NOTICE: This opinion is subject to motions for reargument under V.R.A.P. 40 as well as formal 

revision before publication in the Vermont Reports. Readers are requested to notify the Reporter 

of Decisions by email at: JUD.Reporter@vermont.gov or by mail at: Vermont Supreme Court, 109 

State Street, Montpelier, Vermont 05609-0801, of any errors in order that corrections may be made 

before this opinion goes to press.

2017 VT 43

No. 2016-170

In re North East Materials Group, LLC

Amended Act 250 Permit

Supreme Court

(Russell Austin, Pamela Austin, Julie Barre, 

Marc Bernier, et al., Collectively, Neighbors 

for Healthy Communities, Appellants)

On Appeal from

Superior Court, 

Environmental Division

October Term, 2016

Thomas G. Walsh, J.

Laura B. Murphy and Douglas A. Ruley, Environmental and Natural Resources Law Clinic,

South Royalton, for Appellants.

Alan P. Biederman of Biederman Law Office and James P.W. Goss of Facey Goss & McPhee,

 P.C., Rutland, for Appellees.

PRESENT: Dooley, Skoglund, Robinson and Eaton, JJ., and Carlson, Supr. J.,

Specially Assigned

¶ 1. SKOGLUND, J. Neighbors for Healthy Communities (neighbors) appeal the 

Environmental Division’s decision granting North East Materials Group, LLC, (NEMG) an Act 

250 permit for operating an asphalt plant. Neighbors specifically challenge the court’s findings 

and conclusions under Criterion 5 and Criterion 8 of Act 250, claiming that conditions imposed 

by the court pursuant to these two criteria repeat existing requirements that NEMG did not or could 

not comply with and, thus, were insufficient to meet Act 250’s criteria. We affirm. 

¶ 2. Pursuant to a permit approved by the District Five Environmental Commission in 

January 2013, NEMG constructed a hot-mix asphalt plant on the Rock of Ages quarry tract in 

Barre, Vermont. Neighbors appealed the permit to the Environmental Division and NEMG crossappealed. Prior to trial, neighbors and NEMG stipulated to a limited review of NEMG’s permit to 
2

ensure it complied with Act 250; specifically, neighbors sought examination of air pollution 

controls under Criterion 1, traffic concerns under Criteria 5 and 9(k), and aesthetics under Criterion 

8. 

¶ 3. The Environmental Division conducted a three day hearing on the permit in early 

May 2015 and found the following general facts. The asphalt plant is on the south side of 

Graniteville Road, one of the roads that bisects the Rock of Ages property. This site is close to 

the village of Upper Graniteville, which is mostly residential, and the village of Lower 

Graniteville, which is a mix of businesses and residences. The asphalt plant is a batch-type plant, 

meaning hot-mix asphalt is not stored for extended periods of time but is made on an as-needed, 

per-truck-load basis. Between the plant’s construction in the summer of 2013 and the May 15, 

2015 hearing, the plant had two operating seasons. An operating season extends from May 1 

through mid-November, from 6 a.m. to 4 p.m. six days a week. The approved maximum operating 

capacity of the plant is 180 tons of asphalt per hour, with a rolling average production limit of 

4500 tons per week during any given 45-day period.

¶ 4. After making these general findings, the Environmental Division made specific 

findings and conclusions of law related to the Act 250 criteria challenged by neighbors. 

Ultimately, the court affirmed the district commission’s approval of the permit but imposed two 

conditions addressing unsafe traffic conditions under Criterion 5 and one condition to mitigate 

undue adverse odors under Criterion 8. 

¶ 5. On appeal, neighbors challenge the viability of these three conditions, broadly 

arguing that the new conditions repeat existing requirements that NEMG did not or could not 

comply with and, thus, were insufficient to meet Act 250’s criteria.1 

 

1

 On appeal, neighbors do not challenge the Environmental Division’s conclusion that the 

asphalt plant will not cause undue air pollution under Criterion 1, that it will not have undue 

adverse visual or sound impacts under Criterion 8, and that it will not materially jeopardize public 

investment in highways under Criterion 9.
3

¶ 6. To be clear, this matter is not an enforcement action. Act 250 vests the Natural 

Resources Board (NRB) and the Agency of Natural Resources (ANR) with the power to enforce 

compliance with Act 250 permits. See 10 V.S.A. § 6027(g) (authorizing NRB to “initiate 

enforcement” of Act 250 permits and to “petition the Environmental Division for revocation” of 

Act 250 permits for, among other things, “noncompliance with any permit or permit condition”); 

id. § 8003 (stating NRB has discretion to institute enforcement actions); id. § 8004 (providing that 

NRB and ANR act cooperatively to enforce Act 250). A district commission does not possess the 

authority to determine whether violations of Act 250 permits exist or to initiate enforcement 

actions. In re Treetop Dev. Co. Act 250 Dev., 2016 VT 20, ¶ 14, __ Vt. __ 143 A.3d 1086. 

