RE: James E. Hand and John R. Hand, d/b/a Hand Motors, and East Dorset Partnership, Application #8B0444-6-EB (May 29, 1995) VERMONT ENVIRONMENTAL BOARD 10 V.S.A. Chapter 151 Re: James E. Hand and John R. Hand Application d/b/a Hand Motors #8B0444-6-EB and East Dorset Partnership MEMORANDUM OF DECISION This decision, dated May 29, 1995, pertains to preliminary issues in an appeal of the District #8 Environmental Commission's (District Commission) granting of Land Use Permit #8B0444-6 (Permit) to James E. Hand and John R. Hand, d/b/a Hand Motors and East Dorset Partnership (Applicants). The Permit authorizes the construction of a 23,000 square foot automobile sales and service facility (Project) on a 6.94 acre tract (Project Tract) in the Dorset Business Park on Route 7A in East Dorset. As explained below, the Environmental Board determines that: 1. At the hearing, the Board will take evidence from Appellant O'Neal relative to 10 V.S.A. § 6086(a) (1) (air pollution), (1)(B) (waste disposal), (2) (sufficient water supply available), (3) (burden on existing water supply); (8) (aesthetics) and 10 (Town Plan FN1). 2. At the hearing, the Board will take evidence from Appellant Eckert relative to Criteria 1 (air pollution), 1(B), 8 and 10. 3. The Board approves the withdrawal of Criterion 4 (soil erosion) from the appeal and the withdrawal of Appellant Eckert from Criteria 2 and 3. I. BACKGROUND On July 29, 1994, the application for the Permit (Permit Application) was filed. On September 7, 1994, Appellant Eckert submitted a letter dated September 6, 1994 to the Commission stating that she was an adjoiner to the Project Tract and raising issues as to ". . .the technical requirements of the Town Plan. . ."; whether the aesthetics of the site and the area will be destroyed by the Project; impacts on marsh and other habitat for birds and wildlife; impacts from paint fumes, hazardous wastes and toxic substances; impact on water shed and from runoff; noise from the public address system; and her party status itself. On September 7, 1994, the District Commission held the first hearing on the Permit Application at which Appellant Eckert was denied party status because her property is upgradient from the site and shielded by existing tree lines and bushes. Also at the September 7, 1994 hearing, the District Commission granted party status to Appellant O'Neal relative to concerns with her water supply well's becoming contaminated, her water supply's being diminished, and aesthetics under Criteria 1(B), 2, 3 and 8. On September 29, 1994, the District Commission received a letter from Appellant O'Neal dated September 26, 1994 which stated that she would be unable to attend the scheduled October 3, 1994 hearing but expressing her concerns that the Project does not comply with the Town Plan, and will create adverse effects relative to stormwater runoff, traffic safety and her water supply. On October 3, 1994, the District Commission continued the hearing on the Permit Application. On February 14, 1995, the District Commission issued the Permit and supporting findings of fact, conclusions of law, and order, authorizing the construction of the Project. In the Permit and Findings, the District Commission makes statements concerning the Appellants' party status. With respect to Appellant O'Neal, the District Commission states that she is an adjoining landowner with party status on the following criteria: 1(B), 2, 3 and 8. With regard to Appellant Eckert, the District Commission states that she is an adjoining landowner "concerned with noise, fumes, runoff and aesthetics" and that she is denied party status. Based on the District Commission's statement, it appears that Appellant Eckert sought party status before the Commission on Criteria 1 (air pollution), 4 and 8. The Permit does not state whether either of the Appellants did or did not seek party status on Criterion 10. On March 10, 1995, the Appellants filed an appeal with the Board concerning the denial of party status to Appellant Eckert and relative to the Project's compliance with Criteria 1 (as to both water and air pollution issues), 2, 3, 4, 8 and 10. On April 10, 1995, during the prehearing conference, the Applicant filed a "Response Concerning Party Status," attaching various state and local approvals. Copies of this document were given to all parties present. Also during the prehearing conference on April 10, the Appellants each filed a petition for party status on all of the criteria which they have appealed. A copy of each petition was given to the attorney for the Applicant. On April 26, 1995, the Board Chair issued a Prehearing Conference Report and Order which is incorporated by reference. II. CONCESSIONS BY APPELLANTS AND APPLICANTS AND REMAINING ISSUES In her memorandum filed on May 1, 1995, Appellant Eckert withdrew her request for party status under Criteria 2, 3 and 4 leaving Criteria 1 (air pollution), 1(B), 8 and 10 as the criteria on which she seeks review. The Board accepts the withdrawal. In their memorandum filed on May 8, 1995, the Applicants concede that Appellant O'Neal has satisfied the party status requirements relative to Criteria 1(B), 2, 3 and 8. As Appellant O'Neal had party status on these same criteria before the Commission, during the Board's hearing on the merits Appellant O'Neal may present evidence on Criteria 1(B), 2, 3 and 8. Therefore, it remains for the Board to decide whether Appellant Eckert shall be granted party status on Criteria 1 (air pollution), 1(B), 8 and 10 and whether Appellant O'Neal should obtain party status relative to Criteria 1 (air pollution) and 10. IV. DISCUSSION AND CONCLUSIONS An adjoining property owner may participate in Act 250 hearings and present evidence only to the extent the proposed development will have a direct effect on his or her property. 