RE: MBL Associates, Application #4C0948-EB, Findings of Fact, Conclusions of Law, and Order (ALTERED) (Jan 30., 1996) VERMONT ENVIRONMENTAL BOARD 10 V.S.A. Chapter 151 Re: MBL Associates, Application #4C0948-EB FINDINGS OF FACT, CONCLUSIONS OF LAW, AND ORDER (ALTERED) TABLE OF CONTENTS I. SUMMARY OF DECISION. . . . . . . . . . . . . . . . . . . 1 II. SUMMARY OF PROCEEDINGS AND FINDING OF JURISDICTION. . . . . . . . . . . . . . . . . . . . 1 III. PARTY STATUS . . . . . . . . . . . . . . . . . . . . . . 7 IV. ISSUES . . . . . . . . . . . . . . . . . . . . . . . . . 9 V. FINDINGS OF FACT . . . . . . . . . . . . . . . . . . . . 9 General. . . . . . . . . . . . . . . . . . . . . . . . . 9 Water Quality and Water Supply . . . . . . . . . . . . . 10 Historic Sites, Aesthetics, Scenic Beauty. . . . . . . . 15 Municipal Plan . . . . . . . . . . . . . . . . . . . . . 17 Regional Plan. . . . . . . . . . . . . . . . . . . . . . 21 VI. CONCLUSIONS OF LAW . . . . . . . . . . . . . . . . . . . 31 A. Burden of Proof . . . . . . . . . . . . . . . . . . 31 B. Criterion 1(B) (Waste Disposal) . . . . . . . . . . 31 C. Criterion 1(G) (Wetlands) . . . . . . . . . . . . . 37 D. Criterion 2 (Sufficient Water Available). . . . . . 37 E. Criterion 3 (Burden on Existing Water Supply) . . . 38 F. Criterion 8 (Aesthetics, Scenic Beauty, Historic Sites) 39 1. Historic Sites . . . . . . . . . . . . . . . . 39 2. Aesthetics, Scenic Beauty. . . . . . . . . . . 39 G. Criterion 10 (Local and Regional Plans) . . . . . . 42 1. City Plan. . . . . . . . . . . . . . . . . . . 42 2. The Regional Plan. . . . . . . . . . . . . . . 43 3. Permit Condition under Criterion 10. . . . . . 52 VII. ISSUANCE OF PERMIT WITH CONDITIONS . . . . . . . . . . . 52 VIII. ORDER . . . . . . . . . . . . . . . . . . . . . . . 55 NOTES ON OPINIONS OF VARIOUS MEMBERS. . . . . . . . . . . . . 56 DISSENTING OPINION OF MEMBER WRIGHT . . . . . . . . . . . . . 56 I. SUMMARY OF DECISION This decision pertains to an application for a project consisting of a 221- unit planned residential development (the Project). The application is on appeal by MBL Associates (the Applicant). As is explained below, the Environmental Board concludes that, with conditions, the Project complies with the following criteria of 10 V.S.A. § 6086(a): 1(B) (waste disposal), 1(G) (wetlands), (2) (sufficient water available), (3) (burden on existing water supply), (8) (aesthetics and scenic beauty) and (10) (conformance with local and regional plans). The Board also conditionally accepts a withdrawal of appeal proffered by the Applicant with respect to Criterion 8 (historic sites). Of the many important issues in this case, the most controversial has been the Project's conformance with Criterion 10 (regional plan). Readers interested in that issue are referred to pages 43 through 52, as well as all to relevant findings of fact and conclusions of law. II. SUMMARY OF PROCEEDINGS AND FINDING OF JURISDICTION A. District Commission Decision and Jurisdiction On April 13, 1994, the District #4 Commission issued Findings of Fact, Conclusions of Law, and Order #4C0948, denying the application for the Project, which specifically includes 161 single-family lots and 60 multi-family units, to be located on 202 acres of land off Dorset Street in South Burlington, Vermont. An Act 250 permit is required for the Project pursuant to 10 V.S.A. §§ 6001(3) and (19), 6081(a), and EBR 2(A)(3) and 2(B). The District Commission denied the application pursuant to 10 V.S.A. § 6086(a)(1)(B) (waste disposal), 1(G) (wetlands), (2) (sufficient water available), (3) (burden on existing water supply), (8) (aesthetics and scenic beauty) and (10) (conformance with local and regional plan). The District Commission also stated that, if it were issuing a permit, it would issue conditions which had been requested by the Division for Historic Preservation (the Division) with respect to historic or archaeological resources. On May 13, 1994, the Applicant, citing EBR 31, filed a motion to alter decision and re-open the hearing. By memorandum of decision dated June 13, the District Commission denied the motion. B. Environmental Board Proceedings through June 20, 1995 On July 13, 1994, the Applicant filed an appeal with the Board with respect to the District Commission's decisions under Criteria 1(B), 1(G), 2, 3, 8 (aesthetics, scenic beauty, historic sites) and 10. The appeal also challenged various District Commission decisions regarding party status. On August 25, 1994, Environmental Board Chair Arthur Gibb convened a prehearing conference. Among other things during the prehearing conference, the Applicant declined an initial hearing date of November 30, 1994, asking that the date be later. On September 7, 1994, the Chair issued a prehearing conference report and order, which is incorporated by reference. During September 1994, petitions for party status and an opposition thereto by the Applicant were filed. On September 28, the Board deliberated concerning party status. On October 11, the Chair sent a memorandum to parties stating the results of the deliberation concerning party status. During November and December 1994, parties filed lists of witnesses and exhibits, prefiled testimony, and exhibits. Written evidentiary objections were filed as follows: on January 10, 1995, jointly by parties Vincent Bolduc and Jeff and Betty Goldberg; and on January 11, by the Applicant. Mr. Bolduc and the Goldbergs jointly filed a written response to the Applicant's objections on January 16. Proposed findings of fact and conclusions of law were filed as follows: on January 6, 1995, by parties Alexander and Mary Sandra Blair; on January 9, by parties John and Susan Jewett; on January 10, jointly by Mr. Bolduc and the Goldbergs; and on January 11 by the Town of Shelburne and the Applicant. On January 17, 1995, the Chair convened a second prehearing conference in Montpelier with the following parties participating: MBL Associates (the Applicant) by Stephen R. Crampton, Esq. Vincent Bolduc Alexander and Mary Sandra Blair John and Susan Jewett by John Jewett Jeff and Elizabeth Goldberg by Jeff Goldberg Downing-Calkins Trust by Bernard Chenette City of South Burlington (the City) by Joe Weith During the January 17 conference, Mr. Jewett stated that he was authorized to speak for the Town of Shelburne by its representative, Kate Bortz, who could not attend. During the conference, parties agreed on an itinerary for a site visit, specific time limits for presentation and cross-examination of witnesses, and were heard by the Chair concerning evidentiary objections. The Chair also made rulings concerning those objections. On January 18, 1995, the Board convened a hearing in the City of South Burlington, with the following parties participating: MBL Associates (the Applicant) by Stephen R. Crampton, Esq. Vincent Bolduc Alex and Mary Sandra Blair John and Susan Jewett by John Jewett Jeff and Elizabeth Goldberg by Jeff Goldberg Downing-Calkins Trust by Bernard Chenette Town of Shelburne (the Town) by Kate Bortz The City by Joe Weith During the hearing, the Chair placed the evidentiary rulings in the record. After taking a site visit and hearing testimony, the Board recessed the matter pending review of the record, deliberation, and decision. Between January 18 and 23, 1995, parties filed supplemental proposed findings of fact and conclusions of law. On January 24, the Chair issued a memorandum to parties which stated that this matter is in recess and that the Board would accept the supplemental proposed findings and conclusions filed to date to the extent they are based on the record. The Chair's January 24 memorandum is incorporated by reference. The Board deliberated concerning this matter on February 22 and April 26, 1995. On May 2, 1995, the Environmental Board issued Findings of Fact, Conclusions of Law, and Order #4C0948-EB (the Order), concluding that the Project complies with the following criteria of 10 V.S.A. § 6086(a): 1(G) (wetlands), (2) (sufficient water available), (3) (burden on existing water supply), (8) (aesthetics and scenic beauty) and (10) (conformance with local and regional plans). The Board also conditionally accepted a withdrawal of appeal proffered by the Applicant with respect to Criterion 8 (historic sites). The Order also concluded, with respect to Criterion 1(B) (waste disposal), that a presumption of compliance, created by permits issued by the Department of Environmental Conservation (DEC) of the Agency of Natural Resources (ANR), was rebutted with respect to a pipe carrying Project sewage which is planned to run approximately 18 feet from an existing drinking water source. As required by Environmental Board Rule (EBR) 19, the Order allowed the Applicant a further opportunity to demonstrate compliance with Criterion 1(B). The Order set a hearing date and various deadlines in advance of hearing. The Order authorized oral rebuttal testimony by opposing parties because time did not appear sufficient for preparation of written rebuttal. Oral response by the Applicant also was authorized as a fair balance to allowing opposing parties to present oral testimony. During May 1995, the Applicant filed prefiled testimony and lists of witnesses and exhibits, and the Blairs and the Jewetts filed lists of rebuttal witnesses and exhibits. On May 25, 1995, Acting Chair Arthur Gibb issued a memorandum to parties which is incorporated by reference. Among other items, this memorandum included requirements regarding summaries of testimony and production of exhibits in order to facilitate exchange of information among the parties. On May 31, 1995, having been delegated responsibility by the Acting Chair, Board staff Aaron Adler convened a prehearing conference in Montpelier, with the Applicant, the Blairs, and the Jewetts participating. During the prehearing conference, the Blairs and the Jewetts filed summaries of rebuttal testimony and produced rebuttal exhibits. The Applicant identified witnesses to testify, and produced exhibits to be introduced, in response to the rebuttal evidence. Parties agreed to time allocations for the presentation of evidence and identified evidentiary disputes. On June 1, 1995, the Board convened a hearing in the City of South Burlington, with the following parties participating: The Applicant by Stephen R. Crampton, Esq. The Blairs by Thomas J. Kenney, Esq. The Jewetts by John Jewett After hearing testimony and closing arguments from the parties, the Board recessed and conducted a deliberative session. On June 20, 1995, the Board issued Land Use Permit #4C0948-EB (the Permit) and Supplemental Findings of Fact, Conclusions of Law and Order #4C0948-EB (the Supplemental Order). In relevant part, the Supplemental Order concluded that the Project, with conditions, will comply with Criterion 1(B). C. Motions to Alter Motions to alter the Order, the Supplemental Order, and the Permit were filed as follows (all dates refer to 1995): (a) by Mr. Bolduc (June 27); (b) by the Applicant, asking alteration on the Board's "own motion" (July 3); (c) by the Jewetts (July 19); (d) by the Goldbergs (July 17); (e) by the Town of Shelburne (July 20); (f) by the State of Vermont Agency of Development and Community Affairs (DCA) (July 20); and (g) by the Blairs (July 20). DCA filed a correction to its motion on July 21. The Applicant filed a response to Mr. Bolduc's motion on June 29, 1995 and to all the other motions on August 9, 1995. The Board deliberated on September 13, 1995 and issued a memorandum of decision on October 2, 1995. The October 2 memorandum of decision is incorporated by reference. In relevant part, the October 2 memorandum denied an objection by the Applicant to DCA's participation; ruled that the various motions to alter were, with some exceptions, appropriate under EBR 31(A); declined to reconsider with respect to Criterion 1(B) (waste disposal); and agreed to reconsider, on the basis of the existing record, the matters raised in the Applicant's letter filed July 3 and the Board's prior findings of fact, conclusions of law, and permit conditions with respect to Criteria 8 (aesthetics) and 10 (regional plan). The October 2 memorandum also stated that, in addition to the seven Board members and alternates then serving, two other members or alternates of the Board would be requested to review the existing record and participate. The October 2 memorandum further stated that the Board would convene oral argument on the motions to alter and directed the Applicant to make an additional filing. On October 26, 1995, Acting Chair Gibb issued a memorandum to parties setting the schedule for oral argument and informing the parties that one of the three tapes used to record the evidentiary hearing on January 18, 1995 was blank. On October 31, 1995, the Applicant filed documents in response to the October 2 memorandum of decision. The Board convened oral argument on November 8, 1995 with the following parties participating: The Applicant by Stephen R. Crampton, Esq. The Town by George T. Faris IV, Esq. DCA by Gregory Maguire, Esq. Vincent Bolduc The Blairs by Alexander Blair The Jewetts by John Jewett The Goldbergs by Elizabeth Goldberg At the commencement of oral argument, the Applicant and the Town stipulated that they had no objection to the Board's proceeding with reconsideration in the absence of one of the three tapes. DCA, Mr. Bolduc, the Blairs, and the Goldbergs did not object to such procedure. The Jewetts stated that they did object to the participation of the two new members with a portion of the oral record missing. The Board stated that it would take the objection under advisement and proceeded with hearing argument. During argument, the Board indicated that it may need additional information from the Applicant concerning phasing of the Project and stated that it would advise parties whether it would seek such information. After hearing argument, the Board recessed and conducted a deliberative session. On November 14, 1995, the Board, through counsel, issued a memorandum on the status of the case. On November 15, the Applicant filed a phasing plan. On November 30, 1995, DCA filed a motion to limit. On December 12, 1995, the Applicant filed a response. The Board deliberated again on December 20, 1995. On January 26, 1996, the Board approved a draft decision prepared by staff. 