RE: Hanley Lane Construction Co., Inc., Declaratory Ruling #313, Findings of Fact, Conclusions of Law and Order, (June 12, 1996) VERMONT ENVIRONMENTAL BOARD 10 V.S.A. Chapter 151 Re: Hanley Lane Construction Co., Inc. Declaratory Ruling #313 FINDINGS OF FACT, CONCLUSIONS OF LAW, AND ORDER This decision pertains to a proposal to construct nine residential units to be located in three buildings in the Town of St. Albans, Vermont. As explained below, the Board concludes that a permit is required under 10 V.S.A. Chapter 151 (Act 250) for the proposal prior to commencement of construction. I. SUMMARY OF PROCEEDINGS On September 29, 1995, the District #6 Coordinator issued Advisory Opinion #6-088 pertaining to "Welden Place/Bellevue Park." The Advisory Opinion concerns a project described "as a proposal to construct nine, two bedroom units in three buildings located in Lots 35 and 36, off of Upper Welden Street, on a portion of land known as Bellevue Park in the Town of St. Albans, Vermont (the Project)." The Advisory Opinion concludes that a permit is required for the Project under 10 V.S.A. Chapter 151 (Act 250). On October 30, 1995, Hanley Lane Construction Co., Inc. (the Petitioner) appealed the Advisory Opinion by filing a request for an executive officer advisory opinion with the Environmental Board. On November 7, after notice from the Board office, the Petitioner made an additional submission to complete its appeal. Executive officer advisory opinions were repealed by Section 25 of Act 232 of the 1993-1994 legislative session. Therefore, the appeal is treated as a petition for declaratory ruling under 10 V.S.A. § 6007(c) and Environmental Board Rule (EBR) 3(D). On December 18, 1995, Environmental Board Chair John T. Ewing convened a prehearing conference in Montpelier, Vermont. On January 18, 1996, the Chair issued a prehearing conference report and order, which is incorporated by reference. In relevant part, the prehearing report recounts the Chair's statement at the conference that the matter will be heard by a hearing officer pursuant to 10 V.S.A. § 6027(g), 3 V.S.A. § 811, and EBR 41, and that the Petitioner agreed to this procedure. The prehearing report also took notice of various prior Board decisions and documents of public record contained in a file received from the District office and used in the preparation of the Advisory Opinion. The documents were and are specifically listed in the prehearing report. Opportunity was given to object to the taking of notice, and no objections were filed. On January 24, 1996, the Petitioner filed prefiled testimony. The Chair, acting as hearing officer, convened a hearing in the Town of St. Albans on February 7, 1996, with the following party participating: The Petitioner by Carl H. Lisman, Esq. After taking a site visit, placing his observations in the record, and hearing testimony, the Chair recessed the matter pending the filing of memorandum by the Petitioner, review of the record, and issuance of a proposed decision. On February 15, 1996, the Petitioner filed a memorandum. On March 11, 1996, the Chair issued a proposed decision. Parties were provided an opportunity to file written objections, and to present oral argument before the full Board. On March 22, 1996, and again on April 16, 1996, the Petitioner requested oral argument with respect to the hearing officer's proposed decision. The Board convened oral argument in Berlin, Vermont, on April 24, 1996. The Board deliberated concerning this matter on that same date. On June 12, 1996, following a review of the proposed decision and the evidence and arguments presented in the case, the Board declared the record complete and adjourned the hearing. This matter is now ready for final 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 The issues are as follows: a. Whether, pursuant to 10 V.S.A. § 6081(b) and EBR 2(A)(5) and 2(G), the Project constitutes a substantial change to a pre-existing subdivision. b. Whether, pursuant to EBR 2(F), the Project constitutes the first phase of a multi-phase or master plan project, and: (1) the multi-phase or master plan project constitutes "development" because it consists of the construction of improvements on more than ten acres for commercial purposes in a municipality with permanent zoning and subdivision by-laws (see 10 V.S.A. § 6001(3) and EBR 2(A)(2), 2(F)); (2) the multi-phase or master plan project constitutes "development" because it consists of the construction of more than ten units of housing (see 10 V.S.A. § 6001(3) and EBR 2(A)(3); OR (3) the multi-phase or master plan project constitutes a substantial change to a pre-existing subdivision pursuant to 10 V.S.A. § 6081(b) and EBR 2(G). c. Whether, pursuant to EBR 2(A)(5), 2(P), and 34, the Project constitutes a material change to Land Use Permits #6F0480 and #6F0391-EB. III. FINDINGS OF FACT 1. Bellevue Park is a subdivision consisting of more than ten lots located in St. Albans. The original plat for the subdivision was filed on town records in 1929. The Petitioner does not know exactly how many lots are in Bellevue Park; however, Exhibit H3, which is a portion of a plan of the subdivision stamped August 16, 1929, shows that it at least consists of Lots 7 through 49. 2. Bellevue Park is located on both sides of Thorpe Avenue and on the south side of Upper Welden Street between Thorpe and Fairfax Street (Route 104). The lots on Thorpe Avenue each contain a single family residence. Of the lots on Welden Street, Lot 42 is a day care facility. The other lots are open and unimproved, except for two dwellings at or near the corner of Thorpe Avenue. Lots 35 and 36 of the Park are presently open and unimproved, as is much of the land to the southeast of the lots. On the north side of Upper Welden Street, across from Lots 35 and 36, there is existing residential development, primarily single-family. The land immediately south of Lots 35 and 36 also contains single-family residences. 3. Bellevue Park was conveyed by Bruce and Arlene Corliss to Kemper and Ethel Peabody on August 11, 1943, and from Franklin M. Peabody as trustee to Edwin and Avis Smith by warranty deed on August 9, 1958. 4. Lots 35 and 36 were conveyed by Avis Smith to the Petitioner on August 4, 1995. The Petitioner seeks to construct the Project. 5. The Project is to be located on Upper Welden Street. It consists of four buildings to be located on Lots 35 and 36 of Bellevue Park. The lots consist of approximately one acre each. Of the four proposed buildings, three will consist of residential units (each containing three units, for a total of nine), and the fourth will be a nine-car garage. Two of the residential buildings are wholly on Lot 35, with the third straddling the boundary between Lots 35 and 36. The garage is on Lot 36. 6. The Project also includes a paved access drive and parking area, landscaping, drainage, and utilities such as water and sewer mains. The access drive and parking area are on Lot 36, with walkways running across the boundary between the two lots to connect the parking area to the residential buildings. 7. Exhibit H4, the Site Plan dated February 1, 1995, depicts the proposed water main as extending beyond Building #3 and terminating at the eastern property line of Lot 36. The Site Plan provides a cap and thrust block at the end of the line and depicts a "20' construction easement for future water main extension." 8. The Site Plan shows the sewer main as ending behind Building #3 at sewer manhole #3. From this point, the Site Plan shows a future 8" PVC sewer main extending to the east, parallel to the southern boundaries of Lots 35 and 36, and ending just beyond Lot 36's eastern boundary at a future sewer manhole. The plan also depicts a "25' easement for future sewer main extension by others." 9. The boundary between the Town and City of St. Albans runs along the northern border of Lots 35 and 36, along the western and southern borders of Lot 35, and then along the southern border of Lot 36. Water and sewer services to the area surrounding and including Bellevue Park are provided by the City of St. Albans. 10. The Petitioner originally became interested in Lots 35 and 36 in 1988, responding to a newspaper advertisement placed by Sam Smith, a real estate agent who is also the son of Edward and Avis Smith. 11. In 1988, the Petitioner signed a purchase and sale agreement with the Smiths for Lots 35 and 36. In March 1989, the Petitioner caused the preparation of a plan for those lots, Exhibit B8, entitled "Meadow's Edge" (the Meadow's Edge Plan). The Meadow's Edge Plan was similar to the current Site Plan, Exhibit H4. It included nine residential units in one long building to be in approximately the same location as the three buildings proposed in the current Site Plan. It also included a nine-car garage, access drive, and parking area, again in approximately the same locations as proposed in the current Site Plan. 12. On April 24, 1989, the City of St. Albans Planning Commission met. The minutes of that meeting stated that it included a public hearing on "Sam Smith - regards the compatibility of S.R. Smith Real Estate's proposed nine (9) unit condominium project known as 'Meadow's Edge'; to be located on Upper Welden Street . . . ." (Emphasis added.) 