¶ 7. Instead, the district commission’s authority “is limited to considering permit 

applications in the context of [Act 250’s] ten statutory criteria and either approving or denying the 

application,” as well as amending permits. Id. Similarly, when reviewing a permit granted by a 

district commission, the Environmental Division may consider the statutory criteria and affirm the 

issuance of a permit contingent on new “conditions and requirements mitigating the impact of 

particular development.” In re North East Materials Grp. LLC Act 250 JO # 5–21, 2015 VT 79, 

¶ 27, 199 Vt. 577, 127 A.3d 926. Thus, the question before us is whether the Environmental

Division’s findings support the court’s conclusion that the conditions imposed would mitigate the 

adverse impacts of the plant’s traffic and odor,

2

not whether the project failed to comply with a 

permit condition. 

 

2

 Neighborsframe the question somewhat differently on appeal and claim that “[t]his Court 

has not addressed the precise question of when a condition is insufficient to ensure compliance 

with Act 250.” But framing the claim in this manner ignores the standard of review set forth by 

this Court; that is, a permit condition is insufficient under Act 250 if it is not reasonable in light of 

the Environmental Division’s findings and if those findings and conclusions are clearly erroneous. 

See In re Shantee Point, Inc., 174 Vt. 248, 263, 811 A.2d 1243, 1255 (2002); In re Denio, 158 Vt. 

230, 240, 608 A.2d 1166, 1172 (1992). The Environmental Division cases cited by applicant adopt 

a similar position: the imposition of reasonable conditions is dependent on the sufficiency of the 

Environmental Division’s findings of facts and conclusions. For example, in In re McClean 

Enterprises Corp., the court denied the applicant’s permit and noted that “the evidence indicates

the Permitee cannot comply with the conditions. In re McLean Enters. Corp., No. 2S1147–1–EB, 

slip op. at 62 (Vt. Envtl. Bd. Nov. 24, 2004) (emphasis added), 
4

¶ 8. This is a question we review deferentially, unlike the court’s legal conclusions, 

which we review de novo. See In re Route 103 Quarry, 2008 VT 88, ¶ 4, 184 Vt. 283, 958 A.2d 

694 (noting that review of Environmental Division’s decision is “limited” and that appellants 

“must overcome a deferential standard of review to prevail on their challenge to the findings and 

conclusions underlying the court’s decision”); In re Lathrop Ltd. P’ship I, 2015 VT 49, ¶ 21, 199 

Vt. 19, 121 A.3d 630 (“Although we review the environmental court’s legal conclusions de novo, 

we will uphold those conclusions if they are reasonably supported by the findings.” (citation and 

quotation omitted)).

¶ 9. Further, any conditions imposed must be reasonable in light of the Environmental 

Division’s findings. In re Denio, 158 Vt. 230, 240, 608 A.2d 1166, 1172 (1992). We will not 

upset those findings unless, “taking them in the light most favorable to the prevailing party, they 

are clearly erroneous.” In re Shantee Point, Inc., 174 Vt. 248, 263, 811 A.2d 1243, 1255 (2002). 

Moreover, the Environmental Division’s findings “will not be disturbed merely because they are 

contradicted by substantial evidence; rather, [an appellant] must show that there is no credible

evidence to support them.” In re Miller Subdivision Final Plan, 2008 VT 74, ¶ 13, 184 Vt. 188, 

955 A.2d 1200 (emphasis added). 

¶ 10. With this standard in mind, we examine the Environmental Division’s specific 

findings and conclusions of law relating to traffic under Criterion 5 and undue adverse odors under 

Criterion 8. 

 

http://www.nrb.state.vt.us/lup/decisions.htm; see also, e.g., In re Rivers Development Act 250 

Appeal, No. 68-3-07 Vtec, slip op. at 1 (Vt. Envtl. Ct. Aug. 17, 2010), 

https://www.vermontjudiciary.org/GTC/Environmental/Opinions.aspx [https://perma.cc/CXZ8-

CAR9] (revisiting factual findings and conclusions and declining to grant applicant’s postjudgment amendment request); In re O’Neil Sand & Gravel Act 250 Amendment Application, No. 

48-2-07 Vtec, slip op. at 12 (Vt. Envtl. Ct. Feb. 23, 2010), 

https://www.vermontjudiciary.org/GTC/Environmental/Opinions.aspx [https://perma.cc/ZGL8-

GN88] (observing applicant submitted no credible evidence to refute charge that noise violated 

condition of permit). 
5

I. Criterion 5—10 V.S.A. § 6086(a)(5)

¶ 11. Under 10 V.S.A. § 6086(a)(5)(A), before issuing a permit, the district commission 

must determine that a project “[w]ill not cause unreasonable congestion or unsafe conditions with 

respect to use of the highways, waterways, railways, airports and airways, and other means of 

transportation existing or proposed.” Pursuant to this provision, the Environmental Division made 

the following findings. 

¶ 12. The hot-mix asphalt manufactured in the plant is sold and transported off the Rock 

of Ages quarry site in trucks not owned by NEMG. Two types of trucks transport the asphalt: 

large dump trucks, which are most common, and long, gondola-type trucks similar in length to 

tractor-trailer trucks, which are less common.

¶ 13. Currently, the trucks may enter the property only at the main quarry entrance, on 

the northern end of the property. This entrance is on Graniteville Road, between Upper and Lower 

Graniteville. Trucks exiting through this northern entrance must turn left, or northwest, onto 

Graniteville Road and follow the road through Lower Graniteville to reach Vermont Route 14, 

U.S. Route 302, or Vermont Route 110. This route has been designated a truck route by Barre. 

