RE: Town of Royalton (Carpenter Recreation Area), Declaratory Ruling # 320, Findings of Fact, Conclusions of Law, and Dismissal Order (Nov. 20, 1996) VERMONT ENVIRONMENTAL BOARD 10 V.S.A §§ 6001-6002 Re: Town of Royalton Declaratory Ruling # 320 Carpenter Recreation Area P.O. Box 680 South Royalton, VT 05068 FINDINGS OF FACT, CONCLUSIONS OF LAW, AND DISMISSAL ORDER On June 12, 1996, the Vermont Environmental Board ("Board") deliberated with respect to the Town of Royalton's Motion to Dismiss and concluded that dismissal of this matter is not contrary to the values embodied in Act 250. Accordingly, on July 2, 1996, the Board issued a memorandum to parties reporting that the Board had decided to dismiss the referenced matter and included a brief statement of the Board's findings to support dismissal. The memorandum to parties, however, stated that the Board's decision in this matter would be issued formally as Findings of Fact, Conclusions of Law, and a Dismissal Order. This decision therefore memorializes the Board's decision in this matter which has already been conveyed to the parties by a written memorandum. I. BACKGROUND On March 8, 1996, Marc D. Nemeth ("Petitioner") filed a petition with the Board requesting a declaratory ruling concerning whet ("Act 250") applies to the construction of the proposed Carpenter Recreation Area ("Project") in South Royalton, Vermont. The Town of Royalton ("Town") proposes to construct the Project on adjoining parcels of land, owned by the Town, adjacent to the White River ("Project Tract"). Before beginning construction, the Town submitted a request for a jurisdictional opinion from the District #3 Environmental Commission ("Commission"). The Commission's Coordinator issued a jurisdictional opinion in the form of a Project Review Sheet on December 28, 1995 stating that Act 250 did not apply to the Project because it was a municipal project involving less than ten acres ("Jurisdictional Opinion"). Petitioner, by filing Declaratory Ruling Request # 320 sought review of the Commission's Jurisdictional Opinion. On May 13, 1996, Board Chair John T. Ewing convened a prehearing conference ("Conference") in Montpelier, Vermont. At the Conference, the Town challenged the Petitioner's party status and filed a Motion to Dismiss, arguing that the Board should dismiss because Petitioner did not have standing to bring the declaratory ruling petition. The Town also presented a description of its Project at the Conference, noting minor changes to the proposal that was reviewed by the Commission's Coordinator. At the Conference, the Petitioner identified the substantive arguments upon which he based his petition. Additionally, he filed a written party status request that identified alleged direct effects which the Project, as identified at the Conference, allegedly would have had upon Petitioner's property. Another interested person, the executrix of the Phyllis Knight Estate ("Knight Estate"), also participated at the Conference and filed a timely, written request for party status alleging that the Project could have a direct effect upon the Knight Estate's septic system and leach field, both of which are situated on property belonging to Vermont Law School ("VLS"). On May 29, 1996, Chair Ewing issued a Prehearing Conference Report and Order ("Prehearing Order"). Chair Ewing noted in the Prehearing Order that party status determinations would be made by a subsequent ruling and that such determinations would be dispositive as to the standing issues identified in the Town's Motion to Dismiss. A ruling on the Motion to Dismiss was, therefore, also deferred until Chair Ewing made rulings with respect to party status. On June 6, 1996, Chair Ewing issued the Chair's Preliminary Rulings on Party Status and the Town of Royalton's Motion to Dismiss ("Preliminary Rulings"). As noted in Environmental Board Rule ("EBR") 16(B) any such preliminary ruling may be objected to by any interested party, in which case the ruling shall be reviewed and the matter resolved by the board. The Preliminary Rulings noted that there was some ambiguity regarding how construction vehicles would be accessing the Project Tract. The ambiguity arose in part because the Town, by a filing dated June 3, 1996, represented that an existing driveway located on a tract of land owned by VLS and known as the Fay property would not provide adequate clearance for construction vehicles. The Town therefore proposed to re-route construction traffic to an existing driveway that serves the VLS parking lot and over which VLS had agreed to provide the Town with an easement. In an attempt to have the construction vehicle access issue clarified, Chair Ewing requested that should the Town seek review of the Chair's Preliminary Rulings, as a component of any oral argument that it might present, the Town should definitively establish the location of the access and clearly depict it on the site plan. Chair Ewing through his Preliminary Rulings granted party status to Petitioner, Marc Nemeth, under EBR 14(A), and to the Knight Estate under EBR 14(B)(1)(a). Chair Ewing consequently concluded that Petitioner Nemeth had standing to bring Declaratory Ruling Request # 320. On June 12, 1996, the Board convened its regularly scheduled hearing at the East Dorset Town Offices in the Town of Dorset with the following party participating: The Town of Royalton, by Stephanie Kaplan, Esq. The Knight Estate did not wish to participate (FN1), and the Petitioner waived his right to present oral argument.