RE: New England Kurn Hattin Homes, Application #2W0082-4-EB, Memorandum of Decision (June 14, 1995) VERMONT ENVIRONMENTAL BOARD 10 V.S.A. Chapter 151 Re: New England Kurn Hattin Homes Application #2W0082-4-EB MEMORANDUM OF DECISION This decision pertains to an appeal of a permit issued for the demolition of a building listed on the State Register of Historic Places (the State Register). The issue is whether, under 10 V.S.A. § 6001(9), the Board and District Commissions determine that a site listed on the State Register is nonetheless not an historic site. As explained below, the Environmental Board concludes that 10 V.S.A. § 6001(9) requires the Board and District Commissions to consider a site listed on the State Register to be an "historic site." The Board sets this matter for de novo hearing on whether the demolition of the building constitutes an undue adverse effect. I. BACKGROUND A. Summary of District Commission Proceedings The Applicant runs a school located on an approximately 288-acre tract of land off Kurn Hattin Road in Westminster. Prior permits issued to the Applicant include, but are not limited to: Land Use Permit #2W0082 (Aug. 17, 1972), for eight cottages each to house 10 to 12 students; Land Use Permit Amendment #2W0082-2 (June 8, 1988), site and foundation approval for an academic building, and other improvements; and Land Use Permit Amendment #2W0082-3 (June 30, 1993), for three student residences and other improvements. On July 7, 1994, the District #2 Commission issued Land Use Permit Amendment #2W0082-4 (the Permit Amendment), authorizing the Applicant to remove a two-story brick structure known as the Manual Arts Building (the Building). In the findings supporting the Permit Amendment, the District Commission includes the following relevant items: 1. Jurisdiction exists over removal of the Building because such constitutes a material change to a permitted project. (The District Commission's jurisdictional finding has not been appealed.) 2. The Building was placed on the State Register on January 27, 1994 and that the application to demolish the Building was filed on May 27, 1994. (No party contests these facts.) 3. Removal of the Building will not create an adverse effect on historic sites. On July 27, 1994, the State of Vermont Division for Historic Preservation (the Division) filed a motion to alter. On September 14, the District Commission issued a memorandum of decision denying the motion. In the decision, the District Commission states: We find the site is listed on the Vermont register of historic places, but it was listed based on incorrect information. . . . [W]e are not convinced that this building would have been placed on the register with accurate information. Therefore, we decline to further pursue the analysis and find this building is not historic. On October 14, 1994, the Division filed a motion to alter the District Commission's September 14 decision. The District Commission denied this motion by decision dated November 29. B. Summary of Board Proceedings to Date On December 28, 1994, the Division filed an appeal with the Board. The Division's appeal raises four issues: 1. Whether, under 10 V.S.A. § 6001(9), the definition of "historic site" allows the Board and the District Commission to repudiate a decision to list a site on the State Register. 2. Whether the Building is an historic site. 3. Whether the removal of the Building will have an adverse effect on an historic site. 4. Whether any such adverse effect will be undue. On January 23, 1995, the Board, through counsel, issued a notice of prehearing conference. A copy of the notice was sent to the Applicant. On February 6, 1995, Board Chair John Ewing convened a prehearing conference in Montpelier. Only the Division attended the conference. During the conference, the Chair contacted a representative of the Applicant by telephone, with the Division present. The Chair decided to recess the conference pending reconvening. On February 7, 1995, the Chair issued a memorandum to parties stating what had occurred on the February 6 conference and setting a date to reconvene of February 27. The Chair's February 7 memorandum was sent to the Applicant and is incorporated by reference. On February 17, 1995, the Applicant filed a letter stating that it has demolished the Building and that it did not intend to have any representative present during the appeal process. The Applicant stated its belief that "this is largely a jurisdictional dispute" between the Division and the District Commission. On February 23, 1995, the Chair issued a preliminary ruling pursuant to Environmental Board Rule (EBR) 16(B) that the appeal is now moot. The Chair cancelled the February 27 date to reconvene the prehearing conference. The Chair provided an opportunity for objection to the preliminary ruling. On March 2, 1995, the Division filed a letter in objection to the preliminary ruling. During March and April, proceedings and deliberations occurred concerning whether this matter is moot. The Applicant was notified of these