13. During its meeting of April 24, 1989, the City of St. Albans Planning Commission voted to table the Meadow's Edge project "until the commission sees a master plan for the entire area." 14. Sam Smith then created a "master plan" for the development of Upper Welden Street (the 1989 Master Plan). See Exhibit B1. The 1989 Master Plan included the development of Lots 35 and 36 in a manner similar to the Meadow's Edge Plan and the current Site Plan. In fact, the depiction of the development of Lots 35 and 36 on the 1989 Master Plan is so similar to the current Site Plan that is almost identical. Both plans depict three buildings containing a total of nine residential units, an access road, a parking area and a nine-car garage, and connecting walkways. In both plans, the improvements are in almost exactly the same locations. 15. The 1989 Master Plan also depicted development of lands to the east and southeast of Lots 35 and 36. 16. To the east of Lots 35 and 36, along Upper Welden Street, the 1989 Master Plan depicts three developments on the Bellevue Park lots between Lot 36 and Fairfax Street. a. First, in Bellevue Park lots immediately east of Lots 35 and 36, the 1989 Master Plan depicts a nine-unit residential subdivision which is the mirror image of the Project for Lots 35 and 36 and contains the same improvements. b. Second, in the next set of Bellevue Park lots east of Lots 35 and 36, the 1989 Master Plan depicts a proposed "business use," with two buildings facing each other, and between them a parking area served by an access road. Immediately east of this proposed "business use" is the lot containing the day care facility. c. Third, immediately east of the day care facility, on Bellevue Park lots between that facility and Fairfax Street, the 1989 Master Plan depicts a "business and retail" project, with 250 parking spaces arranged in a large rectangle around six buildings connected by internal walkways. 17. To the southeast of Lots 35 and 36, and immediately south of the first and second developments described in Finding 16, above, the 1989 Master Plan depicts a "commercial/residential" use consisting of three two-story six-plexes, a 41-space parking area, and connecting walkways. This use would, at least in part, be located on Bellevue Park lots. Access to this "commercial/residential" use would be from an unnamed road to the south. This road would connect to Fairfax Street. South of the unnamed road, the 1989 Master Plan depicts a "Grice Brook." 18. Comparing Exhibits B1 (the 1989 Master Plan) and H3 (the Bellevue Park plan), it is evident that many of the improvements depicted on the 1989 Master Plan would cross the pre-existing lot lines of the Bellevue Park lots. 19. On August 21, 1989, Mr. Smith presented the 1989 Master Plan to the City of St. Albans Planning Commission. The minutes for the Planning Commission's meeting of that date state that the meeting included a public hearing on "Sam Smith - regards the compatibility of S.R. Smith Real Estate's proposed nine (9) unit condominium project known as 'Meadow's Edge'; to be located on Upper Welden Street . . . ." (Emphasis added.) 20. The minutes of the August 21, 1989 Planning Commission meeting state that an engineer for Mr. Smith represented that the creation of nine units on approximately two acres of land constitutes a density increase of approximately 20 to 22 percent "as compared to Thorpe Ave. . . ." 21. Under a heading "Sam Smith - Meadows Edge" (emphasis added), the minutes of the August 21, 1989 Planning Commission meeting state that Mr. Smith presented the Planning Commission with a "Theoretical Trip Generation - Nineplex - Upper Welden Street, Town of St. Albans, Vermont, prepared by Todd Taylor (attachment #4)." 22. Attachment #4 to the minutes of the August 21, 1989 Planning Commission meeting projects an average weekday traffic volume for nine units of 55 trips, and a maximum weekday traffic volume of 106 trips. The attachment also includes a traffic count for Upper Welden Street on February 7, 1989, totalling 479 trips. Accordingly, average daily traffic for a nine-unit proposal represents an approximately 11 percent increase over background traffic, and maximum daily traffic for such proposal represents an approximately 22 percent increase over background traffic. 