RE: Howe Center Limited, Land Use Permit Application #1R0770-EB, Findings of Fact, Conclusions of Law, and Order (May 4, 1995) Re: Howe Center Limited Land Use Permit Application #1R0770-EB Findings of Fact, Conclusions of Law, and Order Page # VERMONT ENVIRONMENTAL BOARD 10 V.S.A. Chapter 151 RE: Howe Center Limited Land Use Permit #1R0770-EB FINDINGS OF FACT, CONCLUSIONS OF LAW, AND ORDER TABLE OF CONTENTS I. Summary of Decision . . . . . . . . . . . . . . . . 2 II. Summary of Proceedings. . . . . . . . . . . . . . . 2 III. Issues. . . . . . . . . . . . . . . . . . . . . . . 4 IV. Findings of Fact. . . . . . . . . . . . . . . . . . 6 V. Conclusions of Law. . . . . . . . . . . . . . . . . 22 A. Burden of Proof. . . . . . . . . . . . . . . . 22 B. Criterion 1 (Air). . . . . . . . . . . . . . . 22 C. Criterion 1(B) (waste disposal). . . . . . . . 23 D. Criterion 1(D) (floodways) . . . . . . . . . . 25 E. Criterion 1(E) (streams) . . . . . . . . . . . 26 F. Criterion (4) (soil erosion) . . . . . . . . . 26 G. Criterion (5) (traffic). . . . . . . . . . . . 27 H. Criterion (8) (aesthetics) . . . . . . . . . . 31 i. Historic sites and Rare and Irreplaceable Natural Areas . . . . . . . 31 ii. Aesthetics. . . . . . . . . . . . . . . . 32 I. Criterion (9)(K) (public investments and facilities). . . . . . . . . . . . . . . . 34 J. Criterion (10) (local plan). . . . . . . . . . 35 VI. Order . . . . . . . . . . . . . . . . . . . . . . . 39 I. SUMMARY OF DECISION This decision pertains to an appeal of Land Use Permit #1R0770 and supporting Findings of Fact, Conclusions of Law, and Order (the Permit) issued to Howe Center Limited (the Permittee) by the District #1 Environmental Commission (the District Commission). The Permittee owns and operates a multi-use commercial/industrial complex known as the Howe Center (the Site). The Site is located on an 18 acre triangular shaped tract of land in the City of Rutland. This appeal pertains to certain road improvements (the Road Improvements) already constructed at or adjacent to the Site, and the proposed construction of Building #22 at the Site. An Act 250 permit is required for the Road Improvements pursuant to 10 V.S.A.  6081(b) and EBR 2(A)(5) and 2(G). An Act 250 permit is required for Building #22 pursuant to 10 V.S.A.  6001(3) and EBR 2(A)(2). As is explained below, the Environmental Board concludes that the Road Improvements and Building #22 comply with those portions of the following criteria which are on appeal: 10 V.S.A.  6086(a)(1) (air pollution), (1)(B) (waste disposal), (1)(D) (floodways), (1)(E) (streams), (4) (soil erosion), (5) (traffic), (8) (aesthetics), (9)(K) (public investments and facilities), and (10) (local plan). Accordingly, the Board issues an amended permit. II. SUMMARY OF PROCEEDINGS On July 25, 1994 the District Commission issued the Permit. The Permit authorizes the Road Improvements, and also makes affirmative findings for the proposed construction of eight new buildings (including Building #22) at the Site on certain, but not all, criteria pursuant to EBR 21. On August 19, 1994 Angela R. Hinchey filed an appeal from the Permit. On August 24, 1994 Karen J. Moore and Kevin A. Smith (Moore and Smith), through their attorney John D. Hansen, Esq., filed an appeal from the Permit. On August 24, 1994 Vermont Railway, Inc. (VR), through their attorney Eric R. Benson, Esq., filed an appeal from the Permit. On September 27, 1994 then Board Chair Art Gibb convened a prehearing conference in Rutland, Vermont. At the prehearing conference, Moore and Smith raised the preliminary issue as to whether VR should be made a co-applicant with the Permittee. Deadlines were set for the submission of legal memoranda regarding this issue. On October 17, 1994 Chair Gibb issued a Prehearing Conference Report and Order (the Order). On December 7, 1994 the Board convened a deliberation in Montpelier regarding the preliminary issue of co-applicancy and, on December 15, 1994, Chair Gibb issued a memorandum to the parties informing them of the results of the Board's deliberation. The Chair's December 15, 1994 memorandum to parties is incorporated herein. On February 1, 1995 John T. Ewing became Chair of the Board. On or before February 1, 1995 the parties filed prefiled testimony, evidentiary objections, and proposed findings of fact and conclusions of law. On February 14, 1995 Chair Ewing convened a second prehearing conference in Montpelier. On February 15, 1995 the Board convened a hearing in this matter with the following parties participating: Howe Center Limited by Joseph A. Giancola, Peter W. Giancola, Barbara Giancola, Sigismund J. Wysolmerski, Esq., and Anthony Stout. Angela R. Hinchey, pro se Karen J. Moore and Kevin A. Smith by John D. Hansen, Esq. Vermont Railway Inc. by John Pennington and Eric Benson, Esq. City of Rutland by Frank H. Zetelski, Esq. At the conclusion of the hearing, the Board requested memoranda from the parties with regard to the City of Rutland's zoning ordinance and its potential applicability to the Site relative to the Road Improvements. On February 23 and March 2, 1995 the Permittee, and on February 27, 1995 Moore and Smith, complied with the Board's request for memoranda. The Board deliberated on February 15 and April 26, 1995. On April 26, 1995 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. See Petition of Village of Hardwick Electric Department, 143 Vt. 437, 445 (1983) (under 3 V.S.A.  812, individual ruling on each proposed finding of fact not required; it is sufficient if the record shows that a board deciding a contested case considered and decided each proposed finding); Accord In re Young's Community TV Corp., 141 Vt. 53, 57 (1982); Petition of Green Mountain Power Corporation, 131 Vt. 284, 306 (1973); In re Application of Hemco, Inc., 129 Vt. 534, 537 (1971). III. ISSUES As clarified by the Order, and based upon the Permit and the application of EBR 21, the improvements which are subject to review in this appeal are the Road Improvements and Building #22. Ms. Hinchey appealed from the Permit relative to Criteria 1(B), 1(D), 1(E), 4, and 8. Moore and Smith appealed from the Permit relative to Criteria 1, 5, 8, 9(E), 9(K), and 10. Pursuant to the Order, Moore and Smith's appeal of Criterion 9(E) was not allowed. VR appealed from the Permit relative to Criteria 1(B), 4, 5, and 9(K). Since these criteria are on appeal due to Ms. Hinchey's and Moore and Smith's appeals, VR's appeal does not raise any additional criteria. In addition, at the commencement of the February 15, 1995 hearing, VR unilaterally withdrew from this appeal because it had reached a settlement with the Permittee. As a consequence of its withdrawal, none of VR's prefiled evidence was admitted and nor has its proposed findings of fact and conclusions of law been considered by the Board. VR's withdrawal from this proceeding does not change the criteria which are on appeal. The issues in this appeal are: 1. Whether, pursuant to 10 V.S.A.  6086(a)(1), the Road Improvements will result in undue air pollution. 2. Whether, pursuant to 10 V.S.A.  6086(a)(1)(B), the Road Improvements meet any applicable health and environmental conservation department regulations regarding the disposal of wastes, and will involve the injection of waste materials or any harmful or toxic substances into ground water or wells. 3. Whether, pursuant to 10 V.S.A.  6086(a)(1)(D), the Road Improvements will restrict or divert the flow of flood waters, and endanger the health, safety and welfare of the public or of riparian owners during flooding, and will significantly increase the peak discharge of a river or stream within or downstream from the area of development and endanger the health, safety, or welfare of the public or riparian owners during flooding. 4. Whether, pursuant to 10 V.S.A.  6086(a)(1)(E), the Road Improvements, if adjacent to the banks of a stream, will, whenever feasible, maintain the natural condition of a stream, and will endanger the health, safety, or welfare of the public or of adjoining landowners. 5. Whether, pursuant to 10 V.S.A.  6086(a)(4), the Road Improvements will cause unreasonable soil erosion or reduction in the capacity of the land to hold water so that a dangerous or unhealthy condition may result. 6. Whether, pursuant to 10 V.S.A.  6086(a)(5), the Road Improvements will cause unreasonable congestion or unsafe conditions with respect to the use of highways and railways. 7. Whether, pursuant to 10 V.S.A.  6086(a)(8), the Road Improvements will have an undue adverse effect on the scenic or natural beauty of the area, aesthetics, historic sites or rare and irreplaceable natural areas. 8. Whether, pursuant to 10 V.S.A.  6086(a)(9)(K), the Road Improvements, if adjacent to governmental and public utility facilities, services, or land, will unnecessarily or unreasonably endanger the public or quasi-public investment in the facility, service, or lands, or materially jeopardize or interfere with the function, efficiency, or safety of, or the public's use or enjoyment of or access to the facility, service, or lands. 