RE: Newton and Virginia Brosius, Declaratory Ruling #308, Findings of Fact, Conclusions of Law, and Order (Dec. 7, 1995) VERMONT ENVIRONMENTAL BOARD 10 V.S.A. Chapter 151 Re: Newton and Virginia Brosius Declaratory Ruling #308 FINDINGS OF FACT, CONCLUSIONS OF LAW, AND ORDER This decision pertains to whether the conversion of one bedroom into two bathrooms in a private residence (the "Project") constitutes development which requires a permit pursuant to 10 V.S.A. Chapter 151 ("Act 250"). As is explained below, the Environmental Board concludes that the Project does not require an Act 250 permit. I. BACKGROUND On August 15, 1995, the Assistant District #2 Coordinator issued a project review sheet concluding that the Project required an Act 250 permit (the "Opinion"). On August 29, 1995, Newton and Virginia Brosius (the "Petitioners") filed a petition for a declaratory ruling (the "Petition") appealing the Opinion. On October 10, 1995, Board Chair John T. Ewing convened a prehearing conference (the "Prehearing") in Montpelier attended only by the Petitioners. At the Prehearing, Chair Ewing appointed himself as administrative hearing officer pursuant to 10 V.S.A. § 6027(g) and Environmental Board Rule ("EBR") 41. On November 3, 1995, Chair Ewing issued a proposed decision to the parties. Pursuant to 10 V.S.A. § 6027(g), parties were allowed to request oral argument before the Board. In addition, parties were allowed to file written objections. No party requested oral argument. On November 29, 1995, the Board deliberated concerning this matter, and, following a review of the proposed decision and the evidence and arguments presented in the case, declared the record complete and adjourned. This Petition is now ready for decision. II. ISSUE Whether the Project is a development pursuant to 10 V.S.A. § 6001(3) and EBR 2(A)(2), 2(D), 2(L), and 2(M). III. EVIDENCE BEFORE THE BOARD At the Prehearing, the Petitioners requested that the Board: (i) consider the Petition as the Petitioners' testimony; (ii) accept as an exhibit a site drawing of the Project filed with the Board at the Prehearing; and (iii) adjudicate the Petition without convening a hearing. The Board grants the Petitioners' requests. IV. FINDINGS OF FACT 1. The Petitioners own a 48 acre tract of land in Whitingham, Vermont (the "Property"). There is a two-story residence (the "House") on the Property. The House is the Petitioners' personal residence. 2. The House has five bedrooms. Four of the five bedrooms are located on the second floor. Also on the second floor is a family room/office and a half-bathroom. 3. The Project consists of the conversion of one second floor bedroom into two bathrooms. The Project will be limited to interior construction on the second floor. The Project will not involve any exterior construction. 4. The Petitioners' present intent is to use the two bathrooms in connection with their use of the House as a personal residence. 5. The Petitioners may, at some point in the future, operate a seasonal bed-and-breakfast at the House. Guests would be charged a fee to stay at the House. The two new bathrooms could be used as part of the seasonal bed-and-breakfast operations at the House. V. CONCLUSIONS OF LAW Act 250 jurisdiction only extends to those land uses which constitute "development." Development is defined, in part, as the construction of improvements (including a commercial dwelling) on a tract or tracts of land, owned or controlled by a person, involving more than 10 acres of land within a radius of five miles of any point on any involved land, for commercial or industrial purposes. If a municipality has adopted both permanent zoning and sub-division bylaws, then jurisdiction attaches only if the involved land is more than ten acres. See 10 V.S.A. § 6001(3) and EBR 2(A)(2). EBR 2(D) defines "construction of improvements" in relevant part as any physical action on a project site which initiates development for any purpose enumerated in EBR 2(A). EBR 2(L) defines "commercial purpose" as "[t]he provision of facilities, goods or services by a person other than for a municipal or state purpose to others in exchange for payment of a purchase price, fee, contribution, donation or other object having value." EBR 2(M) defines "commercial dwelling" as "[a]ny building or structure or part thereof, including but not limited to hotels, motels, rooming houses, nursing homes, dormitories and other places for the accommodation of people, that is intended to be used and occupied for human habitation on a temporary or intermittent basis, in exchange for payment of a fee, contribution, donation or other object having value." EBR 2(A)(2), 2(D), 2(L), and 2(M) were ratified by the General Assembly in 1985. 1985 Vt. Laws No. 52 § 5; In re Spencer, 152 Vt. 330, 336 (1989). The Project will be constructed within the House's interior; there will be no exterior construction. The Project is consistent with the House's use as a personal residence since the four second floor bedrooms are presently served by a half-bathroom. The Project is intended to make the House a more habitable personal residence. The Board concludes that the Project: (i) is not for a commercial purpose; and (ii) will not make the House into a commercial dwelling. Therefore, the Project is not a development under 10 V.S.A. § 6001(3) and EBR 2(A)(2) and, accordingly, an Act 250 permit is not required. VI. ORDER The Project does not require an Act 250 permit. Dated at Montpelier, Vermont, this 7th day of December, 1995. ENVIRONMENTAL BOARD /s/ John T. Ewing John T. Ewing, Chair Rebecca Nawrath John M. Farmer Arthur Gibb Samuel Lloyd Marcy Harding William Martinez c:\decision\dr308.dec (dp1) Steve E. Wright