23. The Petitioner did not prepare or cause the preparation of the 1989 Master Plan. 24. Based on the following factors, the Board infers that Sam Smith was aware of the Meadow's Edge Plan at the time the 1989 Master Plan was produced and that the 1989 Master Plan was based, in part, on the Meadow's Edge Plan: a. The timing of the preparation of the Meadow's Edge Plan and the 1989 Master Plan. b. The contractual relationship between the Petitioner and the Smiths which existed at the time both plans were prepared. c. The inclusion in the 1989 Master Plan of a project highly similar to the Meadow's Edge Plan for Lots 35 and 36. d. The continuous references, in the contemporaneous minutes of the City of St. Albans Planning Commission, to Mr. Smith's proposal as "Meadow's Edge," the name which is on the plan which the Petitioner caused to be prepared in 1989. 25. Mr. Smith's "Meadow's Edge" project is discussed in the minutes of at least two meetings of the City of St. Albans City Council. In the minutes of that council's meeting of September 11, 1989, the project is referred to as "Smith Development - Upper Welden Street - 9 units (Meadow's Edge)." The minutes of that council's meeting of October 9, 1989 states that the council unanimously denied Mr. Smith's request for "water-wastewater for the proposed development due to traffic and the concentration of nine (9) units on this lot . . . ." 26. With respect to the development of Lots 35 and 36, litigation then ensued concerning the water and wastewater allocations. Such litigation concluded in 1994, after which the lots were conveyed by the Smiths to the Petitioner. 27. Land owned by Edwin and Avis Smith has been the subject of prior proceedings before the Board. In Re: Edwin and Avis Smith and Grice Brook Development Corporation, Declaratory Ruling #292 (April 21, 1994), the Board made the following relevant findings of fact: 1. Edwin and Avis Smith own a farm near exit 19 of Interstate 89 in St. Albans. The farm is approximately 448 acres in size and is divided by Interstate 89 and Route 104. In 1988 the Smiths applied for an Act 250 permit to subdivide 8.48 acres of the farm into 14 lots for residential housing and 1,400 feet of access road. After the District #6 Commission denied the application, the Smiths appealed to the Environmental Board. 2. Sam Smith is the son of Edwin and Avis Smith, and Rachel Smith is Sam Smith's wife. Sam and Rachel Smith are shareholders in Grice Brook Development Corporation (GBDC). 3. At the District Commission proceedings concerning Edwin and Avis Smith's proposed 14-lot subdivision, ANR [the State of Vermont Agency of Natural Resources] opposed the project. During the Board proceedings, ANR and the Smiths reached a settlement that was expressed in a Stipulation. In essence, the Smiths agreed that, prior to any further subdivision or development of their land, they would submit to the District Commission a masterplan for the future development of the entire 448-acre property. In return for this agreement, ANR withdrew its objection to the project. 4. On May 11, 1989, the Environmental Board issued the Permit [Land Use Permit #6F0391-EB] to Edwin and Avis Smith authorizing them to create a 14-lot subdivision on 8.48 acres of a 448-acre tract of land. The Permit incorporated the Stipulation. Condition 20 of the Permit, which contains the same language as Paragraph 5 of the Stipulation, states the following: Prior to the further development or subdivision of the Permittees' Land, the Permittees shall submit to the District Commission, for review and approval, a conceptual master plan that incorporates at least the following: . . . 5. The Stipulation contains the following pertinent provision: WHEREAS, the Applicants are the owners of approximately 448 acres of land (the "land") in the Town of St. Albans, the approximate boundaries of which are depicted on Exhibit A; . . . 6. During the hearing concerning Land Use Permit Application #6F0391-EB, Sam Smith drew a line on a map to delineate the lands included in the 448-acre parcel owned by Edwin and Avis Smith. This is the map identified in the Stipulation as Exhibit A. . . . Although Bellevue Park is included within the lines, Sam Smith asserts that the line was intended to encompass all land owned by Edwin Smith at the time of the #6F0391-EB proceeding and that Bellevue Park was exempt from the master plan requirement. (Emphasis added.) 