9. Whether, pursuant to 10 V.S.A.  6086(a)(10), the Road Improvements are in conformance with the City of Rutland's Master Plan. 10. Whether, pursuant to 10 V.S.A.  6086(a)(10), Building #22 is in conformance with the City of Rutland's Master Plan. IV. FINDINGS OF FACT The Site is commonly known as the Howe Center and is located in the southwest quadrant of the City of Rutland. The Site dates back to 1877 when the Howe Scale Company moved to and commenced commercial operations at the Site. The manufacturing of all types of scales, weighing equipment and two and four wheel carts continued at the Site until it closed in 1982. The Permittee purchased the Site on July 27, 1989. The Permittee has renovated the Site and made it into a multi-use commercial/industrial complex. As part of the overall renovation of the Site, the Permittee painted buildings, replaced broken windows, removed rusted smoke stacks and ventilation pipes, planted trees, and removed debris. The Site offers 300,000 square feet of space for lease. Tenants include manufacturers, colleges, tele- communications providers, food service establishments, youth activities centers, community service agencies, retail establishments, and repair shops. The total size of the proposed eight new buildings is 42,400 square feet, or about a 12 percent increase in space. The construction of the Road Improvements was completed during the spring of 1991. It was the construction of the Road Improvements which precipitated the issuance of Advisory Opinion 1-190 on April 30, 1993, issued by then District #1 Coordinator Anthony Stout. In Advisory Opinion 1-190, the District Coordinator concluded, in part, that "an Act 250 Land Use Permit is required for the use of the southern access for through traffic and public access." (Emphasis in original.) Partially in response to Advisory Opinion 1-190, the Permittee filed its application for the Permit. The Site contains 18 acres of land and is laid out in the shape of a triangle. The triangle's base is the Site's southern boundary. There are three railroad tracks along the eastern side of the Site, and four tracks and several spurs along the western side. In addition, there is a salt shed. The City of Rutland's downtown business district is located to the northeast across from the eastern side railroad tracks. Across the tracks to the west is an area of mixed commercial and residential uses near Spruce and Granger Streets. River Street links Strongs Avenue and Granger Street to the north of the Site. The Site adjoins the following commercial establishments: Overhead Door, East Hill Manufacturing, H.A. Eddy Energy, Marble Valley Regional Transit District, the City of Rutland Department of Public Works garage and the Central Vermont Public Service Corporation pole yard. Along the south side of the Site, commercial and residential uses are located along Moulthrop Avenue, Porter Place, and Park Street. Park Street runs east and west and connects U.S. Route 7 and Granger Street. The Site can be accessed from three different locations. Each location connects with a City of Rutland street. The first access route (the Scale Avenue Access) is located on the east side of the Site and connects with Scale Avenue. Scale Avenue runs in an east/west direction. The Scale Avenue Access is considered to be the Site's main entrance. Scale Avenue is bisected by railroad tracks owned by the State of Vermont and leased to VR. At the grade crossing, there are train caution signs and speed bumps. Use of the Site via the Scale Avenue Access requires the motorist to drive through a two-lane tunnel under Building #3 and to traverse a grade crossing with VR's right-of-way. A pedestrian walkway is also delineated on the pavement. After exiting from the Site and crossing the railroad tracks, Scale Avenue proceeds easterly past the John A. Russell Corporation offices, and intersects with Strongs Avenue. Strongs Avenue leads directly to the downtown section of Rutland and U.S. Route 7. Uses along Strongs Avenue include single and multi-family homes, and commercial operations like Wilson Moving & Storage, Vermont Transit Bus Garage, Taylor Rental Center and Green Mountain Schwinn Cyclery. The second access route is located on the Site's southern boundary and connects with Moulthrop Avenue and Porter Place (the Porter Place Access). Moulthrop Avenue intersects with Porter Place and runs in an east/west direction. Moulthrop Avenue adjoins the southerly boundary of the Site for about 350 feet. At one time, Moulthrop Avenue extended all the way to U.S. Route 7. However, that portion of Moulthrop Avenue lying easterly of the railroad tracks leading to Bellows Falls was discontinued prior to the Permittee's ownership of the Site. As a result, Moulthrop Avenue dead ends at the tracks leading to Bellows Falls. There is a short, appendix like 250 foot long street called Ivy Street which extends southerly from Moulthrop Avenue near its easterly terminus. Ivy Street is a dead end street. The westerly terminus of Moulthrop Avenue is 200 feet after its intersection with the Porter Place Access. Porter Place runs in a north/south direction and intersects with Park Street. At the point of its intersection with Porter Place, Park Street runs in an east/west direction. Porter Place is also the means of access to Moulthrop Avenue and Ivy Street. Park Street intersects with Main Street. Main Street is also U.S. Route 7. There is a mixture of commercial and residential uses on Porter Place and Moulthrop Avenue. Tilcon Arthur Whitcomb, a concrete specialties supplier, is located at the east end of Moulthrop Avenue. The R.H. Ice Company is next to Whitcomb. The John A. Russell Corp. maintenance garage and yard and the J.E. McLaughlin warehouse and office are directly south and across from the Porter Place Access. Moore and Smith live on Porter Place. Angela Hinchey lives on Park Street. The third access route is a grade crossing located at the north (or top portion) of the triangular shaped Site; this route utilizes a right-of-way owned by the State of Vermont and Central Vermont Public Service (the North Gate Access). The North Gate Access requires the crossing of four sets of railroad tracks. The crossing is wide enough for two- way traffic. Stop signs are provided in each direction to control traffic flow. The dirt road leading from the crossing to Post Street is very rough which necessitates slow speeds. The general public only occasionally uses the North Gate Access. VR tends to do more switching of trains in this area and, therefore, the North Gate Access is blocked more often then the Scale Avenue Access. Both the Scale Avenue Access and the North Gate Access can, potentially, be blocked by stopped trains. The Permittee and VR have a crossing agreement for the North Gate Access. There was a written crossing agreement relative to the Scale Avenue Access between VR and the Howe Scale Company dated April 8, 1975. The Permittee and VR agree to be bound by the terms of that crossing agreement. The Scale Avenue Access, the Porter Place Access, and the North Gate Access are all connected by an interior road within the Site (the Interior Road). Generally, the Road Improvements consist of improving the quality and size of the Scale Avenue Access, the Porter Place Access, and the Interior Road. The Permittee expanded the Scale Avenue Access by widening the tunnel which traverses under Building #3 from one to two lanes. The two single lane tunnels which service the Scale Avenue Access are both 15 feet wide and 12 feet high. The added tunnel lane is identical in style to the pre-existing tunnel and does not change the character of Building #3. The Permittee also installed signs which direct truck traffic to access the Site by the Porter Place Access. Prior to when the Permittee commenced construction of the Road Improvements, a fence and gate prevented access to the Site via the Porter Place Access. The Permittee has removed the fence and gate and the Porter Place Access is now available for unrestricted use. This makes it possible for vehicles to go from Strongs Avenue to Park Street via the Interior Road thereby avoiding Main Street. Strongs Avenue leads directly into Main Street at the southeastern corner of the triangular shaped Site. Traveling south from the intersection of Strongs Avenue and Main Street, it's another 650 feet until the intersection of Park Street and Strongs Avenue. Presently, traffic is not using the Interior Road as a "cut-through" between Park Street and Strongs Avenue. However, Porter Place is now used by people accessing the Site, and Marble Valley Regional Transit has established a bus route which uses the Interior Road and exits from the Site via the Porter Place Access. All types of vehicles use the Interior Road. The traffic generates typical traffic noises, similar to that of a city street. The resulting noise is neither sharp nor piercing. No professional or clinical evidence has been presented as to any psychological health effects from truck traffic on residents of Porter Place or elsewhere around the Site. No evidence has been presented to suggest that the noise from the traffic on Porter Place creates any hearing problems. Physical changes made to Porter Place since the Permittee took ownership of the Site include the installation of a street light at its north end and the removal of a dead- end sign at its intersection with Park Street. Prior to the Permittee's purchase of the Site, the paved portion of the Interior Road was cracked, uneven, without delineated parking spaces and traffic signs. At the pavement's end, there was a narrow, winding one-lane dirt track leading from the developed portion of the Site to the Porter Place Access. The Permittee upgraded the condition of the pre-existing Interior Road and dirt track into its present state. Now the Interior Road is a 24-foot wide, fully paved road surface. There is a bus shelter along the Interior Road. Although upgraded, the Interior Road today follows essentially the same path as it did when the Site was owned by the Howe Scale Company. The Interior Road is posted at 15 m.p.h. The are speed bumps in the Interior Road. Cars park adjacent to the Interior Road throughout the Site. Speed on the Interior Road is also controlled by the Interior Road's geometry. It has curves which serve to limit speed. In addition, there are speed bumps at the rail crossing at the Scale Avenue Access and next to Building #15. The Interior Road is marked with speed limit signs along its length. The Permittee will maintain speed bumps and stop signs as necessary to control vehicular speeds on the Interior Road; will repaint stop lines and pedestrian walkways as needed; and will continue to provide flagpersons at the Scale Avenue Access whenever the Permittee is aware of an impending