BURLINGTON — A state fisheries biologist said during a hearing in Environmental Court that allowing parking in a five-acre parcel along the West River has implications for future projects.
“This project represents an anomaly ... “ said Lael Will, starting the third day of a four-day trial in an appeal of an Act 250 approval for a former ski area in Dummerston. “We’re not going to make any progress on improvements to the river if we accept this project, and then the next person that comes along and challenges us, it’s going to set us up for failure.”
Sugar Mountain Holdings purchased the former 370-acre Maple Valley Ski Area in 2018 and submitted its Act 250 application to the state in February 2020.
Keane Aures, the principle for Sugar Mountain, hopes to renovate the old ski lodge into a brewery and distillery with a tasting room. The plan also calls for up to 24 events a year that would require parking for up to 160 cars in a five-acre parking lot on the east side of Route 30 and along the West River.
The project received approval from the Dummerston Development Review Board in December 2019.
In November of last year, the District 2 Commission approved Sugar Mountain’s Act 250 application to renovate the old ski lodge, which has sat empty for more than 20 years. However, the Commission denied the applicant’s request to host live music at the lodge, stating that plans for outdoor music “offends the sensibilities of the average person, or is offensive or shocking because it is out of character with its surroundings ...”
The Commission also denied the applicant’s request to use the parking lot that’s connected to the main parcel by a pedestrian tunnel under Route 30.
The commission concluded the gravel parking area is in a floodplain and a 100-foot buffer, as recommended by the Vermont Fish and Wildlife Department, is needed. Such a buffer would essentially eliminate parking along the river.
Sugar Mountain submitted a proposed riparian management plan that calls for a 50-foot buffer along the river, but that was rejected by Will in her review of the proposal.
After it received its permit with its conditions, Sugar Mountain appealed the District 2 Commission’s decision to the Environmental Court.
‘THE BIG PICTURE’Following Will’s morning testimony, Environmental Court Judge Thomas Walsh agreed with Will that every case has implications going forward, but he needed to look back to fully adjudicate the issue.
“I need to understand the big picture here,” said Walsh. “If there’s roughly 40 years of parking, that had to have impacts. Now they’re proposing parking that has to have impacts. Are they different? Because if they’re not different maybe it doesn’t trigger review under Act 250.”
Maple Valley Ski Area’s development preceded the 1972 enactment of Act 250 and didn’t come under the act’s jurisdiction until a permit was applied for to alter the pitch of the lodge’s roof, noted Walsh.
Walsh wanted to know if the east side parcel, which was a preexisting parking lot, isn’t being altered, what is the avenue for requiring review.
“The permit hasn’t disappeared,” he said. “There’s still jurisdiction. Parking is parking. Help me understand why it’s different.”
“I would say that the impacts that were associated with the 1960s use are a little different in that it was a year round,” responded Will.
But Christopher Roy, attorney for Sugar Mountain and Aures, challenged Will’s assertion that the proposed use of the parking would be year round, as opposed to only during ski season.
“So would it have more of an impact on the West River if there was parking every single day from Thanksgiving to mid to late March?” he asked “Every single day or twice a month throughout the year, so it’s spread out once every two weeks?”
‘IT’S A WASH’“The level of activity essentially doesn’t matter because you’re going to be maintaining that area for parking so that vegetation is not going to be allowed to be established,” responded Will. “So it’s a wash either which way. ... If you’re using that area for parking, it’s not going to be managed in an undisturbed condition, which is the current requirement. Managing this back to the 1960s is not where we want to be there.”
“What concrete harm to the West River and its habitat can you point to in the evidence would result from using the parking area with or without the riparian buffer management plan proposed?” pressed Roy.
“We do not have specific evidence of that but what I will say is that it is going to be managed in a way that will not provide the functions and values to meet [Act 250] criteria ...” said Will, who also told the judge it was important that she be consistent in her reviews under Act 250.
