May, 2010

Heather Hammond Wins Land Use Battle In Supreme Court

Heather Hammond recently won a reversal of an Environmental Court decision imposing unwarranted land-use fees on the developer of a housing project on a plot of forested land in Winooski. The District Commission imposed off-site mitigation fees on the developer based on a provision of Act 250 designed to protect "primary agricultural soils." By statute, the fees are designed to offset the loss of agricultural land that is developed for other uses by funding preservation of such land in other locations. Ms. Hammond argued that the definition of "primary agricultural soils" and the purpose of Act 250 required the District Commission to consider the cost or other practical limitations of converting land to agricultural use when it is making its determination of whether primary agricultural soils exist on a site. After the Environmental Court refused to consider the cost of converting the developer's property into commercial farmland and ordered that the developer had to pay the off-site mitigation fee, Gravel and Shea appealed that decision to the Vermont Supreme Court. In a lengthy published decision on a case of first impression, the Supreme Court adopted Ms. Hammond's reasoning as the proper standard, reversing the Environmental Court. "[T]he legislature's intent to protect Vermont's farmland from disappearance at the hands of more profitable development," the Court held, "cannot be used to justify imposition of protection measures for fictitious farms, i.e., land that will not be used for farming regardless of the proposed development because it is logistically difficult or too costly to overcome existing limitations." The Court reversed and remanded, instructing the Environmental Court to consider the economic realities of using the soil for agriculture in determining whether mitigation was warranted.