1 STATE OF VERMONT

ENVIRONMENTAL COURT

} In re: Village Associates Act 250 Land Use Permit } Docket No. 6-1-08 Vtec (Appeal of Village Associates, LLC) } }

Decision and Order

Appellant Village Associates, LLC appealed from a de cision of the District 4 Environmental Commission, granting Appellant’s Act 2 50 permit for an affordable housing development, but requiring an off-site mitig ation fee under 10 V.S.A. §§ 6086(a)(9)(B)(iv) and 6093. Appellant is represe nted by Heather R. Hammond, Esq.; and the Agency of Agriculture, Food and Markets is r epresented by Assistant Attorney General Diane E. Zamos, Esq. The Land Use Panel of the Natural Resources Board has informational status through John H. Hasen, Esq. but did not file memoranda or otherwise participate in the merits of this appeal. The project proceeded during the pendency of this l itigation, as the only issue was whether or not an off-site mitigation fee would be required to be paid. An evidentiary hearing was held in this matter before Merideth Wright, Environmental Judge. A site visit was taken by Judge Wright alon e, by agreement of the parties, including, at the request of the parties, driving to or past a number of area agricultural operations mentioned in evidence. The parties were given the opportunity to submit written memoranda and requests for findings. Upon consideration of the evidence as illustrated by the site visit, and of the written me moranda and requests for findings filed by the parties, the Court finds and concludes as follows.2

Appellant-Applicant proposed 1 a multi-unit affordable housing development, to be known as Brookside Village, on the 25.8-acre parc el of property that is the subject of this appeal. The project was granted an Act 250 pe rmit; the only issue in this appeal is whether the project site contains primary agricultu ral soils as defined in Act 250, 10 V.S.A. § 6001(15), which in turn governs whether the project must pay an off-site mitigation fee. 2 See 10 V.S.A. §§ 6086(a)(9)(B)(iv), 6093. The roughly triangular property is located in the t owns of Colchester and Winooski. It is bordered on its westerly side by t he Winooski River and on its northerly side by Morehouse Brook. The long southeasterly si de of the property has access to the surrounding street network via its frontage on a cu l-de-sac turnaround at the end of

West Street, a residential street in Winooski. A ha mmerhead turnaround ends near the property at the end of Hickok Street, another resid ential street one block north of West Street, but the project plans do not propose any acc ess from the project property onto

Hickok Street. West Street has access to Malletts Bay Avenue, the primary through

street in the area, via Pine Street. Pine Street i s relatively steep at its intersection with Malletts Bay Avenue.

In addition to the West Street access, the northeast erly corner of the property has two segments of frontage on Malletts Bay Avenue, fro m two existing residential lots that became part of the project property as a whole . The property has a total of approximately 300 feet of frontage onto Malletts Ba y Avenue. The proposed project roadway to serve more than forty dwelling units wil l have access directly onto Malletts Bay Avenue via the longer, more easterly segment of that frontage; the project has a secondary access onto the West Street turnaround.

1 The project and project property has since been t ransferred to Housing Vermont, which has not entered an appearance.

2 The parties have also agreed as to the amount of that fee, if this decision concludes that it must be paid.3

The parties do not dispute that 12.88 acres of the property contain soils that are

classified on the Natural Resources Conservation Se rvice soil maps as farmland of “statewide importance.” 3 The parties do not dispute that 2.03 acres of su ch soils are located so that they are unusable, and therefore do not constitute primary agricultural soils. The parties agree that that 10.85 acres of the 12.88 acres of quality soils, on a plateau above the floodplain of the Winooski River, will be affected by the project. That is, Applicant does not dispute the quality of the so ils on the project property, their physical and chemical characteristics, or their soi l map classifications. Rather, Applicant disputes whether other factors, in particu lar the property's existing forest cover, surrounding land uses, and access issues, have already reduced its agricultural potential so that no mitigation fee should be requi red under 10 V.S.A. §§ 6086(a)(9)(B)(iv) and 6093. The 10.85 acres of the project property now contain s a healthy eastern woodland, including some stands of mature trees as well as re generating eastern woodland of predominantly hardwood species. The mature trees h ave value if harvested for timber;

