RE: Okemo Realty, Inc., Application #900033-2-EB, Findings of Fact, Conclusions of Law and Order (May 2, 1996) VERMONT ENVIRONMENTAL BOARD 10 V.S.A. § 6001 et seq. Re: Okemo Realty, Inc. Application #900033-2-EB FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER This decision pertains to an appeal of a permit authorizing the relocation and construction of a road and the extension of an expiration date for 41 lots out of a 77-lot subdivision. As explained below, a hearing panel of the Environmental Board proposes that the Board conclude that: (a) the appeal is not rendered moot by the passage, during the pendency of the appeal, of a provision indefinitely extending expiration dates; (b) the so-called Kondracki parcel, purchased by Okemo Realty, Inc. (the Applicant) after the original permit was issued, does not constitute "involved land"; and (c) project lot creation and construction neither causes nor exacerbates existing stormwater runoff from the Kondracki parcel onto the properties of parties Herbert van Guilder (the Appellant) and John Wu. Accordingly, the panel proposes that the Board issue a permit. I. SUMMARY OF PROCEEDINGS On April 2, 1993, the District #2 Commission issued Land Use Permit #900033-2 and supporting findings of fact and conclusions of law (the 1993 Permit), authorizing the Applicant to "relocate and construct the lower portion of Partridge Road with an access from South Hill Road, and to extend the permit expiration date for lots 7 and 8 (combined into a single building lot), 15, 19-29, 34-36, 43-55, 57-60, 62-63, 67, 69-72, and 75" (the Project). The Project is part of a 77-lot subdivision located off South Hill Road in the Village of Ludlow (the Subdivision). On April 30, 1993, the Appellant filed an appeal with the Board. On June 2, former Environmental Board Chair Elizabeth Courtney convened a prehearing conference in Ludlow. On June 10, 1993, Chair Courtney issued a prehearing conference report and order which is incorporated by reference. In relevant part, the prehearing order gave parties an opportunity to file prefiled direct and rebuttal testimony and set a hearing date. During July and August 1993, parties filed prefiled testimony. At the same time, parties sought to negotiate a resolution to their dispute. On September 10, 1993, the Applicant filed a letter regarding a continuance to allow parties to reach a negotiated resolution. On September 14, Board counsel, after obtaining the agreement of all parties, issued a memorandum which indefinitely continued the hearing in order to allow parties to pursue an alternative resolution of the dispute. The September 14, 1993 memorandum required that parties report to the Board on the status of their efforts to resolve this matter. On November 15, 1993, the Applicant filed a letter stating that progress had been made but no resolution had yet been reached. The hearing remained continued. No further reports on settlement were filed by the parties. Upon appointment on February 1, 1995, Chair John T. Ewing took steps to clear the Board's docket. On June 1, Chair Ewing issued a proposed dismissal order in this matter. On July 6, the Appellant and Mr. Wu filed a motion to revoke the proposed dismissal order. On August 11, the Board issued an order which granted the motion to revoke, and set new dates for filing prefiled direct and rebuttal testimony, evidentiary objections, and proposed findings of fact and conclusions of law, and for a hearing. During October and November 1995, parties filed letters stating that they were relying on the testimony submitted in 1993 and/or filed supplemental prefiled testimony. No evidentiary objections or proposed findings and conclusions were filed. The Chair conducted a second prehearing conference in Montpelier on December 5, 1995, the results of which are stated in a memorandum by the Chair to parties dated December 6, 1995 and incorporated by reference. A hearing date of December 6, 1995 was continued at the parties' request to allow for additional settlement discussions. Such discussions did not result in settlement. A hearing panel of the Board convened a hearing in Ludlow on February 1, 1996, with the following parties participating: The Applicant by Matthew T. Birmingham, III, Esq. The Appellant by Paul S. Gillies, Esq. Mr. Wu by Michael Popowski, Esq. After taking a site visit, the panel returned to the hearing room, placed its observations in the record, and heard testimony and argument from the parties. The panel then recessed the matter pending filing of legal memoranda, review of the record, deliberation, and issuance of a proposed decision. The panel also conducted a deliberative session regarding the factual information presented during the hearing. On February 6, 1996, Chair Ewing issued a recess memorandum which is incorporated by reference. In relevant part, the memorandum identified two legal issues which had arisen during the course of the hearing on February 1. These issues are the first two issues listed in Section II, below. On February 13, 1996, the Applicant, and the Appellant and Mr. Wu jointly, filed legal memoranda on the issues identified in the February 6 recess memorandum. The panel deliberated further on February 23, 1996. On March 28, the panel issued a proposed decision. The parties were provided an opportunity to submit written objections to the proposed decision and to present oral argument before the full Board. No party requested oral argument or filed a written response. The Board deliberated concerning this matter on April 24, 1996. On that date, following a review of the evidence and arguments presented in the case, the Board declared the record complete and adjourned the hearing. 