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. With respect to the motions to alter, the Applicant's request to change the name on the permit from "MBL Associates, Inc." to "MBL Associates" is granted. The Jewetts' objection to the participation of the two new members is denied. DCA's motion to limit is granted. Any other requests in the motions to alter or in the proceedings concerning those motions which are not granted below are denied. III. PARTY STATUS In the Chair's memorandum to parties of October 11, 1994, the Chair stated that the Board's final decision in this matter would explain the basis for the Board's party status decisions. The Applicant challenges the following grants of party status made by the District Commission: to John and Susan Jewett under Criteria 1(B) and 8 FN1; to Alexander and Mary Sandra Blair under Criteria 1(B), 3, and 8; Jeff and Elizabeth Goldberg under Criterion 8; and Vincent Bolduc under Criterion 8. The District Commission granted party status to those listed above as adjoining landowners whose property is directly affected under the relevant criteria. The Applicant does not agree that the property of these parties is so affected. The Applicant also claims that the Jewetts are not adjoining landowners. It does not dispute that Mr. Bolduc, the Goldbergs, and the Blairs own property which qualifies as adjoining. However, the Applicant claims that the Blairs do not reside on the adjoining parcel which they own but rather reside on another parcel which does not adjoin Project lands. The Downing-Calkins Trust (the Trust) seeks party status under Criterion 8. The Trust states that it owns land which adjoins the proposed project and from a portion of which the project will be visible. The Trust was not a party before the District Commission. The Applicant opposes granting party status to the Trust. The Board rules as follows: a. The Jewetts are granted party status pursuant to EBR 14(B)(1)(a) (interests affected) under Criteria 1(B) and 8 (aesthetics, scenic beauty). They reside on land which they own and which is located near the Project. Their interests may be affected under Criterion 1(B) because a pipe carrying Project sewage will be approximately 18 feet from an existing source of drinking water located on their property. Their interests may be affected under Criterion 8 because the Project's density may have an adverse effect on the aesthetics of the surrounding area and because the Project may be visible from their property. b. Without deciding whether the Blairs are adjoining property owners, the Blairs are granted party status pursuant to EBR 14(B)(1)(a) (interests affected) under Criteria 1(B) and 8 (aesthetics, scenic beauty). They reside on land which they own and which is located near the Project. Their interests may be affected under Criterion 1(B) because their drinking water supply is the source on the Jewetts' property described above. Their interests may be affected under Criterion 8 in the same manner as the Jewetts' interests. However, the Blairs' interests will not be affected under Criterion 3 because they will not share a water source with the Project and the quantity of water supplied to the Blairs will not be affected by the Project. See the discussion under Criterion 3, below. c. Mr. Bolduc, the Goldbergs and the Trust are granted party status pursuant to 10 V.S.A. § 6085(c) and EBR 14(A)(3) (adjoining property owners) under Criterion 8 (aesthetics, scenic beauty). Their property interests may be directly affected because the Project's density may have an adverse effect on the aesthetics of the surrounding area and because the Project may be visible from their property. With regard to the party status of the above persons, the Applicant relies heavily on the case of In re Great Eastern Building Company, 132 Vt. 610 (1974). In that case, the Court upheld an Environmental Board denial of party status to people who were not statutory parties or adjoining property owners. The Court ruled that since they were not such parties, they were not entitled to participate as a matter of right under 10 V.S.A. § 6085(c). Id. at 612. The Court also separately ruled that the persons, who sought party status under Criterion 5 (traffic safety and congestion), do not have a legally protected "right to be free from the consequences of increased traffic flow." Id. at 613. For three reasons, Great Eastern Building does not require a ruling in the Applicant's favor on party status. First, Mr. Bolduc, the Goldbergs, and the Trust are adjoining property owners and therefore do not fall within the Court's rulings in that case. Second, the Court noted in Great Eastern Building that the Board had not yet adopted rules concerning party status as authorized under 10 V.S.A. § 6085(c). Id. at 612. The Board subsequently has promulgated EBR 14, which allows parties to participate by permission if their interests may be affected under the criteria or if they may materially assist the District Commission or Board. See EBR 14(B). Third, those seeking party status in this matter may not have an absolute, legally protected right to be free from the negative impacts of development. But the absence of such a right does not deprive them of an opportunity to be heard concerning those impacts and to argue for protection for themselves. IV. ISSUES 1. Whether the Project complies with 10 V.S.A. § 6086(a)(1)(B) (waste disposal), 1(G) (wetlands), (2) (sufficient water available), (3) (burden on existing water supply), (8) (aesthetics and scenic beauty) and (10) (conformance with local and regional plan). 2. Whether to accept the Applicant's notice of withdrawal and stipulated permit conditions with respect to 10 V.S.A. § 6086(a)(8) (historic sites). V. FINDINGS OF FACT For the convenience of the reader, the following findings of fact are organized into a general section followed by sections keyed to the specific criteria at issue. The use of headings related to the criteria does not mean that only the findings within the heading are relevant to the particular criterion. Where findings from other sections are relevant, they are assumed and not repeated. General 1. The Project will be located on a 202-acre tract off Dorset Street in the City. The tract is adjacent to the Town of Shelburne. Most of the tract (154 acres) lies west of Dorset Street, with all development occurring on this western portion. The remaining 48-acre portion located east of Dorset Street is presently open space. It will include a recreation path and otherwise will remain open and undisturbed. 2. On the western portion of the Project Tract, the Applicant will construct a concentrated neighborhood residential development of 221 units. There will be 60 multi-family units and 161 detached single-family units. The Act 250 application for the Project states that the units will be constructed in phases but does not provide specific information on those phases. The Applicant plans to construct several streets within the Project tract to serve the units. The area comprising the residential development will be located on approximately 75 acres, and the balance of the western portion of the Project tract (79 acres) will be undisturbed. 3. Included in the Project are municipal water and sewer lines which will be extended south along Dorset Street to the Project area. 4. Calculated with reference to all acreage on the Project tract, Project density will be approximately 1.1 residential unit per acre. 5. John and Susan Jewett own and reside on an approximately 33-acre property east of Dorset Street near the Project. 6. Alexander and Mary Sandra Blair own and reside on an approximately one-acre tract west of Dorset Street. Their house will be within 740 feet of the western portion of the Project tract. They also own an approximately six-acre tract east of Dorset Street which borders the eastern portion of the Project tract. 7. Vincent Bolduc owns and resides on an approximately 17-acre tract located directly across Dorset Street from the western portion of the Project tract and which borders the eastern portion of the Project tract. 8. Jeff and Elizabeth Goldberg own and reside on an approximately 13-acre tract located directly across Dorset Street from the western portion of the Project tract. 9. The Downing-Calkins Trust owns an approximately 222-acre tract which adjoins the Project tract to the north. From some portions of the Trust's tract, one can see the Project tract. The Trust's tract is undeveloped at present. The Trust plans to create a residential development on its tract. Water Quality and Water Supply For the convenience of the reader, the Board has grouped the findings of fact from its May 2, 1995 Order with the findings of fact from its June 20, 1995 Supplemental Order. Findings of fact from the May 2, 1995 Order: 10. On August 4, 1994, DEC issued Water Supply and Wastewater Disposal Permit #WW-4-0710 (the WW Permit) to MBL Associates, approving the construction of 60 multi-family units in 15 buildings, with four units per building. The WW Permit approves water supply and sewage disposal for the 15 buildings. 11. On August 4, 1994, DEC issued Subdivision Permit #EC-4-1795 (the Subdivision Permit) to MBL Associates, approving the subdivision of the Project tract into 161 single family residential lots and an 8.83-acre lot for multi-family buildings. The Subdivision Permit approves water supply and sewage disposal for the Project. 12. On August 4, 1994, DEC issue Deferral of Permit #DE-4-1944 for lots on the Project tract which are not proposed for development. This deferral of permit requires that any future development of such lots must meet the terms of the Environmental Protection Rules (1982) (the EPRs). 13. Project sewage disposal will be through a proposed pipe (the Sewer Connection) connecting to a pressured sanitary sewer running along Dorset Street and ultimately to the City of South Burlington's Airport Parkway treatment facility. Sewage flows for the Project will be a maximum of 114,825 gallons per day. 14. A drilled artesian well on the property of John and Susan Jewett supplies drinking water to the property of Alexander and Mary Sandra Blair on which they reside, as well as to the nearby properties of Edward Hoehn, III and Richard N. Tritt. The well yields approximately 100 gallons per minute. 15. The Sewer Connection will be approximately 18 feet from the drilled well on the Jewett property. 16. The Sewer Connection may develop a leak through rust, frozen water inside, or faulty construction. 17. Both the Subdivision and WW Permits state that they were issued pursuant to the EPRs. Appendix 7-D of the EPRs is a table of minimum isolation distances. The table specifies a minimum isolation distance of 50 feet between a sewer and a drilled well serving two or more houses. The table also states that "[t]hese distances may be reduced when evident that the distance is unnecessary to protect an item or increased if necessary to provide adequate protection." 18. The Subdivision Permit and WW Permit contain no findings or supporting factual statements that a 50-foot isolation distance is unnecessary to protect the drilled well on the Jewett property which supplies drinking water to the Blairs and others. Further, there is no evidence before the Board independent of these two permits which supports reduction of the 50-foot isolation distance. 19. On September 7, 1994, DEC issued Discharge Permit #1-1169 to MBL associates, approving Project discharge of stormwater runoff. 20. On December 20, 1994, DEC issued Conditional Use Determination #90- 111 (the CUD) under the Vermont Wetland Rules, approving with conditions various actions proposed as part of the Project with respect to significant wetlands. 21. Three significant wetlands exist on the Project tract: a northern wetland, a western wetland, and a southern wetland. The Applicant proposes no changes to or impacts on the northern wetland or an adjacent 50-foot buffer zone. 22. The Applicant proposes filling and alteration which will occur in the western and southern wetlands and adjacent buffer zones. Approximately 26,613 square feet of wetland and 109,831 square feet of buffer zone will be filled or altered. The wetland filling primarily is of ditches and associated narrow bands of wetland for seven roadway crossings. The filling or alteration of buffer zones primarily is associated with roadway crossings or construction of stormwater management systems. 23. The filling or alteration of the western and southern wetlands and adjacent buffer zones will not have an undue adverse impact on any wetland functions. The applicant has designed the Project to minimize impacts on the western and southern wetlands and will include the northern, western, and southern wetlands and adjacent 50-foot buffer zones on common land. 24. On May 3, 1994, DEC issued Public Water System Permit to Construct #E-0335 to MBL Associates for the Project. This permit approves with conditions the extension of an existing municipal water main along Dorset Street to the Project area and the installation of two water mains to connect the Project to the extended water main. The estimated average day demand for the Project is 116,850 gallons per day. The City of South Burlington will supply the water. Findings of fact from the June 20, 1995 Supplemental Order: 25. Today's decision concerns Project sewage disposal which will be through a pipe from the Project connecting to a pressured sanitary sewer running along Dorset Street (the Sewer Connection) and ultimately to the City of South Burlington's Airport Parkway treatment facility. 26. The Applicant has now submitted evidence to show that requiring a 50-foot isolation is unnecessary to protect the drilled well on the Jewett property, and that the 18-foot distance between the Project sewer connection and the drilled well in fact will not result in undue water pollution. In the alternative, the Applicant has submitted a plan to re-route the Sewer Connection so that it will be no less than 50-feet from the drilled well or any other source of drinking water. 27. The Applicant's plan to ensure that the 18-foot distance will not result in undue water pollution was created prior to the date the Order was issued and has not changed since it was created. However, the Applicant did not submit this plan or its details to the Board prior to issuance of the Order. 