the dollar value of that timber was not established in evidence. The regenerating forest and the stumps and slash from the mature trees woul d have value if harvested for wood chips to supply the nearby McNeil electric gen erating plant; the dollar value of the wood chips was not established in evidence. Th ere is no technical or physical impediment to the removal of trees from the 10.85-a cre portion of the project property. The 10.85 acres of the project property was farmed in the past, but is too small to house a livestock operation such as a dairy farm. Daily or near-daily access to the property for milk trucks, manure spreaders, or large tractors via West Street through the adjacent residential neighborhood would be inco mpatible with the residential use of

3 To some extent, the soil map classifications thems elves account for whether the soils are too rocky, too steep, or have too shallow a depth to bedrock, to be good agricultural soils.4

that neighborhood. The 10.85 acres of the project property could be used to grow hay, or to grow vegetables and fruits, all of which requi re far less frequent access to the site for large machinery. A working equine facility with an indoor riding rin g is located on Malletts Bay

Avenue in Colchester less than a mile north of the project property. A working dairy farm is located on Malletts Bay Avenue in Colcheste r approximately a mile-and-a-third north of the project property. The dairy farm work s land on both sides of the road. A large successful diversified fruit and vegetable fa rming operation, including a retail farm store, is located in Colchester approximately 2 1⁄2 miles north of the project property. A community garden, located less than hal f a mile to the south in downtown Winooski, is not a commercial agricultural operation

. Over the last four years, a small diversified vegeta ble farming operation in

Shelburne has succeeded in two successive locations , farming on three to four-and-ahalf acres, with the assistance of greenhouses and p olyethylene tunnels or cold frames to extend the growing season. The farmer had previ ously run a similar small operation

in Massachusetts that also included soft fruits suc h as blueberries and raspberries. The Shelburne farming operation is successful through a combination of retail sales at farmers’ markets, specialty sales to restaurants, and sales of CSA (Community Supported Agriculture) shares, in which each member pays a share price in advance of the growing season and is entitled to a share of th e produce each week during the growing season. Location close to a market created by the population of a relatively

urban area contributes to the success of such a sma ll agricultural operation, whether due to access to farmers’ markets, or due to buyers’ access to an on-site or nearby farm stand, pick-your-own operation, or CSA operation. Similarly, vegetable farming is successful in Burlin gton’s Intervale, across the Winooski River from the project property, even thoug h the Intervale agricultural land is in the floodplain and precluded from having on-site structures. It is run as a5

cooperative in which the participants share in the necessary agricultural machinery, greenhouse space, and other resources. A small diversified specialty vegetable and soft fr uit farming operation can therefore succeed in the Chittenden County metropol itan area, and could succeed on the 10.85-acre portion of the project property if t hat portion of the property were cleared of trees. If cleared, the 10.85-acre portion of the project property could also contribute to nearby agricultural operations if planted in hay or used for pasture.

