Note: Decisions of a three-justice panel are not to be considered as precedent before any tribunal. 

ENTRY ORDER 

SUPREME COURT DOCKET NO. 2011-204 

APRIL TERM, 2012 

In re Verizon Wireless Barton 

Act 250 Permit 

} 

} 

APPEALED FROM: 

} Superior Court, 

} Environmental Division 

} 

} 

} DOCKET NO. 6-1-09 Vtec 

 

 Trial Judge: Thomas S. Durkin 

In the above-entitled cause, the Clerk will enter: 

Neighbor Michael Auger appeals from a decision of the Superior Court, Environmental 

Division, that approved an Act 250 application submitted by Verizon∗

 to construct a wireless 

telecommunications tower and related infrastructure on adjacent land. On appeal, neighbor 

argues that the court erred in concluding that the project will not have an adverse aesthetic 

impact. We affirm. 

In February 2008, Verizon applied to the appropriate District Commission for an Act 250 

permit to erect a wireless telecommunications tower in Barton. Verizon proposed to erect a 107-

foot free-standing monopole tower to be disguised as a pine tree, along with an accompanying 

equipment shelter. The plan envisions that the tower will be disguised with artificial branches 

and the monopole painted brown to resemble a tree trunk. The monopole will be located within 

a 100-foot by 100-foot area about 220 feet from neighbor’s property line. The site is about 3300 

feet from neighbor’s farmhouse and 4800 feet from the westerly edge of Interstate 91. The 

project includes an equipment shed at the base of the tower surrounded by a chain-link fence. 

Electric service for the tower will come from an installed electrical line with a gas-powered 

electric generator as backup. The area around the site is heavily wooded with an average tree 

height of fifty feet. 

Following a site visit and a hearing, the District Commission found that the proposal met 

all applicable Act 250 criteria and granted a permit. Neighbor appealed this ruling to the 

Environmental Division. The sole issue before that court was whether Verizon’s proposed tower 

violated criterion 8 of Act 250—that is, whether the proposal would “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). The court conducted a site visit and a de 

novo hearing. 

 

∗

 Applicant’s full name is Vermont RSA Ltd. Partnership and Cellco Partnership, d/b/a 

Verizon Wireless; for simplicity, we refer to applicant as “Verizon.” 
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Based on the evidence, the court found the following facts. Neighbor’s property is 

located on the easterly slope of a hillside that faces Interstate 91, a short distance from exit 25 

and several commercial developments. Neighbor’s property has a history of agricultural use, and 

has been previously used as a dairy farm, for maple syrup production, as an agricultural 

attraction catering to the general public through sales of agricultural products, and for outdoor 

activities like picnicking and hiking. At the time of trial, however, neighbors had suspended 

agricultural and business operations on the property. VELCO holds an easement across 

neighbor’s land and maintains three parallel electric transmission lines that run south of the 

farmhouse. The proposed monopole will not be visible from neighbor’s farmhouse, but could be 

seen from some areas on neighbor’s land. The tower will be difficult to observe from the 

interstate. 

The court began its analysis of the aesthetic impact of the project pursuant to the Quechee 

analysis, In re Quechee Lakes Corp., 154 Vt. 543, 546, 556-67 (1990), by first asking whether 

the proposed tower and support facilities would have “an adverse aesthetic impact.” The court 

explained that the threshold question is whether the project is “unfavorable,” “opposed,” or 

“hostile” to its surroundings, and concluded that it was not. Acknowledging the scenic beauty of 

neighbor’s property, the court noted that “any observer of the area surrounding the proposed 

Verizon project site, or the context in which the project would be located, must acknowledge that 

the area is no stranger to development.” The court pointed to other commercial development 

nearby, and to the “highly visible” high-power electric transmission lines located on neighbor’s 

property. 

In addition, the court explained that the project, “with the exception of the top of the 

tower/tree structure, will be screened, shielded, and nearly impossible to view from all 

surrounding lands unless one walks with a determined eye to locate the project site and looks 

through the wooded area near the eastern boundary of the [site] property.” The court was not 

convinced by neighbor’s objections that the tower would adversely affect his business and 

property “if and when he succeeded in reinvigorating his commercial ventures,” and concluded 

that neighbor’s concerns appeared to have little factual foundation. The court concluded that the 

design and location of the tower ensured its “aesthetic symmetry” with its surroundings and that 

the proposal would not have an adverse aesthetic impact; it therefore did not reach the question 

of whether any adverse impact was “undue.” Id. Accordingly, the court remanded the case to 

the District Environmental Commission for issuance of the Act 250 permit. 

On appeal, neighbor challenges the court’s conclusion that the project will not have an 

adverse aesthetic impact. The party opposing a project based on criterion 8 has the burden of 

demonstrating that the project will have an adverse impact. 10 V.S.A. § 6088(b). We have 

endorsed the two-pronged Quechee test for determining whether an Act 250 application complies 

with criterion 8. In re Rinkers, 2011 VT 78, ¶ 9. “[A] determination must first be made as to 

whether a project will have an adverse impact on aesthetics and the scenic and natural beauty of 

an area because it would not be in harmony with its surroundings.” In re Halnon, 174 Vt. 514, 

515 (2002) (mem.). If the factfinder concludes that the project will have an adverse impact, “the 

inquiry then advances to the second prong to determine if the adverse impact would be ‘undue.’” 

