RE: Virginia and Robert Kenney, Declaratory Ruling #295, Findings of Fact, Conclusions of Law, and Order October 27, 1994 VERMONT ENVIRONMENTAL BOARD 10 V.S.A. Chapter 151 Re: Virginia and Robert Kenney, Declaratory Ruling #295 FINDINGS OF FACT, CONCLUSIONS OF LAW, AND ORDER This decision pertains to whether a permit is required pursuant to 10 V.S.A. Chapter 151 (Act 250) for road construction and associated lots (the Project) created in 1987 and located in Town of Vernon, Vermont. As is explained below, the Environmental Board concludes that an Act 250 permit is not required. I. SUMMARY OF PROCEEDINGS On February 1, 1994, Assistant District #2 Coordinator Julia Schmitz issued Advisory Opinion #2-90, concluding that an Act 250 permit was required for the Project. The advisory opinion states that five lots and a road were created in 1987 and that Virginia and Robert Kenney (the Petitioners) now propose a sixth lot. On March 2, 1994, the Petitioners filed a petition for declaratory ruling with the Board. On May 4, 1994, the Board issued a notice of declaratory ruling petition, directing all parties, including the Petitioners, to make written filings regarding various items, including an identification of all issues deemed relevant, and a statement of whether any of the facts listed in the advisory opinion are in dispute. The May 4 notice specified a deadline for these filings of May 18. No party filed any documents with the Board in response to the May 4 notice. On June 20, 1994, the Board received a letter from the Petitioners inquiring as to the status of the case. On July 5, Board Chair Gibb sent a letter in reply. The Chair's letter specified that the Petitioners needed to fully respond to the May 4 notice, reserved a hearing date, stated the issue presented for review by the Board, and set a deadline for identifying witnesses and for filing summaries of testimony and proposed findings of fact and conclusions of law. On August 15, 1994, the Petitioners filed a prehearing statement which included a list of witnesses, a summary of testimony, and proposed findings of fact and conclusions of law. On September 1, 1994, after notice to all statutory parties, Chair Gibb held a conference call with the Petitioners' attorney. On September 7, the Chair issued a memorandum summarizing the discussion during the call. The September 7 memorandum is incorporated by reference. The Board convened a hearing on September 14, 1994, with the following parties participating: The Petitioners by Lance Shader, Esq. After hearing testimony, the Board recessed and conducted a deliberative session. 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 Whether, pursuant to 10 V.S.A. § 6081(a) and Board Rule 2(A)(6) (the Road Rule), an Act 250 permit is required for the Project. III. FINDINGS OF FACT 1. Virginia Whitaker (now Kenney) created five lots on a tract of land she owned in the Town of Vernon in 1987. The lots are provided access by a road, known as Crestwood Drive, which terminates in a cul-de-sac. 2. The tract of land on which the lots are located is off Pond Road, which was an existing town road in 1987. Crestwood Drive runs into the lots from that road. 3. Prior to developing the lots or building the road, Ms. Whitaker submitted a survey to District #2 and requested a jurisdictional determination. The survey was prepared by Southern Vermont Engineering, Inc. The survey showed the length of Crestwood Drive to be less than 800 feet, measured in a straight line from the intersection with Pond Road to the far end of the cul-de-sac. 4. Based on the length of Crestwood Drive as shown on the survey, and on the fact that the proposal was for less than six lots, a project review sheet was issued in 1987 stating that an Act 250 permit is not required. 5. The cul-de-sac in question is not paved throughout. It is a loop of road in the middle of which is an area of trees and other vegetation. 6. The cul-de-sac is not one-way. A driver traveling along Crestwood Drive, upon reaching the cul-de-sac, may turn either right or left and travel around the cul-de-sac. 7. At least since 1990, District #2, as well as many of the other Act 250 district offices, has been determining the length of cul-de-sacs by measuring around the traveled way. 8. If one measures around the cul-de-sac in question, rather than straight across as was done in 1987, the length of Crestwood Drive exceeds 800 feet. The advisory opinion on appeal to the Board uses such a measurement to determine the length of Crestwood Drive. 9. As constructed, Crestwood Drive does not deviate in any significant way from the survey submitted to District #2 in 1987. Most of the cul-de-sac, as built, fits within the footprint of the proposed location shown on the survey, except that the southern edge is a few feet further south. 