(FN2) The Town proceeded with its argument and fielded questions from the Board. The Board sought primarily to ascertain the layout of the Project as revised, and sought particularly to establish conclusively how construction vehicles would gain access to the Project Tract under the revised plan. The Town clarified the construction vehicle access issue and conclusively demonstrated that the VLS driveway, and not the Fay driveway, would be the sole access to the Project Tract during both the period of construction and normal operation of the Carpenter Recreation Area. Immediately after hearing the Town's presentation of arguments and supporting drawings, the Board deliberated. As set forth more fully below, the Board concluded that under the revised plan, neither the Petitioner, nor the Knight Estate could demonstrate the potential for direct effects upon their respective properties under any of the ten criteria of Act 250. As such, the Board concluded that the Petitioner had no standing to file Declaratory Ruling Request # 320 and it concluded that the Knight Estate did not qualify for party status. The Board therefore declined to go forward with a merits hearing. Rather than immediately issue its decision to effect this result, the Chair issued a Memorandum to Parties, dated July 2, 1996, in order to adequately inform all parties of the outcome, cancel the previously scheduled merits hearing, and inform the Town that it could proceed with its Project. The Board now issues the following Findings of Fact, Conclusions of Law, and Dismissal Order. II. FINDINGS OF FACT 1. The Project Tract is comprised of 8.36 acres of land owned by the Town of Royalton plus an approximately acre access easement over land owned by VLS. The total amount of land involved in the Project is approximately 9 acres. 2. The Town of Royalton is a town of roughly 2500 residents, approximately 300 of whom are law students at Vermont Law School (formerly defined as "VLS"). 3. The Town does not currently have a duly adopted town plan. 4. The Project, known as the Carpenter Recreation Area, will consist of the construction of a regulation-sized soccer field, softball and little league playing fields, a practice field, a children's play area, a multi-use area, a 33-space parking lot, a pedestrian path, and an approximately 460 foot access easement over property owned by VLS. 5. The Project will be located adjacent to existing VLS facilities. It is nevertheless intended for use by all residents of the Town of Royalton. 6. The Project will require grading, planting, paving (of the recreation path) and dumping of gravel for a portion of the access road and parking lot. 7. Nearly all vehicles and machinery necessary to construct the Project will travel from the village of South Royalton, northerly on North Windsor Street to the existing VLS driveway, which also provides access to VLS's parking lots. From the VLS driveway, construction vehicles will travel along the rear portion of the Fay property, which is also owned by VLS. 8. VLS has provided the Town with an access easement over both portions of driveway owned by VLS. 9. The Project proposal which the Town presented at the Conference indicated that construction traffic would gain access to the Project from a driveway which joined the Fay property directly to North Windsor Street ("the Fay driveway"). 10. Petitioner Nemeth's residence is located immediately across North Windsor Street from the intersection of the Fay driveway and North Windsor Street. 11. If the Fay driveway were to be used for construction vehicle access, those vehicles which were heading northerly to the Project Tract would have traveled along Petitioner Nemeth's property line. 12. As re-routed, all construction vehicles will use the VLS driveway to obtain access to the Project Tract. In addition, once the Project is completed, all vehicles entering the Project Tract will use the VLS driveway. The vast majority of these vehicles will enter from South Royalton, which is to the south of both Petitioner's residence and the VLS driveway. Therefore, most traffic to the Carpenter Recreation Area will not pass by Petitioner's residence. 13. Because the access for vehicles will no longer be over the Fay driveway, there will be no potential road hazards at the intersection of the Fay driveway and North Windsor Street that are attributable to either the construction or the operation of the Project. 14. The Project as revised will not have the potential for adverse impacts upon the Knight Estate's septic system and leach field. Moreover, the Estate's Administrator, Phyllis Knight, has stated that since the construction vehicle access to the Project Tract is via the existing VLS driveway, rather than the Fay driveway, and since the access over the rear portion of the Fay property will be constructed a sufficient distance from the Knight Estate's septic system, the Knight Estate no longer has concerns over impacts to its septic system. 