28. In the findings of fact supporting Land Use Permit #6F0391-EB, issued to Edwin and Avis Smith on May 11, 1989 (the 1989 Permit), the Board found that "[a]t least 200 acres of the Smith Farm qualify as primary agricultural soils." 29. As evident from the quoted language in Finding 27, above, the 1989 Permit is the one issued to the Smiths for a 14-lot subdivision and which contained a master plan requirement. Subsequently, in July 1989, GBDC applied for a permit to construct a 48-unit condominium development on an 11-acre tract of land adjacent to the 448-acre tract subject to the master plan requirement (the GBDC proposal). 30. The GBDC proposal originally included an access road which would cross the 448-acre tract subject to the master plan requirement. Proceedings then ensued concerning the application of the master plan requirement to the GBDC proposal. These proceedings ultimately culminated in Declaratory Ruling #292, cited and quoted from extensively above. 31. In Declaratory Ruling #292, the Board found in relevant part: 11. Instead of filing a master plan with the district Commission, the Petitioners moved the location of the access road to the Grice Brook Development. 12. The road proposed to provide access to the Grice Brook Development from Route 104 is now proposed to cross lands known as "Bellevue Park." Bellevue Park is owned by Edwin and Avis Smith and is the site of a pre-existing subdivision. (Emphasis added.) 32. In Declaratory Ruling #292, the Board concluded that: Since Bellevue Park apparently was not intended to be included in the lands subject to the master plan requirement of Condition 20 of the [1989] Permit, the Board concludes that the access road for the Grice Brook Development which crosses land known as Bellevue Park is not subject to the master plan requirement, provided it does not cross any other part of the 448 acres subject to Condition 20. 33. The Board included a footnote to this conclusion, stating: "This does not imply that the road that crosses Bellevue Park is in any way exempt from Act 250 review." 34. On May 26, 1995, the District #6 Commission issued Land Use Permit #6F0480 to Grice Brook Development, Inc., authorizing the GBDC proposal (the 1995 Permit.) The 1995 Permit describes the authorized proposal as the construction of "Buildings D and E or Phase I of a multi-phase residential project, and to construct 1800 foot of access road off of Route 104." 35. Finding 60 supporting the 1995 Permit states: "There are approximately 11 acres of primary agricultural soils on the project tract of land." The findings of fact also describe "the tract of land" as consisting of 11 acres. 36. The following are in close proximity to each other: Bellevue Park, the 448- acre tract subject to the master plan requirement of the 1989 Permit, and the 11-acre tract subject to the 1995 Permit. 37. The following were not appealed: the 1989 Permit, Declaratory Ruling #292, and the 1995 Permit. IV. CONCLUSIONS OF LAW A. Substantial Change to Pre-existing Subdivision 1. Pre-existing Subdivision In relevant part, 10 V.S.A. § 6081(a) requires that a permit be obtained prior to sale or offer for sale of any interest in, or commencement of construction on, a "subdivision." 10 V.S.A. § 6001(19) defines subdivision as follows: [A] tract or tracts of land, owned or controlled by a person, which the person has partitioned or divided for the purpose of resale into 10 or more lots within a radius of five miles of any point on any lot, or within the jurisdictional area of the same district commission, within any continuous period of five years. In determining the number of lots, a lot shall be counted if any portion is within five miles or within the jurisdictional area of the same district commission. In relevant part, EBR 2(B)(2) provides that a subdivision is created by the filing of a plot plan on town records. Based on the foregoing findings of fact, the Board concludes that Bellevue Park constitutes a subdivision because it consists of ten or more lots created in 1929 by plot plan filed on town records. However, as the 1929 date indicates, Bellevue Park pre-dates the effective date of Act 250, which was June 1, 1970. 