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STATE OF VERMONT 

SUPERIOR COURT - ENVIRONMENTAL DIVISION 

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Pizzagalli Properties, LLC } 

Mountain View Park SD Act 250 } Docket No. 114-8-12 Vtec 

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Decision on the Merits 

Pizzagalli Properties, LLC (Applicant) obtained Act 250 Land Use Permit #4C1153-6 

(Corrected) (the LUP) from the State of Vermont District 4 Environmental Commission for the 

construction of a two-story, 45,000 square foot medical office building on Lot #6 of the 

Mountain View Office Park subdivision (the Project). Lot #6 is located at 119 Tilley Drive in the 

City of South Burlington (the Property). Brian Armstrong and Lora Wilson (Appellants), the 

owners of an adjoining parcel at 50 Old Farm Road, South Burlington, appeal the LUP and raise 

two questions for the Court to review. Under Act 250, projects are reviewed based on the ten 

criteria of 10 V.S.A. § 6086(a)(1)–(10). Before granting approval under Act 250, we must find 

that the project complies with these criteria. Appellants’ appeal focuses our review on Criterion 

1(B) – Waste Disposal, specifically relating to the construction of an earth berm near Appellants’ 

property to serve as a visual barrier to the Project. Appellants assert that this berm will 

potentially cause surface water runoff impacts to Appellants’ property. 

The Court conducted a site visit to the Property on the morning of the January 10, 2013 

merits hearing. The hearing was held at the Vermont Superior Court, Chittenden Civil 

Division, Burlington, Vermont. Pizzagalli Properties, LLC and its lawyer, W. Scott Fewell, Esq., 

appeared at the site visit and trial. Brian Armstrong, Lora Wilson, and their lawyer, Thomas F, 

Heilmann, Esq., were also present at the site visit and trial. Several of the parties’ witnesses 

attended the site visit and testified during the merits hearing. 

Based upon the evidence presented at trial, including that which was put into context by 

the site visit, the Court renders the following Findings of Fact and Conclusions of Law. 

Findings of Fact 

1. Applicant seeks Act 250 approval for the construction of a two-story, 45,000 square foot 

medical office building on Lot #6 of the Mountain View Office Park subdivision. 

2. Applicant owns Lot #6, which encompasses 13.53 acres and is located at 119 Tilley Drive 

in South Burlington, Vermont. 
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3. Appellants own an adjoining parcel at 50 Old Farm Road, South Burlington, which 

serves as their residence. 

4. In advance of seeking an Act 250 Land Use Permit, Applicant applied for and was 

awarded local approval by the Development Review Board (DRB) of the City of South 

Burlington. 

5. During the local review process, Appellants raised concerns that the Project would have 

aesthetic impacts on their adjoining residence. 

6. Applicant and Appellants discussed options for reducing aesthetic impacts, especially 

those intended to screen Appellants’ back yard and pool from the Project. 

7. The parties considered a few screening options, including a fence and a cedar hedge, but 

ultimately agreed on an above grade soil berm with a hedge row planted along the ridgeline of 

the berm. 

8. Near the conclusion of the local review process, Appellants raised new concerns relating 

to the proposed berm. Specifically, Appellants raised the issue of increased surface water 

runoff impacting their abutting property. 

9. At the conclusion of the local review process, the DRB required Applicant to ensure that 

the berm/hedge did not cause runoff to the detriment of Appellants’ property and provided 

some flexibility to Applicant to satisfy this concern. 

10. In addition to its application for an Act 250 permit for the Project, Applicant has 

obtained the following additional state permits: 

a. Individual Stormwater Discharge Permit No. 3805-INDS.4 (Operational); 

b. Authorization to discharge under General Stormwater Discharge Permit No. 

3805-INDS.4A; 

c. Construction General Permit 3-9020 (Amended 2008); 

d. Authorization of Notice of Intent No. 3805-9020; and 

e. Wastewater System and Potable Water Supply Permit No. WW-4-3801. 

11. Applicant completed a baseline conditions study of the Property and Appellants’ 

property. This included a site visit, investigation of existing topography and surface water 

runoff conditions on both properties, and investigation of the location of Appellants’ septic 

system. 

