1 STATE OF VERMONT ENVIRONMENTAL COURT

} In re RCC Atlantic, Inc., and Sousa } Doc ket No. 163-7-08 Vtec (Appeal of Jones & Leinoff) 1 } (Act 250 party status appeal) }

Decision on Multiple Motions RCC Atlantic, Inc., originally doing business as Un icel (“Applicant”), sought permit authority to install panel antennas on a pre-existi ng silo owned by Mary Sousa at 352 Bolton Road in the Town of Cabot (“Town”). When concern w as expressed over the plan to install equipment inside the silo, Applicant amended its pl ans by incorporating the recommendation that it install an equipment shed adjacent to the silo, surrounded by a fence. Applicant next sought an Act 250 permit for its pro posed wireless communications facility; the revised plans it submitted to the Dis trict 5 Environmental Commission (“District Commission”) included the recommended relocation of the support equipment into the proposed equipment shed, to be installed adjacent to the pre -existing silo. Upon review of Applicant’s Act 250 application, schedules, and supporting material s, the District Commission gave notice of its determination pursuant to Rule 51 of the Act 250 Ru les that there was a “demonstrable likelihood that the project will not present signif icant adverse impact under any of the 10 criteria of 10 V.S.A. Section 6086(a)” and that the applicat ion would therefore be treated as a minor application 2 and a proposed permit would issue. Act 250 Rules 51(A) and (B). 3 Upon receiving the District Commission’s Rule 51 no tice as to its determinations on Applicant’s Act 250 application, Appellants Wendy J ones and Andrew Leinoff (“Neighbors”)

1 The Court first captioned this matter as “In re J ones & Leinoff Act 250 Party Status .” We have now corrected the caption to more accurately reflect the project appl ication and procedural history at issue in this app eal.

2 One consequence of an Act 250 application being d eemed “minor” is that (unless someone requests and is granted a hearing) the application can be granted and a per mit issued without a hearing, based upon the Distri ct Commission’s determination “that the project will n ot present significant adverse impact under any” Ac t 250 criteria. Act 250 Rules 51(A) and (B)(3)(a). One further consequence of such a determination is that no findings of fact or conclusions of law need to accompany the Ac t 250 permit. Act 250 Rule 51(B)(3)(b).

3 The Act 250 Rules were promulgated by the Vermon t Natural Resources Board pursuant to 10 V.S.A. § 6 025(b). As we have noted in other decisions, the Act 250 Ru les replaced the former Environmental Board Rules. See, e.g., Dover Valley Trail , No. 88-4-06 Vtec, slip op. at 2 n.3 (Vt. Envtl. C t. Jan. 16, 2007) (Durkin, J.). The new Act 250 Rules took effect on May 1, 2006, and the latest ro und of updates to those Rules went into effect on O ctober 3, 2007. Although further amendments to the Act 250 R ules are currently under consideration, we are dire cted to “apply[] the substantive standards that were applic able before the tribunal appealed from,” 10 V.S.A. § 8504(h), which in this case requires us to apply the current version of the Act 250 Rules.2

filed a timely request with the District Commission for a hearing and petitioned that they be granted party status under Act 250 Criteria 1(A), 1 (B), 8, and 10. See 10 V.S.A. §§ 6086(a)(1)(A), 1(B), 8, and 10. 4 After conducting its deliberations on Neighbors’ hearing request and party status petition, the District Com mission issued its July 1, 2008 Memorandum of Decision, denying Neighbors’ hearing request and party status petition. Neighbors thereafter filed a timely appeal with this Court. 5

The Court conducted its initial conference in this appeal on September 22, 2008, which was followed by the initial Scheduling Order of Oct ober 7, 2008, in which the Court established deadlines for the filing of initial pre-trial motio ns and statements of undisputed material facts. In response, the parties have filed a joint statement of undisputed material facts, additional statements of material facts, and three preliminary motions: 1. Neighbors’ motion for party status; 2. Applicant’s motion for summary judgment as to Ne ighbors’ party status; and 3. Applicant’s motion to dismiss Questions 2 and 3 from Neighbors’ Statement of Questions. 6 In light of both parties’ filings and the Joint Sti pulation of Undisputed Material Facts that was submitted, we consider Neighbors’ initial motio n for party status as one for summary judgment on that issue. See V.R.C.P. 12(c). Furth er, we understand both parties to be recommending that we first address the legal questi on of whether Neighbors are entitled to party status in this proceeding, and only then move on to the substantive legal questions of whether Applicant is entitled to summary judgment on the is sues raised in Neighbors’ Statement of Questions. We intend to follow the parties’ recomm endation in our discussion below. 7

4 As noted in more detail below, Neighbors current ly seek party status only under Criteria 8 and 10.

5 Neighbors are represented in this appeal by Jared M. Margolis, Esq.; Applicant is represented by Wil liam J. Dodge, Esq. No other party has entered an appearan ce in this appeal.

