Re: Jericho Corners Elementary School, Declaratory Ruling #285, Findings of Fact, Conclusions of Law, and Order December 9, 1994 VERMONT ENVIRONMENTAL BOARD 10 V.S.A. Chapter 151 Re: Jericho Corners Elementary School Declaratory Ruling #285 FINDINGS OF FACT, CONCLUSIONS OF LAW, AND ORDER This decision, dated December 9, 1994, pertains to a petition for a declaratory ruling concerning whether an Act 250 permit is required pursuant to 10 V.S.A. Chapter 151 (Act 250) for the construction of additions to the Jericho Corners Elementary School in 1990. For the reasons explained below, the Board rules that an Act 250 permit was not required prior to the construction of an addition to the Jericho Corners Elementary School in 1990. I. BACKGROUND On April 2, 1993, the Town of Jericho School Board (the Petitioner) filed an appeal of Advisory Opinion #EO-92-274 with the Environmental Board as a petition for a declaratory ruling, pursuant to 10 V.S.A. § 6007(c) and Environmental Board Rule 3(C). The Petitioner disagrees with the conclusion of the Board's Counsel in Advisory Opinion #EO-92-274 that an Act 250 permit was required prior to the construction of an addition to the Jericho Corners Elementary School in 1990. The Petitioner also believes that, even if construction of the addition was subject to Act 250 jurisdiction, the Board is estopped from asserting jurisdiction due to the ruling of Louis Borie, District #4 Coordinator, that no Act 250 permit was required for such construction. On May 1, 1993 a prehearing conference was convened by Board Chair Elizabeth Courtney. A prehearing conference report and order was issued on June 8. At the prehearing conference, two preliminary issues were raised, concerning 1) whether Paul Arnot is eligible for party status as an adjoining property owner and 2) whether there is any legal reason why this proceeding should not go forward. On May 26, the Petitioner filed a motion to vacate the advisory opinion and dismiss the declaratory ruling proceeding. On June 22, the Board issued a Memorandum of Decision in which it 1) granted Mr. Arnot party status pursuant to 10 V.S.A. § 6085(c) and Board Rule 14(A)(3); 2) denied the Petitioner's objection to Mr. Arnot's June 9 submission; and 3) denied the Petitioner's motion to vacate and dismiss. On July 21, 1993, an administrative hearing panel of the Board convened a hearing, with the following parties participating: The Petitioner by John R. Ponsetto, Esq. Chittenden County Regional Planning Commission by Herb Durfee Paul Arnot After hearing testimony, the Panel recessed the matter pending submission of Proposed Findings of Fact and Conclusions of Law. A proposed decision was sent to the parties on October 18, 1994. The parties were provided an opportunity to file written objections and to present oral argument before the Board. On October 21, 1994, the Petitioner filed written comments with the Board regarding the proposed decision. No party requested oral argument. The Board deliberated concerning this matter on December 7, 1994. On that date, following a review of the proposed decision and the evidence and arguments presented in the case, the Board declared the record complete and adjourned the hearing. This matter is now ready for decision. To the extent any proposed findings of fact and conclusions of law are included below, they are granted; otherwise, they are denied. II. ISSUES 1. Whether Paul Arnot's appeal of the District #4 Environmental Coordinator's jurisdictional opinion was filed in a timely manner. 2. Whether the 1990 additions to the Jericho Corners Elementary School constitute a substantial change to a preexisting development, pursuant to 10 V.S.A. § 6081(b) and (d) and Board Rules 2(A)(5) and 2(G). 3. Whether the 1990 additions to the Jericho Corners Elementary School constitute development, pursuant to 10 V.S.A. § 6001(3) and Board Rule 2(A)(4). 4. If the Board concludes that an Act 250 permit was required for the 1990 additions to the Jericho Corners Elementary School, whether the Board is estopped from asserting jurisdiction because the School Board was told by the District #4 Environmental Coordinator that no Act 250 permit was required. III. FINDINGS OF FACT A. Act 250 Jurisdiction 1. The Jericho Corners Elementary School is located on an 18.86-acre parcel of land in the Town of Jericho. The school and the land are owned by the Jericho School Board. 2. In 1957 the Jericho School Board purchased 10 acres of land for the purpose of building a new school and took an option on an adjoining parcel of land. In 1962 the School Board bought the adjoining land. The size of the parcel owned by the School Board after the 1962 purchase was approximately 18.86 acres. 