train. At the Strongs Avenue/Scale Avenue intersection the sight distance for an exiting vehicle is greater than 500 feet in both directions. Scale Avenue is 30 feet wide and is adequate for the current use. Because the Scale Avenue Access tunnels are 12 feet high, some of the trucks which need to access the Site must use either the North Gate Access or the Porter Place Access. While trucks may use the North Gate Access, it is not a practical manner in which to access the southern portion of the Site, primarily because the drive south from the North Gate Access is often restricted by parked cars and other activities. On a daily basis, there are approximately 750 one-way vehicle trips on Porter Place which use the Porter Place Access between the hours of 6:00 a.m. and 6:00 p.m. During the same time frame, of the 750 trips, approximately 80 trips are made by trucks of all sizes. Of the 80 trips, approximately 25-30 are tractor-trailer trips and the remainder are trips by smaller trucks. These traffic counts are all attributable to the Site and not the other businesses located on Porter Place, Moulthrop Avenue, or Ivy Street. Tractor-trailer trucks can pass each other on Porter Place by staying in their own lane. No safety problem results if trucks ride off the pavement at the edge of the road when passing each other. At the intersection of Porter Place and Park Street, Park Street measures approximately 34 feet in width with sidewalks and curbing around the corner of Porter Place. The curbing stops at approximately 20 feet from Park Street, and at that point Porter Place measures 18 feet 10 inches. Porter Place widens down toward Moulthrop Avenue to over 20 feet. Tractor-trailer trucks use Park Street to complete their turns onto Porter Place. Although this practice is not ideal, and is operationally inconvenient, it is not inherently unsafe. Trucks wait for conflicting traffic to clear and complete the turn at very slow speeds. When two trucks simultaneously arrive at the intersection of Park Street and Porter Place, they avoid a collision if the truck on Park Street allows the truck on Porter Place to exit first. Then the truck on Park Street can safely proceed onto Porter Place. Based on Vermont Agency of Transportation accident listing data for the Porter Place/Park Street intersection, there has been an average of less than one reportable accident per year at this location (approximately 250 feet on either side of the intersection) during the ten-year period. During the last five years (1989-1993) only two State-reportable accidents occurred at or near the intersection. This intersection's accident rate is 30% of the State average accident rate for similar intersections. The current truck traffic generated by the Site relative to the Porter Place Access, Porter Place, and the Porter Place/Park Street intersection does not create unsafe conditions. The Site has 390 parking spaces. Pursuant to Section 5- 503 of Vermont's Air Pollution Control Regulations, the Site does not need an air pollution control permit. Because the Interior Road is paved, very little dust is generated by vehicle traffic. The Interior Road and its attendant parking spaces are maintained with a powered sweeper and vacuum. Rainfall and snowmelt are discharged in two ways. First, all areas within the existing buildings on the Site have catch basins which collect the water. The catch basins are connected to the sanitary sewer system, and the collected water goes to the City of Rutland Wastewater Treatment Plant. When the sanitary system is unable to process all the water collected system-wide, water may flow directly into Otter Creek through one of the City's combined sewer overflows. Second, the remainder of the rainfall and snowmelt is sheet-shed off to the side of the Interior Road. This occurs in the southern half of the Site where there are no catch basins. Much of the land surrounding the Interior Road is fairly flat so a large portion of the water is removed by infiltration into the soil. The remainder, if there is any, flows overland to Moon Brook. The Permittee has been issued Discharge Permit No. 1-1182 by the Agency of Natural Resources (ANR), Department of Environmental Conservation, in compliance with the provisions of 10 V.S.A.  1263. Discharge Permit No. 1Ä 1182 provides: S/N 001 - Stormwater runoff from the paved roadway and parking located on the north side of Moon Brook via overland sheet flow through a grassed buffer area prior to discharge to Moon Brook. Stormwater runoff from the paved roadway and parking located on the south side of Moon Brook via overland sheet flow through a grassed buffer area and to an infiltrating catch basin collection system outletting to a grass lined swale prior to discharge to Moon Brook. Moon Brook traverses across the Site in a southwesterly direction from just south of Building #5 to between the existing 30,000 gallon liquid propane bulk tank and the Porter Place Access. The Interior Road crosses over Moon Brook. A culvert runs underneath the Interior Road as it crosses over Moon Brook (the Culvert). It is along the ravine of Moon Brook and in the area west of the Porter Place Access that is identified as a flood hazard area. The 100-year flood plain is highlighted on Exhibit HC-19. The construction of improvements in the flood hazard area since the Permittee took ownership of the Site has been limited to the lengthening of the Culvert by 12 feet on its east end and 10 feet on its west end, widening of the Interior Road, and the stabilization of those portions of the streambank slopes which are adjacent to the Culvert. The addition to the ends of the Culvert made it possible to expand the width of the Interior Road to its present size, and to flatten the side slopes. The flatter side slopes enhance streambank stability and reduce erosion due to the slower water velocities over them. The maximum flow through the Culvert is approximately 915 cubic feet per second. If flood waters backed up behind the Culvert, the water would be confined to the Site, with much of it contained within the Moon Brook ravine upstream of the Culvert. There is a concrete box culvert for the railroad located just west of Ms. Hinchey's property. The railroad culvert has a maximum capacity of approximately 921 cubic feet per second. If water was to back up onto Ms. Hinchey's property, it would be caused by this box culvert and not the Culvert. The Permittee's improvements to Moon Brook itself have been limited to the removal of trash and garbage like tires, shopping carts, and mattresses. The Permittee has allowed the vegetation along Moon Brook to grow up without being disturbed. The stabilization of the streambank slopes which are adjacent to the Culvert was accomplished by the addition of fill material. The fill at the Culvert was stabilized using rip-rap. The remaining areas were seeded and mulched. There has been no fill erosion since its addition by the Permittee. The modifications made by the Permittee have not changed the high, steep banks which existed along Moon Brook when the Permittee purchased the Site, and which were created by the Howe Scale Company. The Permittee has, in consultation with the Department of Fish and Wildlife, ANR, agreed that it will not stockpile snow within a 25-foot buffer zone around Moon Brook; that plantings, consisting of at least "several trees" will be part of the reconstruction of Building #21 such that there is additional shade provided to Moon Brook along Building #21's north side; and that all new buildings will be situated outside of the 25-foot buffer zone. However, the construction of a driveway apron within the buffer zone in the area of proposed building C is allowed. The buffer zone extends back from the top of Moon Brook's banks, and not from Moon Brook's high water mark. Because the buffer is measured from the top of the bank, the Permittee is providing protection that extends between 50 and 150 feet back from the stream bank through the Site. Because of this, Moon Brook is adequately protected from any encroachments in the buffer zone. The Permittee regraded and realigned the Interior Road as part of the Road Improvements. The Permittee controlled and prevented erosion during construction by placing hay bales adjacent to where the Interior Road and Moon Brook cross. The Site is essentially flat such that permanent erosion control is limited to the Interior Road being paved and grass being established along its entire length. The area adjacent to the Culvert has been stabilized by using rip-rap and grass, and there is very little erosion in this area. Moon Brook's banks appear stable such that they are not rapidly eroding during most rain storms notwithstanding that they were constructed of waste casting sand and other materials by the Howe Scale Company. However, since these materials are inherently unstable in a slope situation, especially when placed steeper than their natural angle of repose, the Permittee will monitor the banks for erosion. The Road Improvements have only slightly increased stormwater runoff. While the total runoff during a storm event has increased, the peak discharge to Moon Brook has not increased because runoff from the Site gets to Moon Brook prior to the runoff from the other 5.25 square miles of the Moon Brook watershed. If a long-duration, constant intensity storm such as a tropical depression were to occur, then the lengthened time of peak discharge from the Site would coincide with the peak discharge from the other 5.25 square miles of the Moon Brook watershed. In such an event, the increased peak discharge would still be an almost unmeasurable amount when compared to the total streamflow. The paving of the Interior Road does increase the peak watershed runoff by approximately 0.3 cubic feet per second for both the 25- and 100-year design storms. By comparison, the streamflow during a 100-year flood is approximately 1,100 cubic feet per second. The 0.3 cubic feet per second increase is not a significant amount and it does not result in any potentially dangerous or unhealthy condition. The accumulation of storm water runoff on Ms. Hinchey's property has not resulted from the paving of the Interior Road. Rather, such accumulation is likely to have been caused by two factors: first, the limited capacity of the railroad culvert immediately west of her property; and second, the further limiting of the railroad culvert's capacity due to the build up of debris. Installation of a detention basin to capture runoff from the Site will only serve to concentrate runoff instead of maximizing infiltration and treatment. There are no identified rare or natural areas on the Site. 155 and 156 Porter Place are occupied by commercial businesses and have been so occupied since 1947 and 1949, respectively. From 1925 to 1947, 168 Porter Place was used by various trucking businesses. From 1925 through 1986 there was always at least one trucking company located on Porter Place. 