28. The Applicant's plan involves encasement of the Sewer Connection at the point of 18-foot proximity to the drilled well. The plan is shown on Exhibits A34 and A35 before the Board. Exhibit A34 is dated July 1993, was last revised July 19, 1994, is entitled "Southeast Summit, Force Main/Water Line, Plan & Profile, Sta. 9+00 to Sta. 21+00" and was prepared by Fitzpatrick-Llewellyn, Inc. of Williston, Vermont. Exhibit A35, prepared by the same firm, is dated February 1993, was lasted revised April 8, 1994, and is entitled "Southeast Summit, Typical Details." 29. At the point of closest proximity to the drilled well on the Jewetts' tract, the Applicant will encase the Sewer Connection with a pressure-rated pipe and will extend the encasement pipe in both directions (north and south) 50 feet from the well. In the event of a leak or break in the Sewer Connection, the encasement pipe will transport the wastewater to a point 50 feet away from the well. 30. The downhill end of the encasement pipe is its southern end. At the southern end of the encasement pipe, the pipe will enter into a manhole. At the northern end, the encasement pipe will be sealed with a water-tight seal. 31. The encasement pipe will be a class 50 ductile iron pipe with a pressure rating of 350 pounds per square inch (psi). 32. The Sewer Connection will be a 6-inch PVC (SDR 21) force main designed to handle up to 200 psi. This main is designed to be suspended in soil. Under the plans submitted by the Applicant, the main will be suspended in air within the encasement pipe, making it more vulnerable to leakage. Placing a sand resting bed between the pipe and the main would help significantly to ensure proper function of the main. The Applicant agrees to such a procedure. 33. A pump which will push sewage through the main will create pressure. A higher pressure would increase the potential for rupture. For pumping sewage through the main, the Applicant proposes to use a pump with a maximum pressure no greater than 80 psi. This is 120 psi less than the pressure rating of the main. 34. The use of the encasement pipe involves additional joints. These joints will constitute weak points which will be more susceptible to leakage. Use of restrained joints will greatly diminish the potential for leakage. The Applicant proposes to use restrained joints on both the encasement pipe and the force main. 35. Soils between the Sewer Connection and the drilled well are heavy clay. 36. The drilled well on the Jewett property has been in use for at least approximately 90 years. The well is less than 50 feet from many existing sources of contamination, including Dorset Street and a nearby barn on the Jewett property. Despite such proximity, recent tests of this well show that the well is an exceptionally pure source of water. Thus, it appears reasonably likely that the well has strong geologic protection. 37. Tests of the well show that the water flow is upward out the well. Such a flow tends to keep contamination from surface water out of the well because any contaminants which reach the well are carried up and out by the water flow. 38. Based on the current plans and testimony submitted to the Board, and the Applicant's agreements and proposals regarding the sand resting bed, the maximum pressure of the pump, and the use of restrained joints, it is highly unlikely that Project sewage will reach groundwater or wells. Historic Sites, Aesthetics, Scenic Beauty 39. On November 4, 1994, the Applicant filed a "notice of withdrawal" with the Board with respect to Criterion 8 (historic sites). In the notice, the Applicant states that, should the Board issue a permit, the Applicant stipulates to the inclusion of various permit conditions contained in a letter dated March 3, 1994 from the State of Vermont Division for Historic Preservation (the Division). 40. The western portion of the Project tract presently is largely open-space and until recently was in agricultural use. It slopes gently upward from Dorset Street toward forested areas on the western border of the Tract. Along its northern and southern borders, the Project tract also is forested. 41. The immediate context of the Project is a rural-residential area. The density of residential development in the area is much less than the proposed density of the Project. None of the existing residential development consists of multi-family units. Rather, such residential development largely consists of single-family homes on lots of four acres or more. A few tracts in the area remain in agricultural use. 42. The larger context of the Project is an area on the fringes of development growing out from Chittenden County's urban core in the City of Burlington, Vermont's most populous city. Within a few miles of the Project tract, Dorset Street and Spear Street demonstrate increased suburban development. Several medium density developments similar to the Project exist within a few miles. Also within a few miles is a new city recreation park, middle and high schools, municipal offices, and a fire station. 43. The most dramatic views in the area occur on a 3,000-foot long stretch of Dorset Street two miles north of the Project site. Along this portion of Dorset Street, viewers can see a panorama encompassing Brownell Mountain, Camel's Hump, Mount Philo, Lake Champlain, and the Adirondacks. Driving south toward the Project, this panorama fades from sight before the driver reaches the Project. 44. From Dorset Street in the immediate Project area, attractive fore- and middle-ground views of hedgerows, meadows, and forests can be seen by the driver. 45. Drivers on area roads currently may see the Project tract as open space from several points along those roads. 46. The Jewetts, Goldbergs, and Mr. Bolduc presently experience views across the open space of the Project tract west to Lake Champlain and the Adirondacks. 47. Residents in the Project area, including the Blairs, presently experience views of the Project tract as open space. 48. The Applicant has clustered the single-family lots and multi-family units as far back from Dorset Street as reasonably possible. Project design leaves 127 acres as open space, including a 50-acre open space set-aside between Dorset Street and the Project residences. The Applicant proposes a minimum of 800 feet between Dorset Street and the nearest Project residence. 49. Due to higher elevations behind and on the westernmost portion of the Project tract, rooflines in the Project will lie below the level of trees to the north, west, and south. Residential units will not be seen against the sky in silhouette. Views to the Adirondacks will not be blocked. 50. House design will be a combination of one- and two-story homes with relatively high-pitched roofs. The designs will include a variety of Cape Cod, two-story colonials, ranch-style, and split-foyers. Exterior colors will be muted ones which will blend in with the natural colors on and surrounding the Project tract. Roofs will be of darker colors to ensure they will blend into the background. 51. Project lighting will consist of 38 street lights and exterior lights for housing units. All lighting will use down-direct and soffet fixtures. No lighting will be placed on the 50-acre open space portion described in Finding 48, above. Project street lights will be a minimum of 300 feet from each other and a maximum of 100 watts. Exterior house lights will be a maximum of 60 watts. 52. The Applicant's landscaping plan is Exhibit A12, which involves extensive tree plantings to minimize the perception of the mass of the Project. 53. The applicable zoning by-laws are the City of South Burlington Zoning Regulations, lasted amended September 21, 1992 (the Zoning Regulations). Section 19.151(h) of the Zoning Regulations provides, concerning a planned residential development such as the Project, that such a development is allowed if, in relevant part, it "will not have an undue adverse effect on the scenic or natural beauty of the area, is aesthetically compatible with existing buildings and site characteristics . . . ." Municipal Plan 54. The Project tract is in an area of the City known as the Southeast Quadrant (SEQ). 55. The Act 250 application for the Project was filed on January 18, 1994. There is no evidence in the record stating the date an application was filed with the City for a zoning or subdivision approval. 56. The applicable town plan is the 1991 Comprehensive Plan of the City of South Burlington, Vermont (the City Plan). 57. On pages 21 and 22, the Future Land Use section of the City Plan states the following: 4. Residential Areas The Proposed Land Use Map designates areas of varying residential character which are defined as follows: o High density: 5.1 units/acre and greater o Moderate density: 1.1 units/acre - 5 units/acre o Low density: 1 unit/acre and lower Residential and Open Space: low moderate density residential use with an emphasis on innovative design and layout (e.g. clustering) to promote and preserve open space, natural features, scenic views and continued agricultural use. In light of the goals described in this section, the City recommends a general land use pattern of higher residential densities in the urban core with a transition to lower densities on the periphery. As shown on Map 8, high density residential is proposed in the City's proposed urban center (i.e., city center and Kennedy Drive areas). Moving outward from the proposed urban core, residential densities transition to moderate density in the Williston Road/White Street area and Shelburne Road corridor, and then to low moderate density on the periphery of the City, namely within the SEQ. It should be noted that Map 8 presents a general land use pattern and that there will be areas of open space, recreation, and varying density neighborhoods (i.e., single family and multi-family) scattered throughout each residential use category. Southeast Quadrant (SEQ) The Southeast Quadrant is the area within the City lying south of I-89 and east of Spear Street. This area still retains an open, rural character and affords numerous spectacular views of the Green Mountains, Adirondack Mountains and Lake Champlain. Considering South Burlington's location in relation to the County's urban core, the SEQ has experienced intense development pressures over the last decade and will continue to experience such pressures in the coming years. While the City intends to accommodate residential growth in the majority of the SEQ, the City will stress innovative designs and layouts which work to preserve open space, natural resources and scenic views, and promote the continuance of agricultural use. A more detail discussion of the City's SEQ is contained within Chapter XV of this plan. 58. On pages 93 through 96, in Chapter XV, the Southeast Quadrant section of the City Plan states the following: D. LAND USE a) Residential . . . The City strongly encourages a variety of housing types in the quadrant, not only in terms of development densities and design, but in terms of affordability. A variety of development patterns and layouts as well as both single and multi-family units should be promoted. All residential developments should preserve open space and the unique aesthetic and natural qualities of the Quadrant while serving a wide range of income levels. Affordable housing should be located near schools, parks, shopping centers, employment centers, day care facilities, transportation corridors and public transportation. Most of the City's neighborhoods meet some or all of these criteria. However, housing for low and very low income households which might be more dependent upon public transportation, should be located in areas where there is available service (definitions of low and moderate income households are provided in the Housing section). Therefore, until such public transportation is available in the Southeast Quadrant, the City feels that housing for low and very low income households is less feasible for the Quadrant. Instead, the City should focus its efforts to encourage affordable housing in the Quadrant on housing which is affordable to moderate income households. As development and population densities facilitate the expansion of public transportation into the Quadrant, opportunities to provide housing for low and very low income households will become more feasible. . . . c) Agriculture and Open Space Agriculture contributes to the aesthetic quality of the Quadrant. The farms in the Quadrant will likely disappear if left unaided. The City should take positive steps, exploring and implementing such means as transfer of development rights and land trusts (as opposed to subsidies), to retain agriculture as a land use in the Quadrant. In addition to agriculture, the City should encourage more variety in non- intensive uses while protecting drainageways and other open and natural areas not suited to agricultural use, but important to the overall quality of the Quadrant. d) Development Densities Areas designated as appropriate for development were based on the following general objectives: o preserve natural features such as wetlands, floodplains and drainageways. o locate development in a manner which preserves significant scenic views. o provide significant setbacks along north-south arterials to maintain open feeling and promote preservation of "special character." o allow development to encroach into wooded areas to hide units from view. o protect enough wooded area to maintain viable wildlife habitat and maintain connections between habitats for movement. o encourage some prime farmland to remain open by clustering development. Neighborhood densities were then designated for each development area based on the following objectives. o provide higher density in development designated area[s] which are relatively small in size and well hidden from arterials. o encourage lower densities in larger development designated areas and in open areas. o consider lower densities in abutting areas of Shelburne and Williston and maintain compatibility. E. VIEWS The Quadrant affords many of the City's most scenic views. While development may obscure some of these, the Community's interest in such "resources" is strong enough to warrant consideration of view preservation in planning. The City should advocate development patterns, densities and land uses that preserve these unique important views for the public. Sources which have identified important views are listed in the Natural Resources Chapter. . . . 59. The proposed land use map (Map 8) of the City Plan designates the area surrounding the proposed project as "Residential and Open Space." 