“I try very hard to be consistent so that ... we don’t get the pushback that we’re getting here. I want it to be accepted just like you put on your seatbelt when you get into your car.”
Later in her testimony, she added “I’ve been trying to be very consistent and fair across projects over the past decade. I have a long track record of getting to that 100 feet or that bare minimum with some minor encroachments. ... And I also feel like it’s unfair to everybody else that has been complying and has been very cooperative.”
FINDING PARKING ELSEWHEREEarlier in her testimony, Will said she has worked “on a lot of projects that have much worse site conditions, in terms of feasibility, to provide parking elsewhere. What I see is a large parcel that has over a half-mile of road frontage, and I haven’t had the applicant work with me closely to look at alternatives to avoid, minimize and further mitigate potential impacts to that riparian zone.”
Roy asked Will if she had considered what the environmental impacts would be of proposing a new parking lot on the west side of Route 30, rather than in the five-acre parcel along the river.
“That is not my responsibility to design the project,” she said. “My responsibility is to set forth the bounds on which there needs to be a protected area. I cannot design the project for the applicant.”
Last week, Aures and Brud Sanderson, an engineer from Stevens and Associates, testified it would be too expensive to grade part of the old ski slope to make a parking lot or construct a parking garage.
Will said protecting habitat and encouraging shade along rivers is essential to climate change resiliency by keeping rivers cool. Riparian areas also help to filter stormwater, which is generally warmer than river water, before it gets to the river, and to recharge groundwater.
Will admitted, “It’s very rare to have a fully intact riparian area. That’s where riparian management plans come into play. There may be minor encroachments that are just simply unavoidable. But we work to avoid, minimize and mitigate those potential impacts. ... Given the species that occur here, we would be justified in asking for a wider riparian zone. Big picture is that we would be justified in asking for more, but we’re not.”
After Will testified, Mark Ferguson, a zoologist in the Vermont Fish and Wildlife Department, said use of the parking lot raises concerns about fine sediments and other contaminants reaching the river and disrupting the habitat, especially during the summer, when the river flow is lower and doesn’t flush as fast.
He also said increased activity along the river might affect wood turtles, which would benefit from a larger riparian buffer.
“They’re going to be able to at least ... have a place that they can get out on the bank without being exposed,” said Ferguson, or getting run over by cars, he added. “I would like to see the site restored ... the area would benefit the river community as well as the riparian community. Better if you had that naturally vegetated 100 foot zone.”
‘DEATH BY A THOUSAND CUTS’Near the close of the hearing on Tuesday, Kathy Urffer, river steward for the Connecticut River Conservancy, said in the past 20 years, she has never seen the parking lot used “in the way that the applicant is suggesting ...”
“Reestablishing a gravel parking lot adjacent to the West River would not maintain the natural conditions of the stream and will endanger the health, safety and welfare of the public,” she said. “CRC opposes the use of the riparian area as a parking lot, expressly because a reasonably acceptable alternative site is owned or controlled by the applicant ... there are areas on the other 300 acres that could potentially be used for additional parking if needed.”
Urffer said regular usage of the parking lot would result in compaction, increasing runoff into the river.
“Leaving a site alone ... nature abhors a void ... it would begin to heal itself and it is clearly doing that and has been doing that for the past two decades,” she said. “The thing about impacts to rivers, it is not one impact; it’s death by a thousand cuts. Each individual additional impact like this one would increase pollutants in the river.”
“Has anything proposed by the applicant suggested anything other than temporary parking for a few hours in the overflow lot with respect to either a special event or occasions when, during ordinary hours, the parking on the west side of the road is inadequate?” asked Roy, who said the lot would be used maybe six hours a month.
“I don’t think anything has been proposed ... but I also am not aware of any limitations,” said Urffer.
“What evidence do you have that use of that parking area would significantly imperil necessary wildlife habitat?” asked Roy.
The habitat is already imperiled, responded Urffer.
“By not providing additional habitat for them, that is significantly imperiling them,” she said.