15. The Project will result in minimal physical changes to the land which comprises the Project Tract. Although a gravel parking area and recreational fields will be constructed, neither of these will be readily visible from Petitioner's property. The Project Tract will largely remain an open space, and views toward the White River from Petitioner's land will not be further obstructed by construction of the Project. III. CONCLUSIONS OF LAW A. PETITIONER'S STANDING TO FILE REQUEST FOR A DECLARATORY RULING The Board has ruled that the standard by which it evaluates whether a petitioner has standing to bring a request for a declaratory ruling is: whether such person or entity may be affected by the outcome of a jurisdictional opinion, and . . . such standard is identical to the standard established by EBR 14(B)(1)(a) that a person seeking party status demonstrate that a proposed development or subdivision may affect his or her interest under any of the ten Act 250 criteria. Re: Wesco, Inc. and Jacob & Harmke Verberg, Declaratory Ruling # 304, Memorandum of Decision at 5 (June 30, 1995). In addition, 10 V.S.A. § 6007(C) and EBR 3(C)(3) provide that persons who qualify as parties under EBR 14(A) may also be eligible to file a petition for declaratory ruling. Thus, the determination of the Petitioner's party status request will be dispositive as to his standing to go forward with Declaratory Ruling Request # 320. B. DETERMINING PETITIONER NEMETH'S STANDING BASED ON THE PARTY STATUS TEST The Board concludes that the Chair's determinations of party status that were set forth in the Chair's Preliminary Rulings on Party Status and the Town of Royalton's Motion to Dismiss ("Preliminary Rulings") were appropriate given the Town's initial depiction of the Project that was identified at the Conference ("Initial Proposal"). However, as the Chair noted in footnote 3 of the Preliminary Rulings, subsequent to the Conference, the Town altered the proposal for construction vehicle access. The full Board reviewed and heard oral argument on the Town's final proposal ("Final Proposal") which was substantially similar to its Initial Proposal, except that the Final Proposal re-routed construction vehicle access to the VLS driveway. Thus, the party status analysis conducted herein reflects the Board's determination of potential impacts under the criteria in light of the Town's Final Proposal. Petitioner may demonstrate that he is entitled to party status as a party by right, as set forth in EBR 14(A), or that he should be granted party status as a permissive party pursuant to EBR 14(B)(1)(a). To qualify as a party by right, the Petitioner must be an adjoining property owner, and he must demonstrate that the proposed development . . . may have a direct effect on his property under any of the ten criteria listed at 10 V.S.A. § 6086(a). 1. Is Petitioner an Adjoining Property Owner? The Petitioner has consistently maintained that he is an adjoining property owner. EBR 2(R) defines an adjoining property owner as: a person who owns land in fee simple, if that land: (1) shares a boundary with a tract of land where a proposed or actual development or subdivision is located; or (2) is adjacent to a tract of land where a proposed or actual development or subdivision is located and the two properties are separated only by a river, stream or a public highway. The Petitioner owns property on the south side of North Windsor Street immediately opposite the Fay property. The Petitioner has maintained that his property adjoins the proposed Project insofar as the Project, even as revised, includes an access easement over the rear portion of the Fay property owned by VLS.(FN3) Petitioner's land does not adjoin either the Carpenter Recreation Area or the actual easement. However, the tract upon which the access easement remains is separated from Petitioner's property only by North Windsor Street, a public highway. The express language of 10 V.S.A. § 6001(23) (B) defines an adjoining property owner as a person who owns land in fee simple, if that land . . . is adjacent to a tract of land where a proposed or actual development . . . is located and the two properties are separated only by a . . . public highway. The Board determines that Petitioner Nemeth is an adjoining property owner. However, as explained more fully below, the Petitioner has failed to demonstrate that the proposed Project may have a direct effect on his property under any of the criteria enumerated at 10 V.S.A. §6086. 2. Assessment of Direct Effect on Petitioner's Property In order to achieve party status by right, an adjoiner must also demonstrate that the proposed development . . . may have a direct effect on the adjoiner's property under any of the ten criteria listed at 10 V.S.A. § 6086(a). EBR 14(A). The person requesting party status by right shall provide a description of the potential effect of the proposed project upon the adjoiner's property with respect to each of the criteria or subcriteria under which party status is being requested. EBR 14(A)(5)(b). Petitioner has indicated that his interests may be affected under the following criteria: Criterion 5 (Unreasonable congestion or unsafe conditions with respect to highways); Criterion 6 (Unreasonable burden on the ability of a municipality to provide educational services); Criterion 7 (Unreasonable burden on the ability of local governments to provide municipal or governmental services); Criterion 8 (Undue adverse affect on the scenic or natural beauty of the area, aesthetics); and Criterion 9 (Not in conformance with duly adopted capability and development plan/ 9A - Impact of growth on the Town). As the Chair concluded in the Preliminary