60. On page 30, the City Plan cites a State of Vermont definition of affordable housing as housing which can be purchased by households at or below median income without spending more then 30 percent of income. The City Plan also states that moderate income is defined as 80 to 100 percent of median income, low income is 51-80 percent of such income, and very low income is less then 50 percent of such income. 61. The Applicant proposes to sell each of the 161 single family units at a price which will allow a household with median income as measured within the City to purchase the unit without spending more than 30 percent of income. The Applicant has accepted a permit condition requiring that the first sale be priced in accordance with its proposal. 62. The Zoning Regulations provide: 26.401 Maximum development density for residential development of a parcel of land or portion of a parcel of land located in the Southeast Quadrant District shall be 1.1 residential units per acre. 26.402 No parcel of land or portion thereof in the Southeast Quadrant District shall be developed for a greater number of residential units or residential lots than allowed under Section 26.401 above. . . . 26.403 The number of dwelling units or single family dwelling lots that may be located on or created within the limits of a contiguous designated development area located within a single parcel of land shall not exceed 4 per acre. Regional Plan 63. The regional plan applicable to the Project is the Chittenden County Regional Plan, adopted November 12, 1991 (the Regional Plan). 64. On page two, the Regional Plan incorporates various appendices "under separate cover." One appendix incorporated in the Regional Plan is a "Housing Appendix," which is comprised of a "1991 Housing Report" dated June 30, 1991. 65. On page three, the Regional Plan states the following: GOVERNING PRINCIPLE The Regional Plan recognizes the necessity of protecting the Region's most valuable social, environmental, cultural and aesthetic characteristics; yet providing for the essential needs of the changing population-goods and services, employment and shelter, health and safety. The inextricable links between population demands, infrastructure capacities and resource quality is [sic] also recognized. This Plan's primary objective is to provide guidance for development and growth TO RATIFY AND ASSURE THE TRADITIONAL AND EXISTING VILLAGE, TOWN, COUNTRY SETTLEMENT PATTERNS. TO HELP SECURE THE CHARACTER OF THE REGION'S NATURAL AND BUILT ENVIRONMENT, THERE SHOULD BE A CLEAR AND PRONOUNCED DELINEATION BETWEEN TOWN AND COUNTRYSIDE THROUGH APPROPRIATE AND SUPPORTIVE LAND USES AND DESIGNATED GROWTH CENTERS. This primary objective can best be accomplished through a planning process that is "bottoms up", with decisions made at the lowest level commensurate with their impacts. The Regional Planning Commission is uniquely qualified to participate in this planning process since it is locally appointed yet represents regional, as well as local, viewpoints. We recommend exceptions to the Plan's primary objective be made only when it can be demonstrated and established conclusively that the greater public good is served by the exception. GROWTH CENTERS Designating growth centers is the chief means by which the Regional Plan's governing principle will be realized. Generally described, growth centers are areas within communities providing for a concentration of housing, commercial services, employment opportunities, and government uses, and being served by basis infrastructure. . . . [G]eneral descriptions [of three types of growth centers] are refined in the growth center matrix offered below. It describes the proposed and required features of each growth center type. This matrix is a planning tool and not to be construed as a zoning ordinance. (Emphasis in the original.) 66. On page five, the Growth Center Matrix identifies "proposed" uses for growth centers. For a regional growth center, residential use is not identified as a proposed use. Residential use is identified as a proposed use for sub-regional and local growth centers, with such identification including "SF detached (1-5 units/acre)" and "2 Family (6-10/units per acre)." 67. On page 16, the Regional Plan divides its policies into sub-headings, two of which are "Growth Centers" and "Primary support structures." The latter sub-heading includes "housing." Concerning these sub-headings, the Regional Plan provides: Implementation of growth centers is the chief aim of this Plan. Providing the support services and protecting environmental quality, though important, then become secondary. Following this statement, the Regional Plan provides a diagram of a hierarchy of goals. The diagram shows "Growth Centers" on top, with other goals, including "primary support services," on a lower level. 68. On page 17, the Regional Plan includes the following: a. Policy 1, which states: Designation through Regional and Municipal Plans of growth centers as areas within the Region which provide for a concentration and mixture of residential units, commercial services, employment opportunities, cultural amenities and governmental uses, with appropriate civic and architectural design and served by basic infrastructure. Goals: To ...distribute 75% of the Region's future population growth to growth centers as follows, 20% of that growth to the Regional growth center, 60% of that growth to sub-regional growth centers, and 20% to local growth centers. These numerical guidelines are intended as planning targets for the Region as a whole; they are not intended to be applied town by town. (Emphasis in the original.) b. Policy 2, which provides: Public and private capital investment decisions should respect growth center designations and assist in their orderly rate of growth. (Emphasis in the original.) 69. On page 18, the Regional Plan states within Policy 5 that: "Transportation facilities and modes shall be coordinated with other land use policies and with growth centers." 70. On page 19, the Regional Plan states: Policy 6. Decent housing is essential for the Region's residents. The quantity, type and cost of new housing shall correspond to the Region's needs, and its location shall be in accordance with other land use policies of this plan. Affordable housing allocation to the Region's municipalities shall take into consideration each municipality's current housing stock. Goals: To ... (A) assure every municipality contributes in some way toward meeting the Region's housing needs. (B) guarantee affordable housing units remain affordable for as long as possible. (C) ensure affordable housing (or any one type of affordable housing, eg. elderly) not be concentrated within one neighborhood or community. . . . (G) ensure residential development be compatible with existing architecture, community character and other land use concerns. (H) provide accessibility between affordable housing and employment opportunities. (Emphasis in the original.) 71. On page 20, the Regional Plan states: Policy 8. Public services and facilities shall complement and support the orderly development of growth centers. Goals: To ... (G) encourage public investments, including the construction or expansion of infrastructure, to support development in designated growth centers and avoid disturbing designated agricultural or conservation areas. (Emphasis in the original.) 72. On pages 21 and 22, the Regional Plan states: Policy 12. Preservation of the Region's agricultural and forest resources, for their economic and aesthetic value, is a matter of public good. Goals: To... (A) preserve the long term viability for farm and forest use of agricultural and forest lands by limiting alternate uses on those lands to low gross density uses. . . . (E) plan the construction, expansion or provision of public facilities and services so as not to reduce the resource value of important and economically viable adjoining agricultural or forestry lands. . . . (G) preserve the aesthetic qualities of the forested and agricultural landscape. (Emphasis in the original.) 73. On page 25, the Regional Plan states: Utilities and Facilities An integrated and efficient system of facilities, utilities and services is necessary to ensure that the quality of life in Chittenden County remains relatively high. . . . All of them must function with respect to the growth centers concept on which this plan is predicated. Sewage Disposal . . . Towns and cities should also develop allocation policies as a means of distributing remaining capacity. In this way, the growth center concept can be implemented by ensuring a variety of uses in the designated area, including housing, commerce and industry. Sewer line extensions should be planned to accommodate the regional and the appropriate sub-regional and local growth centers. When it is necessary that sewer and water lines extend from one growth center to another a policy of "no new or limited tap-ins" should be enacted. 74. On page 26, the Regional Plan states: Water Supplies . . . As with planning for sewer system expansion, planning for expansion of water systems should correspond to regional, sub-regional and local growth centers. Expansion should not occur outside of these areas unless the public good is clearly served. 75. On pages 30-31, the Resource Use section of the Regional Plan provides: Affordable Housing A decent home in a suitable living environment is a basic need of all Vermont citizens. No one should be excluded from a suitable living environment due to race, color, religion, national origin, sex, age, physical or mental handicap, residency and/or income. The Region has affordable housing units. However, currently the Region has an insufficient supply of affordable housing. The need for affordable housing continues to grow and to surpass the available supply. The CCRPC shall promote safe and affordable housing for all of the residents of the Region. . . . For purposes of this plan, housing is affordable when households with incomes below the county median, pay no more than 30% of their income on housing costs. . . . It is in the Region's best interest to promote municipal policies which keep housing affordable on a permanent basis. It also is in the Region's best interest to encourage municipal policies which promote an income mix for its housing. . . . 76. On pages 32-33, the Regional Plan includes the following: The intensity, type and location of the Region s future land use development is depicted on the Future Land Use map and the following description and matrix. The future land use plan has taken into consideration, 1) the existing land use base, . . .2) projected population growth, 3) existing and future infrastructure capacities, 4) the natural resource base, and 5) the growth center concept as its cornerstone. Growth centers have been described in other sections of this Plan, under the Governing Principle, in the Policies & Goals section, and in the future land use matrix below. As this Plan's central theme it cannot be overstated. These areas must be recognized as those targeted for the great majority of future development in the Region. * * * A. Regional Growth Center The purpose of the Regional Growth Center is to provide for regional shopping centers, employment centers, higher education facilities, health centers, financial centers, government centers, cultural centers, high density housing, civic and convention centers, recreation opportunities and the necessary infrastructure to serve these functions. The Regional Growth Center will not only serve the needs of the Region, but other state residents and visitors. B. Sub-Regional Growth Center The purpose of the centers is to provide for housing, shopping centers, employment opportunities, municipal offices, public education facilities, recreation opportunities and the necessary infrastructure to support these functions. C. Local Growth Centers These will provide housing, convenience shopping, employment opportunities, municipal offices, recreation opportunities and public education facilities fully supported by appropriate infrastructure. * * * G. Agricultural Area This area includes the Region's most valuable farmlands and scattered residential development. It should be designated for primarily agricultural uses as much as possible. Future residential development within this area should be relatively low density and clustered. The land's capability for development must also be determined prior to allowing development. 77. On page 38, the Regional Plan provides a "future land use matrix." Under the category "Agricultural Area," this matrix provides for "forestry, agriculture, recreation, residential" use. In addition, the matrix states concerning residential density: "Low gross density (1 unit/10 acres) with clustering to allow smaller lots and compact layouts, or per local bylaws." 78. On pages 39 and 41-42, the Regional Plan states specific policies concerning residential development considered to have a "substantial regional impact" in an Act 250 proceeding. On page 39, the Regional Plan states that its purpose in defining "substantial regional impact" is "to determine the applicability (or not) of the Regional Plan in state regulatory proceedings, primarily Act 250 and Section 248." Also on page 39, the Regional Plan states that "[t]he substantial regional impact criteria . . . will be used solely to determine whether or not the Regional Plan is applicable in these proceedings." (Emphasis added.) For residential project in a growth center, the Regional Plan provides a "substantial regional impact" threshold of 109 housing units if the project is located in the City. The Regional Plan also states that "non-growth center development" having a substantial regional impact includes any "residential development, outside the Regional Plan's designated growth centers . . . requiring an Act 250 permit." 79. On page 56, the Future Land Use Planning Map of the Regional Plan designates the area of the proposed project as an "Agricultural Area." 80. The Project is not within a regional, sub-regional, or local growth center on the Regional Plan's Future Land Use Map. 81. On page 57, in the Implementation section, the Regional Plan states an intent that municipal by-laws are the primary vehicle for implementation: "Although all goals should be addressed in both local and regional plans, the implementation of the goals will be primarily accomplished through the bylaws adopted in each community . . . ." 