6 We note that Applicant also requested dismissal of Neighbors’ Question 4 from their Statement of Qu estions. Neighbors subsequently agreed to the dismissal of Q uestion 4, which was noted in this Court’s Entry Or der of September 17, 2008.

7 Applicant asserts another preliminary issue for c onsideration—namely, that Neighbors’ appeal should be dismissed for violating the requirement that a moti on for party status be filed at the same time as a notice of appeal in an appeal such as this one. See V.R.E.C.P. 5(d) (2). However, we note that in this particular case , the Court specifically granted additional time to Neighbors i n the October 7, 2008 Scheduling Order, which asked that Neighbors submit their party status motion (and any other pretrial motions) by October 31, 2008—a dead line that Neighbors met. Given that our decision below dismi sses Neighbors’ appeal based on other grounds, we d o not reach the issue of whether this appeal could also b e dismissed under Rule 5(d)(2) of the Vermont Rules of Environmental Court Proceedings.3 Factual Background 8

1. Mary Sousa owns a developed parcel of land containi ng about 42.9 acres, improved with farm structures, at 352 Bolton Road in the Town of Cabot. This property is located in the Low Density Residential and Agricultural Zoning Distric t. 2. Applicant is a federally licensed communications pr ovider; the area in which it is authorized to operate includes the Town of Cabot.
3. Neighbors own and reside at property located at 561 Bolton Road that adjoins the Sousa property. 9

4. Applicant is seeking permitting authority to instal l six panel antennas, each about eight feet tall, on the exterior face of one of the two p re-existing silos on the Sousa farm property. Each panel antenna would be flush-mounted on the ex terior face of the pre-existing silo, fifteen feet below the dome of the eighty-foot silo.
5. Applicant first planned to house the support equipm ent, including fans, air conditioning, and back-up power generation equipment, wholly with in the silo. A door would be cut into the base of the silo for access to the support equipmen t. 6. When one or more individuals expressed concerns dur ing the municipal permit hearing about whether the silo’s possible future use for ag ricultural purposes would be permanently compromised by the placement of the equipment and c utting of an access door, Applicant agreed to amend its plans by including a free-standing equ ipment storage shed, fabricated off-site, next
to the silo. Due to a directive contained in the t elecommunications provisions of Article 5 of the Town of Cabot Zoning Bylaws (“Bylaws”), Applicant i ncluded in its plans a six-foot high fence to surround the proposed 10’ by 12’ equipment stora ge shed. See Bylaws § 5.7(c).
7. On March 12, 2008, Applicant filed an application w ith the Town Zoning Board of Adjustment (“ZBA”) for a variance and conditional u se approval for its proposed installations at the Sousa property.
8. Applicant requested a variance from a portion of th e Bylaws specifically regulating telecommunication facilities—Bylaws Article V—which includes a provision that requires “a telecommunications facility or tower, including guy -wire anchors and protective fencing” to be

8 All facts recited or referenced here are undisput ed unless otherwise noted. In our review of each o f the pending motions, we view the material facts in a light most favorable to the non-moving party. Toys, Inc. v. F.M. Burlington Co. , 155 Vt. 44, 48 (1990).