Rulings, certain of the Petitioner's allegations of potential direct effects upon his property as a result of the proposed Project are unfounded, and the Board concurs with the Chair's rulings that with respect to those criteria, namely, criteria 6, 7, and 9, the Petitioner has demonstrated no potential direct effects upon his property. Even though party status determinations do not require a conclusive showing that the Project will adversely affect the adjoining property owner, they do require a showing of potential impacts under at least one criterion. Because the construction access to the Project Tract has been re-routed from the Fay driveway to the existing VLS driveway, Petitioner Nemeth no longer has a claim of interest affected under Criterion 5. As such, the Board concludes that Petitioner Nemeth has not demonstrated the potential for direct effects under Criterion 5. Likewise, the Board concludes that Petitioner Nemeth has no claim of interest affected under Criterion 8. Petitioner's identification of criterion 8 impacts was primarily attributed to an unpaved parking lot, commercial fields, portable toilets, and absence of the natural beauty in the form of grass. As noted in Finding 15 the physical impacts of this Project will be minimal. Whatever the Petitioner means by commercial fields, the Board concludes that from a Criterion 8 standpoint these will appear to be identical to non-commercial fields. Further, as proposed, the Project will be heavily dependent upon the continued growth of grass. In many respects there will be no apparent differences between the land use after the Project is constructed, from that which existed before. As the Town argued in its memorandum of objection to the Chair's Preliminary Rulings, virtually every change to land has a visual effect. In order to qualify as a party by right, an adjoining land owner must demonstrate that based on the specific proposal in question, there is a potential for a direct effect upon that adjoiner's property which is attributable to the proposed project. An adjoiner who seeks party status under criterion 8 (aesthetics) must demonstrate that a potential direct effect relates to aesthetics. After review of the site plans, and after questioning the Town and its attorney, the Board has found no basis upon which to determine that any adverse visual impact may occur as a result of the Project. Accordingly, the Board concludes that the Petitioner has failed to demonstrate any potential direct effects under criterion 8. As stated above, one need not qualify as a party by right to file a request for declaratory ruling. Rather, the test requires that in order to have standing to file a petition for a declaratory ruling, a person must qualify as a permissive party under EBR 14(B)(1)(a). See Wesco. In this proceeding, the Petitioner has not demonstrated that the Project may affect his interest under any of the ten Act 250 criteria. The handwritten party status request, in many instances, looks like a restatement of the Act 250 criteria. While Petitioner Nemeth's party status request briefly addresses the claims of potential impact of the Project under criteria 5, 6, 7, 8, and 9, it does not state how these alleged impacts would affect his interests. Accordingly, the Board declines to find that the Petitioner has met the party status requirements under EBR 14(B)(1)(a). The Knight Estate similarly has not demonstrated that any potential impacts from the Project would affect its interest. Moreover, based on the revision of the construction access, the executrix of the Knight Estate has represented that the Knight Estate is no longer concerned that the septic system will be affected. IV. ORDER 1. Mark Nemeth has no standing to file Declaratory Ruling Request #320. 2. The Knight Estate is denied party status. 3. This matter is dismissed with prejudice. Dated at Montpelier, Vermont this 20th day of November, 1996. ENVIRONMENTAL BOARD _________________________ John T. Ewing, Chair * Steve E. Wright Arthur Gibb Rebecca Nawrath Robert G. Page, M.D. Sam Lloyd * Board Chair John Ewing abstained from the vote on the Motion to Dismiss at the June 12, 1996 hearing. Accordingly, he is signing this Dismissal Order for the Board in his capacity as Board Chair. -------------------------------------------------------------------------- Footnotes FN1. The Knight Estate withdrew its concerns over the Project once its executrix was apprised of the re-routing of the construction vehicle access road. FN2. Immediately prior to the commencement of oral argument, Board staff received a phone call from Petitioner Nemeth at the Dorset Town Offices. Petitioner indicated that due to an unforeseen event he could not be present for oral argument. Petitioner stated that he would waive his opportunity to present oral argument and requested that the Board consider his previously filed written memoranda in the context of its deliberation on the Town's Motion to Dismiss. FN3. In fact, the Petitioner has stated in his "Response to Royalton's Objection to Party Status" that the portion of the development which was in all actuality the major item at issue in this action, was the Fay driveway which had initially been slated as the construction vehicle access. The rear portion of the Fay property is quite distant from the Petitioner's residence. See Petitioner's May 23, 1996 Memorandum at Section B.1.