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. II. ISSUES a. The effect (if any) on this matter of 10 V.S.A. § 6090(b)(2), as amended effective June 21, 1994. b. Whether the so-called Kondracki parcel constitutes involved land under 10 V.S.A. § 6001(3) and Environmental Board Rule (EBR) 2(A)(2) and 2(F). c. Whether, with respect to stormwater runoff, the Project complies with 10 V.S.A. § 6086(a)(1)(B) (waste disposal) and (4) (soil erosion). III. FINDINGS OF FACT 1. Land Use Permit #900033 (the Original Permit) was issued for the Subdivision on June 9, 1971. The Subdivision is referred to as Scotts Corner. 2. In March 1989, the Applicant acquired from Stephen Kondracki the so-called Kondracki parcel, which adjoins the lands subject to the Original Permit. 3. On April 27, 1990, the Applicant filed the application for the Project. As noted in the Summary of Proceedings, above, the application includes a request to extend the expiration date with respect to 41 of the 77 Subdivision lots. These lots are those which had not been sold and remained within the Applicant's control as of September 27, 1990. 4. On May 29, 1991, the District #2 Commission issued a hearing recess memorandum which in relevant part: a. Identified an existing problem with respect to flooding experienced by property owners below the Project; b. Stated that the District Commission must consider whether further development has the potential to exacerbate the existing problem; c. Found that an existing stormwater drainage system "behind Andover Street" was inadequate; d. Found that further creation of impervious surfaces will increase stormwater flow; and e. Required the Applicant to create a stormwater retention plan for lots which will contribute stormwater. 5. The Original Permit expired on June 9, 1991. 6. In the 1993 Permit, the District Commission included 38 conditions. Among them are the following: 20. By April 30, 1993, the permittee shall escrow $4,700.00 for the purpose of construction of a new stormwater system. We will require this money be escrowed for a maximum of three years. If an agreement is reached between all parties on how to implement the new stormwater system, we will direct the funds be released from the escrow account and that the permittee complete the construction of the stormwater system. * * * 38. This permit shall expire on October 15, 2020, unless extended by the District Environmental Commission. Notwithstanding the latter date, this permit shall expire two years from the date of issuance if the permittee has not demonstrated an intention to proceed with the project. Substantial construction must occur within two years of the permit issuance date, unless construction has been delayed by litigation to secure other necessary permits or approvals, in accordance with Environmental Board Rule 38. 7. In the findings of fact supporting the 1993 Permit, the District Commission found that the Applicant should pay 50 percent of the cost of a new stormwater system, with the balance coming from the affected property owners. 8. The Subdivision is located on top of South Hill and served by South Hill Road. Internal project roads include Bear Ridge Road and Partridge Road. (Bear Ridge Road was originally named Partridge Road but the Applicant has changed the names during the course of this appeal.) Bear Ridge Road is north of what is now called Partridge Road. 9. To the west of the Subdivision lie Plumley Avenue and Andover Street and to the north is Bridge Street. 10. The Appellant's residential property adjoins the Subdivision, and lies between it and Plumley Avenue. Moving further north, Mr. Wu's residential property lies between the Subdivision and Andover Street. The Kondracki parcel lies between Mr. Wu's property and the Subdivision lands subject to the Original Permit. Moving still further north, commercial property owned by the Appellant lies north of the Subdivision, between it and Bridge Street. There are parcels not owned by any party to this matter which lie between the Subdivision and the Appellant's commercial property on Bridge Street. 11. The Project is at a higher elevation than Mr. Wu's property and the Appellant's two properties. The properties of the Appellant and Mr. Wu are at the bottom of South Hill. Stormwater runoff naturally will flow from Project lands downhill and find its way onto the properties of the Appellant and Mr. Wu. In the case of Mr. Wu's property and the Appellant's commercial property on Bridge Street, stormwater runoff flows downhill onto and through the Kondracki parcel before making its way onto these properties. 