RE: Wm. and Tarra Ferrone d/b/a Sykes Hollow Kennels, Declaratory Ruling #294, Findings of Fact, Conclusions of Law, and Order (May 9, 1995) Page # VERMONT ENVIRONMENTAL BOARD 10 V.S.A. Chapter 151 Re: William and Tarra Ferrone, d/b/a Sykes Hollow Kennels Declaratory Ruling #294 FINDINGS OF FACT, CONCLUSIONS OF LAW, AND ORDER This decision pertains to whether a permit amendment is required under 10 V.S.A. Chapter 151 (Act 250) because of an alleged material change in the operation of a permitted dog kennel located in the Town of Rupert. As is explained below, the Environmental Board (the Board) concludes that no permit amendment is required. I. SUMMARY OF PROCEEDINGS On July 1, 1974, the District #8 Environmental Commission issued Land Use Permit #8B0080 (the Permit) to Elinor C. Ayers, authorizing the construction and operation of a dog kennel in the Town of Rupert, Vermont. On July 17, 1992, the District Commission issued Land Use Permit #8B0080-1 (the Permit Amendment) to the Estate of Elinor C. Ayers, authorizing the extension of an expiration date contained in the Permit from January 1, 1995 to January 1, 2018. Sometime during 1993, the District Commission convened a hearing to evaluate complaints about noise emanating from the kennel. During the hearing, the Petitioners challenged the District Commission's authority to impose new conditions to limit noise. On November 12, 1993, District #8 Coordinator Warren Foster issued Advisory Opinion #8-124 (the Advisory Opinion), concluding that a permit amendment is required for the present operation of the kennel because, in his view, that operation constitutes a material change from the permitted operation. On December 10, 1993, the Petitioners filed a petition for declaratory ruling with the Board pursuant to 10 V.S.A.  6007(c) and Board Rule 3(C). On February 17, 1994, Board Counsel Aaron Adler convened a prehearing conference in West Pawlet. On February 28, the Board received a petition for party status from Edward and Wendy Canning dated February 25, 1994. On March 4, 1994, Counsel issued a prehearing conference report and order, which is incorporated by reference. Also on March 4, the Petitioners filed a notice of withdrawal. On March 9, the Cannings filed a response to the Petitioners' notice. On April 1, 1994, the Board issued an order dismissing this matter. The April 1 order is incorporated by reference. In relevant part, the April 1 order stated: If the declaratory ruling request is withdrawn, then the District Commission's jurisdiction is not challenged, and the District Commission is therefore free to proceed with its noise evaluation. On April 8, 1994, the Ferrones filed a motion to alter the dismissal order. On April 18, the Cannings filed a response. On May 19, 1994, the Board issued a memorandum of decision denying the motion to alter. The May 19 memorandum of decision is incorporated by reference. In relevant part, the May 19 memorandum of decision included an order which stated: Within 30 days from the date of this order, the Ferrones shall file a written request for renewal of their declaratory ruling petition. If such a request is filed, the Board will hear their petition. If no such request is filed, then the Board's April 1 dismissal order will be final, and therefore the District #8 Commission will be able to go forward with its hearing to evaluate noise complaints. On June 17, 1994, the Petitioners filed a letter to renew their declaratory ruling petition. On July 29, Board Counsel, acting on a statement by petitioner William Ferrone, issued letters allowing the parties time to discuss a settlement. Having received no further communication from the parties, on September 12, 1994, Acting Chair Lawrence H. Bruce, Jr. issued a memorandum to parties which is incorporated by reference. The Acting Chair's September 12 memorandum set a schedule for filing testimony and for holding a hearing, stated the issues to be decided by the Board, and took notice of various documents. On October 6, 1994, the Petitioners filed a list of witnesses and exhibits, summaries of testimony, and a copy of an agreement between themselves and the Cannings. On October 12, 1994, the Board convened a hearing in the Town of Rupert with the following party participating: William and Tarra Ferrone (the Petitioners) by Marilyn F. Hand, Esq. After taking a site visit, and hearing testimony and argument, the Board recessed pending review of the record, deliberation and decision. The Board deliberated on October 12, 1994 and April 26, 1995. This matter is now ready for decision. II. ISSUES Whether, under Environmental Board Rules (EBR) 2(P) and 34, the present operation constitutes a "material change" to the permitted operation, thereby requiring a permit amendment. The issue centers on alleged changes to the operation which cause an increase in noise emanating from the kennel. III. FINDINGS OF FACT On July 1, 1974, the District #8 