¶ 14. A second access point is planned at Pirie Road, to the south of the main quarry 

entrance. Once open, trucks will enter the property via Pirie Road and then continue north through

internal quarry roads until they reach the plant. Trucks exiting through this southern access point 

will either be able to turn south onto Pirie Road and continue onto Vermont Route 14 or turn north 

onto Pirie Road, which eventually turns into Baptist Street and joins with Graniteville Road in 

Lower Graniteville. 

¶ 15. The point at which Baptist Street joins Graniteville Road in Lower Graniteville is 

a three-way junction. To stay on Graniteville Road at this junction, trucks leaving the quarry via 

the northern entrance must take a sharp right curve to the north. By contrast, trucks approaching 

from the planned southern exit via Baptist Street would simply continue straight to merge with 

Graniteville Road. Vehicles approaching the junction from either direction have sufficient sight 
6

lines to observe other vehicles and stop in time; these sight lines comply with standards for 

roadway designs. 

¶ 16. During the periods of 2003-2007 and 2008-2012, the Vermont Agency of 

Transportation designated a 0.3 mile section of the curve along Graniteville Road near the junction 

with Baptist Street a high crash location (HCL). An HCL designation is a screening device used 

by transportation agencies to identify road sections that are suitable for further analysis; currently, 

there are 600 such designations in Vermont. To be designated an HCL, a location must have 

experienced five or more accidents over a five-year period. In the period from 2008-2012, for 

example, five accidents occurred in the Graniteville Road HCL: three were not related to the sharp 

curve and the two connected to the sharp curve did not involve trucks. 

¶ 17. The HCL portion of Graniteville Road is two paved lanes with narrow shoulders 

and no sidewalks. A telephone pole on the roadside limits vehicle use of the shoulders. Neighbors

submitted a video demonstrating that, to safely negotiate turning right to stay on Graniteville Road, 

two tractor-trailer-sized trucks crossed the double yellow center line and briefly entered the 

oncoming lane. After viewing the video, NEMG’s expert conceded that the tractor-trailer-sized 

trucks had crossed the center line, but noted that the two trucks cleared the right shoulder by some 

distance and that it was not clear “that he could not make it.” No evidence was submitted that 

dump-truck-sized trucks, which are the trucks most frequently employed to haul asphalt, must 

cross the center line to negotiate the sharp right turn. And, in fact, NEMG’s expert testified that a 

dump truck would most likely not encroach on the other lane. Moreover, the expert noted that the 

clear sight lines lessened any safety concern caused by the sharp curve. 

¶ 18. Fifteen million vehicles traveled through the Graniteville Road HCL since 2003, 

including trucks transporting asphalt from the plant and other similarly-sized trucks serving the 

Rock of Ages quarry and other businesses. Dating back to 2003, no record exists of a truck being 

involved in an accident within the HCL section of Graniteville Road.
7

¶ 19. Having made these findings, the Environmental Division held that trucks crossing 

over the center line posed a danger to other motorists, bicyclists, and pedestrians using the road 

and, as a result, violated Criterion 5. In doing so, the Environmental Division first rejected

neighbors’ contention that adding traffic to an HCL per se exacerbates an already unsafe condition. 

The court noted that an HCL designation does not mean that a section of road is per se 

unreasonably dangerous; rather, the designation is merely a screening device for further analysis. 

Further, the court distinguished the facts in this case from In re Pilgrim Partnership, 153 Vt. 594, 

572 A.2d 909 (1990).3 Because the underlying cause of the unsafe condition in this case was the 

road’s geometry, not traffic congestion, the court determined that Pilgrim Partnership’s analysis 

of unsafe traffic congestion did not apply. But the court did conclude that neighbors provided

sufficient evidence to demonstrate that tractor-trailer-sized trucks transporting asphalt from the 

plant would cross the center line and that this was an unsafe traffic condition under Criterion 5. 

¶ 20. To mitigate this unsafe effect, the Environmental Division imposed two conditions: 

 1. When using public roads, trucks associated with the [plant] will 

remain in their lane of travel at all times, including when traveling 

on the sharp curve in Graniteville Road at the intersection of 

Graniteville Road and Baptist Street. 

 2. [NEMG] must pay to have the centerline of the HCL section of 

Graniteville Road painted each spring, to make it clear to drivers 

and observers where the centerline of the road is.

The court noted that the first condition mirrored Vermont state law precluding vehicles from 

crossing the center line. See 23 V.S.A. § 1031. By adding this condition, according to the court, 

 

3

 Neighbors largely abandon their focus on In re Pilgrim Parnership on appeal, except to 

state that our holding was that “[e]xacerbating [an] existing traffic hazard by allowing additional 

travel on [the] road would be detrimental to the public interest.” 153 Vt. 594, 596-97, 572 A.2d 

909, 910-11 (1990). As we stated recently, however, in In re Pilgrim Partnership we affirmed the 

reasonableness of the court’s conclusion that an increase in traffic contributed to unsafe congestion 

and, as result, supported reasonable conditions to alleviate the additional burden created. See In 

re Costco Stormwater Discharge Permit, 2016 VT 86, ¶ 17, __ Vt. __, 151 A.3d 320. To reiterate, 

our holding in In re Pilgrim Partnership did not establish a per se rule requiring mitigation in certain 

circumstances under Criterion 5; instead, we affirmed the reasonable conditions imposed by the 

court based on the factual findings and conclusions made in that case. In re Costco, 2016 VT 86, 

¶ 17.
8

any truck crossing the center line would be in violation of the plant’s Act 250 permit as well as 

state law. The second condition was added to aid in enforcement of the first condition. 