As defined in 10 V.S.A. § 6001(15), the term "primar y agricultural soils" means: soil map units with the best combination of physica l and chemical characteristics that have a potential for growing f ood, feed, and forage crops, have sufficient moisture and drainage, plant n utrients or responsiveness to fertilizers, few limitations for c ultivation or limitations which may easily be overcome, and an average slope t hat does not exceed 15 percent. Present uses may be cropland, pasture, r egenerating forests, forestland, or other agricultural or silvicultural u ses. However, the soils must be of a size and location, relative to adjoinin g land uses, so that those soils will be capable, following removal of any iden tified limitations, of supporting or contributing to an economic or commer cial agricultural operation. Unless contradicted by the qualificatio ns stated in this subdivision, primary agricultural soils shall includ e important farmland soils map units with a rating of prime, statewide, o r local importance as defined by the Natural Resources Conservation Servi ce (N.R.C.S.) of the United States Department of Agriculture (U.S.D.A.). If a project is proposed for primary agricultural s oils, 10 V.S.A. § 6086(a)(9)(B) (criterion 9(B)) requires the applicant to demonstr ate either that the project “will not result in any reduction in the agricultural potenti al of the primary agricultural soils,” or that the project will comply with subsections (i) t hrough (iv) of criterion 9(B). In the present case, the parties have entered into a mitiga tion agreement in compliance with subsections (i) through (iv), and with 10 V.S.A. § 6 093, to take effect if the other prerequisites are met.6

Thus, in the present case the Court must first dete rmine whether the 10.85 acres of potentially primary agricultural soils have “few limitations for cultivation or limitations which may easily be overcome.” 10 V.S. A. § 6001(15) (first sentence). If so,

the Court must next determine whether the 10.85 acr es of potentially primary agricultural soils are “of a size and location, rela tive to adjoining land uses, so that those soils will be capable, following removal of any iden tified limitations, of supporting or contributing to an economic or commercial agricultu ral operation.” Id . (third sentence). If so, the project contains primary agricultural soi ls, and the remaining question is whether the applicant has demonstrated that the pro ject “will not result in any reduction in the agricultural potential of the prim ary agricultural soils,” under the first prong of 10 V.S.A. § 6086(a)(9)(B).

Ease of Overcoming Limitations to Cultivation Applicant argues that the existing forest cover of the 10.85 acres of potential primary agricultural soils is a limitation for cult ivation which cannot easily be overcome. However, under the present statute, the pr esence of mature or regenerating forest does not constitute the type of limitation f or cultivation that would preclude soils from meeting the definition of “primary agricultura l soils.” Rather, the definition in 10 V.S.A. § 6001(15) was amended in 2006 to expressly include soils on which the present uses are “regenerating forests, forestland, or other . . . silvicultural uses,” as well as to include soils at present in use for cropland, pastur e, or other agricultural uses. In interpreting statutes, the Court’s primary goal i s to give effect to the intent of the legislature, looking first to the plain language of the statute to determine that intent.

State v. Stell , 2007 VT 106, ¶ 12, 182 Vt. 368. By its plain langu age, the definition of “primary agricultural soils” now includes soils (wi th the requisite physical and chemical characteristics as shown by the soils maps or by other soils testing) that are at present forested. It specifically includes soils c overed by the type of regenerating forest7

on the project site, as well as soils covered by mat ure forest, or by trees grown as a crop. This language was specifically added when 10 V.S.A. § 6001(15) was amended in 2006. 2005, No. 183 (Adj. Sess.), § 6. The clear statutory intent is now 4 to include, as potential primary agricultural soils, those soils that are for ested at the time an application is

submitted. Applicant also argues that the cost of removing the trees on the site to convert it to agricultural use should be considered to be a li mitation for cultivation which cannot be easily overcome. Applicant argues essentially t hat the cost of removing the trees on the site would not warrant their removal for the pu rpose of converting the property to an agricultural use, given the economic return of an agricultural operation, even though trees would also have to be removed for the propose d project. Beyond the plain meaning of the statute as includin g soils with existing forest cover, the overall structure of the statutory treatm ent of primary agricultural soils shows that the cost of overcoming a limitation for cultivation was not intended to be considered in determining whether such a limitation may “easily” be overcome. See Wright v. Bradley , 2006 VT 100, ¶ 7, 180 Vt. 383 (citing In re Estate o f Cote , 2004 VT 17, ¶ 10, 176 Vt. 293) (explaining that statutes should be interpreted as a whole in order to give effect to every part); In re Miller , 2009 VT 36, ¶ 14 (citing State v Brennan , 172 Vt. 277, 280 (2001)) (explaining that statutes should be interpreted to avoid surplusage). Rather, the structure of § 6001(15) shows that the r equired analysis of the “ease” of overcoming a limitation must be intended to addr ess the practical or technical difficulty of overcoming the limitation, such as whe ther waterlogged soils may be drained, or whether the existence of a gully prevent s logging equipment from reaching the site, rather than the economics of removing it f or agriculture as compared with