3. In 1957-58 the School Board constructed a school building, parking area, entrance, lawn, playground, and ballfield on 5.4 acres of the land. 4. In 1974 the School District applied for federal Land and Water Conservation Fund (LWCF) funds to construct a recreation area on the site. The application states that the applicant was the Jericho Town School District, by Helen Lawrence, Chairman of the Jericho School Board. Apparently the funding was administered through the Vermont Agency of Natural Resources (ANR). 5. The purpose of the funding was to develop a public recreation area. The LWCF manual of 1973 states the following: M. Playgrounds and outdoor recreation facilities on public school grounds for joint school/general public use are strongly encouraged, provided that the facilities are not part of the normal and usual program and responsibility of educational institutions and that they otherwise meet requirements for a grant under the Fund program. 6. The Land and Water Conservation Fund Project Agreement is signed by Edward J. Koenemann for the State of Vermont, and Helen B. Lawrence for the Jericho Town School District. 7. There are no written leases or agreements between the School District and the Town or any other entity for this use of the property. Apparently the Town is responsible for the maintenance of the recreation area but the State is ultimately responsible. The construction of the recreation area was paid for entirely through Bureau of Recreation funds. No school monies were spent for construction of the project. 8. After funding was made available, four tennis courts, a basketball court, and a multi-purpose field were constructed on the site. The total acreage of the recreation project was 3.5 acres, based upon a narrative filed with the funding application, 9. The tennis courts, basketball court, and multi-purpose field are not regularly used by the school for classes or recess, but are used occasionally for school events such as field day. 10. Parking for the recreation area is at the Jericho Corners Elementary School. 11. In the mid-1970s the Jericho Youth League constructed a baseball field on a 1.5-acre portion of the school property. This field is not regularly used by the school for classes or recess, but is used occasionally for school events such as field day. It is not maintained by the School District. There are no written leases or agreements between the School District and the Jericho Youth League for this use of the property. 12. In 1987 an 8,300 square foot addition to the school and a waste water disposal field were constructed on the site. Most of this construction took place within the 5.4 acres already used by the school, with approximately .4 acre additional land used. 13. In 1990-91 the School District constructed a 21,000 square foot addition to the school, including 11 classrooms for 209 students to bring the total school population to 400, or an increase of 107 percent. Other construction included reconfiguring the parking lot and entrance to the school and constructing a separate entrance for bus traffic on what had been lawn. The total acreage involved in constructing the addition, within the original 5.4 acres, was approximately 2.3 acres of land directly involved in construction. 14. If all the land developed on the tract owned by the School District is added up, the result is as follows: 1957 - 5.4 acres school 1975 - 3.5 LWCF Mid-'70s - 1.5 acres baseball field 1987 - 0.4 1990 - 2.3 acres (within the original 5.4 acres) TOTAL 10.8 B. Timeliness of the Appeal 15. On June 21 and 29, 1990, Harold Boyden, Superintendent of the School District, and Douglas Goulette, Project Engineer, met with Louis Borie to determine whether an Act 250 permit would be required for the proposed additions to the Jericho Corners School. Mr. Goulette had further discussions with Mr. Borie on June 25 and 28 and July 19 and 23, 1990. 16. On July 23, 1990, Mr. Borie issued a Project Review Sheet which set forth his conclusion that no Act 250 permit was required for the school expansion because it was not a development or a substantial change to a preexisting development. 17. Mr. Borie did not send a copy of the Project Review Sheet to Paul Arnot or any other persons. 18. Beginning in the summer of 1990, the Petitioner constructed the school addition. 19. On May 12, 1992, Paul Arnot, who at the time owned the parcel of land which adjoins the Petitioner's land on which the School is located, met with Mr. Borie concerning whether a permit was needed for the School addition. Mr. Borie advised Mr. Arnot that he believed a permit was not required, but told Mr. Arnot that he would review his files to make sure his opinion was correct. Mr. Arnot did not know that Mr. Borie had issued a Project Review Sheet. 