RE: Realty Resources Chartered and Bradford Housing Associates, Application #3R0678-EB, Memorandum of Decision February 17, 1994 VERMONT ENVIRONMENTAL BOARD 10 V.S.A. Chapter 151 Re: Realty Resources Chartered and Bradford Housing Associates Application #3R0678-EB MEMORANDUM OF DECISION This decision pertains to several preliminary issues raised by the parties in this appeal. For the reasons explained below, the Environmental Board has determined a) that the Board has jurisdiction over this appeal; b) that the changes to the project do not require review by the District Commission; c) that Criterion 6 is not an issue in this appeal; d) that the Board's review of Criteria 2, 3, 7, 9(J), and 9(K) is limited to the issue of water supply; e) that the Bradford School District is not a municipality as that term is used in 10 V.S.A. §§ 6084(a) and 6084(c); and f) that Roger Wilder and Bob Lamprey are not granted party status. I. BACKGROUND On January 21, 1992, the District #3 Environmental Commission issued Land Use Permit #3R0678 (the permit) authorizing the construction of 24 low-income residential units with related parking, landscaping, and utility services on Route 5 in the Town of Bradford. Based upon motions to alter filed by the Planning Commission, the School District, and the Water Commission, the District Commission issued a second decision on April 16, 1992 denying the application and invalidating the permit. The District Commission denied the application on the basis that because the Village Water Board had denied the project a connection to the Village water system, the project did not have an adequate water supply. In its April 16 decision, the District Commission declined to make final findings on Criterion 6 because of its denial on other criteria due to inadequate water supply. On May 13, 1992, the Applicants filed an appeal of the District Commission's April 16 decision. The Applicants objected to the District Commission's findings and conclusions on "criterion 2, criterion 3 insofar as those findings relate to connecting to the Village municipal water system, criterion 6, criterion 7 insofar as those findings relate to an adequate water supply, criterion 9(J) insofar as the findings relate to a connection to the Village water system, and criterion 9(K) insofar as those findings may incorporate previous findings of criteria under appeal." After filing the appeal, the Applicants stated that because of pending litigation in Superior Court concerning the Village of Bradford's refusal to allow the Applicants to connect to the public water system, which would directly bear on whether the Applicants satisfied the Act 250 criteria at issue, postponing the hearing would be advisable. The School District requested that the Board require that the District Commission render a decision concerning impact on schools under Criterion 6 prior to the Board's consideration of the issues on appeal. The Applicants opposed the remand. On August 5, 1992, the Board issued a decision in which it stated the following, with respect to Criterion 6: The Board concludes that this matter should be remanded to the District Commission for findings under this Criterion. Board Rule 30 states that a decision of a district commission shall contain findings of fact and conclusions of law specifying the reasons for the decisions reached on all issues for which sufficient evidence was offered. The District Commission has not issued findings of fact and conclusions of law on the issue of the impact of the project on schools. The decision does not reflect that failure to do so was based on insufficient evidence related to this issue. Rather, the decision clearly states that the issue is not addressed because of the failure of the project to meet other criteria. . . . The Board believes that the District Commission must issue findings and conclusions on this issue, irrespective of its conclusion that the lack of an adequate water supply otherwise precludes the issuance of a permit. The Board's order stated: The matter is hereby remanded to the District Commission for the issuance of findings of fact and conclusions of law under Criterion 6. On October 9, 1992, the District Commission issued Findings of Fact and Conclusions of Law on Criterion 6. The District Commission concluded that with the payment by the Applicants of a school impact fee of $27,309.00 prior to the sale, lease, or occupancy of any units, the project would satisfy Criterion 6. The Superior Court action was concluded in October, 1993. On or about July, 13, 1993, the Bradford Village Water Board voted to approve the Applicants' connection to the Village water system. On November 12, 1993, the Applicants, through their attorney Richard A. Spokes, Esq., filed a letter with the Board seeking to reactivate the appeal. The Applicants stated that they have reduced the size of the project from 24 units to 21 units by leaving out a one-bedroom unit from each of the three buildings, and that they now propose a sprinkler system in lieu of a fire hydrant in response to a request from the Village of Bradford Water Commissioners. On November 16, the Bradford Academy and Graded School District (the School District), through its attorney, Paul S. Gillies, Esq., submitted a response to the Applicants' letter of November 12. On December 9, 1993, a prehearing conference was convened in Bradford by Stephanie J. Kaplan, General