12. During the spring since 1988, and particularly in 1991, 1992, and 1993, Mr. Wu and the Appellant have experienced substantial flooding of their above-referenced properties, including flooding of lawns, basements, parking areas, and garages. 13. An old, dilapidated drainage system exists in the area of Andover and Bridge Streets. This system is non-functional. 14. In 1988, prior to the Applicant's ownership, a skidder path was created on the Kondracki parcel. Runoff travels down this path and onto Mr. Wu's property and toward the Appellant's commercial property. This skidder path may exacerbate the flow of runoff towards those properties. 15. Soils on the Project lands include a large percentage of ledge. The imperviousness of ledge is a significant contributor to the existing runoff problem. 16. As part of the Project, the Applicant proposes construction of Bear Ridge Road. The Applicant initially had proposed a culvert under this road directing water toward the Kondracki parcel on the northwest but has removed such a culvert from the proposal. Bear Ridge Road will thus act as a barrier to runoff coming toward it from the south. 17. Most of the lots which are part of the Project will drain toward the south and east, away from the properties of the Appellant and Mr. Wu. 18. Lots 40 and 41 are upgradient of the Appellant's residential property on Plumley Avenue. A concave slope tends to direct runoff from these lots toward the property below. This would occur regardless of the placement of houses on the lots. Lots 40 and 41 are not the subject of this application. 19. Lots 47 through 49 drain toward the Kondracki parcel. In the distance between these lots and Mr. Wu's property, runoff has time to redistribute and penetrate into the soil. 20. The credible evidence is that stormwater runoff resulting from the construction of Bear Ridge Road and associated building lots is insignificant when compared with existing stormwater runoff. 21. Based on the foregoing, the Board finds that stormwater would flow from Project lands toward the properties of the Appellant and Mr. Wu regardless of the creation of the Project. The Board also finds that the Project itself neither causes nor increases the amount of runoff that flows toward those properties. 22. The Applicant does not propose any activity for the Kondracki parcel. 23. Many of the lots at the Subdivision have been combined into single building lots. Most of these combined lots are not the subject of this application. Combined lots which are the subject of the application are 7 and 8, which are combined together into a single building lot. In addition, Lot 19, which is part of this application, has been combined into a single building lot with Lot 18, which was not cited as part of the application. IV. CONCLUSIONS OF LAW A. Effect of 10 V.S.A. § 6090(b)(2) The Applicant argues that a recently-enacted amendment to Act 250, 10 V.S.A. § 6090(b)(2), moots this appeal. The Applicant claims that this provision indefinitely extended the Original Permit and thus that this proceeding, which results from a renewal application under the prior 10 V.S.A. §§ 6090-91 and EBR 35, is no longer necessary. Effective June 21, 1994, the General Assembly added 10 V.S.A. § 6090(b)(2) to Act 250, providing as follows: Expiration dates contained in permits issued before July 1, 1994 (involving developments that are not for extraction of mineral resources, operation of solid waste disposal facilities, or logging above 2,500 feet) are extended for an indefinite term, as long as there is compliance with the conditions of the permits. The Appellant and Mr. Wu argue that this new amendment does not moot this appeal, citing 1 V.S.A. § 214(b), which provides in relevant part: The amendment or repeal of an act or statutory provision, except as provided in subsection (c) of this section, shall not: . . . (2) Affect any right, privilege, obligation or liability acquired, accrued or incurred prior to the effective date of the amendment or repeal . . . . The Board concludes that 10 V.S.A. § 6090(b)(2) does not moot this appeal. In this regard, the Original Permit is not the most recent permit for the Project. Rather, the most recent permit is the 1993 Permit. This permit was effective on issuance and was not stayed by the Appellant's appeal. See EBR 42. It is the 1993 Permit which presently governs and authorizes the Project. Therefore, the conclusion that the Applicant seeks would necessarily render invalid a renewal permit lawfully issued for the Project prior to the date of 10 V.S.A. § 6090(b)(2). This is because of the Applicant's argument that 10 V.S.A. § 6090(b)(2) revived the Original Permit with respect to the Project. If the Original Permit is revived, then the 1993 Permit renewing the Project becomes superfluous. Such a conclusion would have profound implications for this case as well as others. It would render ineffective all 38 conditions of the 1993 Permit. In addition, it would call into question the status of all renewal permits issued prior to the effective date of Section 6090(b)(2). Potentially, all conditions in such permits would be void. Since conditions are issued to protect the environment, traffic safety, and other values embodied in the Act 250 criteria (see 10 V.S.A. § 6086(a), (c)), the impact of the Applicant's argument could