### VERMONT SUPREME COURT Case No. 23

- AP

- 239

109 State Street Montpelier VT 05609

- 0801
802

- 828

- 4774 www.vermontjudiciary.org

Note: In the case title, an asterisk (*) indicates an appellant and a double asterisk (**) indicates a cross

appellant. Decisions of a three

- justice panel are not to be considered as precedent before any tribunal.



### ENTRY ORDER

DECEMBER TERM

, 2023

In re Sugar Mountain Holding s, LLC Act 250 Permit Amendment (Paul Adkins*) } ] APPEALED FROM:

} Superior Court, Environmental Division } CASE NO. 22

- ENV

- 00117 Trial Judge: Thomas G. Walsh

In the above

- entitled cause, the Clerk will enter:

Neighbo r appeal s pro se from the t rial court ’ s de cision tha t applicant ’ s pro posal satisfies
Criterion 8 of Act 250 with respect to nois e levels

. We affirm.

The District #2 Environmental Commission approv ed in part and denie d in part applicant ’ s application for an Act 250 permit application to convert an existing ski base lodge in
Dummerston , Vermont, in to a brewery, distillery, and tas ting room, with the ability to host outdoor functions of up to 150 guests with amplified music

. Following a four

- day trial before
the Environmental Division , all parties ex cept neighbor agreed to a revised permit amendment
and they submitted a stipulated order to the court. Neighbor d is puted only the p r oject ’ s complian ce with Criterion 8 of Act 250

, 10 V.S.A. § 6 086(a)(8), and specifically, noise. In a
writt en order, the court concluded th at the p roposed project satisfied C riter ion 8.

The court made numerous findings, including the following. Applicant owns a n

a p proximately 375

- acre property in Dummerston , which includes a defunct ski area

. The ski

re sort pred ated the adoption of Act 250 and did not initially require an Act 250 permit. In J uly 1987, the ski ar ea obtained a n Act 250 permit to make changes to the lodge. In February 2020, applicant applied for a n Act 250 permit amendment

.

A mong other a ctiv i ties, applicant sought to host catered events such as we ddings with up to 150 gues ts and outdoor ampli fied music. Applicant proposed to use the area year

- round. T he outdoor ampl ified music would be on the western side of the existing ski lodge , on the north side
of a pa tio. Speakers would be directe d southerly. Performances would include smaller solo to
tri o

- style musi cians or larger bands. A whiskey barrel on the property would be placed in a way such that the longer side of the buil ding will run east to we s t to assi st in sound mitigation . When2

bands larger than a trio played, applicant would either construct a temporary she ll behind the musicians or install temporary panels on the northwestern, norther n, and northeastern sides of a

gaze bo

- like structure in which the band would p lay. Either option would, at minimu m, block the
line of sight fro m the closes t residences to the north of th e property

. T he southern edge of the patio was approximately 92 feet from the source o f the music, and applicant woul d limit t he

soun d level there to 83 de cibels (dBA). Out door music would conclude by 10:00 p.m . on weeknights and 11:00 p.m. on weekends.

Applicant presented exper t testimony and evidence regarding noise levels from Eddie
Du ncan, a noise

- control engineer with RSG. Mr. Dun can condu cted a noise a ssessment in the
fo rm of a sound mo del . He also relied on background sound

- level monitoring

, which recorded
ba ckground noise on the p roperty over two days. The monitoring showed the representative background nois e levels a t the property and the close st residence. The court found that background noise levels at the property were largely related to traffic noise from Ve rmont Route
30 , which ran north to south along the property. During daytime hours, the a verage background
sound levels were approximately 64 dBA. Between 8:00 p.m. and 11:00 p.m., average sound
levels ranged from 53 to 63 dBA , although the average was in flated when cars passed along
Route 30 . These measurements represented “ the aver age sound pressu re over a p eriod of time
and [were] ge nerally represent ative of the overa ll sound to which a person is exposed. ”

The noise assessment modeled two scen arios relative to outdoor music a t the property. The first scenario modeled a solo to trio set of mu sicians and the second modeled a larger ban d playing outside. The s econd scenario include d use of the temporary band shell /barrier. The highest modeled noise le vel under both scen arios at a residence was 55 dBA

. The p r oj ect would not, under either scena rio, excee d 70 dBA at the property line. A ppl icant pro vided sound modeling for neighbor ’ s property. Sound lev els at his property would be at or below 45 dBA
under either scen ario.

Based on these and other findings, the court co n sidered if the project, as proposed,
satisfied Criterion 8. Criterion 8 require s that a project “ will not have an undue adve rse effect on
the scen ic or natural beauty of the area, aest hetics, historic sites, or rare and irreplac eable natural

areas. ” 10 V.S.A. § 6086 (a)( 8). “ Aesthet ics ” encompasses noise impacts. In re Lathrop Ltd.
P ’ ship I , 2015 VT 49, ¶ 9, 199 Vt. 19. If an applicant me e t s its initial burden of pro duction, then the ultimate burden of proving that a project does not conf orm with Criterion 8 rest s upon the project ’ s opponents. 10 V.S.A. § 6088(b). The critical question , as asked by the trial court here

, i s whether the proposed p roject would “ be in harmony with its surround ing s , ” that is, whether it
will “ ‘ fi t ’ the context in which it will be located

. ” See, e.g., In re Qu echee Lakes Corp. , 154 Vt. 543 (1990). Under the “ Quechee test

, ” the court fir st examined if the pro ject might cause an adverse impac t on the character of the area , and, if so, whether the impac t would be undue.