10 V.S.A. § 6081(b) contains an exemption for various types of subdivisions which pre-date Act 250, including "a subdivision exempt under the regulations of the department of health in effect on January 21, 1970 . . . ." EBR 2(N) defines such exempt subdivisions as "pre-existing subdivisions." The Health regulations in effect on January 21, 1970 were those issued in December 1969. Those regulations exempted "existing subdivisions." Vermont Health Regulations §§ 5-904, 5-910 (Dec. 18, 1969). To qualify as an existing subdivision, one of two sets of events had to occur before September 18, 1969. The first set involves approval by the relevant municipality under a subdivision ordinance or by-law. The second set involves the filing of a plot plan on town records and a sale of, or execution of a contract for sale concerning, at least one of those lots. This is because the regulations defined "existing subdivision" to mean: [A] subdivision which has been approved by a municipality pursuant to the administration of a subdivision ordinance or by-law prior to the effective date of emergency regulations adopted September 18, 1969 or a subdivision concerning which a plat thereof prepared by an engineer or land surveyor registered in the State of Vermont has been filed for record in the town clerk's office of the town in which the subdivision is situated, on the basis of which plat, one or more lots depicted thereon have been conveyed or made the subject of a contract for sale prior to the effective date of emergency regulations adopted September 18, 1969. Id. at § 5-902(d). Based on the foregoing findings of fact, the Board concludes that Bellevue Park is exempt as a "pre-existing subdivision" because it was created, filed on town records, and conveyed prior to September 18, 1969. 2. Substantial Change Although Bellevue Park is an exempt pre-existing subdivision, that is not the end of the matter. 10 V.S.A. § 6081(b) provides that a permit is required for "any substantial change to such excepted subdivision or development." Therefore, a permit is required for the Project if it constitutes a "substantial change." EBR 2(G) defines "substantial change" to be "any change in a development or subdivision which may result in a significant impact with respect to any of the criteria specified in 10 V.S.A. § 6086(a)(1) through (a)(10)." EBR 2(G) does not require that the change result in actual impact but requires a conclusion of potential significant impact. EBR 2(G), and this interpretation of it, have been upheld by the Vermont Supreme Court. In re Barlow, 160 Vt. 513, 521-23 (1993). As previously stated by the Board, the "substantial change" test consists of two parts. First, the Board must determine whether a cognizable change has occurred or is proposed. Second, the Board must determine whether the change has the potential for significant impact on one or more of the Act 250 criteria. Re: Robert and Barbara Barlow, Declaratory Ruling #234 at 10 (May 20, 1991), affirmed, In re Barlow, supra. Concerning the first part of the test, the Board concludes that the Project proposes a cognizable change. This is based on the totality of the following circumstances: a. The proposal of a multi-building, multi-unit project, with a shared garage, as opposed to the single-family residential dwellings which constitute the vast majority of the structures on the developed Bellevue Park lots. b. The conversion of two acres of open space into a nine-unit residential project. c. The proposal of buildings for the Project which cross the pre-existing boundary between Lots 35 and 36. Regarding the second part of the test, the Board concludes that the Project has the potential for significant impact with respect to at least three Act 250 criteria at 10 V.S.A. § 6086(a): a. Concerning Criterion 5 (traffic), the Project is a multi-unit project which will introduce new traffic into a residential area in which the traffic generators are primarily single-family residences. The potential for significant impact with respect to traffic is supported by the 1989 traffic information submitted by Mr. Smith to the City of St. Albans, which results in projected daily increases above background traffic of 11 percent on average and 22 percent maximum. b. With respect to Criterion 8 (aesthetics), the Project will result in the intrusion of a multi-unit, multi-building land use into an area in which the current land uses are primarily single-family residential and open space. The density of this new land use has the potential to be significantly out of character with the existing context. See Re: Quechee Lakes Corp., Applications #3W0411-EB and #3W0439-EB, Findings of Fact, Conclusions of Law and Order at 18-19 (Jan.13, 1986). c. On Criterion 9(B) (primary agricultural soils), it is likely that Lots 35 and 