RE: David Enman (St.George Property), Declaratory Ruling #326, Findings of Fact, Conclusions of Law, and Order (Dec. 23, 1996) VERMONT ENVIRONMENTAL BOARD 10 V.S.A. §§ 6001-6092 Re: David Enman (St. George Property) Declaratory Ruling #326 FINDINGS OF FACT, CONCLUSIONS OF LAW, AND ORDER This decision pertains to a petition for declaratory ruling regarding whether, pursuant to 10 V.S.A. §§ 6001-6092 ("Act 250"), the construction of a 1000 foot driveway to serve a single 70.3 acre residential lot and house requires an Act 250 permit. As explained below, the Board concludes that the driveway is not a substantial change to a pre-existing development or subdivision, but is a substantial and material change to two existing permitted projects and, accordingly, requires an Act 250 permit. I. BACKGROUND On June 7, 1996, the District #4 Coordinator issued a jurisdictional opinion ("Opinion") which concluded that the construction of a 1,000 foot driveway to serve a single residential lot and house on a 70.3 acre tract ("Project") in Hinesburg requires a permit pursuant to Act 250. On June 26, 1996, David and Sandra Enman ("Petitioners") appealed from the Opinion and filed a petition for a declaratory ruling ("Petition"). The Petitioners contend that the Project does not require an Act 250 permit. On August 13, 1996, Environmental Board Chair John T. Ewing convened a prehearing conference and, on September 3, 1996, issued a Prehearing Conference Report and Order ("Prehearing Order"). During September and October, 1996, the parties filed prefiled testimony and exhibits, evidentiary objections, cross-examination time estimates, and proposed findings of fact, conclusions of law, and order. On October 29, 1996, the Chair convened a second prehearing conference. On October 30, 1996, the Board convened an evidentiary hearing in Hinesburg, Vermont, Chair John T. Ewing presiding. The following parties participated in the hearing: David and Sandra Enman by Robert Rushford, Esq. George Young and Eileen Burgin Larry Walker St. George Estates Homeowner Association by Michael Felber and Philip Goodman At the hearing's conclusion, the Board recessed this proceeding pending deliberation and issuance of this decision. The Board deliberated on October 30 and December 18, 1996. On December 18, 1996, 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 have been considered and are denied. See Petition of Village of Hardwick Electric Department, 143 Vt. 437, 445 (1983). II. OFFICIAL NOTICE The Project Tract adjoins, in part, two tracts of land which are subject to Act 250 jurisdiction. The first tract is subject to Land Use Permit #4C0426 issued to Joseph and Laura Dandurand on June 16, 1981 by the District #4 Commission ("Commission"), and amendments #4C0426-1 issued on May 12, 1982; #4C0426-2 issued on October 16, 1984; #4C0426-3 issued on October 14, 1985; and #4C0426-4 issued on January 23, 1986 (collectively the "4C0426 Permits"). The second tract is subject to Land Use Permit #4C0853 issued to David M. Enman on September 18, 1990 by the Commission, and amendment #4C0853-1 issued on September 30, 1994 (collectively the "4C0853 Permits"). The Prehearing Order took official notice of the 4C0426 Permits and the 4C0853 Permits, including the respective application, plans, and exhibits. No party objected to the Prehearing Order. As a result, official notice has been taken as provided in the Prehearing Order. III. ISSUES As stated in the Prehearing Order, the issues are: 1. Whether, pursuant to 10 V.S.A. § 6081(a) and (b), and Environmental Board Rule ("EBR") 2(A)(5), 2(A)(6), 2(B), 2(G), 2(N) and 2(O), the Project is a substantial change to a pre-existing development or subdivision such that the Project requires an Act 250 permit. 2. Whether, pursuant to EBR 2(A)(5), 2(B), 2(G), 2(P) and 34(A), the Project is a material or substantial change to the 4C0426 Permits, the 4C0853 Permits, or the projects authorized therein. 3. Whether, pursuant to EBR 10(A), the Petitioners were required to have been a co-applicant with Joseph and Laura Dandurand for any of the 4C0426 Permits and, if so, is the Board estopped from requiring the Petitioners to obtain an Act 250 permit for the Project notwithstanding an affirmative conclusion that the Project requires an Act 250 permit. IV. FINDINGS OF FACT 1. The Project consists of the construction of a driveway 1,000 feet in length and 12 feet in width ("Driveway") to serve a single residential lot and house on a 70.3 acre tract ("Project Tract") in Hinesburg. The Project Tract is owned by the Petitioners. Currently, the Project Tract is not subject to Act 250 jurisdiction. 