155 and 156 Porter Place are at the northern end of Porter Place. The trucks traveling to and from 155 and 156 Porter Place travel the entire length of Porter Place and pass the residences located on Porter Place. There are seven houses on Porter Place, three on the west side (the Elliott house, the Stevens house, and the Moore/Smith house), and four on the east side (the Diehl house, the Rosmus house, the former Hill house, and the Frederick house). There were and are no houses on Moulthrop Avenue and only one house on Ivy Street. Utility poles and street lights have been installed at the Site. Light from the Site is visible from the Moore/Smith house. Moore and Smith can see and hear the trucks that travel by the front of their house. Just to the east of the Porter Place/Park Street intersection is the old Park Street School which is now used as the Rutland Rescue Mission. The Porter Place/Park Street intersection is within two-hundred yards of the Vermont State Fairgrounds (the Fairgrounds). There is no entrance to the Fairgrounds opposite the Porter Place/Park Street intersection. The Rutland City Master Plan (the Plan) became effective on July 21, 1991. The Permittee filed its application for the Permit after the Plan's effective date. The City of Rutland's zoning ordinance was adopted on January 24, 1948. The Plan calls on the City of Rutland to adopt new zoning regulations in support of the Plan. The Plan contains an Executive Summary. The Executive Summary establishes "important goals" and links accomplishment of these important goals to "major issues." "Economic Development" and "Housing" are identified as major issues. With regard to Economic Development, the Executive Summary states, in part: Economic development should create jobs and promote the economic growth and tax base of the City of Rutland, while preserving the residential quality of our neighborhoods. Given the limited amount of undeveloped land in the City, and the need to conserve some areas for open space and recreation, the primary potential for development is in rehabilitating existing residential, commercial and industrial developments. Recent acquisitions of major sites by developers planning to update and reuse the buildings, and the formation of both the Rutland Redevelopment Authority and The Rutland Partnership indicate that both the City and the private development community recognize this avenue as feasible and desirable. Care must be taken to ensure a balance between residential and commercial/industrial growth so that residents' desires to maintain the integrity of their neighborhoods are satisfied. * * * Economic development should not continue to encroach on the quality and preservation of residential neighborhoods. With regard to Housing, the Executive Summary states, in part, that "[p]riority should be given to preserving the existing housing stock in the City." The Plan includes a Land Use Plan. The Land Use Plan provides, in part: For a large portion of the City, the pattern of development was established by growth during the nineteenth century. This pattern evolved around the railroad and industrial use. The nineteenth century development formed around a grid pattern of roadways and contained may small business and residences close together, public buildings, many landmarks, a mix of uses, parks and clearly defined boundaries between uses. Under the sub-heading "Development Potential," the Land Use Plan repeats the following Economic Development portion of the Executive Summary: Given the limited amount of undeveloped land in the City of Rutland, and the need to conserve some areas for open space and recreation, the primary potential for development is in rehabilitating existing residential, commercial and industrial developments. Recent acquisitions of major sites by developers planning to update and reuse the buildings, and the formation of both the Rutland Redevelopment Authority and The Rutland Partnership indicate that both the City and the private development community recognize this avenue as feasible and desirable. Care must be taken to ensure a balance between residential and commercial/industrial growth so that residents' desires to maintain the integrity of their neighborhoods are satisfied. The Plan includes a Summary of Existing Conditions. The Summary provides, in part, that Rutland's first zoning ordinance was adopted January 24, 1948 and, consequently, existing land use is generally patterned after that ordinance; commercial and industrial growth generally have occurred where appropriately zoned; the major changes in commercial land use have been (1) development of a shopping mall downtown in the former railroad yards, and (2) development of highway-oriented businesses along North Main Street, South Main Street, and Woodstock Avenue; and that the City of Rutland's land use can be summarized, in part, as "[m]edium density residential areas surrounding the high density residential," and "[i]ndustrial areas, generally adjacent to the railroad lines, especially in the southwest quadrant." The Plan includes an identification of Land Use Districts and provides, in part: LAND USE DISTRICTS * * * 2. Mixed Residential. The Mixed Residential District is the existing highest density use of land in the City of Rutland for residential purposes and should be so considered in the future. Located close to the core of the city there is adequate water supply and sewer service. Home office use is permitted when site constraints allow for additional parking requirements. To meet increasing demands for this type area. Mixed Residential District will be expanded as shown on the proposed Land Use Plan. Districts residential developments. 2. To enhance the diversity of available housing and preserve the quality of existing mixed residential neighborhoods. 3. To encourage residential development in the Downtown. * * * 6. Industrial. Industrial uses are considered one of the most intensive uses of land. They are located so as not to be a disruptive influence to residential areas, have good access to transportation facilities, and be capable of being serviced by public water and sewer. The present industrial pattern should be allowed to continue, primarily in the southwest quadrant of the city, adjacent to the railroad lines. Industrial uses include warehousing, manufacturing, and commercial or business uses. General Goals for Industrial Districts 1. To provide areas for industrial growth within the City, which have minimal impacts on adjacent land uses. 2. To maximize the use of existing infrastructure. Under the Plan, the Moore and Smith residence is located in the Mixed Residential district and the Site is located in the Industrial District. Under the City of Rutland zoning ordinance, both the Site and the Moore Smith residence are located in the industry zone. The Plan includes a Transportation Plan which provides, in part: * Residential Streets The residential streets form the balance of the roadway network. These streets fulfill the function of accessing adjacent land uses, they are not meant to carry through traffic. To prevent or discourage through traffic, residential roads should be laid out so that they do not permit or encourage these movements. Speeds should be slow and daily volumes below 2,000 vehicles. * * * Neighborhood Cut-through Traffic One of the results of congestion on major roadways and in downtown is the diversion of some traffic through residential streets seeking to avoid delay. Those who drive through neighborhoods are chiefly residents of the region and frequent visitors, as most visitors do not know where the shortcuts are. Most of the affected streets are located within the City. In August, 1986, the cut-through phenomenon was experienced in all four quadrants of the area. In decreasing order of volume, the locations were: * Southeast, along Stratton Road, Allen Street, Killington Avenue, etc. * * * * Southwest, along Strongs Avenue, River Street, Park Street, Dorr Drive, etc. This volume should decrease significantly now that the Southwest Bypass is open. The Plan includes an Implementation Plan which provides, in part, that the existing zoning ordinance should be amended to conform with the land use districts outlined in the Plan, and that the amended zoning ordinance should address the specific problems identified in the Implementation Plan. Building #22 will be a pre-engineered steel building constructed on a concrete frost wall/slab system. Building #22's configuration will be L-shaped because the Permittee has purchased an existing building in that shape to re-use; there will be 7,500 square feet of floor area. Construction of Building #22 has not begun. Building #22 will have a fairly flat roof, with about a 1 to 12 slope. The elevation facing south toward Park Street will have no windows or doors. No parking or other activity will occur on the buildings' south side. Truck bays are located on the north side of the building and will be screened from view from the south by the building itself. V. CONCLUSIONS OF LAW A. Burden of Proof Under 10 V.S.A.  6088(a), the Permittee has the burden of proof on the following criteria under appeal: (1), (1)(B), (1)(D), (1)(E), (4), (9)(K), and (10). With regard to Criterion 1(B), the introduction of Discharge Permit No. 1-1182 operates to transfer the burden of proof to any opponent that has party status on this criterion. If the opponent rebuts the presumption, the burden returns to the Permittee. See EBR 19. Under 10 V.S.A.  6088(b), opponents have the burden of proof under Criteria (5) and (8) in this appeal. However, the Permittee must provide sufficient information for the Board to make affirmative findings. Re: Killington, Ltd. and International Paper Realty Corp., #1R0584-EB-1, Findings of Fact and Conclusions of Law and Order (Revised) at 21 (Sept. 21, 1990). B. Criterion 1 (Air) Pursuant to 10 V.S.A.  6086(a), before granting a permit, the Board shall find that the development will not result in undue air pollution. The Board considers noise impacts as air pollution under Criterion 1 in the context of potential adverse health effects. Re: John and Joyce Belter, #4C0643-6R-EB, Findings of Fact, Conclusions of Law, and Order at 13 (May 28, 1991).