36 contain primary agricultural soils. This is based on the close proximity of those lots to two other tracts which have been found to contain such soils under 10 V.S.A. § 6001(15). The nature of the proposal for Lots 35 and 36 is such that the agricultural potential of the soils is likely to be significantly reduced. FN1 The above determination regarding impacts under the criteria does not mean that these impacts will actually occur, but rather that they may occur. As the Board stated in Barlow, it is for the District Commission to determine whether the impacts which actually occur in deciding whether to issue a permit. Declaratory Ruling #234 at 11-12. The Board's inquiry here is limited to the potential for significant impact. Based on the foregoing, the Board concludes that the Project constitutes a substantial change to a pre-existing subdivision, and therefore that an Act 250 permit is required. B. Multi-phase or Master Plan Project Since the Board has concluded, above, that an Act 250 permit is required, it is not required to go on and decide the remaining issues. However, since there is evidence which suggests that the Project may be part of a multi-phase or master plan project, in the interests of administrative economy the Board will resolve that issue. This issue divides into two areas: (a) whether, under EBR 2(F), the Project is part of a larger undertaking or a project which is being completed in stages according to a plan, and (b) if so, whether the larger undertaking or multi-phase project is subject to Act 250. 1. Larger Undertaking EBR 2(F) provides: "In the event that a project is to be completed in stages according to a plan, or is part of a larger undertaking, all land involved in the entire project shall be included for purposes of determining jurisdiction." Based on the foregoing findings of fact, the Board concludes that the Project is part of a larger undertaking, which is the development of Upper Welden Street as shown on the 1989 Master Plan submitted by Sam Smith to the City of St. Albans. For Lots 35 and 36, the 1989 Master Plan shows a project almost identical to the Project as currently proposed. The 1989 Master plan also shows four other projects on adjacent or nearby lots of Bellevue Park, including a nine-unit residential project on the Park lots immediately east of Lots 35 and 36 which is a mirror image of the Project. In addition, Exhibit H4, the Site Plan for the Project, clearly contemplates the further extension of sewer and water mains onto adjoining lands to the east. These adjoining lands would contain other projects shown on the 1989 Master Plan. The Petitioner argues that the Board, in Declaratory Ruling #292, concluded that Bellevue Park is not subject to the master plan requirement of the 1989 Permit. However, this argument confuses master plans and tracts of land. It is important to clarify which master plan pertains to which tract. The master plan requirement of the 1989 Permit is an Act 250 permit condition which applies to the 448-acre Smith Farm tract which is near, but not the same as, Bellevue Park. In contrast, the 1989 Master Plan applies to lots at Bellevue Park, was submitted to the City at its behest, and is separate from, and not required by, the 1989 Permit for the Smith Farm tract. The Petitioner further argues that the 1989 Master Plan was prepared by Mr. Smith and not at the direction of the Petitioner. However, this argument is not persuasive because of the following: a. The timing of the preparation of the 1989 Meadow's Edge Plan and the 1989 Master Plan. b. The contractual relationship between the Petitioner and the Smiths which existed at the time both plans were prepared. c. The inclusion in the 1989 Master Plan of a project highly similar to the Meadow's Edge Plan for Lots 35 and 36. d. The continuous references, in the contemporaneous minutes of the City of St. Albans Planning Commission and Board of Selectmen, to Mr. Smith's proposal as "Meadow's Edge," the name which is on the plan which the Petitioner caused to be prepared in 1989. e. The fact that Mr. Smith sought the water and sewer approval from the City for the Project and sold Lots 35 and 36 to the Petitioner only after litigation involving such approval was resolved. f. The near identity of the Project as currently proposed with the project depicted on the 1989 Master Plan for Lots 35 and 36. 