2. The Project Tract is undeveloped and devoid of any constructed structures. The Project Tract has existed as an unsubdivided single tract of land since at least July 15, 1950. The only improvements to the Project Tract are a series of logging roads which pre-date the enactment of Act 250. To the extent that the logging roads have been used for egress and ingress to the Project Tract, such use has not been incident to a residence. 3. The 4C0853 Permits authorize the creation of a 4-lot residential subdivision by the Petitioners ("Enman-St. George Parcel"). The lots are numbered lot #1, lot #2, lot #3A, and lot #3B ("Lot #3B"). The Commission issued Land Use Permit #4C0853 on September 18, 1990, and amendment #4C0853-1 on September 30, 1994. 4. The Petitioners acquired the Enman-St. George Parcel by a conveyance which was separate from their purchase of the Project Tract. The Enman-St. George Parcel is in the Town of St. George. Lot #3B in the Enman-St. George Parcel adjoins a portion of the Project Tract's northern boundary. Lot #3B is the only lot in the Enman-St. George Parcel that adjoins the Project Tract. The Petitioners conveyed Lot #3B to Lisa Nicholson and she is its current owner. 5. The 4C0426 Permits authorize the creation of a residential subdivision known as The Forest in St. George ("Forest Subdivision"). The Forest Subdivision is located in the Town of St. George east of Route 116. The Commission issued Land Use Permit #4C0426 on June 16, 1981; amendment #4C0426-1 on May 12, 1982; amendment #4C0426-2 on October 16, 1984; amendment #4C0426-3 on October 14, 1985; and amendment #4C0426-4 on January 23, 1986. All of the 4C0426 Permits were applied for and issued to Joseph and Laura Dandurand. The Dandurands filed their application for amendment #4C0426-4 on November 22, 1985. 6. At the time of the application for Land Use Permit #4C0426, the Dandurands sought approval for construction on 21 lots. Land Use Permit 4C0426 only authorizes the creation of 10 lots: 9 lots for single family dwellings and 1 wooded lot with no construction. The numbers assigned to the 10 authorized lots are not consecutive such that there are lots known as lot #20 and lot #21 notwithstanding that there are less than 21 single family dwellings in the Forest Subdivision. At present, there are 12 houses located in the Forest Subdivision as authorized by the 4C0426 Permits. 7. Young/Burgin own lot #20 ("Lot #20") in the Forest Subdivision. A portion of Lot #20's eastern boundary adjoins a portion of Lot #3B s western boundary. A portion of Lot #20's southern boundary adjoins a portion of the Project Tract'snorthern boundary. 8. Lot #20's western boundary adjoins the eastern boundary of lot #21 ("Lot #21") in the Forest Subdivision. Larry Walker owns Lot #21. Lot #21's southern boundary does not adjoin the Project Tract; instead, it adjoins land now or formerly owned by James P. & Maureen P. Woodnorth, as recorded in Volume 90, Page 301 of the Town of Hinesburg Land Records. 9. The Driveway will, in part, traverse the right-of-way established in the warranty deed from Anson W. Peet and Jane M. Peet to Daniel D. Davis, dated December 6, 1965, and recorded at Volume 6, Page 108 of the Town of St. George Land Records. The warranty deed provides, in part: This conveyance is made subject to a right of way over the land herein conveyed for the purpose of ingress and egress to and from the remaining lands owned by us, and to and from the property of Johnson Lumber Company, Harold Clifford and Bessie Ward, reserved for us, our heris (sic) and assigns, and for said Johnson Lumber Company, Harold Clifford and Bessie Ward, their heirs, successors and assigns. At present there is a roadway on the land herein conveyed being used by us and said Johnson Lumber Company, Harold Clifford and Bessie Ward for said purpose. If and when the within grantee, said Daniel D. Davis, his heirs or assigns, establishes a new roadway on said land providing adequate access to and from our remaining lands and the property of said Johnson Lumber Company, Harold Clifford and Bessie Ward, it shall be used in lieu of the present roadway, and rights over any other portion of the within conveyed land shall terminate. 10. The use of the logging road predated the Peets-to-Davis warranty deed. The right-of-way primarily follows the centerline of the logging road across the lands of the Forest Subdivision. Where the logging road crosses the Enman-St. George Parcel, it takes several zig-zags which the Driveway will not follow. Instead, the Driveway will take a more direct course over Lot #3B. 11. The Peets-to-Davis warranty deed conveyed the lands which would eventually be developed as the St. George Estates residential subdivision ("Estates Subdivision") and the Forest Subdivision. 