RE: John D. and Margaret Berkley, John D. Veller, Alan F. and Gudrun H. Stewart, and Richard and Cheryl Rusin, Application #2W0942-EB, Findings of Fact, Conclusions of Law, and Order October 27, 1994 VERMONT ENVIRONMENTAL BOARD 10 V.S.A. Chapter 151 Re: John D. and Margaret Berkley, John D. Veller, Alan F. and Gudrun H. Stewart, and Richard and Cheryl Rusin Application #2W0942-EB FINDINGS OF FACT, CONCLUSIONS OF LAW, AND ORDER This decision pertains to an appeal of conditions regarding agricultural soils contained in a permit for a seven-lot subdivision. As is explained below, with clarifications provided by the parties, the Environmental Board accepts an agreement between the above-referenced Applicants and the State of Vermont Department of Agriculture (the Department) for revision of the conditions. I. BACKGROUND On March 24, 1994, the District #2 Commission issued Land Use Permit #2W0942 (Revised), authorizing the Applicants to create a seven-lot subdivision located in the Town of Wilmington. The seven-lot subdivision is part of a larger subdivision consisting of more than 10 lots. Some of these lots were and are exempt from jurisdiction under 10 V.S.A. Chapter 151 (Act 250). The seven lots approved by the District Commission are subject to the Act. The revised permit contains Condition #13, which requires the Applicants to place a restrictive covenant on four lots: Lots #8 and #10, and unnumbered lots presently owned by the Stewarts and the Rusins. This covenant is to permanently restrict further subdivision and to prohibit "the construction of additional structures (other than one single family house and garage per lot) with the exception of barns and outbuildings to be used for agricultural purposes." Condition #13 arises out of the District Commission's finding that the four lots contain primary and secondary agricultural soils pursuant to 10 V.S.A. §§ 6001(8),(15); 6086(a)(9)(B), (C). On April 25, 1994, the Applicants filed an appeal of the permit with respect to Criteria 9(B) (primary agricultural soils) and 9(C) (secondary agricultural soils) of 10 V.S.A. § 6086(a) and Condition #14. On May 20, 1994, Board Chair Arthur Gibb convened a prehearing conference in Pittsford. On June 1, the Chair issued a prehearing conference report and order. On June 23, 1994, the Applicants filed a motion to modify Condition #13 in lieu of a hearing, based on stipulated changes to that condition. On July 6, the Department filed a letter stating that it concurs in the Applicants' proposed change. The Board deliberated concerning the Applicants' motion on July 7, 1994. On July 11, the Board issued a memorandum to parties stating that the Board was generally agreeable to the Applicants' proposal and identifying areas of concern which the Board wished the parties to address. On August 11, 1994, the Board received a letter from the Applicant dated August 8, 1994, attaching exhibits. The letter addressed the areas of concern identified by the Board. On August 15, the Department filed a letter concurring with the Applicants' August 11 filing. The Board deliberated on August 24, 1994. Due to a staff resignation and a heavy caseload, preparation of a decision was delayed. During late October 1994, participating Board members reviewed and approved this decision, which is now ready for issuance. II. ISSUE Whether the proposed revision to Condition #13 is adequate to ensure that there will not be a significant reduction of the agricultural potential of any primary or secondary agricultural soils on the four lots which are subject to that condition. Applicable provisions of Act 250 are: 10 V.S.A. §§ 6001(8) and (15), 6086(a)(9)(B) and (9)(C), and 6086(c). III. FINDINGS OF FACT 1. This application seeks approval of seven lots out of a more than ten-lot subdivision located off Boyd Hill Road in the Town of Wilmington. 2. This appeal concerns Condition #13 of the District #2 Commission's revised permit issued in this matter on March 24, 1994. Condition #13 provides: The permittees shall place a restrictive covenant on the Rusin and Stewart lots and lots 8 and 10, which permanently restricts further subdivision and prohibits the construction of additional structures (other than one single family house and garage per lot) with the exception of barns and outbuildings to be used for agricultural purposes. The form of the restrictive covenant shall be approved by the District II Environmental Commission prior to the sale or transfer of these four lots. 3. The "Rusin" lot is owned by Cheryl and Richard Rusin, and the "Stewart" lot is owned by Gudrun and Alan Stewart. These existing lots contain already-constructed residences. 4. Lots #8 and #10 are newly proposed with this application. The Applicants propose that the lots be developed for one single family residence per lot, with a garage and related outbuildings. Other proposed improvements include driveways and wastewater disposal fields. 