¶ 21. As noted above, under 10 V.S.A. § 6086(a)(5)(A), the district commission or 

Environmental Division must find that a project “[w]ill not cause unreasonable congestion or 

unsafe conditions with respect to use of the highways.” The party opposing the applicant bears 

the burden of proof, id. § 6088(a), but the applicant bears the burden of production to establish at 

least a “prima facie case” of compliance. In re Champlain Parkway Act 250 Permit, 2015 VT 105, 

¶ 15, 200 Vt. 158, 129 A.3d 670. A permit may not be denied solely on the basis of traffic impacts; 

however, the Environmental Division may impose reasonable conditions “to alleviate the burdens 

created” by traffic. 10 V.S.A. § 6087(b); see also id. § 6086(c) (“A permit may contain such 

requirements and conditions as are allowable proper exercise of the police power . . . .”).

¶ 22. Given these standards, we conclude that credible evidence sufficiently supported 

the trial court’s findings and conclusions under Criterion 5. In re Miller Subdivision Final Plan, 

2008 VT 74, ¶ 13 (noting Environmental Division’s findings “will not be disturbed merely because 

they are contradicted by substantial evidence; rather, [an appellant] must show that there is no 

credible evidence to support them”). The Environmental Division relied on neighbors’ video 

evidence to find that, in the past, tractor-trailer sized trucks crossed the center line to negotiate the 

HCL curve and that this constituted a danger to motorists, bicyclists, and pedestrians. In addition 

to the video evidence, the court’s findings relied on the expert’s interpretation of the video 

submitted by neighbors. Although the expert conceded that the trucks in the video had crossed the 

center line, the expert noted that the tractor-trailer-sized trucks in the video appeared to have room 

on the right shoulder to make the sharp curve and later opined that dump trucks could negotiate 

the curve without encroaching on the other lane. As a result, the Environmental Division did not 

conclude that tractor-trailer sized trucks could not negotiate the sharp curve nor did the court 

determine that dump trucks crossed the center line. In fact, the court found no evidence supporting

the claim that dump trucks crossed the center line and found that dump trucks are the more typical 
9

truck used by customers of the plant. The court’s only conclusion was that tractor-trailer-sized 

trucks crossed the center line and posed a danger. This evaluation and conclusion was well within 

the Environmental Division’s “broad discretion to assess the credibility of the witnesses and the 

persuasive value of the evidence.” In re Costco Stormwater Discharge Permit, 2016 VT 86, ¶ 14, 

__ Vt. __, 151 A.3d 320. 

¶ 23. Confronted with the safety concern posed by tractor-trailer-sized trucks, the court 

imposed a condition precluding all trucks from crossing the center line and another condition 

aiding enforcement. In doing so, they expressly placed a new condition in NEMG’s Act 250 permit

that mirrors state law and one that, based on the evidence, will mitigate the potential harm as long 

as the trucks comply with the condition. Given that the evidence presented was sufficient to 

support the court’s factual findings and conclusion, and that the condition, if complied with, will 

prevent the potential harm, the condition was a reasonable exercise of the court’s police power. 

See 10 V.S.A. § 6087(b), (c); In re Denio, 158 Vt. at 240, 608 A.2d at 1172. Similarly, the second 

condition imposed by the court—requiring NEMG to pay to have the centerline painted each 

spring—was a reasonable condition because it aids enforcement in two ways: it presents a fresh 

warning to truck drivers during the plant’s operating season and it allows other parties to monitor 

compliance with the first traffic condition. 

¶ 24. Neighbors claim that, because the condition requiring trucks to stay right of the 

center line is already mandated by law, it adds “nothing” and, as a result, does not ensure that 

Criterion 5 will be met. We disagree for several reasons. First, as described above, there is no 

evidence that all trucks moving to and from the plant cross the center line, nor is there evidence 

that tractor-trailer-sized trucks must always cross the center line to negotiate the curve. Second, 

adding the condition to the Act 250 permit subjects NEMG to enforcement action if the trucks do 

not comply. The focus of the condition is not on the truck drivers, who are the parties bound by 

state law, but on NEMG, which is now subject to the center line restriction in its Act 250 permit. 

Absent this condition, NEMG would not be responsible for how the trucks negotiated the turn. 
10

Finally, it is undisputed that, if the trucks comply with the conditions, the unsafe traffic impact 

identified by the Environmental Division will not occur. Thus, the condition ensures compliance 

with Criterion 5 by subjecting NEMG to possible enforcement actions if trucks cross the center

line. 

¶ 25. Similarly, we reject neighbors’ argument that the court should have imposed the

alternative means of ensuring compliance with Criterion 5 that neighbors’ expert suggested. Our 

review is concentrated on whether the conditions imposed are reasonable in light of the 

Environmental Division’s findings and conclusions. In re Denio, 158 Vt. at 240, 608 A.2d at 1172. 

The availability of alternate conditions does not influence our analysis as long as the conditions 

imposed by the court satisfy this standard.