12. The right-of-way described in the Peets-to-Davis warranty deed was reserved over the lands of the Estates Subdivision and the Forest Subdivision for the benefit of the Peets remaining lands and the lands of Harold Clifford. At the time of the conveyance, the Peets also owned the land that is now known as the Enman-St. George Parcel such that the right-of-way was also for the benefit of the Enman-St. George Parcel. 13. Because the right-of-way was reserved for the heirs and assigns of the Peets and Harold Clifford, and because the Petitioners are the assigns of Harold Clifford, the Petitioners have a right-of-way over the lands of the Estates Subdivision and the Forest Subdivision until such time as adequate alternative roadway access is provided by Daniel D. Davis, or his heirs and assigns. 14. Harold Clifford owned the Project Tract at the time the Peets reserved the right-of-way in the December 6, 1965 warranty deed to Daniel D. Davis. Harold Clifford conveyed the Project Tract to George Dutil by warranty deed dated February 2, 1977, and recorded at volume 40, page 49, of the Town of Hinesburg Land Records. 15. George Dutil conveyed the Project Tract to the Petitioners by warranty deed dated January 8, 1986, and recorded at volume 56, page 656 of the Town of Hinesburg Land Records. 16. The Peets conveyed the Enman-St. George Parcel to Raymond Pecor, Jr. and David Boardman by warranty deed dated December 4, 1967, and recorded at volume 7, page 100 of the Town of St. George Land Records. 17. Boardman and Pecor conveyed the Enman-St. George Parcel to Champlain College by warranty deed dated September 6, 1983, and recorded in volume 11, page 227 of the Town of St. George Land Records. 18. Champlain College conveyed the Enman-St. George Parcel to the Petitioners by warranty deed dated January 14, 1985, and recorded at volume 11, page 478 of the Town of St. George Land Records. 19. On January 24, 1980, Joseph and Laura Dandurand applied for Land Use Permit #4C0426. At the time of the application, the owners of the right-of-way were Pecor and Boardman as owners of the Enman-St. George Parcel, and George Dutil as the owner of the Project Tract. The application for Land Use Permit #4C0426 disclosed the existence of the right-of-way and included a list of adjoining property owners which included Dutil, and Pecor and Boardman. 20. On January 24, 1980, the Commission's coordinator issued Act 250 Notice Application and Hearing 10 VSA, § 6083-6088. Dutil, and Pecor and Boardman were mailed a copy of this notice. 21. On February 11, 1980, Boardman filed a letter with the Commission regarding the application for Land Use Permit #4C0426. The letter states, in part: As adjoining property owners to Mr. Dandurand, Mr. Pecor and myself would like to express our concern for the application to the [Commission] for this development. We have no objection to the [Forest Subdivision] per se, but we do have an undefined right-of-way through his property to our 100 acres on the [e]ast side of his property. There appears to be no consideration for this right-of-way and it appears that if this development goes through as planned that our land would become landlocked. I would suggest to the Commission that he make provisions for a specific area of right-of-way in his plan. 21. On February 27, 1980, the Commission issued a decision which denied party status to Pecor and Boardman. The February 27, 1980 decision states, in part: On February 8, 1980, the District Environmental Commission received a request for party status from adjoining landowner David M. Boardman for Raymond Pecor and for himself as partners owning a 100 acre tract of land east of the proposed development. The request stated concerns about their right to continued access through the proposed project across an undefined right-of-way. FINDINGS OF FACT (1) The request for party status, in the form of a letter dated February 8, 1980, was received by the District Commission prior to the first hearing held on February 19, 1980. (2) The request does not specifically state how the proposed subdivision will have a direct effect on the Boardman-Pecor property under the 10 criteria of Act 250. (Section 6086(a)(1) through (a)(10) of Title 10.) (3) The request states that access may be effectively cut off unless a specific right-of-way is defined across the applicants property to the Boardman-Pecor property. (4) The commission finds that the concern about maintaining a right-of-way through the property does not fall within the jurisdiction of Act 250. None of the 10 criteria of § 6086(b) address such an issue. CONCLUSION OF LAW Based upon the foregoing Findings of Fact, it is the conclusion of this District Environmental Commission that the concerns of the Boardman-Pecor partnership are not within the scope of the Act. Participation as a party under Section 6085(c) of Title 10 must be limited to a direct effect under the 10 criteria. 