Counsel. On December 16 a prehearing conference report was issued, in which deadlines for filing memoranda on preliminary issues were established. On January 6, 1994, the School District and the Applicants filed memoranda on preliminary issues. On that date, Roger Wilder submitted a letter in support of his request for party status. On January 7, John D. Hansen, Esq. filed a notice of appearance on behalf of the Bradford Planning Commission, along with a memorandum addressing the preliminary issues. On January 13, the School District and the Applicants filed response memoranda. Deliberations were to have been held on January 19. Due to Senate confirmation issues concerning three Board members, deliberations were postponed. On February 11, the Board deliberated in St. Johnsbury. II. ISSUES 1. Whether the Environmental Board has jurisdiction over this appeal. 2. Whether the changes to the project require initial review by the District Commission. 3. Whether Criterion 6 is an issue in this appeal. 4. Whether the Board's review of criteria 2, 3, 7, 9(J), and 9(K) is limited to the issue of water supply. 5. Whether the Bradford School District is a municipality as that term is used in 10 V.S.A. § 6084(a). 6. Whether to grant party status to Roger Wilder and Bob Lamprey. III. DECISION 1. Whether the Environmental Board has jurisdiction over this appeal. The School District argues when the Board remanded the "matter" to the District Commission for a decision on Criterion 6, the Board divested itself of jurisdiction. Accordingly, because no appeal was taken from the District Commission's decision of October 9, 1992, the Board does not have jurisdiction over this matter and cannot proceed with the appeal. The Planning Commission argues that the decision of the District Commission was not final until its October 9, 1992 decision because the District Commission's decision of April 16, 1992 did not contain findings and conclusions on all the criteria. Since only final decisions may be appealed, an appeal could not be brought to the Board until issuance of the October 9 decision. Since no appeal was taken of that decision, the Board has no jurisdiction. The Applicants argue that the Board's August 5, 1992 Memorandum of Decision remanded only Criterion 6 and not the entire appeal. The School District cites Supreme Court cases for the proposition that jurisdiction does not remain in a lower court when an appeal is taken to the Supreme Court. The reasoning behind this principle is that in order to prevent piecemeal review on appeal, all potential issues involving a case should be adjudicated so that an appeal can be comprehensive. In this case, however, the Board in essence stayed the appeal until the District Commission issued complete findings on Criterion 6. Because there was no danger of the Board's proceeding with an appeal before proceedings in the District Commission were complete, we do not find the cases cited by the School District relevant to this situation. The Board has in many instances accepted appeals and then stayed them pending resolution of some issue before the District Commission. The only issue is whether, in the absence of specific language retaining jurisdiction, jurisdiction is divested. In order to resolve this issue, we look to the language of the Board's remand decision and the context in which it was made. The Board agrees that its Memorandum of Decision dated August 5, 1992 which ordered a remand did not clearly state whether the remand included the entire appeal or just Criterion 6. After carefully reviewing the Prehearing Conference Report dated June 19, 1992, the August 5 Memorandum of Decision, and the memoranda submitted by the parties, the Board concludes that the intention of both the parties and the Board was for the Board to retain jurisdiction over the appeal and to remand only Criterion 6. Although the Board did not specify that it was retaining jurisdiction of the appeal, we believe that interpreting the remand as divesting the Board of all jurisdiction is elevating form over substance to an absurd extent. The purpose of the remand was to allow the District Commission to issue complete findings on Criterion 6. The Board's order was clear with respect to its direction to the District Commission: to issue findings of fact and conclusions of law on Criterion 6. In response to this direction, the District Commission issued findings on Criterion 6 on November 9, 1992. It did not issue a decision on any criteria other than Criterion 6. With respect to whether the District Commission's April 16, 1992 decision was a final decision, neither Act 250 nor the Administrative Procedure Act (APA) provides any direction or guidance on the subject of the finality of a district commission decision for purposes of appeal to the Environmental Board. The Planning Commission cites no authority to support its argument that the District Commission's April 16, 1992 decision was not final for purposes of appeal to the Environmental Board. The Administrative Procedure Act states the following with respect to final decisions: (a) A final decision or order adverse to a party in a contested case shall be in writing or stated in the record. A final decision shall include findings of fact and conclusions of law, separately stated. . . . 