It’s better to ask forgiveness than to ask permission, right? Maybe not, as Quechee Lakes found out in this famous Vermont case where Quechee Lakes received a permit to build a ridgetop condominium, but then made a number of changes to the condos without getting approval.
The Court upheld the Board’s decision to require Quechee Lakes to mitigate and remove the changes they had made to the condos even though people had already bought and were occupying some of the units. This case provides a warning to developers who try to develop in a way that is inconsistent with the permit conditions and then try to gain permission only after construction is completed and units are sold. A two-part test for determining whether a development will have an undue adverse impact emerges from this case, along with an assurance that Criterion 8 has real power – enough to allow the Environmental Board to condition, withhold and revoke permits…
In 1981, Quechee Lakes wanted to build a 28 unit ridgetop condominium complex overlooking the Quechee Valley. They received an Act 250 permit to build the complex, which stipulated that no changes could be made to the permit without approval. While building the condos, however, Quechee Lakes made a number of unapproved changes, including the addition of skylights, clerestory and other windows, four-foot overhangs and wrap-around decks, the enlargement of sliding glass doors, a 14 foot increase in the depth of three of the buildings, a reduction in roof pitches, and the relocation of some building. After completing construction and even selling some of the units, Quechee Lakes filed an application for an amendment to bring their original permit into conformity with the project. While proceedings on the amendment began, Quechee Lakes continued to make unapproved changes.
The Environmental Board initially planned to revoke the initial permit, feeling that the unapproved changes made the entire project have an undue adverse aesthetic impact. The Board found that some of these unauthorized changes “either singly or when considered together, have an undue adverse impact on the scenic, natural beauty and aesthetics of the area and that there were no unanticipated circumstances or other mitigating factors justifying the changes.” In re Quechee Lakes Corporation, 154 Vt. 543, 550 (1990). Specifically, the Board was concerned with the substantial increase in the total window area and the skylights, which increased the reflective glare, along with the increase in the perceived mass of the buildings.
However, before revoking the permit, Quechee Lakes persuaded the Board that the changes could be substantially mitigated. So, the Board required that several changes be made to the condos and conditioned the amended permit on four mitigating actions: the removal of the skylights, the installation of nonglare glass, the addition of tree plantings, and the installation of a barrier on the access road. Quechee Lakes then objected to the skylight removal condition.
Quechee Lakes made a number of arguments for why the conditions on the permit weren’t reasonable, but all of them failed. The Court held that the conditions were reasonable because the Board had the right to revoke the original permit based on Quechee Lake’s violation of the ‘no changes’ condition.
There are two particularly significant outcomes of the Quechee Lakes case. First, the Board developed a two-step test for determining whether a project will have an undue adverse impact. Second, the Court upheld Criterion 8 of Act 250, demonstrating that the criterion has real teeth, and when applied properly, will allow the Board to deny or condition permits. These two aspects are discussed in detail below.
Quechee Lakes two-step test
When evaluating a project under Criterion 8, the Board will ask two questions. First, the Board asks whether the project has an adverse aesthetic impact. To answer this question, the Board will consider five aspects: 1) the nature of the project’s surroundings; 2) whether the project’s design is compatible with its surroundings; 3) whether the colors and materials selected for the project are suitable to the surroundings; 4) from where is the project visible?; and, 5) what are the impacts on open space? The type of evidence which is generally used to demonstrate an adverse impact include the following: site plans, architectural renderings, pictorial exhibits, aesthetic expert opinions, evaluations by regional planners, site visits, and aesthetic handbooks.
A primary emphasis of this first question is the ‘context’ factor, the first two of the five aspects listed above. The Board is really looking to see whether the project will fit into the context of its surroundings, and will be “in harmony” with these surroundings. The Board generally approves of projects that blend in with the existing landscape, rather than substantially altering the existing character of the area. In Quechee Lakes, one of the factors which weighed against the condominium development was that it detracted from the traditionally agricultural feel of the area, transitioning it to an area dominated by second homes and resorts.
When considering the fourth factor, the visibility factor, the Board views more carefully projects sited in particularly sensitive areas, which can include shorelines, ridgelines, areas near unique features in the landscape, and areas visible from Interstate Highways.
