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Act 250 permit hearings begin for Waitsfield water project

05/28/2009

By Lisa Loomis

At a pre-conference Act 250 hearing for Waitsfield's municipal water project, two landowners challenged the town's legal right to apply for the permit and several other landowners requested party status for a variety of reasons.

The May 19 hearing is the first step in the town seeking an Act 250 permit for the water project. The pre-conference hearing allows interested parties to request party status -- the legal designation needed to participate in the hearings -- and provides an overview of the project as well as begins scheduling expert testimony.

RIGHT OF WAY

Waitsfield has drilled a well in the right of way of the Class IV Reed Road and plans to use that water as the source for its municipal water system. Two adjoining landowners, Virginia Houston and Jean Damon, are challenging the town's ability to apply for permits, arguing that the town cannot make the application without their signatures. Both landowners are involved in legal action with the town over the wellhead protection easements the town has taken by eminent domain over their lands.

The town took, by eminent domain, an easement on the Houston and Damon lands. Both easements are under a half acre and both landowners were paid $7,500 for those easements, twice the amount of the legal appraisal of the land. Both are appealing the payment and the action in Vermont Superior Court. Houston is also pursuing an appeal of the state's water supply source permit in Vermont Environmental Court.

DOES NOT EXIST

Houston's attorney, Paul Gillies, in pre-hearing conference findings, argued that Reed Road does not exist and hence Waitsfield has no rights to it or its right of way unless the town can prove it exists through documentation. He argued that if the road does not exist, the only access the town has to the water is over Houston's land. Gillies also argued that the town's well may impact Houston's rights to her established well in that area and finally pointed out that if Reed Road is shown to be a town highway, the town's well is located in the center of the road, cutting off Houston's access to her property and preventing further development of her land.

Damon's attorney, Richard Darby, argued that because there are unresolved cases involving access to the land, the town cannot file for Act 250 without Damon as a cosignatory. He cites Rule 10 which allows towns to file permit applications when an easement is in litigation but argued that "that portion of Rule 10 is inapplicable where the condemnation is incomplete and the owner of the land objects to an application which will ultimately burden her land."

Darby suggested that the Act 250 hearings should be stayed until the eminent domain litigation is completed and noted that the water source permit appeal has been stayed until the eminent domain litigation is completed.

Both Damon and Houston have asked for party status in the Act 250 hearings.

EMPOWERED TO CONDEMN

Waitsfield's attorney, Joe McLean, disputes Gillies and Darby's arguments.

"In Vermont, municipalities have statutory authority to commence condemnation proceedings to acquire the land and rights necessary to establish a municipal water system. In this case, the town has initiated condemnation proceedings to acquire the rights to an 'isolation zone' around the source well, and has the authority to condemn such other rights as are necessary to effectuate the project. Vermont law states that in situations where the party seeking to file an application is a . . .  municipality . . . empowered to condemn the involved land, or an interest in it, the application need only be signed by that party," McLean wrote.

Others who requested party status at the May 19 hearing include Emily von Trapp, whose property abuts the LeClair gravel pit where the town will construct a holding tank for the water, Ray LaRochelle, who lives on Main Street in the village and has concerns about protecting his spring lines which cross Route 100, Betsy Brothers, who lives in Irasville and wants to continue her use of her own well, and David Dion, who owns property at the south end of Irasville and is concerned about the town's ability to fund the project without mandatory connections. Dion also raised the issue of whether the project was in conformance with the town's capital growth program.

Ed Stanak, District 5 coordinator for Act 250, said that commission members had tentatively identified June 30 as the date for the next discussion and to issue its report on party status requests.

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