RE: Vermont Agency of Transportation (Route 73), Declaratory Ruling #298, Findings of Fact, Conclusions of Law, and Order (May 9, 1995) Page # VERMONT ENVIRONMENTAL BOARD 10 V.S.A. Chapter 151 Re: Vermont Agency of Transportation (Route 73) Declaratory Ruling #298 FINDINGS OF FACT, CONCLUSIONS OF LAW, AND ORDER This decision pertains to whether a permit is needed pursuant to 10 V.S.A. Chapter 151 (Act 250) for a highway project by the State of Vermont Agency of Transportation (AOT) along Route 73 during the summer of 1994. As is explained below, the Environmental Board (the Board) concludes that an Act 250 permit is not required. I. SUMMARY OF PROCEEDINGS On June 7, 1994, District #9 Coordinator Dana Farley issued Advisory Opinion #9-037 pertaining to a highway project proposed by AOT on Vermont Route 73 in the Towns of Brandon and Goshen (the Project). AOT's reference number for the project is STP 9405(1)S. The Project's components are described in the findings of fact, below. In the June 7 opinion, the District Coordinator concluded that an Act 250 permit is not required. On June 23, 1994, the District Coordinator issued Advisory Opinion #9- 037(A). The June 23 opinion addresses whether various "changes requested by the public, when considered together with the project components on which the District Coordinator based the Advisory Opinion," require an Act 250 permit. The District Coordinator again concluded that such a permit is not required. On July 22, 1994, Albert and Bernadette Gionet (the Petitioners) filed a petition for declaratory ruling with the Board. On August 30, 1994, Board Chair Arthur Gibb convened a prehearing conference in the Town of Brandon. On September 19, the Chair issued a prehearing conference report and order, which is incorporated by reference. In relevant part, the September 19 prehearing order rules that the petition for declaratory ruling was timely filed and that all Project components are at issue. No objection to such ruling was filed. During October and November 1994, parties filed prefiled testimony, lists of witnesses and exhibits, and proposed findings of fact and conclusions of law. The Board convened a hearing in the Town of Brandon on November 30, 1994, with the following parties participating: The Petitioners, pro se The State of Vermont Agency of Transportation (AOT) by Thomas R. Viall, Esq. After taking a site visit and hearing testimony, the Board recessed pending review of the record, deliberation, and decision. The Board deliberated on November 30, 1994 and April 26, 1995. On April 26, 1995, 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 1. Whether, pursuant to 10 V.S.A.  6001 and Environmental Board Rule (EBR) 2(A)(4), Route 73 constitutes development. 2. If so, whether, pursuant to 10 V.S.A.  6081(b) and EBR 2(O), Route 73 is exempt as a "pre-existing development." 3. If Route 73 is so exempt, whether, pursuant to 10 V.S.A.  6081(b) and EBR 2(G), the Project constitutes a "substantial change" to a pre-existing development, thereby requiring an Act 250 permit. III. FINDINGS OF FACT Vermont Route 73 was built for state purposes prior to June 1, 1970 and consists of more than ten acres. The Project involves activities along an approximately five-mile stretch of Route 73 in Brandon and Goshen. Components include: rehabilitation of existing paved surface; new paving at existing pull-off areas and shoulders; replacement of several thousand linear feet of existing cable and wood post guardrail with steel beam guardrail and post; ditch cleaning; placement of gravel on some shoulders; elimination or decrease in size of some pull-off areas; and, at one location, installation of an underdrain pipe and replacement of subbase gravel. AOT constructed the Project during the summer of 1994. Noise and dust were generated by workers using heavy equipment and trucks bringing in material such as gravel. Noise was minimized by working during daylight hours and not on Sundays and holidays. Dust was controlled through use of water and calcium chloride. The guardrail replacement was not an in-kind replacement. Along some stretches of Route 73, the length of guardrail along the road was increased. The new guardrail has a weathered appearance and rust color. The Project has caused a minor amount of erosion into the nearby Neshobe River. The amount of erosion is not significant and