12. The elevation of Appellant’s septic system and the elevation of the existing conditions of 

the area where the berm is proposed to be located are approximately equal. If the berm, as 
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designed, is put into place, the berm’s elevation will generally be 4 feet higher than existing 

conditions. 

13. The berm’s distance from Appellant’s property ranges from 15 to 20 feet, measured from 

the toe of the slope of the berm to the property boundary. 

14. As designed, the berm is approximately 100 feet along its top ridgeline, is dogleg 

shaped, and its height is approximately 4 feet above grade. 

15. The distance from the center of the ridgeline to its west toe is approximately 23 feet at its 

widest and 18 feet at its narrowest. The distance from the center of the ridgeline to its east toe is

approximately 12 feet at its narrowest. 

16. The total area of the berm is between 1800 to 2300 square feet. 

17. The berm will be seeded, mulched, and ultimately fully covered with grass and a row of 

hedges located along its ridgeline. 

18. The slope of the berm is roughly 4 to 1, allowing it to be mowed. 

19. When designing the berm and its location, Applicant took into consideration runoff 

concerns. 

20. Runoff from the northwestern side of the berm will flow to Appellants’ property; 

however, under present conditions without the berm, runoff from this same area already flows 

to Appellants’ property. 

21. The berm will not cause or direct additional runoff to Appellants’ property. The berm 

will reduce runoff upon Appellants’ property by decreasing the area of the upgradient 

watershed. 

22. Appellants’ existing septic system is a fairly old, rudimentary system. Appellants have 

experienced problems with their septic system and have had it pumped out in the past. 

Appellants do not believe that their system has ever failed. 

23. The southeast corner of Appellants’ property presently experiences continually wet 

conditions. This area is difficult to mow, and Appellants have had difficulty with cedar trees 

dying in this area. 

Conclusions of Law 

In the appeal now before us, the parties’ dispute centers on a soil berm proposed for 

construction in close proximity to Appellants’ property and intended to provide the Appellants 

with a visual screen of the Project. The District Commission conditioned its grant of an Act 250 
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land use permit on construction of the berm, pursuant to Criterion 1(B) – Waste Disposal. The 

berm condition states as follows: 

Prior to substantial completion of construction of the Project, the permittee shall 

construct an earth berm to the northwest of the proposed building and ensure 

that the berm will not direct additional runoff onto the adjacent property located 

at 50 Old Farm Road (Appellants’ Property). The berm shall be modified, as 

necessary, to provide a continued visual barrier and to direct runoff away from 

the adjacent property. 

Land Use Permit 34C1153-6 (Corrected), Condition #26. 

10 VSA 6086(a)(1)(B), entitled “Waste disposal,” provides that “[a] permit will be 

granted whenever it is demonstrated by the applicant that, in addition to all other applicable 

criteria, the development will meet any applicable health and environmental conservation 

department regulations regarding the disposal of wastes.” Criterion 1(B) does not directly 

relate to surface runoff issues. In the case before us, however, surface runoff could potentially 

impact Appellants’ neighboring property, including Appellants’ septic system. Furthermore, 

the District #4 Environmental Commission decision on appeal imposes Condition #26 under 

Criterion 1(B). For these reasons, Appellants’ Statement of Questions raises their concerns over 

the berm and surface runoff as falling under Criterion 1(B). 

In pursuit of its compliance with Criterion 1(B), Applicant has obtained the following 

state permits: (1) Wastewater System and Potable Water Supply Permit No. WW-4-3801 issued 

on March 1, 2012; (2) Stormwater Discharge Permit No. 3805-INDS.4A issued on June 13, 2012; 

and (3) Construction General Permit 3-9020 (Amended 2008) issued on May 11, 2012. 

Appellants do not offer evidence to dispute that Applicant obtained these permits, nor do 

Appellants offer evidence to contradict or otherwise challenge the validity of these permits. 

Applicant asserts that these other state permits constitute a presumption pursuant to Act 

250 Rule 19 that the Project and its “disposal of wastes” meets applicable Environmental 

Protection Rules, and therefore, Appellant asserts that the Project satisfies Act 250 Criteria 1(B). 