II. Criterion 8—10 V.S.A. § 6086(a)(8).

¶ 26. Under Act 250, a proposed project may “not have an undue adverse effect on the 

scenic or natural beauty of the area, aesthetics, historic sites or rare and irreplaceable natural areas.” 

10 V.S.A. § 6086(a)(8). To determine whether the plant caused undue adverse odors,4the 

Environmental Division made the following findings based on the evidence. 

¶ 27. The liquid asphalt is stored in a sealed tank at a temperature below vaporization 

level. The tank has a small vent equipped with a carbon activated filter to eliminate offsite odors. 

Because it is a batch-type plant, the plant provides most of the hot-mix asphalt on demand, which 

reduces odors. In addition, the permit limits the hours and months that the plant may be operated, 

as well as the maximum amount of asphalt that may be produced. Specifically, the plant operates 

from May 1 through mid-November, 6 a.m. to 4 p.m., six days a week. The approved maximum 

operating capacity of the plant is 180 tons of asphalt per hour, with a rolling average production 

limit of 4500 tons per week during any given 45-day period.

 

4

 The Environmental Division determined that the truck traffic did not cause undue adverse 

odors, and neighbors do not appeal this determination.
11

¶ 28. Despite these precautions, during operation, the plant causes perceptible asphalt 

odors on neighbors’ properties and inside their homes, if they leave the windows open or air 

conditioners running. Even though the industrial Rock of Ages quarry has operated in the area for 

an extended period of time, these petrochemical odors are new to the area. 

¶ 29. Several neighbors testified that these odors are pungent, eye-watering, and throatstinging. During the summer operating months, the odor permeates their properties, causing 

neighbors to forgo outdoor recreation. For example, one neighbor testified that he smelled the 

asphalt odors whenever the plant was operating and that he no longer walks after work because of 

the odors. This neighbor also testified that he could smell the fumes on days when the plant was 

not operating, although the odor had dissipated, and speculated that this odor related to the hotmix asphalt stored on site.

¶ 30. On the other hand, the Environmental Division found that several neighbors who 

testified were hypersensitive to odors. In addition, the court noted that some of the days neighbors 

testified that odors occurred did not correspond to days when the plant operated. Finally, although 

neighbors testified that they contacted enforcement agencies to investigate the fumes and that 

agents came to one of the neighbor’s houses, the court noted that no enforcement actions had been 

initiated. 

¶ 31. Based on these findings, the Environmental Division concluded that “the odors and 

fumes from the asphalt plant itself may be adverse and undue” under the familiar two-step Quechee

test. See In re Rinkers, Inc., 2011 VT 78, ¶ 9, 190 Vt. 567, 27 A.3d 334 (mem.) (applying test of 

In re Quechee Lakes Corp., Nos. 3W0411–EB & 3W0439–EB, slip op. at 17–18 (Vt. Envtl. Bd. 

Nov. 4, 1985), http://www.nrb. state.vt.us/lup/decisions/1985/3w0439-eb-fco.pdf). Although the 

court questioned the credibility of neighbors’ more extreme accounts of off-site odors, it found 

that the plant caused perceptible odors on the neighbors’ properties and inside their homes. In 

addition, these new odors were not in harmony with the area, even with the area’s history of 

quarrying, and, as result, were adverse.
12

¶ 32. Addressing whether the odors were undue, the court noted that no clear, written 

community standard existed to preserve the aesthetic smells in the area and that NEMG had taken 

appropriate mitigating steps to improve the plant’s harmony with its surroundings, such as 

operating as a batch-type mix plant with reasonably limited hours and months of operation. 

Further, the court rejected neighbors’ proposed mitigation measure—resiting the project—because 

neighbors did not introduce evidence as to the feasibility of the alternative. Despite this, the court 

found that the fumes “may be shocking or offensive to the average person.” In making this 

determination, the Environmental Division relied, not on the testimony of some hypersensitive 

neighbors, but on the credible testimony of other neighbors who described the pungent odors. 

¶ 33. Having determined that the plant may cause undue adverse odors under Criterion 

8, the Environmental Division imposed the following condition: 

3. [NEMG] shall not discharge, cause, suffer, allow, or permit from 

any source whatsoever such quantities of air contaminants or other 

material which will cause injury, detriment, nuisance or annoyance 

to any considerable number of people or to the public or which 

endangers the comfort, repose, health or safety of any such persons 

or the public or which causes or has a natural tendency to cause 

injury or damage to business or property. [NEMG] shall not 

discharge, cause, suffer, allow, or permit any emissions of 

objectionable odors beyond the property line of the premises. 

¶ 34. The court noted that this condition mimicked Condition 22 of NEMG’s air pollution

permit. In addition, the court found that “NEMG testified that it can and does comply with this 

condition.” Given this testimony, the court concluded that the sensibilities of the average person 

would not be offended or shocked by the plant’s operation with the condition, because the 

condition forbade the odoriferous impacts and NEMG complied with the condition.

¶ 35. Neighbors challenge this determination on appeal. Like the plant’s traffic impacts, 

they do not dispute the court’s conclusion that the fumes were undue and adverse, but instead argue 

that the evidence demonstrates that NEMG has not and cannot comply with this condition. In 

particular, they claim that this condition was already part of NEMG’s Act 250 permit and, because 
13

the court found undue and adverse impacts after two years of the plant’s operation, the evidence 

is clear that NEMG could not comply with the condition.