3 V.S.A. § 812. The District Commission's April 16, 1992 decision complied with the directive of 3 V.S.A. § 812(a). Whether or not the District Commission's April 16 decision would be considered "final" for purposes of appeal to the Supreme Court, we hold that in the context of an appeal from the District Commission to the Environmental Board, a decision that addresses all the issues before it is final. If there are deficiencies in the findings which the Board believes must be cured before proceeding with an appeal, the Board may remand those aspects of the decision that are insufficient to the district commission, as was done in this case, and then proceed with the appeal when sufficient findings are issued. 2. Whether the changes to the project require initial review by the District Commission. Unless changes to a project involve additional land or potential new parties or criteria, the Board has the discretion to review minor changes to an application made subsequent to the filing of the appeal. See In re Juster Associates, 136 Vt. 577 (1977); Re: Bernard and Suzanne Carrier, #7R0639-EB, Memorandum of Decision (Sept. 28, 1989). The Applicant stated that the project has changed in two respects: 1) The number of units have been reduced from 24 to 21, caused by eliminating a one-bedroom unit from each of the three proposed buildings. The design of the buildings has not changed; they are merely smaller. 2) The fire hydrant has been replaced by a sprinkler system, due to a requirement of the Village Water Commissioners. In addition, the Applicant now has approval to hook up to the Village water system. It does not appear to the Board that these are changes that warrant remand to the District Commission for its initial review. They do not involve new land or potential new parties, and they do not involve criteria that are not already under review. The School District argues that the changes represent substantial changes that require review by the District Commission. A substantial change is defined at Board Rule 2(G) as: any change in a development or subdivision which may result in significant impact wtih respect to any of the criteria specified in 10 V.S.A. section 6086(a)(1) through (a)(10). The usual context for a substantial change analysis involves two situations: One, when a development is considered "pre-existing" and exempt from the permit requirement unless a substantial change has occurred because it was in existence prior to June 1, 1970 and exempt from the permit requirement unless a substantial change has occurred, see 10 V.S.A. § 6081; and two, when a change is proposed to a permitted project and an amendment might be required under Rule 34. In these situations, a two-prong test is applied to determine whether a substantial change has occurred or will occur. First, there must be a cognizable physical change. Second, the change must have the potential for significant impact with respect to one or more of the Act 250 criteria. See, e.g., In re Barlow, No. 91-491 (Vt. Aug. 13, 1993); In re: H.A. Manosh Corp., 147 Vt. 367 (1986). Based upon the Applicant's representations of the changes, the Board does not believe that they pose the potential for significant impact under any of the 10 criteria of Act 250, and that the changes would not, therefore, be substantial. 3. Whether Criterion 6 is an issue in this appeal. The Board remanded Criterion 6 to the District Commission for issuance of Findings of Fact. When it did so, it no longer had jurisdiction over this criterion. The District Commission issued its Findings of Fact and Conclusions of Law on Criterion 6 on October 9, 1992. No party appealed the District Commission's October 9 decision within 30 days of the decision, as required by 10 V.S.A. § 6089(a) and Board Rule 30. Accordingly, Criterion 6 is not an issue in this appeal. 4. Whether the Board's review of criteria 2, 3, 7, 9(J), and 9(K) is limited to the issue of water supply. Board Rule 40, which governs appeals, states: (D) The scope of the appeal hearing shall be limited to those reasons assigned by the appellant why the commission was in error unless substantial inequity In its notice of appeal, the Applicant identified Criteria 2, 3, 7, 9(J), and 9(K), all "as those findings relate to connecting to the Village municipal water system." The Board's usual procedure is to review all issues within the criteria raised on appeal without requiring separate cross-appeals on each sub-issue. The Supreme Court has upheld this procedure. See In re Killington Ltd., No.90-535 (Vt. Sept. 11, 1992); In re Green Peak Estates, 154 Vt. 363, 372 (1990). However, if an appellant only objects to decisions of a district commission with respect to sub-issues within the criteria and specifies these sub-issues in the notice of appeal, and no other parties object or request broader review, the Board limits its review on appeal to "those reasons assigned by the appellant why the commission was in error." In this case, the original Prehearing Conference Report, dated June 19, 1992, stated the first substantive issue in the appeal as follows: Whether the proposed project meets the requirements of the following Criteria: 2 (sufficient water available); 3 (burden on existing water supply); and, insofar as the following criteria relate to the water supply for the project: 7 (municipal services); 9(J) (public utility services; and 9(K) (public investments and facilities). No objections to the issues as stated and no requests to expand the issues were made. Accordingly, the Board concludes that the issues properly before it are: Criteria 2, 3, 7, 9(J), and 9(K) with respect to the water supply for the project. 