9 Neighbors also own nearby property at 208 Bolton Road.4

located no “[c]loser than 1,500’ horizontally to an y structure existing at the time of application which is used as a primary or secondary residence, to the property of any school (both public and private), or any other public building.” Bylaws § 5.7(M)(2). Mrs. Sousa’s primary residence is across Bolton Road from the proposed silo site and is about 289 feet from the base of the silo. The silo upon which the proposed wireless antennas are to be attached is less than 1,500 feet from Neighbors’ residence and also less than 1,500 feet from a second residence Neighbors are renovating and plan to lease for residential purpos es. 9. On June 6, 2008, the ZBA granted (with conditions) Applicant’s request for conditional use approval. In response to Applicant’s variance request, the ZBA determined that the placement of the panel antennas on the pre-existing farm silo rendered the impact of this telecommunications facility of little or no (“de mi nimus”) impact and therefore not needing a specific variance. See 24 V.S.A. § 4412(9).
10. Neighbors and others filed an appeal of both ZBA de terminations; that appeal is a companion case to this matter and has been assigned Docket Number 162-7-08 Vtec. Although that case was initially removed to the United State s District Court for the District of Vermont, it was recently remanded to this Court.

Discussion In this Act 250 appeal, Neighbors have expressed th e following two general concerns about Applicant’s proposed facility: 10

1. Will noise produced by the fan, cooling systems, an d back-up generator in the equipment shed violate Act 250 Criterion 8 (10 V.S. A. § 6086(a)(8))? Neighbors specifically ask, “How will noise be controlled, es pecially if the equipment is not in the silo?” 11

2. Will characteristics of the proposed wireless facil ity and supporting equipment violate provisions of the Town of Cabot Town Plan ( “Town Plan”) and thereby be in violation of Act 250 Criterion 10 (10 V.S.A. § 6 086(a)(10))? In particular, do the following aspects of the project violate the To wn Plan: (i) the proximity to nearby residences; (ii) the aesthetics of the fence surrounding the proposed equipment shed; and (iii) the potential negative im pact upon property values, due to alleged negative perceptions the general public may have as to wireless facilities, including the potential harm from elect romagnetic emissions?

10 We have summarized these concerns from Neighbors’ Statement of Questions, their motion for party sta tus, the parties’ Joint Stipulation, and Neighbors’ Responsi ve Statement of Material Facts.

11 Joint Stipulation Ex. LJ-1 (Neighbors’ May 1, 200 8 request for a hearing and party status, filed wit h the District Commission Assistant Coordinator).5

Although Neighbors’ initial letter to the District Commission expressed concerns regarding Act 250 Criteria 1(A) (headwaters) and 1( B) (waste disposal), Neighbors no longer seek party status under those criteria. Indeed, Ne ighbors’ Statement of Questions only raises
noise and aesthetics issues under Criterion 8 and i ssues regarding conformance with the Town
Plan under Criterion 10. As we have often noted, this Court can only address those issues that have been preserved for our review in a Statement of Questions. V.R.E. C.P. 5(f); see also Vill. of Woodstock v.
Bahramian , 160 Vt. 417, 424 (1993). Thus, our review here i s limited to the specific issues raised by Neighbors under Criteria 8 and 10. In response to Neighbors’ expressed concerns about noise, Applicant filed the manufacturer’s specifications concerning the noise levels to be emitted by the proposed support equipment. In response to Neighbors’ concerns abou t aesthetics and conformance with the Town Plan, Applicant filed documents detailing the fenci ng required by the ZBA, and an appraiser’s report that suggests that recent area sales data do not show a negative impact upon property values attributable to existing or recently install ed wireless facilities. We are asked in this appeal to first address the pr eliminary question of whether Neighbors should be afforded party status and there after permitted to participate in a hearing on the merits of Applicant’s Act 250 application. Our analysis of this preliminary procedural issue is governed by the applicable Act 250 Rules. The means by which Act 250 applications are reviewe d differs from land use litigation in general and municipal appeals in particular. Pursu ant to Act 250 Rule 51, a district commission, assisted by its district coordinator, is directed t o first determine whether a pending application contains sufficient supporting documentation so tha t it may be reviewed as a “minor application.” Act 250 Rule 51(A). In making this determination, a district commission is directed to consider the following:
1. whether there are any “cognizable issues” under any of the applicable Act 250 criteria left unaddressed by the application;
2. whether any additional state permits identified und er Act 250 Rule 19 have or will be obtained by the applicant;
3. the extent to which the project has been reviewed b y an appropriate municipal panel, pursuant to its land use regulations;
4. whether the district commission can draft a propose d permit and permit conditions that address any potential areas of conc ern; and6