¶ 36. Once the Environmental Division has determined that a proposed project causes 

undue adverse impacts under Criterion 8, the court must impose reasonable conditions to ensure 

the project complies with the criteria. In re Treetop, 2016 VT 20, ¶ 12; see also 10 V.S.A. 

§ 6086(c) (“A permit may contain such requirements and conditions as are allowable proper 

exercise of the police power . . . .”). The party opposing the applicant bears the burden of proof to 

demonstrate undue adverse impacts, 10 V.S.A. § 6088(b), but the applicant bears the burden of 

production to establish at least a “prima facie case” of compliance. In re Champlain Parkway, 

2015 VT 105, ¶ 15. 

¶ 37. First, it is undisputed that, if complied with, the condition will prevent the undue 

adverse impacts at issue. The Environmental Division concluded that the condition, “if complied 

with, will adequately address [neighbors’] concerns over the odors from the hot-mix Project under 

Criterion 8, because it forbids the impacts [neighbors] complain of.” In coming to this conclusion, 

the court relied on the testimony of NEMG’s expert regarding the plant’s air pollution permit, who 

stated that the plant was in compliance with the air pollution permit. Because the air pollution 

permit expressly precluded “objectionable odors beyond the property line of the premises,” the 

court’s conclusion that compliance also included preventing objectionable odors beyond the 

premises property line was supported by testimony. Given that the evidence presented was 

sufficient to support the court’s imposition of the condition, and that the court found that NEMG 

could comply with the condition, the condition was a reasonable exercise of the court’s police 

power and adequately addressed the concerns under Criterion 8. 10 V.S.A. 6087(b); In re Denio, 

158 Vt. at 240, 608 A.2d at 1172. 

¶ 38. It is the ability to comply that compels the court’s decision. If there is a violation 

of the permit, an enforcement action is the appropriate remedy. The statutory structure of Act 250 

vests enforcement in the NRB and the ANR. And, while the Environmental Division stated that 
14

the importation of the air permit condition was “incorporate[d]” into the Act 250 permit, this 

condition was also part of the land-use permit originally granted by the District Five 

Environmental Commission. Thus, the presence of this condition in the permit provided the NRB 

or ANR with the authority to “initiate enforcement” if NEMG did not comply with the permit 

condition. See 10 V.S.A. § 6027(g); id. § 8003 (stating that NRB has discretion to institute 

enforcement actions); id. § 8004 (providing that NRB and ANR act cooperatively to enforce Act 

250). Despite this enforcement ability and the clear evidence that agents visited with neighbors

during periods when the odors allegedly occurred, the Environmental Division found that no 

enforcement action occurred. Thus, if we were to allow neighbors to challenge this condition, the 

imposition of which is supported by credible evidence, we would allow neighbors to circumvent 

the enforcement process and effectively allow the Environmental Division to initiate enforcement 

actions without initiation by the NRB and ANR. Contra In re Treetop, 2016 VT 20, ¶ 14. Such a 

determination would contravene Act 250’s structure.

Affirmed. 

FOR THE COURT:

Associate Justice

¶ 39. ROBINSON, J., concurring in part, dissenting in part. After concluding that 

the asphalt plant caused undue adverse impacts during its first two seasons of operation, the trial 

court granted NEMG an Act 250 permit with no new conditions or measures to mitigate the 

aesthetic harm recognized in the court’s own findings. It essentially reasoned that if the plant 

stopped causing undue adverse impacts, there would be no undue adverse impacts. If it continued 

to cause undue adverse impacts, then that conduct could be addressed in an enforcement action. 

Because it fails to condition the permit on NEMG’s taking actual reasonable mitigating measures 

in the face of established undue adverse impacts, the trial court’s decision runs afoul of the 
15

requirements of Act 250. I respectfully dissent from the majority’s analysis with respect to the 

aesthetic impact of the asphalt plant odors.5

¶ 40. There is no dispute that the odors from the asphalt plant, emitted while the plant 

was subject to the same condition the trial court relied on for mitigation, created undue adverse 

impacts. Accordingly, NEMG had an obligation, as a prerequisite to its permit, to establish 

reasonable conditions that would mitigate those impacts. The trial court’s findings, and the 

underlying evidence, do not support the contention that the condition imposed by the trial court is 

reasonably likely to mitigate the undue adverse impacts. The consequence of the trial court’s mode 

of analysis is to shift to the enforcement process matters that, by law, are supposed to be addressed 

at the permitting stage. I consider each of these points in more detail.

¶ 41. Two critical foundational facts are not in dispute. First, nobody denies that the 

plant has operated for two years, and has done so pursuant to an Air Permit issued by the Agency 

of Natural Resources that requires that NEMG “shall not discharge, cause, suffer, allow, or permit 

any emissions of objectionable odors beyond the property line of the premises.” This is not like 

many cases in which the parties and court must try to anticipate the likely effects of a yet-to-beimplemented project. The court below based its analysis in part on the observed operations of the 

project, pursuant to the conditions in place during those operations.

¶ 42. Second, there is also no dispute that during this period of operation, odors from the 

asphalt plant constituted an undue adverse impact. In finding that the smells are “adverse,” the 

trial court found that “the project has caused perceptible asphalt odors on [neighbors’] properties 

and inside their homes if they leave the windows open or air conditioners running.” Recognizing 

that chemical odors from petrochemical manufacture were not historically associated with the 

quarrying operations in the area, the trial court recognized that the odors were “adverse.” 