(FN1) In considering whether there is undue air pollution, the Board has reviewed the effects from the Interior Road with regard to both the Site and the area along Porter Place. The Site has 390 parking spaces and, therefore, does not need an air pollution control permit under Vermont's Air Pollution Control Regulations. Because the Interior Road is paved, very little dust is generated by vehicle traffic. Further, the Interior Road and its attendant parking spaces are maintained with a powered sweeper and vacuum. With regard to traffic along Porter Place and the use of the Porter Place Access, there are 750 one-way vehicle trips between 6:00 a.m. and 6:00 p.m. on a daily basis. Of that number, 80 are by trucks with 25-30 of them being tractor trailer trucks. Presently, traffic is not using the Interior Road as a cut-through between Park Street and Strongs Avenue. All types of vehicles use the Interior Road and Porter Place, and the traffic generates typical traffic noises that are similar to that of a city street. The resulting noise is neither sharp nor piercing. No evidence has been presented to suggest that the noise from the traffic on Porter Place creates any hearing problems. In light of the preceding findings of fact, the Board concludes that the Road Improvements will not result in undue air pollution. C. Criterion 1(B) (waste disposal) Pursuant to 10 V.S.A.  6089(a)(1)(B), a permit will be granted whenever it is demonstrated by the applicant that, in addition to all other applicable criteria, the development will meet any applicable health and environmental conservation department regulations regarding the disposal of wastes, and will not involve the injection of waste materials or any harmful or toxic substances into ground water or wells. The Board's inquiry under Criterion 1(B) is limited to a consideration of waste disposal relative to wastes generated by the Road Improvements. The Road Improvements generally consist of the improvements made to the Scale and Porter Place Accesses, and the Interior Road. Unlike an industrial process or the wastes generated by the operation of a water supply and sewage disposal unit, the only waste to be disposed of due to the Road Improvements is stormwater. Rainfall and snowmelt are discharged in two ways. First, all areas within the existing buildings on the Site have catch basins which collect the water. The catch basins are connected to the sanitary sewer system, and the collected water goes to the City of Rutland Wastewater Treatment Plant. When the sanitary system is unable to process all the water collected system-wide, water may flow directly into Otter Creek through one of the City's combined sewer overflows. Second, the remainder of the rainfall and snowmelt is sheet-shed off to the side of the Interior Road. This occurs in the southern half of the Site where there are no catch basins. Much of the land surrounding the Interior Road is fairly flat so a large portion of the water is removed by infiltration into the soil. The remainder, if there is any, flows overland to Moon Brook. The Permittee has been issued Discharge Permit No. 1-1182, in compliance with the provisions of 10 V.S.A.  1263, and it pertains to stormwater runoff from the following portions of the Road Improvements: the Interior Road and associated parking located on the north side of Moon Brook and the Interior Road and associated parking located on the south side of Moon Brook. With regard to these identified areas, Discharge Permit No. 1-1182 creates a rebuttable presumption "[t]hat waste materials and wastewater can be disposed of through installation of wastewater and waste collection, treatment and disposal systems without resulting in undue water pollution." Accordingly Discharge Permit No. 1-1182 creates a presumption of compliance with Criterion 1(B) for any waste materials contained in stormwater runoff with regard to that portion of the Road Improvements to which it is applicable. There is no evidence in the record which would support rebuttal of the presumption created by Discharge Permit No. 1-1182. The Permittee will not stockpile snow within a 25-foot buffer zone around Moon Brook, and the Road Improvements have only slightly increased the runoff of stormwater from the Site since there was not a large increase in impervious surface area as a result of this construction. With regard to the accumulation of storm water runoff on Ms. Hinchey's property, this has not resulted from the paving of the Interior Road. Rather, such accumulation is likely to have been caused by two factors: first, the limited capacity of the railroad culvert immediately west of her property; and second, the further limiting of the railroad culvert's capacity due to the build up of debris. Installation of a detention basin to capture runoff from the Site will only serve to concentrate runoff instead of maximizing infiltration and treatment. In light of the preceding findings of fact, the Board concludes that the Road Improvements meet applicable health and environmental conservation department regulations regarding the disposal of wastes, and will not involve the injection of waste materials or any harmful or toxic substances into ground water or wells. D. Criterion 1(D) (floodways) Pursuant to 10 V.S.A.  6089(a)(1)(D), a permit will be granted whenever it is demonstrated by the applicant that, in addition to all other applicable criteria: (i) the development of land within a floodway will not restrict or divert the flow of flood waters, and endanger the health, safety and welfare of the public or of riparian owners during flooding; and (ii) the development of land within a floodway fringe will not significantly increase the peak discharge of the river or stream within or downstream from the area of development and endanger the health, safety, or welfare of the public or riparian owners during flooding. It is along the ravine of Moon Brook and in the area west of the Porter Place Access that is identified as a flood hazard area. The construction of improvements in the flood hazard area since the Permittee took ownership of the Site has been limited to the lengthening of the Culvert by 12 feet on its east end and 10 feet on its west end, widening of the Interior Road, and the stabilization of those portions of the streambank slopes which are adjacent to the Culvert. The Culvert modifications do not violate the prohibitions set forth in Criterion 1(D). The Permittee's improvements to Moon Brook itself have been limited to the removal of trash and garbage like tires, shopping carts, mattresses, and other refuse. The Permittee has allowed the vegetation along Moon Brook to grow up without being disturbed. The maximum flow through the Culvert is approximately 915 cubic feet per second. If flood waters backed up behind the Culvert, the water would be confined to the Site, with much of it contained within the Moon Brook ravine upstream of the Culvert. The paving of the Interior Road does increase the peak watershed runoff by approximately 0.3 cubic feet per second for both the 25- and 100-year design storms. The 0.3 cubic feet per second increase is not a significant amount and it does not result in any potential dangerous or unhealthy condition. While the total runoff during a storm event has increased, the peak discharge to Moon Brook has not increased because runoff from the Site gets to Moon Brook prior to the runoff from the other 5.25 square miles of the Moon Brook watershed. If a long-duration, constant intensity storm such as a tropical depression were to occur, then the lengthened time of peak discharge from the Site would coincide with the peak discharge from the other 5.25 square miles of the Moon Brook watershed. In such an event, the increased peak discharge would still be an almost unmeasurable amount when compared to the total streamflow, and the public's safety will not be endangered. In light of the preceding findings of fact, the Board concludes that the Road Improvements will not restrict or divert the flow of flood waters, nor endanger the health, safety and welfare of the public or of riparian owners during flooding; and will not significantly increase the peak discharge of the Moon River nor endanger the health, safety, or welfare of the public or riparian owners during flooding. E. Criterion 1(E) (streams) Pursuant to 10 V.S.A.  6089(a)(1)(E), a permit will be granted whenever it is demonstrated by the applicant that, in addition to all other applicable criteria, the development of lands on or adjacent to the banks of a stream will, whenever feasible, maintain the natural condition of the stream, and