5. whether the applicant has thoroughly addressed each of the applicable Act 250 criteria.
Act 250 Rule 51(A)(1)–(5). When a district commission makes the necessary Rule 51 conclusions, the pending application is approved in a summary fashion: no he aring is held, no findings or conclusions are rendered, and a proposed permit is circulated to pa rties entitled to notice. Act 250 Rule 51(B). An interested person may request a hearing upon an application being approved under these summary proceedings. Act 250 Rule 51(D). Su ch a hearing request “shall state the criteria or subcriteria at issue, why a hearing is required and what evidence will be presented at the hearing.” Act 250 Rule 51(B)(3)(d). The request f or a hearing must also be accompanied by a petition for party status. Act 250 Rule 51(B)(3)(e ). When a hearing is requested, the district commissio n must follow specific steps in

response: Upon receipt of a request for a hearing, the distri ct commission shall determine whether or not substantive issues have been raised under the criteria and shall convene a hearing if it determines that substantive issues have been raised. If the district commission determines that substantive iss ues have not been raised, the district commission may proceed to issue a decision without convening a hearing. If a hearing is convened, it shall be limited to th ose criteria or sub-criteria identified by a statutory party, successful petitio ner for party status, or by the district commission.
Act 250 Rule 51(D). These provisions of Rule 51 govern this Court’s rev iew of Neighbors’ party status and hearing requests, since this Court is directed to “ apply[] the substantive standards that were applicable before the [district commission and] sha ll hold a de novo hearing on those issues which have been appealed.” 10 V.S.A. § 8504(h). W hile the right to appeal a district commission determination is generally restricted to one who obtained party status and participated in the district commission proceedings , 10 V.S.A. § 8504(d)(1), a person denied party status by the district commission is entitled to appeal that determination to this Court under 10 V.S.A. § 8504(d)(2)(B). Neighbors have requested that we summarily determin e that they are entitled to party status in this proceeding; Applicant has requested that we summarily determine that Neighbors are not entitled to party status. Thus, we have co mpeting motions for summary judgment. In situations where both parties move for summary judg ment, we must analyze each motion7

separately and grant all reasonable doubts and infe rences to the party opposing that particular motion. See, e.g., In re Morris 7-Lot Subdiv. , No. 71-4-07 Vtec, slip op. at 7 (Vt. Envtl. Ct. N ov. 26, 2007) (Wright, J.) (citing Alpine Haven Prop. O wners Ass’n, Inc. v. Deptula , 2003 VT 51, ¶ 8, 175 Vt. 559); In re Ilges Zoning Permit , No. 232-9-06 Vtec, slip op. at 3 (Vt. Envtl. Ct. Apr. 27, 2007) (Durkin, J.) (citing Toys, Inc. v. F.M. B urlington Co. , 155 Vt. 44, 48 (1990)). In our search for whether a dispute as to a materia l fact exists, we look to the parties’ representations. But in determining whether a repr esentation presents a legitimate factual dispute, we are mindful that parties cannot rely “o n mere allegation . . . to rebut credible documentary evidence or affidavits” presented by th e moving party. Robertson v. Mylan Labs.,
Inc. , 2004 VT 15, ¶ 15, 176 Vt. 356 (citing Gore v. Gre en Mountain Lakes, Inc. , 140 Vt. 262, 266 (1981)). Rather, to survive summary judgment, the non-moving party “must respond with specific facts that would justify submitting her cl aims to a factfinder.” Id . (citing V.R.C.P. 56(e)). If a non-moving party does not present “specific facts” to refute the material fa cts presented by the moving party, and the moving party ’s facts are sufficient to satisfy the legal standard at issue, we understand the directive of R obertson to be that summary judgment must be entered for the moving party. Id . Here, Applicant’s motion for summary judgment is accompanied by supporting affidavits and documentat ion. Neighbors therefore faced an increased duty under Robertson to present credible documentation or affidavits to support their allegations. If they fail to do so, we must render summary judgment in Applicant’s favor. Our analysis of the parties’ representations here l eads us to the conclusion that Neighbors have failed to present specific facts to refute App licant’s representations and that the applicable law directs that we deny Neighbors’ request for par ty status. See id