10 V.S.A. § 6085(c). In order to participate the adjoining property owner must demonstrate that the development may have a direct effect on his/her property and describe that potential effect. Environmental Board Rule (EBR) 14(A)(3). This threshold is surpassed when the adjoining property owner demonstrates an actual direct effect on his/her property. FN2 The Board previously has stated that, in order to appeal a criterion, a nonstatutory party must have party status on the criterion. The only exception to this rule is that a person may appeal a denial of party status on a criterion, and the Board will hear the merits of the criterion if, after de novo review, it grants party status on the criterion. However, no person may appeal a criterion unless the person sought party status on the criterion before the District Commission. See Re: Derby Plaza Associates, #7R0886-EB, Memorandum of Decision at 3-5 (Feb. 25, 1994). A. Party Status of Appellant Eckert As a preliminary matter, the Applicants argue that Appellant Eckert is not an adjoining property owner because an intervening lot exists, which is owned and controlled by the Applicants, between the Eckert property and the Project Tract. The Board has previously ruled that the tract requirement in the definition of development, at 10 V.S.A. § 6001(3) and EBR 2 includes ". . . a contiguous land mass of requisite size . . ." Re: Gerald Costello Garage, Declaratory Ruling #243 (July 2, 1991) affirmed, In re: Costello Garage, Vt. Supreme Court Docket No. 91-379, slip op. (June 26, 1992). In the present case, whether or not two contiguous lots were obtained by the Applicants by two separate deeds does not defeat the inclusion of both lots as part of the Project Tract. Therefore, Appellant Eckert is an adjoining property owner relative to the Project Tract, regardless of which of the two lots her land abuts. From the September 7, 1994 letter to the District Commission it is evident that Appellant Eckert is an adjoining property owner who requested the right to be heard on issues relating to Criteria 1 (air pollution), 8 and 10 on the first day of the hearing. 10 V.S.A. § 6085(c) and EBR 14(A)(3). Therefore, she may appeal the denial of party status and seek party status and appellate review on those criteria before the Board. Accordingly, it remains for the Board to decide whether there is a potential direct effect on Appellant Eckert's property under each of the criteria for which party status was requested. 10 V.S.A. § 6085(c) and EBR 14(A)(3)(b). 1. Criteria 1 (air pollution) and 8 Appellant Eckert argues that the Project will include an auto body shop and auto body painting and that her property will be affected by fumes, odors, noise, and lighting. These activities do have a potential direct impact on Appellant Eckert's property. Therefore, the Board grants Appellant Eckert party status relative to Criteria 1 (air pollution) and 8. 2. Criterion 10 Appellant Eckert argues that the Town Plan does not allow a retail use for vehicle sales on the Project Tract and such a land use is inappropriate next to her property. Therefore, the Board grants party status to Appellant Eckert relative to Criterion 10. 3. Criterion 1(B) As Appellant O'Neal has properly appealed Criterion 1(B), Appellant Eckert is entitled to seek party status on the same criterion regardless of whether she participated before the Commission. See Re: L&S Associates, #2W0434-8-EB, Memorandum of Decision (Nov. 24, 1992). Appellant Eckert argues that as the Project will be located upgradient from her property and her water supply is a drilled well. She is concerned that the Project's waste disposal activities may pollute her water supply. The Board hereby grants Appellant Eckert party status relative to Criterion 1(B) as she has demonstrated a direct potential effect on her water supply. B. Party Status of Appellant O'Neal 1. Criterion 1 (air pollution) As Appellant Eckert has obtained party status relative to Criterion 1 (air pollution) and, therefore, may appeal that criterion, Appellant O'Neal may seek party status under the same criterion regardless of her failure to address the issue before the Commission. See L&S Associates. Appellant O'Neal also argues that her property may be directly effected by noise, lights, odors and fumes from the Project. Therefore, the Board hereby grants party status to Appellant O'Neal relative to Criterion 1 (air pollution). 2. Criterion 10 (Town Plan) As Appellant Eckert was granted party status and therefore may appeal relative to Criterion 10, Appellant O'Neal is entitled to seek party status on the same criterion regardless of whether she participated before the Commission. See Re: L&S Associates. Appellant O'Neal argues that the Project does not comply with the Town Plan and that, therefore, by construction of the Project, her property will be denied the protection of the Town Plan. Therefore, the Board hereby grants party status to Appellant O'Neal relative to Criterion 10. V. ORDER For the reasons stated above, 1. Appellant O'Neal is granted party status relative to Criteria 1 (air pollution), 1(B), 2, 3, 8, and 10. 2. Appellant Eckert is granted party status relative to Criteria 1 (air pollution), 1(B), 8, and 10. 3. The Board approves the withdrawal of Criterion 4 from this appeal and the withdrawal of Appellant Eckert from Criteria 2 and 3. 4. The scope of the appeal includes Criteria 1 (air), 1(B), 2, 3, 8 and 10. The parties are hereby advised to consult the Prehearing Conference Report and Order dated April 26, 1995 in the present case for guidance on how to proceed. Dated at Montpelier, Vermont this 29th day of May, 1995. ENVIRONMENTAL BOARD /s/John T. Ewing John T. Ewing, Chair John M. Farmer Marcy Harding Samuel Lloyd William Martinez Robert G. Page Steve E. Wright FN1 The Appellants requested party status relative to the Town Plan alone. Therefore, the Board will not hear evidence relative to the Regional Plan. FN2 As the Appellants have requested party status as adjoining property owners and not as materially assisting parties or parties otherwise affected, the Board declines to address party status under EBR 14(B). hand.mem (c1)