will not endanger the health, safety, or welfare of the public or of adjoining landowners. The stabilization of the streambank slopes which are adjacent to the Culvert was accomplished by the addition of fill material. The fill at the Culvert was stabilized using rip-rap. The remaining areas were seeded and mulched. There has been no fill erosion since its addition by the Permittee. The modifications made by the Permittee have not changed the high, steep banks which existed along Moon Brook when the Permittee purchased the Site, and which were created by the Howe Scale Company. Based on the preceding findings of fact, the Road Improvements on or adjacent to the banks of the Moon Brook will maintain the natural condition of the stream, and will not endanger the health, safety, or welfare of the public or of adjoining landowners. F. Criterion (4) (soil erosion) Pursuant to 10 V.S.A.  6086(a)(4), before granting a permit, the board shall find that the development "[w]ill not cause unreasonable soil erosion or reduction in the capacity of the land to hold water so that a dangerous or unhealthy condition may result." The Site is essentially flat such that permanent erosion control is limited to the Interior Road being paved and grass being established along its entire length. The Permittee stabilized the Moon Brook slopes which are adjacent to the Culvert by adding fill material. The fill at the Culvert was stabilized using rip-rap. The remaining areas were seeded and mulched. There has been no fill erosion since its addition by the Permittee. The Permittee regraded and realigned the Interior Road as part of the Road Improvements. The Permittee controlled and prevented erosion during construction by placing hay bales adjacent to where the Interior Road and Moon Brook cross. Moon Brook's banks appear stable such that they are not rapidly eroding during most rain storms notwithstanding that they were constructed of waste casting sand and other materials by the Howe Scale Company. However, since these materials are inherently unstable in a slope situation, especially when placed steeper than their natural angle of repose, the Permittee intends to monitor the banks for erosion. The additions to the ends of the Culvert made it possible to expand the width of the Interior Road to its present size, and to flatten the side slopes. The flatter side slopes enhance streambank stability and reduce erosion due to the slower water velocities over them. This is an improvement over the conditions which were in existence prior to the upgrade of the Interior Road. Based on the preceding findings of fact, the Road Improvements will not cause unreasonable soil erosion or a reduction in the capacity of the Site to hold water. G. Criterion (5) (traffic) 10 V.S.A.  6086(a)(5) provides that prior to issuing a permit, the Board must find that the proposed project will not cause unreasonable congestion or unsafe conditions with respect to use of highways and railways. The Board may not deny a permit pursuant to Criterion 5. 10 V.S.A.  6087(b). In considering Criterion 5, the Board has reviewed the effects from the Interior Road with regard to both the Site and the area along Porter Place. There are three access points into the Site: the North Gate Access, the Scale Avenue Access, and the Porter Place Access. The three access points are all connected within the Site by the Interior Road. The Road Improvements consist of improving the quality and size of the Scale Avenue Access, the Porter Place Access, and the Interior Road. The North Gate Access is a grade crossing located at the north (or top portion) of the triangular shaped Site, and it uses a right-of-way owned by the State of Vermont and Central Vermont Public Service. The North Gate Access requires the crossing of four sets of railroad tracks. The crossing is wide enough for two-way traffic. Stop signs are provided in each direction to control traffic flow. The dirt road leading from the crossing to Post Street is very rough which necessitates slow speeds. VR tends to do more switching of trains in this area and, therefore, the North Gate Access is blocked more often then the Scale Avenue Access. While trucks use the North Gate Access whenever necessary, it is not a practical manner in which to access the southern portions of the Site, primarily because the drive south from the North Gate Access is often restricted by parked cars and other activities. The general public only occasionally uses the North Gate Access. The Permittee and VR have a crossing agreement for the North Gate Access. The Scale Avenue Access is considered to be the Site's main entrance. Scale Avenue is bisected by railroad tracks owned by the State of Vermont and leased to VR. At the grade crossing, there are caution signs for the three tracks and speed bumps for both entering and exiting vehicles. Ingress and egress from the Site via the Scale Avenue Access also requires the motorist to drive through a tunnel under Building #3. A pedestrian walkway is also delineated on the pavement. There was a written crossing agreement between VR and the Howe Scale Company dated April 8, 1975. The Permittee and VR agree to be bound by the terms of that crossing agreement. The Permittee will continue to provide flagpersons at the Scale Avenue Access whenever the Permittee is aware of an impending train. The Permittee expanded the Scale Avenue Access by widening the tunnel which traverses under Building #3 from one to two lanes. The two single lane tunnels which service the Scale Avenue Access are both 15 feet wide and 12 feet high. Because the Scale Avenue Access tunnels are 12 feet high, some of the trucks which need to access the Site must use either the North Gate Access or the Porter Place Access. The Permittee also installed signs which direct truck traffic to access the Site by the Porter Place Access. Upon leaving the Site via the Scale Avenue Access, a motorist crosses the railroad tracks, proceeds easterly past the John A. Russell Corporation offices, and intersects with Strongs Avenue. Strongs Avenue leads directly to the downtown section of Rutland and U.S. Route 7. At the Strongs Avenue/Scale Avenue intersection the sight distance for an exiting vehicle is greater than 500 feet in both directions. This is above the recommended minimum standard. Scale Avenue is 30 feet wide and is adequate for the current use. Prior to the Permittee's purchase of the Site, the paved portion of the Interior Road was cracked, uneven, without delineated parking spaces, and without traffic signs, and there was a narrow, winding one-lane dirt track leading from the gate and fence at the Porter Place Access to the developed portion of the Site. The Permittee upgraded the condition of the pre-existing Interior Road and dirt track into its present state. Now the Interior Road is a 24-foot wide, fully paved road surface. The Interior Road is posted at 15 m.p.h. The are speed bumps in the Interior Road. Cars park adjacent to the Interior Road throughout the Site. Speed on the Interior Road is also controlled by the Interior Road's geometry; there are curves which serve to limit speed. In addition, there are speed bumps at the rail crossing at the Scale Avenue Access and next to Building #15. The Interior Road is marked with speed limit signs along its length. The Permittee has stated it will maintain speed bumps and stop signs as necessary to control vehicular speeds on the Interior Road; will repaint stop lines and pedestrian walkways as needed; and will continue to provide flagpersons at the Scale Avenue Access whenever the Permittee is aware of an impending train. The Permittee has made it possible for vehicles to go from Strongs Avenue to Park Street via the Interior Road thereby avoiding Main Street. Presently, traffic is not using the Interior Road as a cut-through between Park Street and Strongs Avenue. However, Porter Place is now used by people accessing the Site, and Marble Valley Regional Transit has established a bus route which uses the Interior Road and exits from the Site by the Porter Place Access. Physical changes made to Porter Place since the Permittee took ownership of the Site include the installation of a street light at its north end and the removal of a dead-end sign at its intersection with Park Street. On a daily basis, there are approximately 750 one-way vehicle trips on Porter Place which use the Porter Place Access between the hours of 6:00 a.m. and 6:00 p.m. During the same time frame, of the 750 trips, approximately 80 trips are made by trucks of all sizes. Of the 80 trips, approximately 25-30 are tractor-trailer trips and the remainder are trips by smaller trucks. These traffic counts are all attributable to the Site and not the other businesses located on Porter Place, Moulthrop Avenue, or Ivy Street. Heavy trucks can pass each other on Porter Place by staying in their own lane. No safety problem results if trucks ride off the pavement at the edge of the road when passing each other. Although Porter Place is less than 19 feet wide, heavy trucks have the benefit of utilizing Park Street to complete their turns onto Porter Place. Although this practice is not ideal, and is operationally inconvenient, it is not inherently unsafe. Trucks wait for conflicting traffic to clear and complete the turn at very slow speeds. When two trucks simultaneously arrive at the intersection of Park Street and Porter Place, they avoid a collision if the truck on Park Street allows the truck on Porter Place to exit first. Then the truck on Park Street safely proceeds onto Porter Place. Based on Vermont Agency of Transportation accident listing data for the Porter Place/Park Street intersection, there has been an average of less than one reportable accident per year at this location (approximately 250 feet on either side of the intersection) during the ten-year period. During the last five years (1989- 1993) only two State-reportable accidents