82. On page 75, the Regional Plan defines "affordable housing" as follows: Housing is affordable when households with incomes below county median pay no more than 30% of their income on housing costs. Housing costs for renters are: rent and utilities (including heat, hot water, trash, and electric). Housing costs for homeowners are principal, interest, property taxes, and property insurance. (This definition shall change as the state's definition changes.) 83. On page 79, the Regional Plan provides a definition of "Inner Ring": The Region's suburban municipalities: Shelburne, St. George, part of South Burlington, Williston, Essex, Essex Junction, Colchester, Milton, and part of Winooski. 84. The Regional Plan does not state which part of South Burlington is within the Inner Ring. The Board is unable to find any other provisions of the Regional Plan which state which part of South Burlington is in the Inner Ring or contain policies or goals for the "Inner Ring." However, on page five, the Housing Appendix states that the City of South Burlington is within the Inner Ring. 85. On page 80, the Regional Plan states that the word "shall" is a "[k]ey word identifying that a requirement is mandated by law." 86. On page 81, the Regional Plan states that the word "should" is a "[k]ey word identifying that a requirement is encouraged but not mandated." 87. The Applicant proposes to sell each of the 60 multi-family units at a price which will allow a household below median income as measured in Chittenden County to purchase the unit without spending more then 30 percent of income. The Applicant has accepted a permit condition requiring that the 60 multi-family units will comply with the definition of "affordable housing" contained at page 75 of the Regional Plan. At oral argument before the Board on November 8, 1995, the Applicant offered that such condition be in perpetuity. 88. On page six, the Housing Appendix states: Affordable housing is more difficult to build given the scarcity of suitable sites, the cost of raw land, site development and the array of regulations and fees that are part of site development, financing and marketing. 89. Land that is adjacent to more populated areas of Chittenden County is either scare or expensive. This factor inhibits the creation of affordable housing in those areas. The nature, circumstances, and location of the Project tract are such that its price as "raw land" is low enough to allow placement of housing which is affordable within the meaning of the Regional Plan. 90. On page 51, the Housing Appendix states an interim five-year affordable housing target of 80 units for the City. The Housing Appendix also states that this figure, and other similar figures, "will be adjusted" when 1990 census data are available. There is no evidence in the record that the 80- unit figure has in fact been adjusted. 91. In the Housing Appendix, the CCRPC includes tables showing average and medium incomes for Chittenden County overall and for the County's municipalities individually. VI. CONCLUSIONS OF LAW A. Burden of Proof The burden of proof generally is considered to include both the burden of production and the burden of persuasion. In Act 250 the burden of production means the burden of producing sufficient evidence on which to make positive findings under the criteria. The burden of persuasion refers to the burden of persuading the Board that certain facts are true. Re: Killington, Ltd. and International Paper Realty Corp., #1R0584-EB-1, Findings of Fact and Conclusions of Law and Order (Revised) at 21 (Sep. 21, 1990). Under 10 V.S.A. § 6088(a), the Applicant has the burden of proof on the following criteria under appeal: 1(B), 1(G), 2, 3, and 10. With regard to Criteria 1(B) and 2, the introduction of appropriate permits by the Applicant operates to transfer the burden of proof to any opponents who have party status on those criteria. If they rebut the presumption, the burden returns to the Applicant. See EBR 19. Under 10 V.S.A. § 6088(b), the opponents have the burden of proof under Criterion 8. However, as with all criteria, the Applicant must provide sufficient information for the Board to make affirmative findings. Killington, supra at 21. B. Criterion 1(B) (Waste Disposal) For the convenience of the reader, the Board has grouped the conclusions of law from the May 2, 1995 Order with the conclusions of law from the June 20, 1995 Supplemental Order. Other than being grouped together, those conclusions of law remain unchanged. Statement of law common to both the Order and the Supplemental Order: Criterion 1(B) is part of Criterion 1, which seeks to prevent undue air or water pollution. 10 V.S.A. § 6086(a)(1). Criterion 1(B) specifically addresses water pollution and provides: Waste disposal. A permit will be granted whenever it is demonstrated by the applicant that, in addition to all other applicable criteria, the development or subdivision 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. Conclusions of law from the May 2, 1995 Order: The Applicant has received permits from DEC on which it has relied to demonstrate compliance with Criterion 1(B). Specifically, the Applicant has submitted the Discharge Permit, which applies to stormwater runoff from the Project. The Applicant also has submitted the Subdivision Permit and the WW Permit. These permits apply, in relevant part, to disposal of Project sewage. Under 10 V.S.A. § 6086(d), the Board is authorized to issue rules providing for presumptions of compliance for permits issued by other state agencies. Under EBR 19(E)(1), the DEC permits discussed above create 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, the Discharge Permit creates a presumption of compliance with Criterion 1(B) for any waste materials contained in Project stormwater runoff. Similarly, the Subdivision and WW Permits create a presumption of compliance with Criterion 1(B) for Project sewage disposal. No challenge has been made with respect to the Discharge Permit and Project stormwater runoff. There is no evidence in the record which would support rebuttal of the presumption created by the Discharge Permit. Therefore, the Board concludes that Project stormwater runoff complies with Criterion 1(B). Parties Blair and Jewett challenge the presumptions created with respect to Project sewage disposal. Their contentions center on the Sewer Connection which will carry sewage from the Project to municipal line. The Sewer Connection will be placed be approximately 18 feet from a well on the Jewett property which supplies drinking water to the Blair property, as well as to the nearby properties of Edward Hoehn, III and Richard N. Tritt. The Blairs and the Jewetts specifically claim that the 18-foot proximity violates applicable DEC regulations requiring a 50-foot separation between a sewer and a water source. They also claim that the proximity of the Sewer Connection to the well on the Jewett property poses a threat of contamination. Based on these arguments, the Blairs and Jewetts seek to rebut the presumption created by the Subdivision and WW Permits. The Board examines their contentions in light of its supervisory authority over ANR. In re Hawk Mountain Corp., 149 Vt. 179, 185 (1988). EBR 19(F) specifies the manner in which a presumption may be rebutted. The rule provides that if: [A] preponderance of the evidence shows that undue water pollution. . . is likely to result, the commission or board shall rule that the presumption has been rebutted. Technical non-compliance with the applicable health and water resources and environmental engineering department regulations shall be insufficient to rebut the presumption without a showing that the non-compliance will result in, or substantially increases the risk of, undue water pollution . . . . Accordingly, the Blairs and the Jewetts may rebut the presumption created by the DEC permits in one of two ways: (a) by showing that Project sewage disposal is likely to result in undue water pollution, or (b) by showing non- compliance with applicable DEC regulations, if such non-compliance will result in, or substantially increase the risk of, undue water pollution. The Board concludes that the Blairs and the Jewetts have rebutted the presumption by showing non-compliance with applicable DEC regulations which substantially increases the risk of undue water pollution. The applicable regulations at issue are DEC's Environmental Protection Rules (1982) (the EPRs). Both the Subdivision and WW Permits state that they were issued pursuant to these rules. A subdivision permit is required for the Project under 18 V.S.A. §§ 1218, 1219 and EPR §§ 3-02, 3-04. A water supply and wastewater permit is required for the Project pursuant to 10 V.S.A. §§ 1952, 1953. Appendix 7-D of the EPRs is a table of minimum isolation distances. The table specifies a minimum isolation distance of 50 feet between a sewer and a drilled well serving two or more houses. The table also states that "[t]hese distances may be reduced when evident that the distance is unnecessary to protect an item or increased if necessary to provide adequate protection." If the minimum isolation distance of a sewer is to be 50 feet from a drilled well, then the Sewer Connection does not meet this distance because it will be 18 feet from the drilled well on the Jewett property. Therefore, Project sewage disposal does not comply with applicable DEC regulations unless an isolation distance greater than 18 feet is shown to be unnecessary to protect the well. However, the Subdivision Permit and WW Permit contain no findings or supporting factual statements that such distance is unnecessary. Further, there is no evidence before the Board independent of these two permits which supports reduction of the 50-foot isolation distance. It may be argued that Appendix 7-D does not apply to the Project because it will not be served by an on-site sewage disposal system but rather will be connected to a municipal sewer system. Specifically, Appendix 7-D is attached to Chapter 7 of the EPRs, and the first section of that chapter states: Wherever feasible, it is recommended that projects subject to the jurisdiction of these rules connect to municipal sewer facilities approved by the Department. For projects proposing on-site sewage disposal, the following standards and criteria shall apply. EPR § 7.01. For several reasons, the Board does not believe that this quoted language is intended to exclude the application of the 50-foot isolation distance to projects which connect to municipal sewer systems. First, Appendix 7-D contains a specific category of isolation distances labeled "sewer." Second, immediately following § 7.01 (which includes the quoted language) are §§ 7.02 through 7.15, which set out the various requirements for on-site disposal systems. It is likely that § 7.01 refers to these immediately following sections because undoubtedly many requirements pertaining to design of an on- site disposal system would not make sense for a sewer connection. Third, the EPRs consistently require a 50-foot distance between a water supply and a sewer or subsurface wastewater pipe. See, e.g., EPR § 8.08 and Water Supply Rule § 11.4.0. Fourth, by statute, the WW Permit applies to any pipe used for the conveyance and treatment of domestic, industrial, or commercial waterborne waste. 10 V.S.A. § 1952(4). The same statute authorizes ANR to promulgate rules for issuing wastewater permits. 10 V.S.A. § 1955. Therefore, such rules must apply to any pipe used for conveying and treating human waste. The EPRs are the rules under which the WW Permit was issued and the Sewer Connection clearly is conveying domestic waterborne waste for treatment. The Project's non-compliance with the 50-foot isolation distance substantially increases the risk of undue water pollution. The 18-foot distance to the drilled well is not mere "technical" non-compliance. Rather, it represents a 60 percent deviation from the 50-foot requirement. In this regard, it may be fairly assumed that the 50-foot requirement was set to protect human health because such protection is a primary purpose of the EPRs. See EPR § 1.01B. Thus, such a significant deviation on its face creates a substantial likelihood of undue water pollution. Moreover, should the Sewer Connection develop a leak through rust, freezing water, or faulty construction, the short distance to the drilled well substantially increases the possibility that constituents of domestic human waste will reach the drilled well. This poses a threat to the potability of the drinking water supply for the Blairs and the others using the well. Based on the foregoing, the Board concludes that the presumption created by the Subdivision and WW Permits is rebutted. Accordingly, the Project does not comply with Criterion 1(B) with respect to Project sewage disposal. EBR 19(F) specifies that, "[u]pon the rebuttal of the presumption, the applicant shall have the burden of proof under the relevant criteria and the permit or certification shall serve only as evidence of compliance." By stating that an applicant has the burden of proof once a permit is rebutted, the rule therefore requires allowing an opportunity for the Applicant to present further evidence. See also Hawk Mountain, supra, 149 Vt. at 186. Accordingly, the Board will set this matter for further hearing with respect to the compliance of the Project with Criterion 1(B). Based on the Board's conclusions, above, the Applicant may demonstrate such compliance through one of the following two options: a. By showing that requiring a 50-foot isolation is unnecessary to protect the drilled well on the Jewett property, and that the 18-foot distance between the Project sewer connection and the drilled well in fact will not result in undue water pollution; OR b. By re-routing the Sewer Connection so that it will be no less than 50-feet from the drilled well or any other source of drinking water. If the Applicant wishes, it may present both of these options in the alternative. The hearing will be limited to evidence and argument relevant to fulfilling these two options. In compliance with 3 V.S.A. § 810, all parties under Criterion 1(B) will be given an opportunity to present evidence, cross-examination, and argument. The order below will set a schedule for filing testimony and lists of witnesses and exhibits, and for holding a hearing. Should the Applicant fail to file testimony by the deadline in this order, this application will be denied pursuant Criterion 1(B). Conclusions of law