5. Whether the Bradford School District is a municipality as that term is used in 10 V.S.A. § 6084(a). The School District argues that according to 1 V.S.A. § 126, a "municipality" includes an incorporated school district, and that Bradford Academy and Graded School District is an incorporated school district. The Board does not disagree with the School District that a "municipality" is more than a town. However, the question that needs to be answered is whether a School District is a "municipality" within the meaning of 10 V.S.A. §§ 6084 and 6085. Party status is conferred by statute on the following persons and entities: [T]hose who have received notice, adjoining property owners who have requested a hearing, and such other persons as the Board may allow by rule. 10 V.S.A. § 6085(c). Those persons and entities entitled to receive notice consist of the following: [T]he owner of the land if the applicant is not the owner, a municipality, and municipal and regional planning commissions wherein the land is located, and any adjacent Vermont municipality, municipal or regional planning commission if the land is located on a boundary. 10 V.S.A. § 6084(a). The Board has adopted Rule 14, which, in addition to the above-enumerated statutory parties, provides for "parties by permission." These include individuals or groups who demonstrate that a project may affect their interests or that their participation will materially assist the district commission or board. The entities enumerated in 10 V.S.A. § 6085(c) as parties include "a municipality." The word "municipality" is modified by the word "a", and not by "any," "every," "each," or "all." Keeping in mind the purpose of the notice and party provisions of Act 250, the only reasonable interpretation of which municipality the legislature had in mind is the municipality in which the project is located. To conclude otherwise would allow or require applicants to deliver applications only, for example, to a fire district or school district to comply with notice requirements, or to all municipalities. Neither of these interpretations would be consistent with the purpose of these provisions: notification to the municipality in which a project is located so that the affected municipality knows about a proposed project and has the opportunity to participate in the Act 250 proceeding. Accordingly, we conclude that only the municipality in which a project is located is the municipality within the meaning of 10 V.S.A. § § 6084 and 6085 for the purpose of statutory party status. 6. Whether to grant party status to Roger Wilder or Bob Lamprey. Mr. Wilder says he is a member of Vermont's homeless network. He is a former teacher and a lobbyist in Montpelier on behalf of homeless people. He believes the Town could handle this project and that the low-income units are needed. He is concerned about the lack of affordable housing for Vermonters and believes that this issue needs to be discussed. Mr. Lamprey is a landlord in Bradford and a real estate appraiser who does feasibility studies. He stated that he is a typical person who represents the opinion of the town on this project, and as such can represent the economic interests of the citizens. He believes the project is not needed and that many residents are opposed to it. He also believes he could materially assist the Board, and will submit information to show the adverse impact on the town with respect to the ability of townspeople to pay taxes and sewer and water bills because of this project. The Board does not believe that, due to the limited issues in the appeal, either Mr. Wilder or Mr. Lamprey qualifies for party status. If any of the parties believe that Mr. Wilder or Mr. Lamprey have relevant information, they may call them as witnesses. IV. ORDER 1. The Environmental Board has jurisdiction over this appeal. 2. The changes to the project do not require initial review by the District Commission. 3. Criterion 6 is not an issue in this appeal. 4. The Board's issues in this appeal are limited to Criteria 2, 3, 7, 9(J), and 9(K) with respect to water supply. 5. The Bradford School District is not a municipality as that term is used in 10 V.S.A. § § 6084(a) and 6085(c). 6. Party status is not granted to Roger Wilder or Bob Lamprey. 7. The hearing tentatively scheduled for March 3 is postponed until March 17, 1994. The time and location of the hearing will be announced shortly. 8. On or before March 2, 1994, parties shall file final lists of witnesses and exhibits and prefiled testimony for all witnesses they intend to present. 9. On or before March 9, 1994, parties shall file prefiled rebuttal testimony and revised lists showing rebuttal witnesses and exhibits. 10. On or before March 14, 1994, parties shall file in writing all objections to the prefiled testimony and exhibits previously identified, or such objections shall be deemed waived. Paragraphs 8 through 13 of the Prehearing Conference Report and Order dated December 16, 1993 remain in effect. Dated at Montpelier, Vermont this 17th day of February, 1994 ENVIRONMENTAL BOARD /s/s/Robert Opel _________________________ Robert Opel, Acting Chair Ferdinand Bongartz Rebecca Day Lixi Fortna Arthur Gibb Samuel Lloyd William Martinez Steve E. Wright a:realty.dec (s8) c:\wp51\decision\realty.dec (v)