does not threaten water quality or wetlands. The Project did not and does not affect water quality or wetlands in any other way. The Project did not and does not increase the vehicular capacity of Route 73. Route 73 has not been designed as a state scenic road pursuant to 10 V.S.A.  425 and 19 V.S.A.  2501. Route 73 possesses significant scenic value which is not affected by the Project. The Project did not and does not affect: water availability from nearby water supplies; the ability of government to provide governmental or educational services, or to accommodate growth; agricultural soils; earth resources; energy use; utility services; rural growth areas; or the local or regional plan. The only public investment affected by the Project is Route 73, which the Project enhances. The Project involved no change in road alignment, number of highway lanes, or increase in Route 73's right-of-way. The Project involves less than ten acres of land. IV. CONCLUSIONS OF LAW 1. Development. 10 V.S.A.  6081(a) requires that a permit be obtained prior to commencement of construction on a development or to commencement of development. Route 73 constitutes development under 10 V.S.A.  6001(3) and EBR 2(A)(4). 2. Pre-existing Development. Pre-existing developments are exempt from the Act 250 permit requirement unless there has been or is planned a substantial change to them. 10 V.S.A.  6081(b); EBR 2(A)(5). Route 73 is a pre-existing development pursuant to 10 V.S.A.  6081(b) and EBR 2(O) and therefore an Act 250 permit is not required unless a substantial change occurs or is proposed. 3. Substantial Change. EBR 2(G) defines substantial change as "any change in a development or subdivision which may result in significant impact with respect to any of the criteria specified in 10 V.S.A.  6086(a)(1) through (a)(10)." (Emphasis added.) The validity of EBR 2(G) has been upheld by the Vermont Supreme Court. In re Barlow, 160 Vt. 513, 521-22 (1993); In re Orzel, 145 Vt. 355, 360-361 (1985). The Board has articulated a two-prong test which must be satisfied when applying Rule 2(G). First, there must be a cognizable change to the pre-existing development. Second, if a change is found, an Act 250 permit is required if the change has caused or may cause a significant impact under one or more of the ten criteria. Re: L.W. Haynes, Declaratory Ruling #192 at 7 (Sep. 5, 1987). Concerning AOT projects, the Board previously has stated that it discourages segmentation. Re: Agency of Transportation (Leicester Route 7), Declaratory Ruling #153 at 5-6 (June 28, 1984). However, a cognizable change under EBR 2(G) does not include repair or routine maintenance. Id. at 4. The Board concludes that all of the Project components constitute repair or routine maintenance except for the following three items: new pavement, guardrail replacement, and elimination or decrease of pull-offs. These three items constitute cognizable changes. Based on the foregoing findings of fact, the Board concludes that the three items which are cognizable changes do not have the potential for significant impact on one or more of the Act 250 criteria. Concerning the substantial change issue, AOT argues that, for jurisdiction to exist, the Project would have to involve more than ten acres. However, neither 10 V.S.A.  6081(b) nor EBR 2(G) requires that a substantial change involve ten acres. Rather, it is the pre-existing development which must involve ten acres. See the definitions of development and pre-existing development at 10 V.S.A.  6001(3) and EBR 2(A)(4), 2(O). The Board notes that, if the Project itself involved ten acres of activities which were not repair or routine maintenance, a separate ground for jurisdiction would exist. Re: Village of Waterbury Commissioners, Declaratory Ruling #227 at 12 (Feb. 5, 1991). However, such is not the present case. Based on the foregoing, an Act 250 permit is not required for this Project. V. ORDER An Act 250 permit is not required for the Project, AOT reference #STP 9405(1)S. Dated at Montpelier, Vermont this 9th day of May, 1995. ENVIRONMENTAL BOARD /s/Arthur Gibb Arthur Gibb, Acting Chair* Rebecca Day John Ewing Marcy Harding Samuel Lloyd William Martinez Robert G. Page Steve E. Wright *On February 1, 1995, John Ewing became Chair of the Board. Arthur Gibb has continued as Acting Chair on this case at Mr. Ewing's request. dr298.dec(a20)