5. The Applicants propose to revise Condition #13 to read as follows: In the event the Permittees or their successors in title desire to further subdivide Lots #8 and #10 and the Rusin and Stewart lots or to engage in non-agricultural construction on those lots with the exception of one single family house and garage and related outbuildings per lot, the Permittees or their successors in title shall obtain an Amendment for such construction or subdivision from the District #2 Environmental Commission. Said Amendment shall specifically address the impact, if any, of the proposed additional development or subdivision on any primary agricultural soils on these four lots. 6. The Rusin and Stewart lots, and Lots #8 and #10, contain primary agricultural soils. There is no allegation that these four lots contain secondary agricultural soils. 7. The Applicants have provided specific locations for the improvements proposed for Lots #8 and #10 referred to in Finding #4, above. These locations are noted on the following documents submitted to the Board by the Applicants under cover of a letter from James P.W. Goss, Esq. dated August 8, 1994: (a) a plan entitled "Compilation Map, Remaining Lands of Belvedere Farm, prepared by Dauchy & Associates, dated July 30, 1993, and last revised December 31, 1993; and (b) a drawing labelled Exhibit C. 8. Based on the proposed location of the improvements for Lots #8 and #10, and the location of the existing improvements on the Rusin and Stewart lots, those improvements will not interfere with the primary agricultural soils found on those lots. 9. The Applicants agree that any revision to Condition #13 may include a requirement that all future deeds to the lots in question state that the property is subject to an Act 250 permit and any subsequent amendments. 10. The State of Vermont Department of Agriculture concurs in the revision to Condition #13 as proposed by the Applicants. The Department also agrees to the requirement regarding future deeds discussed in Finding 9, above. IV. CONCLUSIONS OF LAW Act 250 jurisdiction over the lots in question is discussed in the "Background" section of the District #2 Commission's revised findings of fact and conclusions of law issued in this matter on March 24, 1994. The Applicants did not appeal to the Board on jurisdictional grounds and therefore the basis for Act 250 jurisdiction is not discussed in this decision. Rather, the appeal filed by the Applicants in this matter on April 25, 1994 contests whether agricultural soils are present on the lots in question and, in the alternative, contends that Condition #13, as worded by the District Commission, is overly restrictive. Having reached agreement during the course of this appeal with the Department concerning revisions to Condition #13, the Applicants present a proposed revision to the Board and ask that the Board issue a revised permit condition in lieu of holding a hearing. Based on the Applicants' submission of a stipulated revision to the permit condition, the Board understands the Applicants to be agreeing that the lots in question contain primary agricultural soils. This is because, unless such soils are present on the lots, the Board does not have authority to issue a permit condition to protect them. Specifically, appeals to the Board are de novo pursuant to 10 V.S.A. § 6089(a) and Rule 40. Therefore, under the applicable provisions referenced in the "Issues" section, above, the Board must first find whether primary or secondary agricultural soils exist on the lots, and then decide whether the proposed condition is adequate to ensure the protection of any such soils. Based on the foregoing findings of fact, the Board concludes that the revision to Condition #13, if it includes the above-described requirement concerning future deeds, is adequate to ensure that the proposed project will not significantly reduce the agricultural potential of the primary agricultural soils which exist on Lots #8 and #10 and on the Rusin and Stewart lots. Therefore, the Board will issue a revised Condition #13. In addition, because this decision is issued based on an agreement of the parties rather than a full evidentiary hearing, the Board will also issue a condition stating that its findings of fact and conclusions of law supplement rather than supersede the findings and conclusions issued by the District #2 Commission, except that where the two decisions are directly inconsistent, the Board's decision shall control. V. ORDER Land Use Permit Amendment #2W0942-EB is hereby issued. Jurisdiction is returned to the District #2 Environmental Commission. Dated at Montpelier, Vermont this 27th day of October, 1994. ENVIRONMENTAL BOARD s/s/ Arthur Gibb ___________________________ Arthur Gibb, Chair Rebecca Day Lixi Fortna Samuel Lloyd Robert Page Steve E. Wright berkley.dec (a17) c:\wp51\decision\berkley.dec (v)