In con ducting its analysis, t he court used the Barre Granite standard to measur e whether
noise might cause a n adverse impa ct . This standard , which was to be flexib ly applied, set a be nchmark of 70 dBA at the pr ope rty line of a project and 55 dBA at residences and areas of frequ e nt human u s e

. Notwithstanding this benchmar k , t he court explained that the question of
whether noise was adve r s e ultimately depend ed on whether the noise suit ed the existing
sounds cape, considering th e nature and volume of existin g noise and the qualitative character of
the noise that will be added. Lathrop , 2015 VT 49, ¶ 81.3

The court concluded , based on app l icant ’ s noise stud y , that the project would comply
with the B arre Granite st andard at surrounding residences , including neigh bor ’ s residence, and i n areas of f requent human use through the mitigation measures adopted by applic ant. The court
de tailed the mitigation measure s that applicant had adopted. It found that, w hile neighbor appeared to dispute the use of pro spective mo deling by RS G and applicant, the court and the
District Environmental Commissions rout inely relied on noise modeling to determine compliance with noise standards. Neighb or di d not point to anything within the modeling that

wou ld make it not cre dible, nor did he provide a competi ng, credi ble noise assessment . The

c ourt thus relied upon the noise a ssessment in reaching its conclusion. The court also r ejected neighbor ’ s attempt to raise concerns on b e half of the close st neighbor to the pro ject , explaining

t hat neighbor lacked standin g to do so.

As indicated above, the noise l evels in the area of neighb or ’ s ho m e were modeled to be approximately 45 dBA at the max i m um under the loudest scenario

, which was akin to the noise
from a refrigerator three feet away. While neigh bor might be able to h ear music from the projec t when outdoor amplified mus i c occurred, th e court explained that th at was not fatal to the project
nor did it result in , absent other areas of noncompliance, the p roject ’ s noise being adverse un der
the Barre Granit e standar d . Importantly, the co urt continue d, Criterion 8 was not a guarantee
that aesthetics would never change ; instead, it en sure d that such change would be reasonable.
The court added that this noise level was less than the existing noi se from Route 30 e ither with o r withou t the noise level s from passing cars

. It determined that the modest increase from the project

, which was well below the 55 d BA generally applied by the Barre Granite standard, complied with Criterion 8. The cou rt rejected neighbor ’ s argument that simp ly hearing the project

, at any level, would constitute adversity under Criterion 8. It added that if applicant failed to comp ly with the mitigation imposed, and the conditions imposed, that would co nstitute grounds for an enforcement acti on.

While the court found it unnece s sary to consider whether any adverse impac t would be
undue given its conclusion above, it nonetheless engaged in this analysis and concluded that to
the extent that the noise could be considered adv erse, it was no t undue. This appeal followed.

On appeal, n eighbor essentially challen ges the trial court ’ s evaluation of the weight of the
evidence . He maintains that outdoor amplified music is “ sho cking and offens ive ” in his home,
and he identifies what he cons ider s flaws in the noise assessment

. Neighbor questions whether
the noise ass essment account s for a “ worst

- case ” scenario or th e fact th at different bands might perform at different decib el levels. He argues that the modeling is meaningles s , the decibel
levels are un enfor ce able , and applicant might not co mply with the mitigation measur e s

. Neighbor contends that he will be a dversely a ffected by the noise and th a t loud m usi c is dis tinct
from the existin g road noise. Nei ghbor offers his opinion as to how t he Que che e test should be
conducted h ere

.

We conclude there was no error. Neighbor does not appear to challenge any of the

court ’ s findings as clearly erroneous. He simply argues that we should weigh the evidence differently and give greater credit to his point of view. That is not the role of th is Court on appeal

. “ Under our standard of review

, the [ trial court] determines the credibility of witness es and weighs the p ersuasive effect of evidence. ” In re Champlai n Parkway A ct 250 Permit , 2015 VT 105, ¶ 10, 200 Vt. 158. The court ’ s findin gs ar e supp orted by the ev idence and they support
the court ’ s conclusion as to the absence of any ad verse impact

. Given this, we need not address4

whether any adverse impact would be undue. As re flected above, t he court was unpersuaded by neighbor ’ s attempts to challen ge the credibility of the noise assessment. It did no t err in observing that th e decibel level of the mus ic w ould be les s than tha t generated by traffic on Route 30, even if neighbor has a different opinio n a b out noi se “ cut th rough

. ” It exp lained that

nonco mpliance with the permit ’ s conditions could be grounds for an enf orcement action. While neighbor disagrees with the court ’ s de c ision , he has not demonstrated any error.

Affirmed

.

BY THE COURT:

Paul L. Reiber, Chief Justice

William D. Cohen, Associate Justice

Nancy J. Waples, Associate Justice