We agree that state permits can and do create a presumption of compliance with Act 250 

criteria. See Re: Brewster River Land Co., LLC., No. 5L1348-EB, Findings of Facts, Conclusions 

of Law, and Order, at 11 (Vt. Envtl. Bd. Feb. 22, 2001) (finding that ANR's issuance of a storm 

water permit creates a rebuttable presumption under Criterion 1(B)). Appellants assert, 

however, that the soil berm imposed under Criterion 1(B) will create surface water runoff 

impacts to the detriment of their adjoining property and specifically their septic system, and 

therefore, Appellants challenge the appropriateness of Condition #26 of the LUP specifically. 
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Although Appellants did not have an engineer or consultant review their concern, Appellants 

testified as to their concern of potential adverse impacts to their property from the runoff. 

Based upon our review of Applicant’s other state permits, it does not appear that these 

permits specifically review the potential impact of the proposed berm on Appellants’ property. 

We therefore find that Appellants have effectively rebutted Applicant’s presumption of 

compliance with Criterion 1(B). Thus, the burden of proof with respect to the applicable criteria 

shifts back to Applicant, and the permits which created the presumption serve only as evidence 

that the project complies with Criterion 1(B). See Herbert and Patricia Clark, No.1R0785-EB, 

Findings of Fact, Conclusions of Law, and Order, at 25–27 (Vt. Envtl. Bd. Apr. 3, 1997); In re 

Hawk Mountain Corp., 149 Vt. 179, 185–86 (1988). We must therefore further consider the 

evidence offered by the parties relating to the proposed berm to determine whether the Project 

complies with Criterion 1(B). 

Applicant’s professional engineers designed and located the soil berm for the aesthetic 

benefit of Appellants. In so doing, Applicant’s engineers took into consideration potential 

surface water runoff impacts to Appellants’ adjoining property. Thus, in designing and locating 

the berm, Applicant’s engineers have ensured that no additional runoff will impact Appellants’ 

property. 

Specifically, Applicant’s engineers completed a current conditions study, without the 

berm present, to understand current surface runoff flow patterns. Applicant’s engineers 

understood that the local land use approval, obtained for the Project prior to the Act 250 

application and review, required that Applicant ensure that the berm did not add runoff to 

Appellants’ property. Therefore, in advance of the Act 250 review, Applicant’s engineers 

needed to obtain baseline conditions to be able to design a berm that would comply with the 

local approval directive. This study included locating Appellants’ septic system to further 

understand how to ensure that the berm did not adversely impact Appellants’ property, 

including the septic system. Based upon Applicant’s engineer’s baseline study, Applicant 

determined that runoff in the general vicinity of the Project and Appellants’ property flows in a 

southerly direction, and that as the runoff approaches Appellants’ property, it flows in a 

southwesterly direction. Applicant’s Exhibit D illustrates the watershed area at issue in this 

proceeding. 

After compiling the existing runoff conditions, Applicant’s engineers superimposed the 

proposed berm and predicted the likely impact to runoff with the berm in place. Exhibit D 
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illustrates the engineer’s credible conclusion that the berm will reduce the watershed area, and 

thus, reduce the amount of runoff impacting Appellants’ property. As runoff within the 

southeastern portion of the specific watershed area flows in a southwesterly direction, the 

northeastern section of the berm will intercept surface runoff and redirect it southerly away 

from Appellants’ property. The berm’s overall effect will be to reduce runoff to or upon 

Appellants’ property as compared to current conditions.. 

Conclusion

For the reasons discussed above, we conclude that Condition #26 of the LUP sufficiently 

and appropriately addresses Appellants’ concern that the berm will not cause additional runoff 

to flow onto or adversely impact Appellants’ property in compliance with Criterion 1(B). 

Furthermore, we conclude that Condition #26 of the LUP requires that to the extent additional 

runoff and a corresponding adverse impact to Appellants’ property is realized from the 

construction and existence of the berm, Applicant is required to modify the berm, as necessary, 

to direct any additional runoff away from Appellants’ property. 

A Judgment Order accompanies this Decision. This completes the current proceedings 

before this Court. 

Done at Burlington, Vermont, this 17th day of April, 2013. 

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 Thomas G. Walsh, Environmental Judge