23. Boardman and Pecor did not appeal from the Commission's denial of party status. There is no evidence that Boardman and Pecor requested that they be made co-applicants with Joseph and Laura Dandurand for Land Use Permit #4C0426. Boardman and Pecor are not co-applicants for any of the 4C0426 Permits. 24. There is no evidence that Dutil requested party status or participated in the Commission's proceeding regarding the application for Land Use Permit #4C0426, or that he requested to be made a co-applicant with Joseph and Laura Dandurand for Land Use Permit #4C0426. Dutil is not a co-applicant for any of the 4C0426 Permits. 25. The Commission completed its review of the applications for the 4C0426 Permits without Dutil, or Boardman and Pecor, or their respective successors in interest, being made co-applicants with the Dandurands. 26. The Enman-St. George Parcel, and the four lots located thereon, are not landlocked such that there is a means of egress and ingress to the four lots. 27. The area encompassing the Project Tract, Enman-St. George Parcel, and Forest Subdivision lies on the west side of a ridge. The area consists of a series of flat terraces separated by steep slopes and ledges which are vegetated with trees and underlying brush. This topography limits the number of locations in which one can easily access the higher levels. 28. The Driveway will extend off of a cul-de-sac at the end of what is known as Forest Drive. Forest Drive is also known as Dandurand Drive. Forest Drive is approximately 0.8 miles in length and serves the Forest Subdivision. Forest Drive connects with Route 116 via a 0.2 mile stretch of road which traverses through the Estates Subdivision. 29. The Driveway will go from the cul-de-sac southerly across Lot #21, turn easterly across Lot #20 and Lot #3B, and then turn southerly from Lot #3B into the Project Tract. The portion of the Driveway that passes from the cul-de-sac to the east edge of Lot #20 is over 600 feet. The Driveway's centerline would pass within 100 feet of the residence located on Lot #20. 30. The Driveway will have a 12 foot width throughout. The Driveway s construction necessitates the use of heavy equipment for earth moving, and vegetation removal on steep slopes. The placement of gravel and a culvert is necessary to control water flow. The potential exists for this activity to create soil erosion. 31. The existing logging roads that will be part of the Driveway have unimproved dirt surfaces which have eroded in various places due to rainfall and runoff. The Driveway's surface area will change from dirt to gravel along its entire length. The gravel is intended to prevent erosion along the course of the Driveway. In one place that has become muddy from a seasonal drainage way, a culvert will be installed to direct water under the Driveway to provide drainage and thereby further reduce erosion. Ditching will be constructed to direct surface water runoff into the culvert such that there will be a change in the direction of surface water runoff over existing conditions. The Driveway may require a second culvert at another location. 32. Land Use Permit #4C0426 provides in condition #1: The project shall be completed as set forth in Findings of Fact and Conclusions of Law #4C0426, in accordance with the plans and exhibits stamped Approved and on file with the District Environmental Commission, and in accordance with the conditions of this permit. No changes shall be made in the project without the written approval of the District Environmental Commission. 33. Land Use Permits #4C0426-1, #4C0426-2, #4C0426-3, and #4C0426-4 incorporate by reference condition #1 of Land Use Permit #4C0426. 34. Although some exhibits for the 4C0426 Permits depict a 50' right-of-way in the vicinity of the Lot #20 and Lot #21 property line, these exhibits do not show any actual or proposed improvements to the right-of-way, nor is the Driveway depicted on any of the plans and exhibits which are part of the 4C0426 Permits. The 4C0426 Permits do not authorize the Project, including the Driveway. 35. Land Use Permit #4C0426-3 issued to Joseph and Laura Dandurand on October 14, 1985, authorizes the reconfiguration of the boundary lines for Lot #20 and Lot #21, and the relocation of the sewage disposal area for Lot #21, all as previously authorized in the 4C0426 Permits issued prior to the issuance of Land Use Permit #4C0426-3. 