By Lisa Loomis
Two alterations have been filed with Waitsfield's Act 250 permit for a municipal water system, one at the behest of the town, the other at the behest of adjoining landowner Jean Damon.
The Act 250 permit spells out the conditions which the town must meet to build the $7.6 million water project. The town has received $3.014 million in loans and grants to offset the cost of the system. The system will serve Waitsfield and Irasville with water that comes from the well drilled in the right of way off Reed Road. The water will be gravity pumped via pipeline to a 400,000-gallon storage tank off Bushnell Road.
FILED MOTIONS
The Act 250 permit was issued on February 5 and appealed by another adjoining landowner, Virginia Houston, on February 18. That same week Damon and the town filed motions to alter the permit.
The town asked that the permit be amended to clarify culvert placement under Reed Road and how water will drain to avoid impacting the Damon property.
The original language of the permit read: The existing road ditch and culverts will be cleaned and re-established. One culvert under Reed Road near the well house site will be extended and will discharge onto the land of party Damon. The banks along the road will not be altered and trees will not be cut. (Testimony of Kiernan and Exhibits 43 and 46 - Applicant).
DITCH AND CULVERTS
The town proposes that the permit be altered to read: The existing road ditch and culverts will be cleaned and re-established. One new culvert under Reed Road near the well house will be extended and will discharge to an existing drainage course on the land of party Damon for the conveyance of existing drainage across Reed Road. The banks along the road will not be altered. Trees around the well house adjacent to party Houston's access will not be cut.
According to the town, the alteration was needed to clarify that extending the culvert would not increase drainage onto the Damon property and to show that the town specifically agreed not to alter a bank or remove trees near Virginia Houston's entrance.
The District 5 Environmental Commission supported the town's motion.
WELLHEAD PROTECTION ZONE
Damon asked that Finding 49 (which deals with the town's taking an easement by eminent domain of a 0.4 acre piece of Damon's property for a wellhead protection zone) be modified. Damon and Houston have both appealed, in Washington County Superior Court, the town's taking of easements on both parties' land for a wellhead protection zone.
Finding 49 reads: The Vermont Environmental Court affirmed on appeal the issuance of the Source Permit by the Department. In so doing, the Court recognized the "sincere, serious challenges" brought by parties Houston and Damon in a suit before the Washington Superior Court to the condemnation of small portions of their lands for the project. (Exhibit 39 - Applicant) The Town of Waitsfield had obtained an approximate 0.4 acre permanent easement from each of the adjoiners through condemnation to provide for the 125 foot source control radius.
FINAL DETERMINATION
Damon argued that the town had not obtained the easement as the matter was still in litigation. The District 5 Commission agreed and altered Finding 49 to read:
The Town of Waitsfield claims that it has obtained an approximate 0.4 acre permanent easement from each of the adjoiners through condemnation to provide for the 125-foot source control radius. Both Ms. Damon and Ms. Houston contend that no such condemnation has occurred to date. The matter is presently the subject of litigation in the Washington Superior Court. As a tribunal of limited jurisdiction, the District Commission is without the power to determine property rights, but accepts the Town's representation subject to being informed of a contrary final determination by the Washington Superior Court.
EASEMENT
To establish a wellhead protection zone, Waitsfield took, by eminent domain, an easement on a 0.4-acre parcel from both Houston and Damon. While the town has received a water source permit from the state for using water from that well, Damon and Houston are in litigation with the town over the easements for the wellhead protection zone.
In 2008, the town had an independent appraisal done on the 0.422-acre easement on Damon's land and the 0.432-acre easement on Houston's land. The appraisal valued the parcels at $3,500 and $4,000, respectively. The town issued checks to Damon and Houston for $7,500 each for those easements, although both landowners returned the checks.
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