RE: New England Kurn Hattin Homes, Application #2W0082-4-EB, Memorandum of Decision (May 3, 1995) Page # 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 the appeal is moot because New England Kurn Hattin Homes (the Applicant) has demolished the building. As is explained below, the Environmental Board (the Board) concludes that the appeal is not moot because, after de novo hearing, the Board may impose conditions to mitigate any adverse impact on the alleged historic site or, if it concludes such is justified, deny the application and order the building restored. 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.(FN1) 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. On March 3, the Division filed written legal objections and a request for oral argument. On March 9, 1995, the Board, through counsel, issued a memorandum to parties setting a time and location for oral argument. A copy of the memorandum was sent to the Applicant. The Board convened oral argument on March 22, 1995 in Montpelier, with the following party participating: The Division by Kurt Janson, Esq. The Applicant did not appear. After hearing argument, the Board recessed and conducted a deliberative session. The Board deliberated again on April 26, 1995. II. DISCUSSION The standard for determining whether a case is moot depends on the continued existence, at all stages of review, of an actual controversy as to which the reviewing body can grant effective relief. In re Moriarty, 156 Vt. 160, 163 (1991). Mootness principles have been applied to administrative adjudication. Town of Cavendish v. Vt. Public Power Supply Authority, 141 Vt. 144, 147-48 (1982). While at first glance this appeal may appear moot because the Building has been destroyed, closer analysis reveals that the appeal is not moot. An actual controversy continues to exist with respect to this application. The Division is a state agency charged with historic preservation and with developing and maintaining the State Register in accordance with the decisions of the Vermont Advisory Council on Historic Preservation. 22 V.S.A.  721, 723, 741-42. The Division contests the District Commission's decisions to repudiate the listing of the Building on the State Register, to find demolition of the Building is not an adverse effect on an historic site, and to allow such demolition without consideration of whether the Applicant proposes mitigation measures sufficient to assure that the demolition is not undue. Further, the Board may still grant effective relief. Under 10 V.S.A.  6089(a) and EBR 40(A), appeals to the Board are heard de novo. The issues appealed to the Board are reviewed as if no proceedings before the District Commission had occurred. In re Killington, Ltd., 159 Vt. 206, 214 (1992). The de novo requirement thus means that the Board must treat the Building as if it were still standing. Cf. 10 V.S.A.  6081(a) and Re: Bernard and Suzanne Carrier, Findings of Fact, Conclusions of Law, and Order at 10 (Oct. 5, 1990) (due to requirement to obtain permit before construction, Board must review site as it existed prior to excavation and clearing). This is despite the undisputed fact that the Building has been demolished pursuant to the authority of the Permit Amendment. The Applicant, having notice of the appeal to the Board, proceeded to demolish the Building at its own risk. Treating the Building as if it were standing, the Board must determine whether its demolition complies with 10 V.S.A.  6086(a)(8), which prohibits the Board from issuing a permit unless it finds that a proposed development or subdivision "will not have an undue adverse effect on . . . historic sites." The Board previously has set out a three-stage analysis for making the determination under Criterion 8 (historic sites). Re: Middlebury College, #9A0177-EB, Findings of Fact, Conclusions of Law, and Order at 9-10 (Jan. 26, 1990). The first stage of the analysis is to determine whether a site is an historic site under 10 V.S.A.  6001(9), which 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. Based on this definition, the Division has raised a legitimate issue concerning the approval of this application based on a repudiation of the State Register listing, which issue may be decided as a question of law. If the Board concludes that the Building is an historic site, the second stage of the analysis is whether an application proposes an adverse effect. In this regard, the Board previously has stated that demolition of an historic site is an adverse effect. Re: Department of State Buildings and Vermont State Colleges, #3R0581-4-EB (Reconsidered), Findings of Fact, Conclusions of Law, and Order at 11-12 (March 14, 1995); Middlebury College, supra at 10. The third stage is whether the adverse effect, if any, on an historic site is undue. The Middlebury College decision sets out four areas of inquiry at this stage: mitigation, interference with public ability to appreciate the site's historic qualities, cumulative effects on a historic site which create an unacceptable impact, and violation of clear, written community standard. Middlebury College at 10. The Board thus has options to prevent an adverse effect on the alleged historic site from being undue. These options do not necessarily involve prohibiting demolition. Pursuant to 10 V.S.A.  6086(c), the Board has authority to impose reasonable and appropriate conditions. Depending on the evidence, such conditions may include measures as documenting a site's historic importance, providing an exhibit for the public to appreciate such importance, storing and labelling a demolished site's component parts for reconstruction, or other measures. See, e.g., State Buildings at 6-7. In an appropriate case, one or more of these conditions may be sufficient to preserve the ability of the public to interpret or appreciate an historic site while still allowing demolition. Moreover, should the evidence demonstrate that demolition of the Building cannot be allowed without causing an undue adverse effect on an historic site, the Board still may grant effective relief. Specifically, the Board may deny the application. As of the date of any such denial, the Applicant will be in violation of Act 250 and EBR 34 due to an unauthorized land use for which a permit amendment is required and was denied.(FN2) The Board may then compel the Applicant to reconstruct the Building through a revocation proceeding concerning the previously-issued permits or through enforcement action. See 10 V.S.A.  6090(c) and EBR 38(A); 10 V.S.A. Chapters 201, 211. Finally, a conclusion that the Board cannot grant effective relief would mean that an applicant can destroy a resource protected by Act 250 by destroying that resource upon filing of an appeal and then claiming that the matter is moot. Such a conclusion would controvert one of the purposes of Act 250, which is: [T]o protect and conserve the lands and the environment of the state and to insure that these lands and environment are devoted to uses which are not detrimental to the public welfare and interests . . . . 1969 Vt. Laws  1 (Adj. Sess.). Based on the foregoing, the Board will not dismiss this matter as moot and the appeal will proceed. 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). III. ORDER 1. The Division's appeal of the Permit Amendment is not moot and is not dismissed. 2. On or before May 17, 1995, parties may file written memoranda, not to exceed 15 pages double-spaced, on the following question: 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? 3. Unless oral argument is requested on the above question in writing by a party no later than May 12, 1995, the Board will decide the above question in deliberative session during its meeting of May 24, 1995. If oral argument is timely requested, it will be held at 1:00 p.m. on May 24, 1995 at the Capitol Plaza, 100 State Street, Montpelier, Vermont. Each party will have ten minutes to present argument. 4. Following decision on the above question, the Board will set a schedule for filing testimony and for holding a hearing on whether this application complies with Criterion 8 (historic sites). 5. An original and ten copies of all documents must be filed with the Board and a copy sent to all parties on the attached certificate of service. Dated at Montpelier, Vermont this 3rd day of May, 1995. ENVIRONMENTAL BOARD /s/John T. Ewing John T. Ewing, Chair John M. Farmer Arthur Gibb Marcy Harding Samuel Lloyd William Martinez Rebecca Nawrath Steve E. Wright FN1. During these proceedings, the Division has rightly complained that the Applicant's February 17 letter was not served on all parties. While the Division subsequently received a copy of this letter and any prejudice has been removed, the Board admonishes the Applicant against future failure to properly serve documents. FN2. The Board previously has ruled that Act 250 applies not only to construction but also to the land use. Re: Interstate Uniform Service, Inc., Declaratory Ruling #147 at 7-8 (Sep. 26, 1984). kurn.mem(a17)