proceedings and did not participate in them. On May 3, 1995, the Board issued a memorandum of decision concluding that the matter is not moot and will not be dismissed. The May 3 decision was served on all parties, including the Applicant, and is incorporated by reference. The May 3 decision stated the matter will proceed to de novo hearing and that: The Board will first determine, as a question of law, the issue raised by the Division concerning the repudiation of the Building's listing on the State Register. The reason for making this initial determination is that it will affect the scope of the evidence to be presented. After making the determination, the Board will set a schedule for filing testimony and holding a hearing on the merits of whether this application complies with Criterion 8 (historic sites). On May 17, 1995, the Applicant and the Division each filed memoranda on the initial question of law. The Board convened oral argument in Montpelier on May 24, 1995, with the following parties participating: The Division by Kurt Janson, Esq. After hearing argument, the Board recessed and conducted a deliberative session. II. DISCUSSION The question of law at issue, as listed in our order of May 3, 1995 in this matter, is as follows: Under 10 V.S.A. § 6001(9), may the Board and District Commissions determine that a site listed on the State Register is nonetheless not an historic site? 10 V.S.A. § 6001(9) provides: "Historic site" means any site, structure, district or archeological landmark which has been officially included in the National Register of Historic Places and/or the state register of historic places or which is established by testimony of the Vermont Advisory Council on Historic Preservation as being historically significant. (Emphasis added.) The statute clearly and conclusively states that a structure which is included on the State Register is an historic site. No discretion is provided to the Board or District Commission to declare a structure listed on that register not to be historic. Prior Board decisions interpreting this statute support the contention that such discretion does not exist. The Board stated in Re: Middlebury College, #9A0177-EB, Findings of Fact, Conclusions of Law and Order at 9 (Jan. 26, 1990): [T]here are three ways in which a site's historic nature may be established under Act 250: (1) placement on the National Register of Historic Places, (2) placement on the Vermont register of historic places, and (3) persuasive evidence of historic significance brought before the Board or District Commission by the testimony of the Vermont Advisory Council on Historic Preservation. (Emphasis added.) Further, the Board stated in Re: Department of State Buildings and Vermont State Colleges, #3R0581-4-EB, Finding of Fact, Conclusions of Law and Order (Reconsidered) at 11 (March 14, 1995): "[T]he Langevin House is an historic site under 10 V.S.A. § 6001(9) because it is listed on the state register of historic places." (Emphasis added.) No party contests the fact that the Building is listed on the State Register. Accordingly, as a matter of law, the Building is an historic site under 10 V.S.A. § 6001(9). The Board therefore must proceed to de novo hearing on whether, under 10 V.S.A. § 6086(a)(8), the demolition constitutes an undue adverse effect on the historic site. The Board will do so in accordance with the schedule in the order below. Two other items deserve comment in this decision. First, the Applicant claims in its May 17 filing that the Division should be barred from contending that the demolition is undue because of alleged representations by the Division that it did not seek to stop the demolition. Even if such alleged representations were proved to be true in an evidentiary hearing - which has not yet occurred - the Applicant cites no authority for the Board to consider or grant its claim. Further, regardless of the Applicant's claim, the Board, and not the Division, is required to make an affirmative finding prior to issuing a permit that the demolition does not constitute an "undue adverse effect." See 10 V.S.A. § 6086(a)(8). Second, it appears reasonably likely in this matter that the parties may wish to avoid the expense and time involved in an evidentiary hearing before the Board. Accordingly, the parties are reminded that settlement discussions are always encouraged. If parties are not able to reach a complete settlement, a case still can be expedited by partial stipulation. Any such settlement or stipulation would be subject to Board review and approval. III. ORDER 1. Under 10 V.S.A. § 6001(9), a site or structure is an "historic site" if the site or structure is on the Vermont register of historic places. 2. The now-demolished Building is an historic site because it is, and was at the time of application, listed on the Vermont register of historic places.. 3. Unless parties reach a settlement which is approved by the Board, this matter will proceed to de novo hearing on whether, under 10 V.S.A. § 6086(a)(8), the demolition of the Building constitutes an undue adverse effect. 