36. Land Use Permit #4C0426-3 provides, in part, at condition #2: [Lot #21] is approved for the on-site subsurface disposal of wastewater within the soil boring and percolation testing area indicated on the certified plans. No buildings, roads, water lines, or other construction that might interfere with the installation or operation of the sewage disposal field is permitted on or near the continuous area. 37. The Driveway's construction might interfere with the operation of the sewage disposal leach field on Lot #21. Where the Driveway crosses over Lot #21, it will either cross over or come within 25 feet of the leach field, and it will cross over the septic pipe that connects Lot #21's septic tank to the leach field. The Driveway's construction and its future use has the potential to interfere with the proper functioning of the leach field and septic pipe, including the possibility of a break in the septic pipe which could result in a sewage discharge to the environment. 38. Land Use Permit #4C0853 issued to the Petitioners authorizes the subdivision of the Enman-St. George Parcel into three lots, and the upgrade and minor relocation of an existing access driveway off Dandurand Drive through an existing easement in the Forest Subdivision to serve the lots. Condition #1 of Land Use Permit #4C0853 provides: The project shall be completed, operated and maintained as set forth in accordance with the plans and exhibits stamped Approved and on file with the District Environmental Commission, and in accordance with the conditions of this permit. No changes shall be made in the project without the written approval of the District Environmental Commission. 39. Land Use Permit #4C0853 does not authorize, nor do any of the exhibits depict, the Project, including the Driveway. 40. Land Use Permit #4C0853-1 authorizes the subdivision of lot #3 into lots #3A and #3B. Condition #1 of Land Use Permit #4C0853-1 provides that [a]ll conditions of Land Use Permit #4C0853 is (sic) in full force and effect except as amended herein. Condition #2 provides: The project shall be completed, operated and maintained as set forth in accordance with the plans and exhibits stamped Approved and on file with the District Environmental Commission, and in accordance with the conditions of this permit. No changes shall be made in the project without the written approval of the District Environmental Commission. 41. A right-of-way is depicted on Exhibit #11 of Land Use Permit #4C0853-1. As depicted, the right-of-way is at the southern end of Lot #3B, connects Lot #20 with Lot #3B, but does not connect Lot #3B with the Project Tract since, at that time, Lot #3B's southern boundary was not completely adjoining to the Project Tract. Exhibit #11 does not depict any improvements to the right-of-way, nor does Land Use Permit #4C0853-1 authorize the Project, including the Driveway. V. CONCLUSIONS OF LAW A. Burden of Proof Pursuant to 10 V.S.A. § 6007(c) and EBR 3(D), a petition for declaratory ruling is conducted de novo to determine the applicability of any statutory provision or of any rule or order of the Board. Although it may come to the Board as an appeal of a jurisdictional opinion, the issue in a declaratory ruling proceeding is not whether a jurisdictional opinion, or any part thereof, is correct. Thus, facts stated or conclusions drawn are not considered by the Board. Provided a petition is timely filed, the only issue is the applicability of any statutory provision or of any rule or order of the Board over the project described in the jurisdictional opinion. The burden of proof to show that a project is exempt from Act 250 is on the person claiming the exemption. Re: Weston Island Ventures, Declaratory Ruling #169 at 5 (June 3, 1985), citing Bluto v. Employment Security, 135 Vt. 205 (1977). The burden of proof consists of the burdens of production and persuasion. Re: John Gross Sand and Gravel, Declaratory Ruling #280 at 9 (July 28, 1993); Re: Pratt's Propane, Findings of Fact, Conclusions of Law and Order #3R0486-EB at 4-6 (Jan. 27, 1987). B. Issue #1: Substantial change to a pre-existing development or subdivision The first issue in this Petition requires the Board to determine whether the Project is a substantial change to either a pre-existing development or subdivision. Before the Board determines whether the Project is a substantial change, it must first ascertain whether there is either a pre-existing development or subdivision on the Project Tract. If there is neither, then the Board has no basis to determine whether the Project is a substantial change to a pre-existing development or subdivision. i. Development Act 250 requires that a land use permit be obtained prior to commencing construction on a development. 10 V.S.A. § 6081(a). Development is defined, in part, as a commercial project located on a tract of land of more than one or ten acres, depending on whether the town has permanent zoning and subdivision bylaws. 