. The parties have spent considerable effort debating whether the burden of proof on the ultimate legal issues has shifted from Applicant to Neighbors. We believe the legal issue here to be of a more preliminary nature. In an instance wh ere a district commission determines that Act 250 Rule 51 has been satisfied, such that the appli cant’s presentation is so complete as to render a hearing unnecessary, an opposing party is afforde d an opportunity to contest that determination, but may only succeed in receiving th at hearing upon a showing of “what evidence will be presented at the [requested] hearing” to re fute the materials put forth by the applicant. Act 250 Rule 51(B)(3)(d). The burden of making thi s initial evidentiary showing is placed upon8

the requesting party, so that the district commissi on (in the first instance) or this court on appeal may “determine[] that substantive issues have been raised.” Act 250 Rule 51(D). Neighbors express concerns that initially appear to be sincere and legitimate, both as to the noise that might be produced by Applicant’s sup port equipment and the fear that its presence may devalue their property in violation of the Town Plan. But the record is void of documents or affidavits from Neighbors that provide a factual fo undation for those allegations, or even an offer of proof as to “what evidence [Neighbors would] pre sent[] at the hearing.” Act 250 Rule 51(B)(3)(d). Applicant, on the other hand, has pre sented manufacturer documentation on the specific noise emission estimates for the proposed equipment, an affidavit from the construction manager for the installation company, specifically referring to the estimated noise emissions, and an appraisal report and supporting market data refu ting Neighbors’ assertion that the proximity
of this wireless transmission facilities will have a negative impact on property values. We have found no documents or affidavits presented by Neighbors in response to these filings. Although Neighbors make reference in a fo otnote in their response brief that if called upon to substantiate their concerns about noise, “t hey would most likely produce a noise study.” This general reference leaves us to wonder whether Neighbors have yet to commission such a study, and what its findings could possibly be. Th is type of statement on its own is insufficient to meet the requirements of Act 250 Rule 51(B)(3)(d ). Neighbors are correct that they do not face a speci fic directive to commission a noise study simply to be granted party status. Rather, a s with any offer of proof, all that is required at this stage is a showing that evidence exists, “not a submission of the evidence itself.” R.E. Bean Constr. Co. v. Middlebury Assocs. , 142 Vt. 1, 7 (1982). But if there is to be any m eaning to the requirement in Act 250 Rule 51(B)(3)(d) that a part y requesting a hearing must state what evidence would be presented at that hearing, Neighb ors must at least state that their fears and
concerns have some factual basis and are not based solely on speculation. Here, the record is devoid of any representation as to what Neighbors w ould most likely produce at a hearing. We are left to speculate upon whether there is any fac tual basis for Neighbors’ concerns, since they have presented no affidavit, documentation, or othe r submission that provides at least some degree of specificity as to what their evidence wou ld be. Indeed, our Supreme Court has stated that this type of threshold showing, containing som e degree of factual specificity, is required when called upon to make an offer of proof:9

[A]n offer of proof must be specific and concrete. It must indicate what further testimony or evidence will be introduced, to show w hat particular circumstances or conditions, and for what purpose it is offered. An offer must be sufficiently explicit to give the trial court an understanding o f the materiality of the [to-be-] offered evidence. These standards are generally ta ken to require that witnesses’ names and addresses be given, that acts or items be specifically described, and that the matter to be proved be carefully delineate d.
Id . (internal citations omitted). In the absence of any specific evidence put forth b y Neighbors, by way of credible documentation or affidavit, or even an affidavit or other offer of proof as to what evidence would be produced at a hearing and what that evidence wou ld say regarding cognizable issues under Criteria 8 or 10, we must conclude that Neighbors h ave failed to fulfill the offer of proof requirements imposed upon them by Act 250 Rule 51. We therefore conclude that Neighbors’ requests for party status under Act 250 Criteria 8 and 10 must be DENIED

. 12

Conclusion For all the reasons more fully discussed above, we GRANT summary judgment to Applicant and DENY Neighbors’ request for party status. We therefore DECLINE to direct that a hearing be held in this matter, and we conclude t hat the proposed Act 250 permit circulated by
the District Commission should be issued. This concludes the current proceedings in this appe al before this Court. A Judgment Order accompanies this Decision.

Done at Newfane, Vermont, this 8th day of May 2009.

______________________________________ Thomas S. Durkin, Environmental Judge

12 Having reached this conclusion based upon Act 250 Rule 51 and V.R.C.P. 56, we need not reach the que stion of whether Neighbors’ claim for party status based upo n an alleged negative impact upon property values f rom a perceived fear of electromagnetic transmissions is preempted by the Telecommunications Act of 1996 (47 U.S.C. § 332(c)(7)(B)(iv)).