Considering whether the adverse effects were “undue,” the court found that some of the neighbors 

 

5

 I join Section I of the majority’s opinion, and its affirmation of the trial court’s findings 

and conclusions relating to the traffic impacts of the project under 10 V.S.A. § 6086(a)(5)(A). 
16

“who are not hyper-sensitive credibly testified that they experience pungent, eye-watering, and 

throat-stinging odors from the project that permeate their properties in the summer time, and cause 

[them] to forego outdoor recreation.” The trial court found that the smells were “shocking or 

offensive to the average person” and that therefore they amounted to undue adverse impacts. 

¶ 43. Given that the project generated undue adverse impacts in the form of offensive 

odors, the trial court could not award an Act 250 permit unless NEMG offered reasonable 

conditions to mitigate the impact so that if the project continued to create adverse impacts, they 

would not be undue. The statute specifically provides that before a District Commission can grant 

a permit, it must find that the development “[w]ill not have an undue adverse effect on the scenic 

or natural beauty of the area, aesthetics, historic sites or rare and irreplaceable natural areas.” 10 

V.S.A. § 6086(a)(8). “Aesthetics” is a broad umbrella term, encompassing noise and smell in 

addition to visual impact. See In re Application of Lathrop Ltd. P’ship I, 2015 VT 49, ¶ 9, 199 Vt. 

19, 121 A.3d 630 (identifying Criterion 8, or 10 V.S.A. § 6086(a)(8) as encompassing “aesthetics, 

noise, visual impacts, odors”). Approval of an Act 250 permit requires affirmative findings on all 

ten statutory criteria. In re Treetop Dev. Co. Act 250 Dev., 2016 VT 20, ¶ 11, __ Vt. __, 143 A.3d 

1086. Given the undue adverse impact caused by the offensive odors from the project, NEMG 

was not entitled to an Act 250 permit unless it could establish reasonable conditions to mitigate 

the undue impact. See 10 V.S.A. § 6086(c) (authorizing imposition of conditions that are 

appropriate with respect to the permitting criteria listed in 10 V.S.A. § 6086(a)). “Permissible 

conditions include those with prospective application that are intended to alleviate adverse impacts 

that either are or would otherwise be caused or created by a project . . . .” In re Treetop, 2016 VT 

20, ¶ 12. In short, once the trial court concluded that the odors generated by the asphalt plant 

created an undue adverse impact, it could only award NEMG an Act 250 permit if it included 

conditions that were reasonably likely to mitigate the impact so that it was no longer undue and 

adverse. 
17

¶ 44. Based on the trial court’s own findings, the condition it relied on to mitigate the 

otherwise undue adverse impact from the odors was not reasonably likely to serve the required 

purpose. That very condition had been in effect for two years and NEMG believed itself to be 

complying with that condition, yet the Project created the undue adverse impacts found by the trial 

court. The trial court’s incorporation of the condition in NEMG’s Air Permit into its Act 250 

permit, and its recognition that violation could subject NEMG to enforcement action, did nothing 

to establish the reasonableness of the condition, or to counter the established inefficacy of the 

condition. 

¶ 45. The trial court’s, and majority’s, analysis falls short for at least four reasons. First, 

it’s circular, and essentially cuts the Act 250 proceeding out of the process. Referencing the 

condition prohibiting NEMG from emitting objectionable odors beyond the property line of the 

premises, the trial court explained, “[i]f complied with, [the condition] will adequately address 

[neighbors’] concerns over the odors” from the hot-mix plant, “because it forbids the impacts 

[neighbors] complain of.” Essentially, the trial court concludes, and the majority agrees, that the 

plant’s operation with the condition will not offend the sensibilities of the average person because 

the condition forbids such odoriferous impacts. Ante, ¶ 33. This reasoning assumes the reasonable 

efficacy of the condition—which is the contested issue in this case—and then concludes that since 

the condition is (presumed to be) effective it will be effective. 

¶ 46. Under this approach the district commissions, or the Environmental Division, could 

dispense with the Act 250 process altogether. They could, without any hearing at all, simply award 

permits conditioned on compliance with the various Act 250 criteria, under the assumption that 

such conditions were sufficient to remedy any shortcomings in the applicant’s proposal and with 

the reassurance that the Natural Resources Board’s (NRB’s) enforcement process was available to 

address any failure by the applicant to actually satisfy the criteria. That’s not the system the 

Legislature set up. As we have recognized, before a permit can be approved, the District 

Commission (or Environmental Division) must make affirmative findings that the project satisfies 
18

all of the Act 250 criteria. See, e.g., In re Treetop, 2016 VT 20, ¶ 11; In re SP Land Co., LLC Act 

250 Land Use Permit Amendment, 2011 VT 104, ¶ 25, 190 Vt. 418, 35 A.3d 1007 (explaining that 

Act 250 “[r]ule 21 mandates that a permit may issue only when positive findings of fact and 

conclusions of law have been made under all criteria and subcriteria”). 