4. Parties shall discuss settlement of all or part of this matter and shall report to the Board on the status of those discussions on or before July 11, 1995. Any settlement or stipulation shall be subject to Board review and approval. 5. On or before August 18, 1995, parties shall file final lists of witnesses and exhibits and prefiled testimony for all witnesses they intend to present. 6. Any hearing in this matter will be conducted in accordance with the Board's "Suggested Hearing Day Schedule," copy enclosed. The time allotments set out in that order are hereby established as time limits, which can be modified by the Chair at the prehearing conference scheduled in paragraph seven of this order. 7. On September 5, 1995, the Chair will convene a prehearing conference at 1:30 p.m. in the Environmental Board conference room, 58 East State Street, fourth floor, Montpelier, Vermont. The conference will concern: (a) identification of rebuttal witnesses and exhibits, (b) establishment of specific time allotments on a witness-by-witness basis, (c) objections to the prefiled testimony and exhibits based on the Vermont Rules of Evidence, and (d) logistics of a site visit. The Chair may raise other procedural issues as he deems relevant. 8. On September 6, 1995, an administrative hearing officer of the Environmental Board will convene a hearing in this matter. A subsequent notice will be issued with time and location. Any objection to use of the hearing panel must be filed on or before July 11, 1995, or the objection will be deemed waived. 9. After hearing, the matter will proceed in accordance with Section III.e. of the enclosed sheet entitled "Rocket Docket, Environmental Board." 10. No individual may be called as a witness in this matter if he or she has not been identified in compliance with this order. All reports and other documents that constitute substantive testimony must be filed with the prefiled testimony. If prefiled testimony has not been submitted by the date specified, the witness will not be permitted to testify. Instructions for filing prefiled testimony are attached. 11. The Board may waive the filing requirements upon a showing of good cause, unless such waiver would unfairly prejudice the rights of other parties. 12. Parties shall file an original and ten copies of prefiled testimony, legal memoranda, all exhibits which are 8« by 11 inches or smaller, and any other documents with the Board, and mail one copy to each of the parties listed on the attached Certificate of Service. Parties are required to file only lists identifying exhibits which are larger than 8« by 11 inches that they intend to present, rather than the exhibits themselves. Exhibits must be made available for inspection and copying by any parties prior to the hearing. 13. To save time at the evidentiary hearing, the Board will require that parties label their prefiled testimony and exhibits themselves and submit lists of exhibits which the Board can use to keep track of exhibits during the hearing. With respect to labeling, each person is assigned a letter as follows: A for the Applicant and D for the Division. Prefiled testimony and exhibits shall be assigned consecutive numbers: for example, the Applicant will number its exhibits A1, A2, A3, etc. If an exhibit consists of more than one piece (such as a site plan with multiple sheets), letters will be used for each piece, i.e. A2A, A2B, etc. However, each page of a multi-page exhibit need not be labelled. The labels on the exhibits must contain the words ENVIRONMENTAL BOARD, #2W0082-4-EB, the number of the exhibit, and a space for the Board to mark whether the exhibit has been admitted and to mark the date of admission. Label stickers which can be used by the parties are available from the Board on request; parties must complete the information sought on the stickers prior to the hearing. Concerning preparation of lists of exhibits, each list must state the full name of the party at the top and the Board's case number. There must be three columns, from left to right: NUMBER, DESCRIPTION, and STATUS. The list must include exhibits and prefiled testimony. An example is as follows: TOWN OF ROCKINGHAM LIST OF EXHIBITS RE: NEW ENGLAND KURN HATTIN HOMES, #2W0082-4-EB Number Description Status R1 Prefiled testimony of John Smith R2A-D Plan dated _____, sheets A1 through A4 The Board will use the status column to mark whether the exhibit has been admitted. 14. The hearing will be recorded electronically by the Board or, upon request, by a stenographic reporter. Any party wishing to have a stenographic reporter present or a transcript of the proceedings must submit a request by July 11, 1995. One copy of any transcript made of proceedings must be filed with the Board at no cost to the Board. Dated at Montpelier, Vermont this 14th day of June, 1995. ENVIRONMENTAL BOARD /s/John T. Ewing John T. Ewing, Chair John M. Farmer Arthur Gibb Marcy Harding Samuel Lloyd William Martinez Rebecca Nawrath Robert G. Page Steve E. Wright attachments kurn2.mem(a17)