from the June 20, 1995 Supplemental Order: Based on the foregoing findings of fact, the Board concludes that the Project will comply with Criterion 1(B) if the Project is conditioned to require the use of a sand resting bed between the planned encasement pipe and force main, to limit the pump pushing sewage through the main to a maximum pressure of 80 psi, and to require the use of restrained joints on the encasement pipe and the force main. During the hearing on June 1, 1995, parties opposing the application on Criterion 1(B) argued that, if the Board issues a permit, it should include various conditions such as posting a substantial bond, requiring yearly monitoring, requiring the Applicant and its successors to remedy any contamination should it occur, and others. Based on the above findings and conclusions, the Board does not believe such conditions are needed to ensure compliance with the criterion. C. Criterion 1(G) (Wetlands) Criterion 1(G) provides: Wetlands. A permit will be granted whenever it is demonstrated by the applicant, in addition to other criteria, that the development or subdivision will not violate the rules of the water resources board, as adopted under section 905(9) of this title, relating to significant wetlands. The Applicant has submitted a conditional use determination (CUD) issued by DEC under the Vermont Wetland Rules. In accordance with a recent Board decision, under the Board's current rules this determination does not create a rebuttable presumption of compliance with Criterion 1(G) but is considered evidence of compliance. Re: St. Albans Group and Wal*Mart Stores, Inc., #6F0471-EB, Memorandum of Decision at 12 (April 15, 1994). Based on the foregoing findings of fact and the CUD issued by DEC, the proposed project complies with Criterion 1(G). Because the Board is in part relying on the CUD, the Board will condition any permit issued to require compliance with all findings, conclusions, terms, and requirements of the CUD. Such a condition is reasonable and appropriate under 10 V.S.A. § 6086(c). D. Criterion 2 (Sufficient Water Available) Criterion 2 requires that the Applicant prove that the proposed project "[d]oes have sufficient water available for the reasonably foreseeable needs of the subdivision or development." The Applicant has submitted a Public Water System Permit to Construct issued by DEC. The permit authorizes the extension of an existing municipal water main along Dorset Street and connections from the Project to the extended water main. DEC issues such permits pursuant to 10 V.S.A. Chapter 56. Formerly, these permits were issued by the Department of Health under 18 V.S.A. Chapter 24. EBR 19(E)(3) specifies that public water system approvals issued by the Department of Health under 18 V.S.A. Chapter 24 create a rebuttable presumption "[t]hat a sufficient supply of potable water is available." EBR 19(H) states the intent of EBR 19 to "refer to any written document issued by the appropriate state agency attesting to a project's compliance with the regulations or statutes listed in Section (E) of this rule." Accordingly, since the health department regulations cited in EBR 19(E)(3) are now administered by DEC, the Applicant's introduction of the ANR permit to construct creates a rebuttable presumption of compliance with Criterion 2. The manner in which the presumption may be rebutted is set out in EBR 19(F). It is the same as quoted, above, under Criterion 1(B), except that the issue is "inadequate water supply" rather than "undue water pollution." No parties have challenged the presumption and there is no evidence in the record of inadequate water supply. The water supply will be through a municipal system. Accordingly, the proposed project complies with Criterion 2. E. Criterion 3 (Burden on Existing Water Supply) Criterion 3 requires that, before issuing a permit, the Board or district commission shall find that a proposed project "will not cause an unreasonable burden on an existing water supply, if one is to be utilized." 10 V.S.A. § 6086(a)(3) (emphasis added). This would appear directed at assuring that demand on existing water supplies to be utilized by a proposed project does not unreasonably burden those supplies. Such would include impacts on the ability to meet demand of neighboring wells or water sources if those other wells or sources share the same basic source of water such as an aquifer or common spring. However, the District Commission's decision under Criterion 3 addresses the proposed project's potential to contaminate the well on the Jewetts' property used by the Blairs. It does not appear that the project will use this well or share a water source with the well. Thus, review of the potential contamination of the well used by the Blairs is not appropriate under Criterion 3 but rather should occur, as done above, under Criterion 1(B). The Applicant has submitted the Subdivision and WW Permits, which in part approve Project water supply. At the first prehearing conference, the Applicant stated its belief that this would enable the Board to make positive findings under Criterion 3. The only regulations cited in EBR 19(E) with regard to a rebuttable presumption of compliance with Criterion 3 are Department of Agriculture regulations regarding herbicide applications. See EBR 19(E)(4). Thus, consistent with the discussion of the CUD under Criterion 1(G), above, the Subdivision and WW Permits do not create a rebuttable presumption of compliance with Criterion 3 but are considered evidence of compliance. Based on the Subdivision and WW Permits and the fact that the Project will use a municipal water supply, the proposed project complies with Criterion 3. F. Criterion 8 (Aesthetics, Scenic Beauty, Historic Sites) 1. Historic Sites With respect to historic sites, the Applicant appealed conditions incorporated in the permit by the District Commission at the Division's suggestion. On November 4, 1994, the Applicant filed a "notice of withdrawal" with the Board with respect to Criterion 8 (historic sites). In the notice, the Applicant states that, should the Board issue a permit, the Applicant stipulates to the inclusion of various permit conditions contained in a letter from the State of Vermont Division for Historic Preservation (the Division) dated March 3, 1994. Because the Applicant agrees to the conditions in the Division's letter, withdrawal on Criterion 8 (historic sites) will not be contrary to values embodied in Act 250 if such conditions are required by Act 250 permit. Accordingly, as a condition of allowing withdrawal, the Board will require compliance with the Division's letter in any such permit. 2. Aesthetics, Scenic Beauty Criterion 8 requires that, before issuing a permit, the Board find that a proposed project "[w]ill not have an undue adverse effect on the scenic or natural beauty of the area, aesthetics . . . ." The Board uses a two-part test to determine whether a project meets Criterion 8. 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. Based on the foregoing findings of fact, the Board concludes that the Project will have two adverse effects on aesthetics and scenic beauty. First, Project density will be out of context when considered against the immediate context of the Project tract. Second, the Project will cause the loss of a significant amount of open space. These adverse effects will be experienced by those who reside, use land, or pass through the area, including the Jewetts, the Blairs, the Goldbergs, Mr. Bolduc, and the Trust. In evaluating whether adverse effects on aesthetics and scenic beauty are undue, the Board analyzes three areas and concludes that a project is undue if it reaches a positive conclusion with respect to any one of these areas, which are: a. Does the project violate a clear, written community standard intended to preserve the aesthetics or scenic beauty of the area? b. Does the project offend the sensibilities of the average person? Is it offensive or shocking because it is out of character with its surroundings or significantly diminishes the scenic qualities of the area? c. Has the Applicant failed to take generally available mitigating steps which a reasonable person would take to improve the harmony of the proposed project with its surroundings? Based on the foregoing findings of fact, the Board concludes that the Project does not violate a clear, written community standard concerning aesthetics. In this regard, parties have referred the Board to a provision of the Zoning Regulations which recites the language of Act 250's Criterion 8 (aesthetics) and requires aesthetic compatibility. However, recitation of Act 250 language does not tell the Board what the community's standard is. Moreover, it is difficult to conclude that the Project does not comply with the cited aesthetic provision of the Zoning Regulations when Project density is one of the aesthetic impacts and the Project complies with the Regulations' specific density provision for the SEQ (see Criterion 10 discussion below). In reaching this conclusion, the Board notes the Jewetts' argument that the Board cannot conclude under Criterion 8 that the Project meets the City Plan and at the same time conclude under Criterion 10 that the City Plan is ambiguous. However, the Board s conclusion under Criterion 8 is not based on the City Plan. Instead, as discussed above, it is based on the Zoning Regulations. FN2 Based on the foregoing findings of fact, the Board also concludes that the Project will not offend or shock the average person. With respect to this issue, the Board stresses two factors. The first factor consists of the mitigating steps discussed below. The second factor is the larger context of the Project area, which includes increasing suburban development growing out from Chittenden County's urban core in Burlington, Vermont's largest urban area. Within this larger context are several medium density residential developments similar to the Project. Thus, the Board believes that the average person would not be shocked or offended to find a project of this nature in the proposed location. With regard to this conclusion, parties have argued that the Board is considering too large a context because the nearest developments of similar size are a few miles away. It is contended that such distance is inconsistent with the Board s decisions in Re: St. Albans Group and Wal*Mart Stores, Inc., #6F0471- EB, Findings of Fact, Conclusions of Law, and Order (Altered) (June 27, 1995), appeal pending, Supreme Court No. 95-398; and Re: Waterbury Shopping Village, #5W1068-EB, Findings of Fact, Conclusions of Law, and Order (July 19, 1991). However, both of those decisions concerned large retail developments with substantial commercial traffic flows; the present case is a large residential subdivision and development. Additionally, in both of those decisions, Criterion 9(H) was at issue; such criterion requires a determination of whether a development is "physically contiguous" with an existing settlement. 10 V.S.A. § 6086(a)(9)(H). Criterion 9(H) is not before the Board in the present case. Based on the foregoing findings of fact, the Board further concludes that the Applicant has taken generally available mitigating steps which a reasonable person would take under the circumstances to mitigate the adverse effects posed by Project density and impact on open space. Specifically, the Applicant has reasonably clustered the Project on the Project tract. The Applicant also has minimized perception of the mass of the Project through use of a landscaping plan and muted house colors. The Applicant further has placed the Project in a location which takes advantage of the higher elevations on the westernmost portion of the Project tract to ensure that rooflines will lie below tree levels. Most importantly, the Applicant has set aside 127 acres of the tract as open space, including a 50-acre open space set-aside between Dorset Street and the Project residences. The Board infers that the setting aside of land as open space means the land will be restricted to conservation and non-motorized recreational uses. The 127-acre set-aside of open space is central to the Board's decision. Based on the foregoing discussion, the Project complies with Criterion 8 (aesthetics, scenic and natural beauty). G. Criterion 10 (Local and Regional Plans) 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." In light of the foregoing findings of fact and the discussion below, the Board concludes that, with conditions, the Project will conform to the City and Regional Plans. 