Id. 
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Neighbor contends that he presented uncontested evidence that the proposed tower would 

have an adverse aesthetic impact and therefore the court’s finding to the contrary was error. In 

support, neighbor states that testimony established that the proposed development area was used 

in the past for camping and may be used in the future for skiing. According to neighbor, the 

court failed to consider the aesthetic impact of the tower on these uses and solely considered the 

view from the highway and the farmhouse. 

We apply a deferential standard of review to decisions of the Environmental Division. In 

re Rinkers, 2011 VT 78, ¶ 8. “We will overturn factual findings only where the party contesting 

them demonstrates that there is no credible evidence to support them, and not merely because 

they are contradicted by substantial evidence.” Id. (quotation omitted). With respect 

specifically to findings under 10 V.S.A. § 6086(a)(8), we have observed that “[d]etermining the 

degree of adverse aesthetic effect is a matter of weighing of the evidence, a role for the [trial 

court] rather than for this Court.” In re Denio, 158 Vt. 230, 239 (1992). 

Here, the court’s conclusion that the tower does not present an adverse aesthetic impact is 

supported by adequate findings, which are in turn supported by the evidence. The court 

explained that when examined against the backdrop of other development in the vicinity, 

including the transmission lines already located on neighbor’s property, the tower would not be 

out of context in its surroundings. The court further emphasized that the tower was well 

screened and could be viewed only from limited places on neighbor’s land. These findings are 

supported by credible evidence such as photos from various viewpoints depicting the site and a 

mock-up of the proposed tower, testimony from Verizon’s project manager that there were 

already several utility poles in view from the project site, the project manager’s testimony about 

sight lines to the tower top from various locations, and his description of the design of the 

monopole so that it blends in. 

The court was not persuaded by neighbor’s concern that the project would adversely 

impact aesthetics in connection with primitive hiking and camping activities on the portion of his 

land nearest the project site, or in the context of changes neighbor was considering to his 

property and its use. It is up to the Environmental Court to determine the credibility of witnesses 

and weigh the persuasive effect of evidence. In re Rinkers, 2011 VT 78, ¶ 8. The evidence 

regarding the actual extent of camping on neighbor’s property near the project site was limited. 

Neighbor’s town camping permit identified a camping area on the southern portion of his land, 

not on the western boundary near the project site. Neighbor testified that he had no paying 

campers in 2010, and acknowledged that even when hikers came, he did not know where the 

campers went. Neighbor recognized that people who camp near the proposed project site can see 

the existing high-power utility lines from their campsite. In addition, although neighbor 

described various plans for reviving the tourist-related business associated with his property, he 

acknowledged that the last time it actually functioned as a thriving business was in 2000. In light 

of this evidence, the trial court’s findings, and its conclusion that the project would not have an 

adverse aesthetic impact, were supported by the record. 

Neighbor also argues that the generator and HVAC system associated with the tower will 

create noise and that the court failed to consider this issue. Having reviewed the record, we 

conclude that the evidence regarding the noise created by the tower does not undermine the 

court’s conclusion that the monopole and associated equipment will not have an adverse 
4 

aesthetic impact. Verizon’s project manager testified about a noise level study and data from 

which he could estimate the noise level at neighbor’s property line associated with the project. 

He explained that the noise level associated with the HVAC system, which runs primarily during 

the summer for cooling purposes, measured at the edge of neighbor’s property, will be less than 

40 DBA—more than the baseline 25 DBA associated with a quiet, rural setting at night, but still 

less than the 50 DBA associated with a quiet urban area in the daytime. In the rare and most 

extreme instances in which both the generator and the HVAC run—during a power-outage, for 

example—the noise level at the neighbor’s property line will still fall under 50 DBA because 

obstructions shield much of the generator sound from neighbor’s direction. Beyond the property 

line, the sound level will drop off farther from the sources of the sound. Neighbor did not 

present any contrary evidence. The unchallenged evidence demonstrates that any noise created 

would be at a relatively low level, during brief periods of time, and in a small area of neighbor’s 

land that is not well used. Given these facts, neighbor has not demonstrated that the court erred 

in failing to conclude that noise levels create an adverse aesthetic impact. 

Finally, neighbor contends that the court made errors that could taint its consideration of 

whether, pursuant to the second prong of the Quechee test— the adverse impact is undue. In 

particular, neighbor argues that the trial court erred in concluding that the Barton Zoning Board 

of Adjustment’s conclusion that the proposed project complied with the town’s zoning bylaw 

relating to co-location of telecommunication facilities was res judicata; neighbor argues that he 

did not receive timely notice of the ZBA proceeding and did not have an opportunity to fully 

litigate the matter below. In addition, neighbor argues that the trial court failed to consider the 

impact of noise associated with the project, so that its consideration of whether the project would 

“offend the sensibilities of the average person” was inadequate. And neighbor argues that the 

lower court should have allowed evidence regarding alternate sites not owned or controlled by 

Verizon in its consideration of potential mitigating steps. 

Neighbor acknowledges that the lower court never reached the question of whether any 

adverse impact was undue, but raises these arguments in an effort to avoid repetition of the 

asserted errors on remand, presumably in the context of an application of the second prong of 

Quechee. Because we affirm the lower court’s conclusion that the proposed project would not 

have an adverse aesthetic impact under the first prong of the Quechee analysis, and accordingly 

do not remand for further consideration, we need not address neighbor’s arguments relating to 

the second prong of the Quechee analysis. 

Affirmed. 
5 

 

BY THE COURT: 

_______________________________________ 

Paul L. Reiber, Chief Justice 

_______________________________________ 

Marilyn S. Skoglund, Associate Justice 

_______________________________________ 

Beth Robinson, Associate Justice