2. Applicability of Act 250 to Larger Undertaking The lands involved in the 1989 Master Plan are part of Bellevue Park. Therefore, those lands constitute a pre-existing subdivision. This conclusion affects the nature of the issues presented in analyzing whether an Act 250 permit is required for the larger undertaking. Based on the Advisory Opinion, Section II above identifies issues with respect to whether this undertaking constitutes a "development" under EBR 2(A)(2) (construction for commercial purposes) or under EBR 2(A)(3) (housing units). However, since the lands are part of a pre-existing subdivision, the Board concludes that the appropriate inquiry is whether the larger undertaking constitutes a substantial change. The Board therefore applies the two part "substantial change" test to the project set out in the 1989 Master Plan. Concerning the first part of the test, the Board concludes that the 1989 Master Plan proposes a cognizable change. This is based on the totality of the following circumstances: a. The proposal of multi-building, multi-unit residential and commercial projects, including large parking areas, as opposed to the single-family residential dwellings which constitute the vast majority of the structures on the developed Bellevue Park lots. b. The conversion of many open space lots into the projects depicted on the 1989 Master Plan. c. The proposal of improvements in the 1989 Master Plan which cross the pre- existing boundaries of the Bellevue Park lots. Regarding the second part of the test, the Board concludes that the project proposed by the 1989 Master Plan has the potential for significant impact with respect to at least three Act 250 criteria at 10 V.S.A. § 6086(a): a. Concerning Criterion 5 (traffic), the 1989 Master Plan depicts multi-unit, multi- building residential and commercial projects which will introduce new traffic into a residential area in which the traffic generators are primarily single-family residences. The potential for significant impact with respect to traffic is supported by the 1989 traffic information submitted by Mr. Smith to the City of St. Albans. b. With respect to Criterion 8 (aesthetics), the 1989 Master Plan will result in the intrusion of a multi-unit, multi-building residential and commercial land uses into an area in which the current land uses are primarily single-family residential and open space. Such new land uses have the potential to be significantly out of character with the existing context. See Re: Quechee Lakes Corp., Applications #3W0411-EB and #3W0439-EB, Findings of Fact, Conclusions of Law and Order at 18-19 (Jan.13, 1986). c. On Criterion 9(B) (primary agricultural soils), it is likely that primary agricultural soils are present on many of the Bellevue Park lots on which the improvements depicted in the 1989 Master Plan would take place. This is based on the close proximity of these lots to two other tracts which have been found to contain such soils under 10 V.S.A. § 6001(15). The nature of the 1989 Master Plan proposals is such that the agricultural potential of the soils is likely to be significantly reduced. Based on the foregoing, the Board concludes that the project set out in the 1989 Master Plan constitutes a substantial change to a pre-existing subdivision, and therefore that an Act 250 permit is required. V. ORDER 1. Pursuant to 10 V.S.A. § 6081(b) and EBR 2(G), the Project constitutes a substantial change to a pre-existing subdivision. 2. Separately, pursuant to EBR 2(F), the Project is part of a larger undertaking shown on the 1989 Master Plan, and such larger undertaking constitutes a substantial change to a pre-existing subdivision pursuant to 10 V.S.A. § 6081(b) and EBR 2(G). 3. Based on either paragraph one or paragraph two of this Order, an Act 250 permit is required pursuant to 10 V.S.A. § 6081(a) prior to commencement of construction on the Project. 4. Based on paragraph two of this Order, an Act 250 permit is required pursuant to 10 V.S.A. § 6081(a) prior to commencement of construction of any improvement which is part of the project shown on the 1989 Master Plan. Dated at Montpelier, Vermont this 12th day of June, 1996. ENVIRONMENTAL BOARD /s/John T. Ewing John T. Ewing, Chair Arthur Gibb Marcy Harding Rebecca Nawrath Steve Wright FN1 While it may be argued that Lots 35 and 36 could contain a maximum of only two acres of primary agricultural soils, Criterion 9(B) is not limited to large farm tracts. Rather, it proects the agricultural potential of soils which qualify as primary agricultural. See 10 V.S.A. SS 6001(15), 6086(a)(9)(B), ada - c:\wptext\hanley\hanley.dec