1. City Plan With respect to its conclusion regarding the City Plan, the Board stresses that the Plan encourages housing in the SEQ which is affordable to moderate income households and the Project is designed to be so affordable. The Project also is reasonably clustered to preserve open space and agricultural lands and will not unduly interfere with available views. Further, Project density is in compliance with the City Plan. While it is true that the City Plan generally encourages a lesser density in the SEQ, the City Plan also states that there will be "varying density neighborhoods . . . throughout each residential use category." Thus the City Plan is ambiguous with respect to density. To resolve this ambiguity, the Board has turned to the City's Zoning Regulations to determine whether they contain provisions germane to interpreting the density provisions of the Town Plan. In re Frank A. Molgano, ___ Vt. ____, 5 Vt. Law Week 314, 315 (Vt., Nov. 10, 1994). Sections 26.401 through 26.403 of the Zoning Regulations provides for a maximum density of 1.1 units per acre in the SEQ, which can be achieved through consideration of all tract acreage. So calculated, the Project complies with the density provisions of the City Plan as implemented through the City's zoning by-law. 2. The Regional Plan Based on the provisions of the Regional Plan and the arguments advanced by the parties, the Board's analysis of conformance with the Regional Plan divides into three areas: (a) whether the Plan allows a use such as the Project in the area which includes the Project Tract; (b) whether the Project contravenes the provisions of the Regional Plan which promote "growth centers"; and (c) whether the Project meets a "greater public good" exception contained in the Plan by reason of providing "affordable housing." The Board performs its analysis in light of the Supreme Court's discussions of conformance with regional plans in In re Green Peak Estates, 154 Vt. 363, 368- 70 (1990), and Molgano, supra. These cases indicate that the Board is to apply "specific policies" contained in a regional plan and that an ambiguous provision is not such a policy. a. Allowance of Use As indicated on page 32 of the Regional Plan, the Future Land Use Map and Future Land Use Matrix depict "the intensity, type and location of the Region's future land use development . . . ." On the Future Land Use Map of the Regional Plan, the area which includes the Project Tract is designated as an "Agricultural Area." The Regional Plan states the following allowed uses in an "Agricultural Area" on its "Future Land Use Matrix": "forestry, agriculture, recreation, residential." (Emphasis added). The Project is residential. The Future Land Use Matrix also provides as follows for the allowed density of a residential use in the Agricultural Area: "Low gross density (1 unit/10 acres) with clustering to allow smaller lots and compact layouts, or per local bylaws." (Emphasis added.) As discussed above, the City's zoning by-laws allow a maximum density of 1.1 units per acre in the area which includes the Project Tract. The Project meets the density requirement of the City's by-laws. Therefore, under the plain language of the Regional Plan, the Project meets the Regional Plan's density requirement for an Agricultural Area. In its motion to alter, DCA argues that the reference to local by-laws in the Future Land Use Matrix is "counter-intuitive" and that the Regional Plan intends to "defer" to local by-laws only when they call for lower densities, such as one unit per fifteen acres, or when the project is not regionally significant. However, DCA's arguments contradict the plain language of the Matrix, which simply states "or per local bylaws." The language could have been "or a lower density (such as 1 unit/15 acres) per local bylaws." It also could have been "or per local bylaws when the project is not regionally significant." But the language contains no such qualifications. Further, DCA's argument concerning regional significance is based on an interpretation of provisions in the Regional Plan which define "substantial regional impact." Those provisions indicate that any residential development has a "substantial regional impact" if, like the Project, it is outside of a designated growth center and requires an Act 250 permit. But the Regional Plan's provisions concerning "substantial regional impact" nowhere state that they form an exception to the Future Land Use Matrix. Moreover, the "substantial regional impact" provisions of the Regional Plan become relevant in this proceeding only if there is a conflict between its provisions and those of the City Plan. The Regional Plan states that its sole purpose in defining "substantial regional impact" is "to determine the applicability (or not) of the Regional Plan in state regulatory proceedings, primarily Act 250 and Section 248." Thus, it is clear that the Regional Plan is referring to a state statute which guides the Board in deciding how to proceed where there is conflict between the provisions of a local and regional plan. 24 V.S.A. § 4348(h) provides: In proceedings under 10 V.S.A. chapter 151, 10 V.S.A. chapter 159, and 30 V.S.A. § 248, in which the provisions of a regional plan or a municipal plan are relevant to the determination of any issue in those proceedings: (1) the provisions of the regional plan shall be given effect to the extent they are not in conflict with the provisions of a duly adopted municipal plan; (2) to the extent that such a conflict exists, the regional plan shall be given effect if it is demonstrated that the project under consideration in the proceedings would have a substantial regional impact. (Emphasis added.) Under Section 4348(h), the Board applies both the local and regional plans, unless it determines that a conflict exists among the provisions of the two plans. In such a case, the Board will apply the regional plan upon a demonstration that a project will have a substantial regional impact. FN3 With respect to the allowed density in the area which includes the Project Tract, no conflict exists between the provisions of the City and the Regional Plans. As discussed above, the City Plan, interpreted through the zoning by-laws, allows the proposed density of the Project. The Regional Plan explicitly refers to local by-laws in stating the allowed density in the area, and therefore by its own terms incorporates the same zoning by-laws which allow the Project. Based on the foregoing, the Board concludes that, under the Regional Plan, the Project is an allowed use within the area which includes the Project Tract. b. Growth Center Provisions Shelburne and DCA argue that the Project contravenes the Regional Plan's "Governing Principle" and "Primary Objective," which is to ratify and assure traditional village, town, and country settlement patterns. The Plan states that the chief means to reach this objective is the designation of growth centers, said to be mixed use areas which will concentrate higher density development and infrastructure such as sewer and water. The essence of the argument against the Project is that its density is such that, under the Regional Plan, the Project and its attendant sewer and water line expansion belong within a designated growth center, and the Project Tract is not within such a center. However, it is a significant leap of logic to state that because the Regional Plan makes growth centers a governing principle, the Project must be within a growth center. To make that leap, there must be support in the specific policies of the Regional Plan. In this regard, none of the Plan's provisions cited by Shelburne and DCA provides sufficient specificity. Examples of these provisions are as follows: * THERE SHOULD BE A CLEAR AND PRONOUNCED DELINEATION BETWEEN TOWN AND COUNTRYSIDE THROUGH APPROPRIATE AND SUPPORTIVE LAND USES AND DESIGNATED GROWTH CENTERS. * Implementation of growth centers is the chief aim of this plan. Providing the support services and protecting environmental quality, though important, then become secondary. * Public and private capital investment decisions should respect growth center designations and assist in their orderly rate of growth. * Public services and facilities shall complement and support the orderly development of growth centers. * An integrated and efficient system of facilities, utilities and services is necessary to ensure that the high quality of life in Chittenden County remains high. . . . All of them must function with respect to the growth centers concept on which this plan is predicated. * Sewer line extensions should be planned to accommodate the regional and appropriate sub- regional and local growth centers. When it is necessary that sewer and water lines extend from one growth center to another a policy of "no new or limited tap-ins" should be enacted. * As with planning for sewer system expansion, planning for expansion of water systems should correspond to regional, sub-regional and local growth centers. Expansion should not occur outside of these areas unless the public good is clearly served. * Growth centers have been described in other sections of this plan, under Governing Principle, and in the future land use matrix below. As this Plan's central theme it cannot be overstated. These areas must be recognized as those targeted for the great majority of future development in the region. * [An agricultural area] should be designated for primarily agricultural uses as much as possible. Future residential development with [an agricultural] area should be relatively low density and clustered. (Italics added.) There are three reasons why these provisions are not specific enough to provide a basis for denying the Project. First, as the Board has concluded above, the Project is an allowed use under the Regional Plan's Future Land Use Map and Matrix. As indicated on page 32 of the Plan, the Map and the Matrix show the intensity, type, and location of future land use and have already taken into consideration the growth center concept. Nothing in the provisions quoted immediately above, or in the remainder of the Regional Plan, clearly negates or overrides the explicit allowance in the Matrix of a residential project which meets the density requirements of local by-laws. Second, none of the provisions quoted above, or any other provisions of the Regional Plan, states a clear restriction (such as a numerical limit) or other clear discouragement on density above a certain level outside of the designated growth centers. Third, a great many of the Plan's provisions, including many of those cited above, use the word "should" in expressing the Plan's objectives. The Plan explicitly defines the word "should" as a "[k]ey word identifying that a requirement is encouraged but not mandated." (Emphasis added.) This suggests that any provisions which use the word "should" are not mandatory. If a provision which uses the word "should" is not mandatory, then a significant question is necessarily raised: Does the Plan intend to require compliance with the provisions, or does it not? By defining "should" in such a manner, the Regional Plan thus renders many of its provisions regarding growth centers ambiguous. The problem of this use of "should" is illustrated by a Plan provision, quoted above, which states that future residential development in an Agricultural Area "should" be relatively low density. Given the Plan's definition of "should," its use in this provision creates ambiguity by making it uncertain whether a project must be of low density. To clarify the ambiguity, an obvious place to look is the Future Land Use Matrix, which states the densities in the various areas designated by the Regional Plan. As discussed above, the Matrix refers to local by-laws which allow the proposed density. Shelburne and DCA make essentially two arguments in support of a position that the Plan's definition of "should" does not create ambiguity. First, they argue that the definition of "should" is merely a recognition that the CCRPC cannot pass laws; only the legislature can. In support of this argument, they point to the definition of "shall," which is a "[k]ey word identifying a requirement that is mandated by law." This argument fails because, as Shelburne and DCA elsewhere have pointed out, regional plans have regulatory effect in Act 250. 10 V.S.A. § 6086(a)(10); 24 V.S.A. § 4348(h). Thus, while the CCRPC cannot pass laws, it does have the power to issue requirements which become mandates for projects in Chittenden County subject to Act 250. In fact, in the Plan's provisions concerning "substantial regional impact," the CCRPC demonstrates a keen awareness of this power. Given the existence of such a power, and the CCRPC's awareness of it, the definition of "should" cannot be read as a simple recognition that the CCRPC is not the General Assembly. The second argument is that the Board previously has construed the word "should" as mandatory and denied projects based on regional plan provisions which use that word. The cases cited are Waterbury Shopping Village, supra and Re: Swain Development Corporation #3W0445-2-EB, Findings of Fact, Conclusions of Law, and Order (Aug. 10, 1990). But neither of these decisions finds that the applicable regional plan contains a definition of "should." It is the presence of a particular definition in this Regional Plan, and not the generic use of the word "should," which creates the ambiguity. Moreover, each of these decisions involved commercial retail developments located outside of existing village centers, and regional plans which clearly discouraged such developments in such locations. Waterbury Shopping Village, supra at 40-42; Swain, supra at 36-37. In contrast, the Project is a residential subdivision which is allowed by the express language of the Regional Plan's Future Land Use Matrix. While it is possible that a residential subdivision could cause commercial growth, such growth could be controlled or prohibited through local zoning, and local zoning is incorporated in the Plan's Future Land Use Matrix. c. Public Good Exception: Affordable Housing Even if the Project contravened the growth center provisions, the Project would still conform with the Plan because of an exception for the "greater public good" which is met by the Project's provision of "affordable housing" within the meaning of the Plan. The Regional Plan states the exception as follows on page three: "We recommend exceptions to the Plan's primary objective be made only when it can be demonstrated and established conclusively that the greater public good is served by the exception." Therefore, an exception may be made if the exception will serve "the greater public good." The standard of proof for the exception is high: Service of the greater public good must be "demonstrated and established conclusively." Based on the language of the Regional Plan and the Applicant's contention that the exception is met by provision of "affordable housing," the Board must examine two questions: (a) whether provision of affordable housing qualifies as a greater public good under the Regional Plan, and (b) if so, whether the Applicant has demonstrated and established conclusively that the Project provides affordable housing within the meaning of the Plan. Turning to the first question, the Board concludes that provision of affordable housing qualifies as a greater public good under the Regional Plan. On page 19, the Regional Plan states that decent housing for the Region's residents is "essential." On pages 30 and 31, under the heading "Affordable Housing," the Regional Plan states: A decent home in a suitable living environment is a basic need of all Vermont citizens. No one should be excluded from a suitable living environment due to race, color, religion, national origin, sex, age, physical or mental handicap, residency and/or income. The Region has affordable housing units. However, currently the Region has an insufficient supply of affordable housing. The need for affordable housing continues to grow and to surpass the available supply. The CCRPC shall promote safe and affordable housing for all of the residents of the Region. . . . (Emphasis added.) DCA and Shelburne argue that the greater public good exception cannot be applied to affordable housing because, on page 19, the Regional Plan states that the "location [of new housing] shall