20. After meeting with Mr. Borie on May 14, 1992, Mr. Arnot wrote a letter to Mr. Borie and asked him to reconsider his determination that no Act 250 permit was required for the school addition. 21. On September 30, 1992, Mr. Borie telephoned Mr. Arnot and told him that he stood by his opinion that no Act 250 permit was needed for the school addition. 22. Although he had still not received or been informed about the Project Review Sheet, on October 24, 1992 Mr. Arnot filed an appeal of Mr. Borie's opinion with the Executive Officer of the Environmental Board. 23. Sometime after Mr. Arnot filed his appeal, Aaron Adler, Counsel to the Board, sent Mr. Arnot a copy of the Project Review Sheet. 24. In 1994, Mr. Arnot sold his property and is thus no longer an adjoining property owner. IV. CONCLUSIONS OF LAW A. Timeliness of the Appeal The Petitioner argues that Paul Arnot had notice of the District Coordinator's jurisdictional determination as of May 12, 1992, and that that is the date from which the appeal period should be counted. Mr. Arnot filed his appeal within 30 days of Mr. Borie's notification to Mr. Arnot by telephone on September 30, 1992 that Mr. Borie had reviewed his files and stood by his earlier determination that an Act 250 permit was not required. 10 V.S.A. § 6007(c) states: Appeals from an advisory opinion of a district coordinator or the executive officer or an assistant executive officer must be filed within 30 days of the mailing of the advisory opinion. Board Rule 3(C) also provides that appeals from advisory opinions issued by district coordinators must be filed within 30 days. Because a project review sheet is an advisory opinion, it falls within the above-referenced statute and rule, and must be appealed within 30 days of issuance. However, as we stated in Re: Triple M Marketplace, Declaratory Ruling Request #274, Memorandum of Decision at 3 (Jan. 15, 1993), we believe that notice is a necessary prerequisite for the appeal period to be triggered. In that decision, we stated: "[W]e believe that the provision of a 30-day notice period necessarily implies that the period is triggered upon notice. Unless a person has notice of the opinion, he or she cannot know that it exists to be appealed." In this case, neither the District Coordinator nor the Petitioner provided Mr. Arnot with a copy of the Project Review Sheet. If they had, he would have had notice and would have had to file an appeal within 30 days of issuance of the decision. Mr. Arnot did not know about the Project Review Sheet until after October 24, 1992. Mr. Arnot knew as of May 12, 1992 of Mr. Borie's opinion that no Act 250 permit was required. However, two days later Mr. Arnot wrote to Mr. Borie requesting Mr. Borie to reconsider his decision. Even assuming that the date of Mr. Arnot's notice was determined to be May 12, it would be unreasonable to expect him to appeal Mr. Borie's decision until a decision had been made on his request for reconsideration. Mr. Arnot then filed his appeal within 30 days of notification by Mr. Borie that Mr. Borie stood by his original determination. Mr. Arnot was an adjoining landowner and an interested party entitled to seek and appeal an advisory opinion under 10 V.S.A. § 6007(c) and Rule 3(C). Accordingly, we conclude that Mr. Arnot's appeal was filed within 30 days from the date that he received notice of Mr. Borie's jurisdictional determination of September 30, 1992 and was therefore timely filed. B. Act 250 Jurisdiction When ruling on jurisdictional questions involving changes to developments in existence before June 1, 1970, the Board has first looked to whether the changes themselves constitute development and second to whether the changes constitute a substantial change to a pre-existing development. See, e.g., Re: Village of Ludlow, Declaratory Ruling #212 at 6 (Dec. 29, 1989). 