Environmental Commission issued Land Use Permit #8B0080 (the Permit) to Elinor C. Ayers, authorizing the construction and operation of a dog kennel in the Town of Rupert, Vermont (the Project). The Permit was not appealed. Dogs bark. The Permit contains no findings of fact, terms, or conditions which address the noise caused by barking dogs. The Permit states that it is "for a dog kennel." Only two conditions of the Permit impose requirements which in any way restrict the Project with respect to activities typically associated with a dog kennel. These conditions are: 7. The number of dogs contained at one time [at] the proposed development shall be limited as follows: a. No more than 32 dogs of over one year of age. b. No more than 16 dogs between the ages of two months and one year. c. No more than 30 dogs of under two months of age. . . . 9. Dog pens shall be cleaned manually or mechanically and the waste disposed of off the tract of land containing the kennel. Neither the Permit nor the exhibits thereto indicate that representations were made to the District Commission that anything less than a full range of dog kennel activities would occur. On July 17, 1992, the District Commission issued Land Use Permit #8B0080-1 (the Permit Amendment) to the Estate of Elinor C. Ayers, authorizing the extension of an expiration date contained in the Permit from January 1, 1995 to January 1, 2018. The Permit Amendment continues all of the terms and conditions of the Permit, except as amended by the Permit Amendment. The Permit Amendment was not appealed. The Permit Amendment contains Condition #3, which provides: "Condition #7 [of the Permit] is hereby amended to lift the restriction on the ages of dogs, but to continue a limit of 78 dogs at any one time." The Permit Amendment contains only two conditions which specifically address the noise of barking dogs: 4. The permittee shall keep all dogs inside the building from 6:00 p.m. to 8:00 a.m. daily, in order to limit noise nuisance to surrounding residents. 5. As an additional noise buffer, the permittee shall plant and continually maintain two, 6-foot hemlock trees each year for five consecutive years, for a total of ten trees. These trees will be planted between the north wing of the kennel and the westerly boundary line of the Canning property. Aside from Conditions #3, #4, and #5, no condition of the Permit Amendment in any way restricts the Project with regard to activities typically associated with a dog kennel. Neither the Permit Amendment nor the exhibits thereto indicate that representations were made to the District Commission that anything less than the full range of dog kennel activities would occur. William and Tarra Ferrone (the Petitioners) presently run the Project, doing business as Sykes Hollow Kennels. They have operated the Project since July 1992. The Petitioners represent that they have not violated any of the conditions of the Permit or the Permit Amendment. The Petitioners have planted the trees called for in Condition #5 of the Permit Amendment. All of the activities included in the present operation of the Project are activities typically associated with dog kennels. The Petitioners plan no other activities. IV. CONCLUSIONS OF LAW Under EBR 34, a permit amendment is required for, among other things, a "material or substantial change" to a permitted project. No issue is presented regarding substantial change. Concerning material change, EBR 2(P) provides: "Material change" means any alteration to a project which has a significant impact on any finding, conclusion, term or condition of the project's permit and which affects one or more values sought to be protected by the Act. A determination of whether an activity is a "material change" involves a two-step analysis. First, the Board must find that an alteration has taken place or will take place. This alteration need not be a physical change, but can simply be a change of use. Second, the Board must find that the alteration has a significant impact on any finding, conclusion, term, or condition of the project's permit and that the alteration affects one or more of the values Act 250 protects. Re: Mount Mansfield Co., Inc. (Summer Concert Series), Declaratory Ruling #269 at 11 (July 22, 1992). Based on the foregoing findings of fact, the Board concludes that no alteration has occurred or is proposed from the Permit as amended in 1992, and therefore that no permit amendment is required by reason of a "material change." This conclusion is specifically limited to the facts stated above. V. ORDER Based on and subject to the foregoing, EBR 34 does not require a permit amendment for the Project by reason of material change. Dated at Montpelier, Vermont this 9th day of May, 1995 ENVIRONMENTAL BOARD \s\Lawrence H. Bruce, Jr. Lawrence H. Bruce, Jr., Acting Chair John Ewing John M. Farmer Arthur Gibb Marcy Harding Samuel Lloyd William Martinez Steve E. Wright ferrone.dec(a17)