Thursday, December 18, 2014

Aesthetics Arguments

In re Goddard College, 2014 VT 124

By Elizabeth Kruska

Goddard College wants to build a woodchip heating system to replace its old system. Goddard’s neighbor thinks the plant will ruin the aesthetics of the area and wants to use Act 250 to make Goddard put the chip plant somewhere else on its property. Hey, I get it. Nobody wants to look out their kitchen window at what used to be a nice view of a mountain or a lake and see a power plant instead.

Part of the Act 250 permitting process requires that the aesthetic impact of a project be considered. If there is going to be an adverse aesthetic impact, there then has to be a consideration of whether it’s an undue impact. That is, whether the impact violates a clear, written standard meant to preserve the aesthetics of an area or whether the project offends the sensibilities of an average person. Plopping a giant industrial park in the middle of a historic neighborhood might be such a thing.

There also can be a consideration given to whether the project has included mitigating factors that would tend to bring the project into harmony with the surrounding area. I suppose this could be something like building a building, but planting trees around it so the building can’t really be seen. That’s a vastly over-simplified example, obviously, but it’s the idea of taking affirmative steps to lessen the adverse aesthetic impact. Here, everyone agrees that the Goddard woodchip plant project is going to have an adverse aesthetic impact. The issue was whether Goddard took sufficient mitigating steps. The Environmental Court found in favor of Goddard after a hearing on the matter, and SCOV affirms on appeal.

SCOV pretty much finds that the neighbor who challenged the permit didn’t put on enough evidence. She tried to argue that the court wouldn’t let her, but SCOV finds that the record shows otherwise. The argument made by the neighbor is that Goddard didn’t consider alternative sites on the property in an effort to mitigate the adverse aesthetic impact. The neighbor testified that she talked to a campus official about putting the project in a different spot, but that other sites were rejected. She didn’t really offer any other evidence about that particular topic. The Environmental Judge took the evidence she did have, but indicated that it might not be a huge factor in the decision.

The neighbor also tried to argue that the Environmental Court didn’t make sufficient findings, and didn’t analyze whether Goddard considered other sites. SCOV disagrees. SCOV isn’t about to make a rule that the Environmental Court must analyze whether there are other sites when examining mitigating factors; that doesn’t mean the Environmental Court can’t make that analysis if the information is there, though.

Here, the court made findings based on the evidence before it. SCOV writes that if someone objects to a project based on aesthetics, it’s up to that person to prove the unreasonable or adverse impact. So, here, the neighbor would have the burden of proving the adverse impact. The neighbor could have put on evidence to show that there were other available sites on the property for the project, but didn’t. The Environmental Court made findings based on the evidence before it – not based on evidence that wasn’t. It wasn’t an error for the court to have made those findings, so SCOV affirms.

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