1. Development Development is defined in pertinent part, at 10 V.S.A. §6001(3) as: the construction of improvements on a tract of land involving more than 10 acres which is to be used for municipal or state purposes. In computing the amount of land involved, land shall be included which is incident to the use such as lawns, parking areas, roadways, leaching fields and accessory buildings. Rule 2(A)(4) provides further definition. It states that "development" means: The construction of improvements for state, county, or municipal purposes, on a tract or tracts of land involving more than ten acres of land. The computation of involved land shall include the land which is incidental to the use such as lawns, parking lots, driveways, leach fields, and accessory buildings. In the case where a state, county or municipal project is to be completed in stages according to a plan, or it is evident under the circumstances that a project is incidental to or part of a larger undertaking, all land involved in the entire project shall be included for the purposes of determining jurisdiction. An important factor in determining whether the project meets the definition of development is whether there are ten acres of "involved land." Rule 2(F) defines the term "involved land" to include: (1) The entire tract or tracts of land upon which the construction of improvements for commercial or industrial purposes occurs; and (2) Those portions of any tract or tracts of land within a radius of five miles owned or controlled by the same person or persons, which is incident to the use of the project; and (3) Those portions of any tract or tracts of land within a radius of five miles owned or controlled by the same person or persons, which bear some relationship to the land actually used in the construction of improvements, such that there is a demonstrable likelihood that the impact on the values sought to be protected by Act 250 will be substantially affected by reason of that relationship. We agree with the Petitioner that the 1990 school addition was not constructed as part of a plan, as "plan" was defined by the Vermont Supreme Court in Re: Agency of Administration, 141 Vt. at 82. We do not believe that the evidence demonstrates that the various municipal projects constructed on this site over the past 35 years were part of a larger undertaking, under the auspices of the Jericho School District, to provide school and recreation facilities for municipal purposes. 2. Substantial Change Act 250 requires that a permit be obtained prior to commencement of construction on a development or commencement of development. 10 V.S.A. § 6081(a). An exemption from the Act 250 permit requirement is provided for developments that were in existence prior to 1970, unless a substantial change has occurred or will occur. 10 V.S.A. § 6081(b). "Substantial change" is defined at Board Rule 2(G) as "any change in a development or subdivision which may result in significant impact with respect to any of the criteria specified in 10 V.S.A. section 6086(a)(1) through (a)(10)." The first determination to be made is whether a project qualifies as "pre-existing development". Pre-existing development is defined at Board Rule 2(O) as: "[A]ny development in existence on June 1, 1970 and any development which was commenced before June 1, 1970 and completed by March 1, 1971." If a project meets the definition of Rule 2(O), and would have met the definition of "development" at 10 V.S.A. § 6001(3) had it been constructed or completed after March 1, 1971, then it is considered "pre-existing." Once it is established that a project is a pre-existing development, a two-part test is then applied to determine whether a substantial change has occurred or will occur. First, the Board considers whether there has been a change to the project. Second, the Board determines whether the change may result in significant impact under one or more of the ten criteria of Act 250. See In re Barlow, 4 Vt. Law Week 199 (1993); In re: H. A. Manosh Corp., 147 Vt. 367 (1986). In this case, prior to 1970 the only construction on the site consisted of the 1957 construction of the original school building and associated parking area, entrance, lawn, playground, and ballfield on 5.4 acres of land. Although there is some evidence that the remaining land may have been mowed, there is no evidence that it was actually "physically changed or altered" because of the school building construction, or that it was used by the school. Because it involved less than 10 acres, the construction of the school in 1957 would not have met the definition of development for municipal purposes and is therefore not a pre-existing development for purposes of applying the substantial change analysis. ____________________________________ V. ORDER 1. Paul Arnot's request for an Advisory Opinion was timely filed. 2. An Act 250 permit is not required for the 1990 construction of the Jericho Corners Elementary School addition and related improvements. Dated at Montpelier, Vermont this 9th day of December, 1994. ENVIRONMENTAL BOARD s/s/ Lawrence Bruce ___________________________________ Lawrence H. Bruce Jr., Acting Chair John Farmer Samuel Lloyd William Martinez Steve E. Wright c:\wp51\decision\jericho.dec (v)