If the Board finds that a project will have an adverse aesthetic impact, then it will move to the second question, which is whether that impact will be ‘undue’. The Board will find that the impact is undue if it answers affirmatively any one of three questions: 1) Does the project violate a clear, written community standard intended to preserve the aesthetic, scenic or natural beauty of the area?; 2) Is the project offensive or shocking to the average person?; and, 3) Has the applicant failed to take generally available mitigating steps to improve the harmony of the proposed project with its surroundings? The type of evidence the Board uses to answer this question include community standards for local and regional plans, Board site visits, and testimony from neighbors.
For the second question, it is not enough for the Board to prefer another alternative to the project. Instead, the project must offend the sensibilities of an average person. For the third question, if a permit applicant makes a real effort to mitigate the aesthetic impacts of a project, this can often save a project from being denied a permit. Within possible mitigation strategies, landscaping plans and restrictive covenants appear to be the most important actions a developer can take. The idea of these mitigating activities is to make a development conform to the natural landscape, and not to make the land conform to the development. Planners and expert opinions can provide evidence on the effectiveness of different mitigating activities and plans.
More information on the Quechee two-step test can be found in Richard O. Brooks, Toward Community Sustainability: Vermont’s Act 250, Vol. 1: The Criteria for Sustainable Development, Vermont Law School, Environmental Law Center (1996).
Specific elements of the Court’s ruling on Criterion 8
Burden of proof
Under Criterion 8, whichever party objects to a permit on aesthetic grounds bears the burden of proof to demonstrate that the project will create an undue adverse affect on aesthetics. Quechee Lakes tried to argue that this meant that to meet its burden of proof, the Board itself had to produce the evidence to demonstrate that the project would have an adverse effect, and that the Board could not rely on evidence that other parties produced to show an undue adverse effect. However, the Court rejected this and explained that the party bearing the burden of proof does not mean have to produce the evidence, but rather that this party bears the risk of nonpersuasion:
The burden of proof, i. e., the risk of non-persuasion, never shifts from the party on whom it is placed . . . . But it should be observed that the burden of proof is satisfied by the actual proof of the facts which need to be proved, regardless of which party introduces the evidence.
Quechee Lakes, 154 Vt. at 553 (quoting Parish v. Maryland & Virginia Milk Producers Ass’n, 261 Md. 618, 691-92, 277 A.2d 19, 53-54, cert. denied, 404 U.S. 940 (1971) (emphasis in original)).
Sufficiency of evidence to show undue adverse impact
Quechee Lakes also tried to argue that even if the Board could rely on evidence that it did not produce itself, there still was not sufficient evidence to prove that the condominiums caused an adverse impact. The Court also rejected this argument, saying that the appropriate standard of judicial review for considering the sufficiency of evidence is a deferential standard or review. Thus, the Court noted that they would look to see if the decision was based on “substantial evidence” which they had previously defined as “‘such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.’” Id. at 554 (quoting Baxter v. Vermont Parole Board, 145 Vt. 644, 647-48, 497 A.2d 362, 364 (1985) (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)).
The Court thus focused on the evidence supporting the Board’s decision to see if it was adequate to satisfy the substantial evidence requirement. The evidence included testimony and photographic evidence to demonstrate the increase in total window area and the reflective glare caused by the windows and the skylights; testimony that the cumulative effect of the changes could increase the already adverse impact; and evidence that additional plantings would help to offset the increased perceived mass that the changes created. The Court found this evidence to be sufficient.
Conflicting expert testimony
In contradiction to the experts which said that the changes could have an adverse impact, Quechee Lake’s experts testified that these changes did not cause an adverse impact. Regarding these conflicting testimonies, the Court said that it was the Board’s responsibility to resolve the conflict, and not the Court’s, as they had observed in the famous Wildlife Wonderland Act 250 case:
Where a conflict in the evidence develops, its resolution falls within the Board’s jurisdiction, for the Board is the proper trier of fact. The trier of fact has the right to believe all of the testimony of any witness, or to believe it in part and disbelieve it in part, or to reject it altogether. Thus, it is not for this Court to reweigh conflicting evidence, reassess the credibility or weight to be given certain testimony, or determine on its own whether the factual decision is mistaken.
Id. at 555 (quoting In re Wildlife Wonderland, Inc., 133 Vt. 507, 511, 346 A.2d 645, 648 (1975)).
In summary, the Court in Quechee Lakes demonstrated that Criterion 8 of Act 250 does have real meaning, and that the Board can condition permits or even deny permits if they find a project will have undue adverse impacts. Furthermore, it suggests that developers who try to get away with alternative plans than those approved under the Act 250 permit will end up having to either make changes to mitigate in the end, or even to remove the project.