¶ 47. Second, the analysis is inconsistent with the trial court’s own findings. The 

majority asserts that the trial court concluded that NEMG would comply with the condition 

imposed. Ante, ¶ 36. Actually, the trial court found “NEMG testified that it can and does comply 

with this condition.” Even assuming that we treat this recitation of evidence as an actual finding 

of fact by the trial court,6it is unsupported by the evidence and squarely at odds with the trial 

court’s own findings. If NEMG does, in fact, comply with the permit condition prohibiting 

emission of objectionable odors beyond its premises, then the trial court’s finding that NEMG’s 

operations have created an undue adverse impact in the form of “pungent, eye-watering, and throatstinging odors” that “permeate [neighbors’] properties in the summer time, and cause them to 

forego outdoor recreation” cannot be right. The two findings are mutually inconsistent.

¶ 48. Third, in the face of the established undue adverse impact throughout the period 

when NEMG apparently believed itself to be complying with the permit limitations, the trial 

court’s analysis offers no insight into what NEMG intends or is expected to do to change its 

practices. What NEMG has been doing—even though it believes that it has been complying with 

the permit condition not to emit objectionable odors—clearly is not working, as evidenced by the 

 

6

 We have frequently recognized that a mere recitation of a party’s testimony, often 

described as a “Krupp finding,” “is not a finding of the facts contained in the testimony related 

and it cannot be so construed.” In re M.G., 2010 VT 101, ¶ 14, 189 Vt. 72, 13 A.3d 1084 (quoting

In re Hale Mountain Fish & Game Club, Inc., 2007 VT 102, ¶ 9, 182 Vt. 606, 939 A.2d 498 

(mem.)); see also Krupp v. Krupp, 126 Vt. 511, 514, 236 A.2d 653, 655 (1967). We have 

repeatedly held that such “Krupp findings,” which are not adopted by the court as fact, “cannot 

form the basis for a decision.” In re M.G., 2010 VT 101, ¶ 14 (quoting In re E.C., 2010 VT 50, 

¶ 14, 188 Vt. 546, 1 A.3d 1007 (mem.)). In this case, the only statement by the trial court that 

addresses whether NEMG has the ability to comply with its condition is this Krupp finding. 

Although I accept the majority’s construction of the trial court’s Krupp finding for the purpose of 

argument, the fact that the trial court made no actual findings on this subject, and its decision rests 

entirely on a Krupp finding, is yet another basis to reverse.
19

trial court’s own findings. Given this clear record, NEMG must identify conditions that will reduce 

or eliminate the impact so that it is no longer unduly adverse. It made no such effort, devoting all 

of its effort to arguing that it does not create an undue adverse impact in the first place—a position 

rejected by the trial court. But neither NEMG nor the trial court offered any alternative of its own, 

instead relying on wishful thinking in the place of actual evidence. 

¶ 49. Finally, and closely related, the purported condition isn’t really a condition at all; 

it’s a more detailed statement of the obligations NEMG has under 10 V.S.A. § 6086(c)(8). It 

describes the outcome to be avoided, but says nothing about the means to achieve that outcome. 

Conditions to mitigate undue adverse impacts typically include tangible requirements designed to 

promote the statutorily-required end, not merely restatements of the end itself.

¶ 50. The consequence of the trial court’s approach is to reconfigure the relationship 

between environmental permitting and enforcement by shifting to the enforcement process 

questions that are supposed to be addressed in the first instance at the permitting stage. That would 

significantly impinge on the rights of interested parties, such as neighbors. Act 250 affords party 

status to adjoining property owners and others with a particularized interest in connection with 

permitting proceedings. 10 V.S.A. § 6085(c)(1)(E); see also In re Preseault, 130 Vt. 343, 348-49, 

292 A.2d 832, 835-36 (recognizing Legislature’s intent to include adjoining property owners in 

Act 250 proceedings at all levels). By contrast, although interested parties may participate in 

enforcement proceedings, “they are without the right to initiate such proceedings or raise 

additional violations.” In re Treetop, 2016 VT 20, ¶ 13 n.4. Instead, it “falls to the NRB . . . to 

determine whether violations of Act 250, or permits issued thereunder, exist and to exercise the 

discretion” to initiate enforcement actions. Id. ¶ 13; see also 10 V.S.A. § 6027(g) (assigning the 

NRB discretion to initiate enforcement on matters related to land use permits). By shifting the 

question of whether and how NEMG can comply with its obligation not to emit objectionable 

odors to the enforcement stage, the trial court’s approach deprives neighbors of their only certain 

opportunity to present evidence of the impact of the plant’s operation on them, and to insist that 
20

the asphalt plant not be permitted if it cannot be operated in a way that does not cause undue 

adverse impacts. That would undermine the Legislature’s intent to afford a right of participation 

to adjoining landowners and others with a particularized interest through the permitting process. 

¶ 51. As noted above, the primary focus of the hearing below as it related to the odors 

from the asphalt plant was the question whether neighbors sustained their burden to demonstrate 

an undue adverse impact. The trial court concluded that they had. I would hold that in the face of 

an established undue adverse impact, the burden shifts to the proponent of a permit to propose 

conditions to ameliorate the impact so that it is no longer unduly adverse, and to demonstrate the 

likely efficacy of those conditions. I would remand to the trial court for a hearing on this question.

¶ 52. For these reasons, I respectfully dissent.

¶ 53. I am authorized to state that Judge Carlson joins this concurrence and dissent.

Associate Justice