In re Vermont RSA Limited Partnership d/b/a Verizon Wireless

In re Vermont RSA Limited Partnership d/b/a Verizon Wireless (2005-518)

2007 VT 23

[Filed 02-Apr-2007]

                                 ENTRY ORDER

                                 2007 VT 23

                      SUPREME COURT DOCKET NO. 2005-518

                             DECEMBER TERM, 2006


  In re Vermont RSA Limited Partnership }        APPEALED FROM:
  d/b/a Verizon Wireless                }
                                        }
                                        }        Environmental Board
                                        }  
                                        }
                                        }        Declaratory Ruling No. 441



             In the above-entitled cause, the Clerk will enter:


       ¶  1.  Several neighbors of St. Mary's Star of the Sea Church in
  Newport, Vermont (collectively, "neighbors") appeal an Environmental Board
  order finding that Verizon Wireless's proposed construction on the land and
  in the towers of the Church is exempt from Act 250 jurisdiction.  Neighbors
  also appeal the Board's preliminary decision to deny them party status
  under certain Act 250 criteria.  We affirm.

       ¶  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 10 V.S.A. § 6081(b) 
  because it was not a "substantial change" to the preexisting development
  (the Church).  In June 2004, the Assistant Coordinator issued a second
  jurisdictional opinion, in response to Verizon Wireless's decision to move
  the proposed equipment shelter from the back of the Church "to a spot
  adjacent to the rectory" to minimize neighbors' noise concerns, and this
  time found that the project fell within the jurisdiction of Act 250.  Upon
  reconsideration of the second jurisdictional opinion, the District 7
  Coordinator agreed that under Act 250, a land-use permit would be required
  for the project.  
   
       ¶  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 10
  V.S.A. § 6086(a) (listing the Act 250 criteria).  In May 2005, the Board
  granted neighbors party status under criteria 8 and 10, but denied them
  status under criteria 1, 5, and 9(K).  After considering the evidence,
  including observation of the Church property on a site visit, the Board
  conducted a substantial-change analysis under 10 V.S.A. § 6081(b), and
  ruled that the "[p]roject is not subject to the jurisdiction" of Act 250. 
  This appeal followed.

       ¶  4.  Neighbors now challenge the Board's denial of party status
  under criteria 5 and 9(K), (FN1) and its ultimate decision that Verizon
  Wireless's proposed project does not amount to a substantial change to the
  Church, the preexisting development, and that Act 250 jurisdiction is
  therefore inappropriate.  

       ¶  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 10 V.S.A. Section 6086(a) [that] may be directly affected by the
  outcome of the proceeding" before the Board.  Here, neighbors filed for
  party status under criteria 5 and 9(K), claiming that the expected loss of
  three Church parking spaces due to the proposed project would result in
  congestion on the public roads in their neighborhood and would jeopardize
  their safety while parking, driving and walking in the neighborhood during
  Church functions.  See 10 V.S.A. § 6086(a)(5) ("unreasonable congestion or
  unsafe conditions with respect to use of the highways"); id. §
  6086(a)(9)(K) (unreasonable interference with "function, efficiency, or
  safety of, or the public's use or enjoyment of or access to" public lands
  and highways).  The Board, relying partly on Verizon Wireless's affidavit
  "to the effect that . . . the Church parking lot could be reconfigured to
  result in no net loss in parking spaces," found neighbors' claims
  unavailing.  It concluded that even despite the proposed lot
  reconfiguration, neighbors failed to "provide sufficient evidence" that the
  total loss of three percent of available Church parking, resulting from the
  loss of three spaces, had any possibility of creating relevant impacts
  under the "values that [c]riteria 5 or 9(K) seek to protect." 

       ¶  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 10 V.S.A. § 6081(b) (exempting developments
  commenced before June 1,1970 from land-use permit requirement absent a
  substantial change).  Neighbors argue, however, that the Board erred by (1)
  extending the Church's exemption under § 6081(b) to Verizon Wireless's
  project and (2) determining that Verizon Wireless's project does not amount
  to a substantial change to the preexisting development.  

       ¶  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.  Id.  Such an interpretation of the exemption
  would lead to an irrational consequence, and the Board was justified in
  rejecting it.  Braun 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 benefitted 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
  10 V.S.A. § 6086(a).  Sec'y, Vt. Agency of Natural Res. v. Earth Const.,
  Inc., 165 Vt. 160, 164, 676 A.2d 769, 772 (1996); In re Barlow, 160 Vt.
  513, 521-22, 631 A.2d 853, 858-59 (1993).     

       ¶  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 noted the "moderate" ambient
  noise level at the location of the proposed equipment shelter.  Based
  partly on its site visit, the Board found that the "present mesh screening
  prevents clear views through the bell towers," and that the proposed
  screens would improve views through the towers.  Furthermore, the Board
  observed that while the antennas were visible through the openings in the
  bell towers, they did not "significantly detract from the Church's overall
  visual aesthetic quality."  Taking into consideration the evidence
  presented by neighbors and the observations made on the site visit, the
  Board concluded that neither the proposed cell towers nor the equipment
  shelter would have "significant visual impacts on the aesthetics of the
  area" or "any impacts on the ambient noise levels in the area."  See In re
  Quechee Lakes Corp., 154 Vt. 543, 552, 580 A.2d 957, 962 (1990) (stating
  that administrative tribunal's findings may be partly based on knowledge
  garnered from site visits).  

       ¶  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, ___ Vt. ___, 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
  non-conforming 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 jurisdictional determinations, and we therefore affirm.  

       Affirmed.


                                       BY THE COURT:



                                       _________________________________________
                                       Paul L. Reiber, Chief Justice

                                       _________________________________________
                                       Denise R. Johnson, Associate Justice

                                       _________________________________________
                                       Marilyn S. Skoglund, Associate Justice

                                       _________________________________________
                                       William D. Cohen, Superior Judge,
                                       Specially Assigned

                                       _________________________________________
                                       Ernest W. Gibson III, (Ret.), Associate
                                       Justice, Specially Assigned



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                                  Footnotes


FN1.  Neighbors do not, however, appeal the Board's denial of party status
  under criterion 1 (noise).