp., Nos. 3W0411-EB and 3W0439-EB,
Findings of Fact, Conclusions of Law, and Order, at 17–20 (Vt. Envtl. Bd. Nov 4,
1985), provides a two-step methodology for analyzing whether a project will have
an undue adverse effect on aesthetics, that is, whether it will fit its context and be in
harmony with its surroundings. See In re McShinsky, 153 Vt. 586, 591–93 (1990)
(adopting the analysis employed by the former Environmental Board when
determining compliance under Act 250 Criterion 8). As recently described by the
Vermont Supreme Court in In re Times & Seasons, LLC, 2008 VT 7, ¶ 8, 183 Vt. 336,
the Court must take the following two-pronged approach to determine if an
application complies with Act 250 Criterion 8 as to aesthetics: first, the Court must
determine if the project will have an adverse aesthetic impact, and, if so, it must then
determine whether the adverse impact will be undue.
With the plantings, exterior lighting, and signage plans now specified by
Applicants, and if the campground’s guests comply with the quiet hours and anti-
trespassing provisions imposed by the campground’s Rules & Procedures, the
project will not have an adverse aesthetic impact. That is, if these plans are carried
out there will not be an adverse aesthetic impact from noise, from campers
wandering onto neighboring property, or from lights from campground buildings
and vehicles, in particular because the developed area of the campground is remote
from potential observers.
However, the potential for adverse impact remains for two reasons. First,
although Applicants propose to comply with the District Commission’s statement
that the operation of generators must be prohibited during the quiet hours from
10:00 p.m. to 7:00 a.m., the Rules & Procedures have not been amended to so specify.
Second, no responsible staff attendant or other responsible contact person is
provided in the Rules & Procedures during the hours of 10:00 p.m. to 7:00 a.m, to
13
whom Appellant, other neighbors, or other concerned campground guests could
direct any complaints about excessive noise.
The Court must therefore turn to the remainder of the Quechee analysis to
determine if this potential for adverse impact is undue. Under that analysis, an
adverse impact is undue if the project “violates a clear, written community standard
intended to preserve the aesthetics or scenic, natural beauty of an area”; if the
project “offend[s] the sensibilities of the average person”; or if the applicant has
“failed to take generally available mitigating steps which a reasonable person would
take to improve the harmony of the proposed project with its surroundings.” Times
& Seasons, LLC, 2008 VT 7, ¶ 8.
The Town of Johnson has no zoning ordinance; its noise ordinance is its only
clear written community standard relevant to this application. There is no reason
why the operation of the campground as designed, and in accordance with its Rules
& Procedures, should violate the noise ordinance. The project therefore does not
violate a clear written community standard. Nor does any of the evidence support a
conclusion that the proposed campground will offend the sensibilities of the average
person.
Finally, Applicants have taken generally available mitigating measures to
improve the harmony of the proposed project with its surroundings. They have
selected a site for the campsites and associated buildings that is relatively distant
from the roadway and from Appellant’s property, preserving the open meadows.
They have committed to planting screening vegetation, to installing lights designed
to prevent glare and unnecessary night-time lighting, and to posting signs to
discourage trespass onto neighboring property. The Rules & Procedures of the
campground also provide mitigating measures for potential noise impacts from the
campground, as long as they are amended to specify that the use of generators is
prohibited during the 10:00 p.m. to 7:00 a.m. quiet hours, and are also amended to
14
provide a mechanism for reporting and remedying guests and neighbors’
complaints about nighttime noise at the time that it is occurring.
Therefore, with the conditions imposed by the District Commission, and the
following additional conditions imposed by this decision, the project will not have
an undue adverse effect on aesthetics. The additional conditions are that 1)
Applicants shall comply with the planting, lighting, and signage plans submitted in
evidence in this proceeding; 2) Applicants shall add to the quiet hours section of the
Rules & Procedures a specific prohibition against the use of generators, including
the engines of stationary recreational vehicles, during those hours (10:00 p.m. to 7:00
a.m.); and 3) Applicants shall state in the Rules & Procedures, post in the Welcome
Center, and provide to Appellant and, on request, to any other neighbor, the contact
information for a staff attendant or other responsible contact person with authority
to deal with complaints about excessive noise during the hours of 10:00 p.m. to 7:00
a.m.
Accordingly, based on the foregoing, it is hereby ORDERED and ADJUDGED
that approval is GRANTED to Appellee-Applicants’ application for the Maple
Woods Campground project, with the conditions as imposed by the District 5
Environmental Commission and the additional conditions as stated in this decision.
The District 5 Environmental Commission shall perform the ministerial task of
producing a revised Act 250 Land Use Permit reflecting the additional conditions.
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Done at Berlin, Vermont, this 9th day of November, 2011.
_________________________________________________
Merideth Wright
Environmental Judge
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Harvey and West 65 Unit Campground Act 250 Application
Combined Opinion