4 Decisions of the former Environmental Board decide d prior to the 2006 amendment are therefore inapposite.8

removing it for development. The economic feasibil ity of an agricultural operation on the project site is instead addressed two sentences later in the same definition of primary agricultural soils, where the statute requir es an analysis of an agricultural operation’s economic feasibility “following removal of any identified limitations.” 10 V.S.A. § 6001(15) (third sentence) (emphasis added)

. If economic feasibility were to be considered in an alyzing the “ease” of overcoming limitations, the remainder of § 6001(15) would instead become surplusage

in most instances, which is a result the Court must avoid in interpreting statutes. In re

Miller , 2009 VT 36, ¶ 14. That is, it would rarely, if ever , be as or more economically advantageous to clear heavily forested land for agr iculture as compared with the immediate economic return of clearing it for develo pment. Such an analysis would automatically exempt most forested agricultural soi ls from Criterion 9(B) analysis, contrary to the statutory intent. Rather, it harmon izes both the first and the third sentences of § 6001(15), together with Criterion 9(B ), to first determine the practical or technical ease of overcoming the limitations on agr iculture posed by the forest cover, and then to determine the economic potential for an agricultural operation following removal of any identified limitations. See Wright v. Bradley , 2006 VT 100, ¶ 7 (citing In

re Estate of Cote , 2004 VT 17, ¶ 10). Accordingly, the limitation posed by the forest cove r for the use of the 10.85-acre portion of the project property for agriculture is a limitation that may easily be

overcome.

Capability of Supporting or Contributing to an Econ omic or Commercial Agricultural Operation Given the high quality for agriculture of the soils on the flat 10.85-acre portion of the project property, and their location close to a metropolitan area and also close to several commercial agricultural operations, the 10.8 5-acre portion of the project9

property would be capable, following removal of the trees, of supporting a small diversified vegetable and soft fruit economic agric ultural operation, or of contributing to the nearby commercial vegetable and soft fruit a gricultural operation, or of contributing hay to the nearby economic or commerci al equine or dairy agricultural operation. If the required agricultural machinery could not be kept in a structure on the property, it could be brought to the property as nec essary for soil amendment, 5 planting, and harvesting, via either the Malletts Ba y Avenue entrance or the West Street entrance to the property. Because agricultural mac hinery could enter the property from Malletts Bay Avenue and, even if it were to enter th e property via West Street, would not have to do so frequently, the agricultural use o f the property to raise vegetables, fruits, or hay, would not be incompatible with the a djacent residential neighborhood. The 10.85 acres of the project at issue in the pres ent appeal therefore constitute primary agricultural soils.

Reduction of Agricultural Potential of Soils The parties do not disagree that the project will r esult in the reduction of the agricultural potential of the 10.85 acres of those soils, under the first prong of 10 V.S.A. § 6086(a)(9)(B). Therefore the off-site mitigation payment is required to be paid.

5 As the property would not support or be suitable for a livestock or dairy operation, the incompatibility of frequent manure management t raffic or daily milk truck traffic with the adjacent residential neighborhood does not preclude the agricultural use of the property.10

Accordingly, based on the foregoing, it is hereby ORD ERED and ADJUDGED that the project will result in the reduction of th e agricultural potential of 10.85 acres of primary agricultural soils, for which the already-ag reed amount of off-site mitigation fee is required to be paid.

Done at Berlin, Vermont, this 30 th day of April, 2009.

________________________________________________ _ Merideth Wright Environmental Judge