occurred at or near the intersection. This intersection's accident rate is 30% of the State average accident rate for similar intersections. The current truck traffic generated by the Site relative to the Porter Place Access, Porter Place, and the Porter Place/Park Street intersection does not create unsafe conditions. In summary, the Permittee has implemented an overhaul of the road conditions which existed prior to its purchase of the Site. The Road Improvements have resulted in a newly paved and expanded Interior Road, installation of traffic signs and safety devices, and better drainage. All of these changes have enhanced pedestrian, vehicular, and railroad safety. In addition, the Permittee has crossing agreements with VR for both the North Gate Access and the Scale Avenue Access. While the volume of traffic on Porter Place has increased, the increase has not resulted in the creation of any unsafe conditions. Based on the preceding findings of fact, the Board concludes that the Road Improvements will not cause unreasonable congestion or unsafe conditions with respect to the use of highways, including the Interior Road, the North Gate Access, the Scale Avenue Access, the Porter Place Access, Porter Place, and Park Street. Further, the Board also concludes that the Road Improvements will not cause unreasonable congestion or unsafe conditions with respect to the railroad lines which are adjacent to the Site. The Board notes, however, that these determinations are relative to current traffic levels. There may come a time when the aggregate amount of traffic which would result from prospective development at the Site could create unreasonable congestion or an unsafe condition along Porter Place. H. Criterion (8) (aesthetics) 10 V.S.A.  6086(a)(8) requires that, prior to issuing a permit for the proposed project, the Board must find that the project "[w]ill not have an undue adverse effect on the scenic or natural beauty of the area, aesthetics, historic sites or rare and irreplaceable natural areas." i. Historic sites and Rare and Irreplaceable Natural Areas The added tunnel lane underneath Building #3 is identical in style to the pre-existing tunnel and does not change the character of Building #3. Although upgraded, the Interior Road today follows essentially the same path as it did when the Site was owned by the Howe Scale Company. There are no identified rare or natural areas on the Site. Based on the preceding findings of fact, the Board concludes that the Road Improvements will not have an undue adverse effect on historic sites or rare and irreplaceable natural areas. ii. Aesthetics The Board uses a two-part test to determine whether a project will result in an undue adverse effect on aesthetics. First, it determines whether the project will have an adverse effect. Second, it determines whether the adverse effect, if any, is undue. Re: Quechee Lakes Corp., Applications #3W0411-EB and #3W0439-EB, Findings of Fact, Conclusions of Law and Order at 18-19 (January 13, 1986). With respect to the analysis of adverse effects on aesthetics and scenic beauty, the Board looks to whether a proposed project will be in harmony with its surroundings or, in other words, whether it will "fit" the context within which it will be located. In making this evaluation, the Board examines a number of specific factors, including the nature of the project's surroundings, the compatibility of the project's design with those surroundings, the suitability for the project's context of the colors and materials selected for the project, the locations from which the project can be viewed, and the potential impact of the project on open space. Id. at 18. The Site dates back to 1877 when the Howe Scale Company moved to and commenced commercial operations at the Site. The manufacturing of all types of scales, weighing equipment and two and four wheel carts continued at the Site until it closed in 1982. The Permittee purchased the Site on July 27, 1989. The Permittee has renovated the Site and made into a multi-use commercial/industrial complex. The construction of the Road Improvements was completed during the spring of 1991. The City of Rutland's downtown business district is located to the northeast from the railroad tracks which bisect Scale Avenue. Across the tracks to the west is an area of mixed commercial and residential uses near Spruce and Granger Street. River Street links Strongs Avenue and Granger Street to the north of the Site. Along the south side of the Site, commercial and residential uses are located along Moulthrop Avenue, Porter Place, and Park Street. Park Street runs east and west and connects Route 7 and Granger Street. Just to the east of the Porter Place/Park Street intersection is the old Park Street School which is now used as the Rutland Rescue Mission. The Porter Place/Park Street intersection is within two-hundred yards of the Fairgrounds, although there is no entrance to the Fairgrounds opposite the Porter Place/Park Street intersection. The Site adjoins the following commercial establishments: Overhead Door, East Hill Manufacturing, H.A. Eddy Energy, Marble Valley Regional Transit District, the City of Rutland Department of Public Works garage and the Central Vermont Public Service Corporation pole yard. Uses along Strongs Avenue include single and multi-family homes, and commercial operations like Wilson Moving & Storage, Vermont Transit Bus Garage, Taylor Rental Center and Green Mountain Schwinn Cyclery. There is a mixture of commercial and residential uses on Porter Place and Moulthrop Avenue. Tilcon Arthur Whitcomb, a concrete specialties supplier, is located at the east end of Moulthrop Avenue. The R.H. Ice Company is next to Whitcomb. The John A. Russell Corp. maintenance garage and yard and the J.E. McLaughlin warehouse and office are directly south and across from the Porter Place Access. 155 and 156 Porter Place are occupied by commercial businesses and have been so occupied since 1947 and 1949, respectively. From 1925 through to 1947, 168 Porter Place was used by various trucking businesses. From 1925 through 1986 there was always at least one trucking company located on Porter Place. 155 and 156 Porter Place are at the northern end of Porter Place. The trucks traveling to and from 155 and 156 Porter Place travel the entire length of Porter Place and pass the Porter Place residences. There are seven houses on Porter Place, three on the west side (the Elliott house, the Stevens house, and the Moore/Smith house), and four on the east side (the Diehl house, the Rosmus house, the former Hill house, and the Frederick house). There were and are no houses on Moulthrop Avenue and only one house on Ivy Street. Utility poles and street lights have been installed at the Site. Light from the Site is visible from the Moore/Smith house. Moore and Smith can see and hear the trucks that travel by the front of their house. The Board begins its analysis with the fundamental fact that the Site has been a commercial location since 1877. The Road Improvements are an integral part of the Site and have helped enhance the Site's desirability as a commercial location. The character of the area along each of the Site's boundaries is a mixture of businesses and residences, and this has been the case for years. Beyond the Site's immediate boundaries, there is downtown City of Rutland, the Park Street Mission, and the Fairgrounds. In this regard, the Road Improvements, and the increased commercial traffic attributable to the Road Improvements, clearly fit the commercial and residential context within which they are located. Moore and Smith can see and hear the Site and the traffic it generates. It is equally true that the businesses located at 155 and 156 Porter Place are visible, and that the traffic generated by those businesses can be heard just like the traffic attributable to the Site and the other businesses located along Moulthrop Avenue. The 750 vehicle trips and the noise resulting therefrom will not have an adverse aesthetic effect because this activity is consistent and in harmony with the noise, traffic, and activity generated by the surrounding businesses and residences. The Board concludes that the additional 750 vehicle trips do not alter or change the essential mixed-use character of the Porter Place area or the area along Park Street. Based on the preceding, the Board concludes that the Road Improvements do not have an adverse effect on the aesthetics of the area, including the area along Porter Place and Park Street. Because the Board concludes that there is no adverse effect on aesthetics, we do not consider the second part of the Quechee analysis. I. Criterion (9)(K) (public investments and facilities) 10 V.S.A.  6086(9)(K) provides that: subdivision of lands adjacent to governmental and public utility facilities, services, and lands, including, but not limited to, highways, . . . when it is demonstrated that, in addition to all other applicable criteria, the development or subdivision will not unnecessarily or unreasonably endanger the public or quasi-public investment in the facility, service, or lands, or materially jeopardize or interfere with the function, efficiency, or safety of, or the public's use or enjoyment of or access to the facility, service, or lands. The Board concludes that for the reasons stated above with respect to congestion and safety under Criterion 5, the Road Improvements will not materially interfere with the function, efficiency, and safety of, and the public's use and enjoyment of, and access to any of the City of Rutland streets which connect with the Site. J. Criterion (10) (local plan) Criterion 10 requires that, before issuing a permit, the Board find that a proposed project "[i]s in conformance with any duly adopted local or regional plan or capital program under chapter 117 of Title 24." At the February 15, 1995 hearing, Moore and Smith requested that the Board take official notice