be highly detrimental to Vermont. The Board does not believe the General Assembly intended, in enacting the indefinite extension of expiration dates, to void the conditions of all existing renewal permits. Rather, the Board believes that the General Assembly intended to extend the expiration date for the most recent permit which authorizes a project. Accordingly, the effect of Section 6090(b)(2) on this matter is that the first sentence of Condition #38 of the 1993 Permit, which contains an expiration date, is no longer operative. However, it has no other effect on the matter. The Board's conclusion is consistent with 1 V.S.A. § 214(b)(2), quoted above, which in relevant part states that amendments of statutory provisions shall not affect any right or obligation acquired prior to the effective date of the amendment. In this case, because a timely appeal related to stormwater runoff was filed prior to the effective date of Section 6090(b)(2), the Appellant and Mr. Wu acquired the right to have the Board conduct a de novo hearing under Section 6089(a) concerning such runoff, and the Applicant incurred the obligation to be bound by the Board's decision.(FN1) B. Involved Land Under 10 V.S.A. § 6001(3) and EBR 2(F), the Board concludes that the Kondracki parcel does not constitute involved land in this matter based on all of the following circumstances: (a) this is a renewal application; (b) the Applicant acquired the Kondracki parcel almost two decades after the Original Permit was issued; (c) this application concerns the Project, which is only a portion of the Subdivision; and (d) the Applicant proposes no activity for the Kondracki parcel. C. Criteria 1(B) (Waste Disposal) and 4 (Soil Erosion) The issues in this matter are limited to the impact of Project stormwater runoff under Criteria 1(B) (waste disposal) and 4 (soil erosion). In relevant part, 10 V.S.A. § 6086(a) provides that: Before granting a permit, the board or district commission shall find that the subdivision or development: (1) Will not result in undue water or air pollution. . . . (B) 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.. . . . (4) Will not cause unreasonable soil erosion or reduction in the capacity of the land to hold water so that a dangerous or unhealthy condition may result. The Supreme Court has held that, under the Act 250 criteria, the Board and District Commissions may regulate the exacerbation of an existing environmental condition. In re Pilgrim Partnership, 153 Vt. 594, 596 (1990). This case presents a serious existing environmental condition, the flooding of the lands of the Appellant and Mr. Wu. However, based on the foregoing findings of fact, the Board concludes that this condition is neither caused nor exacerbated by the Project, which is limited to the construction of Bear Ridge Road and the renewal of permit for 41 of 77 lots. This conclusion is in part specifically predicated on the Applicant's elimination of a culvert under Bear Ridge Road which would drain runoff toward the Kondracki parcel. Pursuant to 10 V.S.A. § 6086(c), the Board will condition the permit to prohibit the installation of any such culvert. In reaching this conclusion, the Board has considered the contention of the Appellant and Mr. Wu that they relied on the District Commission's recess memorandum of 1991 which determined that the Project exacerbates stormwater runoff and required the Applicant to submit a plan for a stormwater retention system. However, this appeal is de novo under 10 V.S.A. § 6089(a), meaning that the Board must reach its own independent conclusions after hearing the evidence. The Board has found and concluded above that the Project does not cause or exacerbate the stormwater runoff problem. Because of the Board's conclusion, the Board will delete Condition #20 from the 1993 Permit, which required the Applicant to escrow a 50 percent contribution to a new stormwater system. The Board will also revise Condition #38 of the 1993 Permit to reflect recent amendments to 10 V.S.A. §§ 6090-91. Finally, the Board is issuing a permit for a Project which includes sets of lots which have been combined into single building lots. Because this is part of the factual basis on which the permit is issued, the Board will include a condition requiring that any combined lots cannot be separated without a permit amendment. V. ORDER Land Use Permit #900033-2-EB is hereby issued. Jurisdiction is returned to the District #2 Commission. Dated at Montpelier, Vermont this 2nd day of May, 1996. VERMONT ENVIRONMENTAL BOARD /s/John T. Ewing John T. Ewing, Chair Arthur Gibb Marcy Harding Rebecca M. Nawrath Robert G. Page, M. D. Steve E. Wright ------------------------------------------------------------------------------------ Footnotes FN1. In a letter filed February 15, 1996, the Applicant appears to seek additional time to brief 1 V.S.A. § 214 because the Applicant had anticipated that opposing parties would argue a different statute. However, 1 V.S.A. § 214 is a statute governing the effect of amendments. This statute was and is necessarily implicated by the questions raised regarding the 1994 amendment to 10 V.S.A. § 6090. Therefore, the hearing panel has not provided additional time.