be in accordance with other land use policies of this plan." They contend that those "other land use policies" include the primary objective of the Regional Plan, the promotion of traditional and existing settlement patterns through growth centers. For additional support, they point to page 16 of the Plan, which defines housing as a "primary support structure," and then states that providing "primary support services" is secondary to implementation of growth centers, the "chief aim of this Plan." But these arguments do no more than state that the growth center policies are the primary objective of the Regional Plan and that such objective must override any other policies. The Plan, however, provides a specific exception to its primary objective. To state that the exception cannot be given effect because of the primary objective is to render the exception a nullity. Moreover, the Regional Plan, through its incorporated Housing Appendix, recognizes economic barriers to affordable housing, including the scarcity and expense of raw land. These factors are accentuated in the more popular areas of Chittenden County - i.e., the growth centers - and therefore the arguments of DCA and Shelburne would result in the erection of a nearly insurmountable barrier to achievement of the Plan's affordable housing goal. Having concluded that provision of affordable housing is a greater public good, the Board turns to the next question, which is whether the Project provides such housing within the meaning of the Regional Plan. The Plan contains three provisions which are significant in considering this question: (a) the Plan defines "affordable housing", (b) the Plan establishes goals for each municipality with respect to affordable housing, and (c) the Plan contains a provision on ensuring that affordable housing remains affordable. The Board examines these provisions in turn. The Regional Plan contains a definition of "affordable housing" on page 75 which states in relevant part: Housing is affordable when households with incomes below county median pay no more than 30% of their income on housing costs. Housing costs for renters are: rent and utilities (including heat, hot water, trash, and electric). Housing costs for homeowners are principal, interest, property taxes, and property insurance. The Applicant proposes that each of the 60 multi-family units will comply with the Regional Plan's "affordable housing" definition, and has accepted a permit condition requiring such compliance. While such compliance may not result in "low-income" housing, the Regional Plan's definition of affordable housing includes incomes just under the county median. Accordingly, the Applicant has conclusively demonstrated and established that the Project provides affordable housing within the meaning of the Plan. On page 19, the Regional Plan states a goal to "assure every municipality contributes in some way toward meeting the Region's housing needs . . . ." This goal is implemented through the Regional Plan's "Housing Appendix," which is a separate document incorporated into the Plan on page two. On page 51, the Housing Appendix, a 1991 document, states an interim five-year affordable housing target for the City of South Burlington of 80 units. The Project provides 60 units which qualify as affordable housing, meeting three-quarters of the target established for the City by the Regional Plan. Thus, the Applicant has demonstrated and established conclusively that the Project meets the Regional Plan's goal of assuring that the City provide affordable housing. The Regional Plan does not only seek the initial creation of affordable housing units but also seeks on page 19 to guarantee that affordable housing units remain affordable. The Applicant has accepted a condition that the 60 multi- family units will remain affordable, under the Regional Plan's definition, in perpetuity. The Applicant has therefore conclusively demonstrated and established the affordable housing guarantee called for in the Regional Plan. It is argued that the Project does not meet the affordable housing exception because the 161 single-family lots will not be affordable to households below the median income for Chittenden County. However, the Regional Plan nowhere states that all portions of a project must meet the definition of "affordable housing." Further, the Project provides a substantial number of affordable housing units because it enables South Burlington to meet 75 percent of its affordable housing target under the Regional Plan. In view of the foregoing discussion, the Board concludes that the Applicant has demonstrated and established conclusively that the Project meets the Regional Plan's "greater public good" exception. d. Conclusion on Regional Plan Based on the foregoing discussion, the Board concludes that, with the conditions agreed to by the Applicant, the Project conforms with the Regional Plan. 3. Permit Condition under Criterion 10 The Applicant has emphasized affordability of housing to moderate income earners in its arguments for a positive finding under Criterion 10. The Applicant proposes to sell the 161 single family units at a price which is affordable to the median income as measured within the City and has accepted a condition requiring that the first sale be priced accordingly. The Applicant also proposes to sell the 60 multi-family units at a price which is affordable to households below the median income as measured in Chittenden County and has accepted a condition requiring that those units, in perpetuity, to conform to definition of affordable housing in the Regional Plan. Pursuant to 10 V.S.A. § 6086(c), the Board finds it appropriate and reasonable to condition the Project in the manner accepted by the Applicant. VII. ISSUANCE OF PERMIT WITH CONDITIONS Based on the foregoing findings of fact and conclusions of law and the District Commission's positive findings below on the Act 250 criteria, the Board will issue a permit. Such a permit will require compliance with the plans and testimony submitted by the Applicant to the Board and District Commission; and with the findings and conclusions of the Board and, to the extent consistent, the findings and conclusions of the District Commission. Such a permit also will include all conditions expressly noted by the Board and District Commission in reaching positive findings under the criteria, conditions requiring compliance with all permits of other agencies referenced in the Order, a condition requiring that all proposed open space be maintained as such, and conditions regarding construction completion, abandonment by nonuse, and permit term in accordance with statute. Such a permit further will include a condition that, prior to the first sale of any lot or unit in the Project, the Applicant must obtain from the District Commission a certificate of compliance under EBR 37 with respect to the construction of all Project improvements to be used in common, or held in common, by the lot and unit owners at the Project, including but not limited to all improvements related to sewage disposal, water, roads, recreation path, and landscaping. With respect to obtaining a certificate of compliance, the Applicant requests that the condition pertain to each phase of the Project, and that certificates of compliance be issued for the Project on a phase-by phase basis. In connection with this request, the Applicant filed, on November 15, 1995, a phasing plan with the Board. The Applicant also requests that the condition require the filing of as-built drawings, certified by appropriate professionals, for each phase of the Project. However, the Applicant's November 15 phasing plan is new evidence submitted in connection with a motion to alter. The Board does not accept such evidence. Re: Taft Corners Associates, Inc., #4C0696-11-EB (Remand), Memorandum of Decision at 6-7 (May 5, 1995). FN4 Regarding phasing, the state of the record prior to the filing of motions to alter in this matter was that the Act 250 application for the Project mentions phasing but provides no detail or specificity as to the phases. Such detail and specificity is crucial to whether a certification process based on phasing can work. Accordingly, the Board cannot grant the Applicant's request in its entirety, but will issue a condition which reflects those portions of the request regarding the filing of as-built drawings to obtain a certificate of compliance, and will include a condition allowing submission of a phasing plan to the District Commission and modification of the condition to accommodate such plan. The above-referenced conditions are reasonable and appropriate under 10 V.S.A. § 6086(c). With respect to the inclusion of District Commission findings, conclusions, and conditions on criteria which were not appealed, such inclusion is reasonable and appropriate because 10 V.S.A. § 6086(a) requires that a permit must be based on affirmative findings under all Act 250 criteria. Concerning obtaining a certificate of compliance, the Project improvements to be used in common or held in common by the lot and unit owners have been approved under the criteria based on the particular facts of the Applicant's proposal and with conditions. If these improvements are not constructed in accordance with the permit, then impacts under the criteria may occur. It will be more difficult to remedy any such non-compliance or impacts if the lots and units have already been sold to multiple parties who are responsible collectively. The Board thus finds it reasonable to require the Applicant to demonstrate compliance with respect to the common improvements prior to the first sale. Such also will assure that subsequent purchasers of lots and units are not burdened with common improvements which are not in compliance. VIII. ORDER 1. Parties are granted and denied party status in accordance with the rulings in Section III, above. 2. The Project, with conditions as noted above, complies with Criteria 1(B), 1(G), 2, 3, 8 (aesthetics, scenic beauty) and 10. 3. With respect to Criterion 8 (historic sites), the Applicant's notice of withdrawal is allowed on the condition noted in Section VI.F.1, above. 4. Land Use Permit #4C0948-EB (Altered) is hereby issued. Such permit, and these altered findings of fact, conclusions of law, and order, shall supersede the May 2, 1995 Order and the June 20, 1995 Permit and Supplemental Order. Jurisdiction over this matter is returned to the District #4 Environmental Commission. Dated at Montpelier, Vermont this 30th day of January, 1996. ENVIRONMENTAL BOARD /s/Arthur Gibb Arthur Gibb, Acting Chair* Members in favor: Members dissenting: John M. Farmer Lawrence H. Bruce, Jr.** Arthur Gibb Rebecca M. Nawrath** Samuel Lloyd Steve E. Wright** William Martinez Robert G. Page Anthony Thompson** *John T. Ewing was appointed Chair of the Board effective February 1, 1995. At Mr. Ewing's request, Arthur Gibb remains Acting Chair for this case pursuant to 3 V.S.A. § 849. **See following pages for notes on the opinions of members Thompson, Bruce, Nawrath, and Wright, and dissenting opinion of Wright. --------------------------------------------------------------------------- NOTES ON OPINIONS OF VARIOUS MEMBERS a. Member Thompson disagrees with the majority's conclusion that the 60 multi-family units constitute "affordable housing" within the meaning of the Regional Plan. He agrees with the remainder of the majority's conclusions concerning the conformance of the Project to that Plan and with the conclusions on the other criteria at issue. b. Members Bruce and Wright dissent with respect to both Criteria 8 (aesthetics) and 10 (regional plan), concluding that the Project will have an undue adverse effect on aesthetics and will not conform with the Regional Plan. They concur with the decisions on the other criteria and issues addressed above. c. Member Nawrath dissents with respect to Criterion 10 (Regional Plan) and concurs with the majority in all other respects. ---------------------------------------------------------------------------- DISSENTING OPINION OF MEMBER WRIGHT I dissent on both Criteria 8 (aesthetics) and 10 (local and regional plans). I am authorized to state that Member Bruce joins in my dissent. The nature of the Project combined with its location leads me to conclude that its impact under Criterion 8 is both undue and adverse. The Chittenden County Regional Plan's primary objective is, "to provide guidance for development and growth TO RATIFY AND ASSURE THE TRADITIONAL AND EXISTING VILLAGE, TOWN, COUNTRY SETTING PATTERNS. TO HELP SECURE THE CHARACTER OF THE REGION'S NATURAL AND BUILT ENVIRONMENT, THERE SHOULD BE A CLEAR AND PRONOUNCED DELINEATION BETWEEN TOWN AND COUNTRYSIDE THROUGH APPROPRIATE AND SUPPORTIVE LAND USES AND DESIGNATED GROWTH CENTERS." (Emphasis from the Regional Plan.) The Regional Plan also makes the following statement reemphasizing the importance of the Growth Center concept. "As this Plan's central theme it (the Growth Center concept) cannot be overstated. These areas must be recognized as those targeted for the great majority of future development in the region." The Project is not within a Growth Center as delineated by the Chittenden County Regional Plan; therefore, the Project does not conform to the Regional Plan. Extending the argument beyond this fact, in my opinion, subverts the clear meaning of the Regional Plan. FN1 The appeal also challenges the District Commission's grant of party status to the Jewetts under Criterion 5 (traffic safety and congestion). However, since there has been no appeal of the District Commission's decision under Criterion 5, that criterion is not at issue. FN2 In the May 2, 1995 Order, the Board likewise referred to the Zoning Regulations, and not the City Plan, in discussing "community standard" under Criterion 8. FN3 By stating that the Regional Plan's definition of "substantial regional impact" becomes relevant if a conflict is found, the Board does not today rule that it is bound by the Regional Plan's definition. In stating that the impact must be "demonstrated," 24 V.S.A. SS 4348(h) may imply that the decision-maker must decide whether a project has substantial regional impact. But the question need not be reached in this decision. FN4 At oral argument on November 8, 1995, the Board considered inviting the Applicant to submit a phasing plan, but in the end informed parties that it would let them know whether it would invite such submittal. mblalter.dec