of 24 V.S.A. Chapter 117. The Board concludes that it not necessary under 3 V.S.A. Chapter 25 (the Administrative Procedure Act) and the Vermont Rules of Evidence for the Board to take official notice of Vermont law. The Board's review under Criterion 10 includes whether both the Road Improvements and Building #22 are each individually in conformance with the Plan. The Plan became effective on July 21, 1991. The Permittee filed its completed application for the Permit after the Plan's effective date. The Plan is applicable to the Road Improvements and Building #22. In re Frank A. Molgano, Jr., Vt. , #93-017, slip op. at 7 (Vt., Nov. 10, 1994); In re Taft Corners Assocs., 160 Vt. 583, 593 (1993); In re Preseault, 132 Vt. 471, 474 (1974); cf. In re Ross, 151 Vt. 54, 57 (1989). As discussed below, the Plan contains policies which are applicable to the Road Improvements and Building #22. The Road Improvements and Building #22 are consistent with the applicable policies. The Plan also contains policies which are applicable to the area along Porter Place. The Road Improvements and Building #22 are not contrary to any of the polices which are applicable to the area along Porter Place. These policies are not based upon broad, non-regulatory statements; rather, they are specific policies which promote and prohibit certain activities in the context of a balancing test. The Board has not relied upon the City of Rutland zoning ordinance because of these specific policies. FN2 First, the Plan's Land Use Plan provides, in part, that "[f]or a large portion of the City, the pattern of development was established by growth during the nineteenth century. This pattern evolved around the railroad and industrial use. The nineteenth century development formed around a grid pattern of roadways and contained may small business and residences close together, public buildings, many landmarks, a mix of uses, parks and clearly defined boundaries between uses." The Plan's Summary of Existing Conditions provides, in part, that industrial areas are located "generally adjacent to the railroad lines, especially in the southwest quadrant." The former Howe Scale Company went into operation in 1877 and is bounded on two sides by railroad tracks. Moulthrop Avenue, Porter Place, and Ivy Street form a grid pattern adjacent to the Site, and for over 50 years these streets have sustained businesses and residences alike. Finally, the Site is in the southwest quadrant of the City of Rutland. Thus, the Land Use Plan and the Summary of Existing Conditions specifically describe the historical land use patterns associated with the Site and the area along Porter Place. Second, the Land Use Plan incorporates from the Executive Summary a balanced approach to the evolving nature of competing land uses. Thus, the Land Use Plan provides that the primary potential for development is in rehabilitating existing residential, commercial and industrial developments, and that care must be taken to ensure a balance between residential and commercial/industrial growth so that residents' desires to maintain the integrity of their neighborhoods are satisfied. The Road Improvements and Building #22 are consistent with this balanced approach of promoting rehabilitation while maintaining residential neighborhood integrity. The Permittee has rehabilitated the Site from its former dilapidated state into a vibrant industrial/commercial center comprised of approximately 300,000 square feet of lease space with a diverse list of tenants. The Road Improvements, including the opening of the Porter Place Access, were a fundamental component to this revitalization. The Road Improvements are consistent with the Plan's promotion of economic growth. Similarly, the Permittee's proposed construction of Building #22 is consistent with the Plan's promotion of economic growth as it will provide an additional 7,500 square feet of space for businesses at the Site. The current truck traffic associated with the Site does not create unsafe traffic conditions along Porter Place or at the intersection of Porter Place and Park Street. Further, all of the traffic due to the Site must be viewed in the context of the overall surroundings. 155 and 156 Porter Place are occupied by commercial businesses and have been so occupied since 1947 and 1949, respectively. From 1925 to 1947, 168 Porter Place was used by various trucking businesses. From 1925 through 1986 there was always at least one trucking company located on Porter Place. Throughout these years and on into the present, access to 155 and 156 Porter Place has required passing by the residences located on Porter Place, including what is now the Moore and Smith residence. While the Road Improvements have added traffic to Porter Place, the Road Improvements have not encroached on the quality and preservation of the area along Porter Place. Rather, Porter Place remains a street occupied by both businesses and residences and used by both private and commercial vehicles. As the Board concluded under Criterion 8, the additional 750 vehicle trips do not alter or change the essential mixed-use character of the Porter Place area or the area along Park Street. Building #22 also is not contrary to the Plan's requirement that economic development not encroach on the quality and preservation of residential neighborhoods. Building #22 and its parking area will be within the Site's southern boundary. Building #22 will have a fairly flat roof, and the elevation facing south toward Park Street will have no windows or doors. Since the truck bays will be located on the north side of Building #22, they will not be visible from the south. No parking or other activity will occur on the south side of Building #22. Based on these findings of fact, it is apparent that Building #22 will not encroach on the quality and preservation of the area along Porter Place. Third, the Land Use District portion of the Plan specifically identifies an Industrial District and a Mixed Residential District. Under the Plan, the Site is located in the Industrial District and the Moore and Smith residence is located in the Mixed Residential District. With regard to the Industrial District, the Plan provides that "[t]he present industrial pattern should be allowed to continue, primarily in the southwest quadrant of the city, adjacent to the railroad lines." This specifically describes the Site, and the Road Improvements and Building #22 are specifically endorsed (in substance if not in name) since they represent the continuation of the Site's historical industrial use. Finally, the uses which the Plan describes as being appropriate for the Industrial District are the types of uses present at the Site. The Plan provides that the goals for the Industrial District are: (1) to provide areas for industrial growth within the City which have minimal impacts on adjacent land uses; and (2) to maximize the use of existing infrastructure. The Road Improvements and Building #22 satisfy these goals since the Site provides space for businesses, and the only offsite impacts are traffic related. As noted above, the traffic associated with the Site has not encroached on the quality and preservation of the area along Porter Place. While Building #22 is not part of the Site's existing infrastructure, Building #22 will be part of an industrial/commercial complex where the existing infra- structure has been rehabilitated and made ready for reuse as viable commercial space. The Plan provides that the goals for the Mixed Residential District are: (1) to provide the City with high density residential developments; (2) to enhance the diversity of available housing and preserve the quality of existing mixed residential neighborhoods; and (3) to encourage residential development in the City of Rutland's downtown." The Road Improvements and Building #22 do not violate the goals of the Mixed Residential District. Porter Place remains a street where people live and work; the Road Improvements do not degrade the quality of the existing character of Porter Place as a street with both businesses and residences; and the viability of the Site as a commercial leasing venue makes it possible for a person to work and live within walking distance. Since Building #22 will be orientated to the north in terms of parking, entrances, and windows, it will not conflict with the goals of the Mixed Residential District. Finally, the Road Improvements and Building #22 are consistent with the Plan's Transportation Plan. First, Porter Place as a residential street fulfills the function of accessing the Site, the Site being an adjacent land uses; the Interior Road is posted at 15 m.p.h., contains speed bumps, and is a winding road such that the emphasis is on slow speeds and safety. Second, the Site is generating approximately 750 vehicle trips per day, well below the Plan's figure of daily volumes below 2,000 vehicles. Finally, there is no evidence of cut-through traffic along the Interior Road. In light of the preceding, the Board concludes that the Road Improvements and Building #22 conform to the Plan. VI. ORDER Land Use Permit #1R0770-EB is hereby issued. Jurisdiction is returned to the District #1 Environmental Commission. Dated at Montpelier, Vermont, this 4th day of May, 1995. ENVIRONMENTAL BOARD ____________________________ John T. Ewing, Chair Arthur Gibb Steve Wright John Farmer Robert Page, M.D. Marcy Harding FN1. Noise is also considered under Criterion 8 for its effect on the aesthetic sensibilities. Id. FN2. The Board also notes that, in contrast to the adoption of the Plan in 1991, the City of Rutland's zoning ordinance was adopted on January 24, 1948. The City of Rutland zoning ordinance is not the specific implementation of the Plan. But see Molgano at 5. In fact, the Plan specifically calls on the City of Rutland to amend its zoning ordinance to conform with the land use districts outlined in the Plan. c:\ccm\decision\1ro77o.dec (xtd5)