10. Since the project review sheet was issued in 1987, the five lots have been sold and they now contain existing residences. 11. Virginia Whitaker is now Virginia Kenney. She and her husband Robert Kenney are the Petitioners in this matter. They own land which adjoins the lots created in 1987. On some of this land, the Kenneys propose to create a sixth lot. This sixth lot will be next to Pond Road and will be served only by Pond Road. Crestwood Drive will not provide vehicular access to the sixth lot. The Petitioners have agreed to a deed restriction prohibiting vehicular access to the sixth lot from Crestwood Drive. IV. CONCLUSIONS OF LAW 10 V.S.A. § 6081(a) requires, among other things, that a permit be obtained prior to commencement of construction on a development. Board Rule 2(A)(6), also known as the Road Rule, defines development in part to include the construction of improvements for a road or roads, incidental to the sale or lease of land, if the road will exceed more than 800 feet or will serve more than five lots. The Road Rule provides that development includes: The construction of improvements for a road or roads, incidental to the sale or lease of land, to provide access to or within a tract of land of more than one acre owned or controlled by a person. In municipalities with both permanent zoning and subdivision bylaws, this jurisdiction shall apply only if the tract or tracts of involved land is more than ten acres. For the purpose of determining jurisdiction, any parcel of land which will be provided access by the road is land involved in the construction of the road. This jurisdiction shall not apply unless the road is to provide access to more than five parcels or is to be more than 800 feet in length. For the purpose of determining the length of a road, the length of all other roads within the tract of land constructed within any continuous period of ten years commencing after the effective date of this rule shall be included. The Road Rule was ratified by the full legislature in 1985 and therefore has the force and effect of a statute. 1985 Vt. Laws No. 52 § 5; In re Spencer, 152 Vt. 330, 336 (1989). The key question in this case is how to measure a cul-de-sac under the Road Rule. The dispute centers on whether one measures straight across to the far end of the cul-de-sac or around as a vehicle would travel. The Road Rule does not say. Under the circumstances of this case, the Board might find it reasonable to measure around the cul-de-sac if no project review sheet had been issued in 1987, when the road and associated lots were created. But such a project review sheet was issued in 1987. This sheet found no Act 250 jurisdiction based on a measurement straight across the cul-de-sac. Since the cul-de-sac as built does not deviate significantly from the design on which the review sheet was based, and the lots have been sold and homes constructed, it would be unfair to rule in 1994 that a permit is required based on a different method of measuring cul-de-sacs. Further, the Board declines in this decision to enunciate a standard for determining the length of cul-de-sacs under the Road Rule. The Board is not certain that measuring around a cul-de-sac is appropriate in all circumstances and believes that it would be best to set a standard through the rulemaking procedure in 3 V.S.A. Chapter 25. To the extent that the Act 250 district offices look for guidance to the Board's declaratory rulings, they may take this decision as direction that, if an advisory opinion (including a project review sheet) has been issued regarding a cul-de-sac, the method used in the opinion to calculate the length of the cul-de-sac should continue to apply to the particular cul-de-sac and should not be revisited subsequently. Based on the foregoing discussion and Findings of Fact, and the Road Rule as cited above, the Board concludes that an Act 250 permit is not required for Crestwood Drive and the associated five lots created in 1987, or for the sixth lot presently proposed by the Kenneys. The Board's conclusion regarding the sixth lot is based expressly on the facts regarding access and deed restriction stated in Finding 11, above. If these facts are true, then Crestwood Drive will not provide access to more than five lots and it will be reasonably certain that no access from Crestwood Drive to the sixth lot will be constructed in the future. V. ORDER An Act 250 permit is not required for Crestwood Drive and the associated five lots created in 1987, or for the sixth lot presently proposed by the Kenneys. Dated at Montpelier, Vermont this 27th day of October, 1994. ENVIRONMENTAL BOARD s/s Arthur Gibb _________________________ Arthur Gibb, Chair Rebecca Day John Ewing Samuel Lloyd William Martinez Robert Page Steve E. Wright kenney.dec(a17) c:\wp51\decision\kenney.dec (v)