10 V.S.A. § 6001(3). The requirement to obtain a permit does not apply to a development which is not also a subdivision, which has been commenced prior to June 1, 1970, if the construction will be completed by March 1, 1971. 10 V.S.A. § 6081(b). EBR 2(A)(5) provides in relevant part that a project is a development if it consists of "[a]ny construction of improvements which will be a substantial change of a pre-existing development . . ."(FN1) EBR 2(A)(6) provides in relevant part that a project is a development if it consists of the construction of improvements for a road or roads to provide access to more than five parcels or is 800 feet in length. In Re: Allen Petrie, Declaratory Ruling #130 (Feb. 25, 1982), the Board concluded that where a right-of-way serves only one lot, it is a driveway and not a road. Accord Re: R. Brownson Spencer II, #1R0576-1-EB, Findings of Fact, Conclusions of Law, and Order at 4 (March 10, 1987).(FN2) EBR 2(0) states: Pre-existing development shall mean any development in existence on June 1, 1970, and any development which was commenced before June 1, 1970 and completed by March 1, 1971. Based on the findings of fact made herein, there is no pre-existing development on the Project Tract since the Project Tract is devoid of any development as defined by Act 250. Therefore, the Board concludes that the Project cannot be, and is not, a substantial change to a pre-existing development. ii. Subdivision Under 10 V.S.A. § 6081(a), an Act 250 permit is required prior to the sale or offer for sale of any interest in, or commencement of construction on, a subdivision. When Act 250 went into effect on June 1, 1970, the term subdivision was defined as follows: [A] tract or tracts of land, owned or controlled by a person, which have been 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, and within any continuous period of 10 years after the effective date of this act. In determining the number of lots, a lot shall be counted if any portion is within 5 miles. 1970 Vt. Laws No. 250 §2(9) (Adj. Sess.). As of June 1, 1970, Act 250 defined the term lot to exclude lots which were ten or more acres in size. The definition read as follows: Lot means any undivided interest in land of less than 10 acres, whether freehold or leasehold, including, but not limited to, interests created by trusts, partnerships, corporations, cotenancies and contracts. Id. at § 2(6). This definition was amended in 1984 to delete the phrase regarding ten acres, so that lot size is no longer relevant to determining Act 250 jurisdiction over a subdivision. See 10 V.S.A. § 6001(11); 1984 Vt. Laws No. 114 § 1 (Adj. Sess.).(FN3) In passing Act 250, the Legislature also provided an exemption for so-called pre-existing subdivisions. See 10 V.S.A. § 6081(b) and EBR 2(N). Concerning pre-existing subdivisions, 10 V.S.A. § 6081(b) provides that a permit is required for a substantial change to any such pre-existing subdivision. Before there can be a substantial change to a pre-existing subdivision, the Board must conclude that there is a subdivision which existed on June 1, 1970. Based on the findings of fact made herein, there is no subdivision on the Project Tract which existed on June 1, 1970, under either the current definitions or those in effect in 1970. The Project Tract has existed as an unsubdivided single tract of land since at least July 15, 1950. Therefore, the Board concludes that the Project cannot be, and is not, a substantial change to a pre-existing subdivision. C. Issue #2: Substantial or Material Change to the 4C0426 Permits or 4C0853 Permits The second issue requires the Board to determine whether the Project is a substantial or material change to the 4C0426 Permits, the 4C0853 Permits, or the projects authorized therein. Under EBR 34(A), an Act 250 permit amendment is required for any material or substantial change in a permitted project. Official notice has been taken of the 4C0426 Permits and the 4C0853 Permits, including the permits respective application, plans, and exhibits.(FN4) i. 4C0426 Permits The 4C0426 Permits authorize the Forest Subdivision. Young/Burgin and Mr. Walker live in the Forest Subdivision at, respectively, Lots #20 and #21. a. 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 10 Act 250 criteria. The Board's substantial change test involves a two-step analysis. First, there must be a cognizable change to the project. A cognizable change is a physical change. See Re: Village of Ludlow, Declaratory Ruling #212 (Jan. 30, 1990); Re: L.W. Haynes, Inc., Declaratory Ruling #192 (Oct. 7, 1987). Second, the change must have the potential for significant impacts under one or more of the ten Act 250 criteria. The Board's test has been upheld by the Vermont Supreme Court. In re Barlow, 160 Vt. 513 (1993); In re Manosh Corp., 147 Vt. 367, 369 (1986); In re Orzel, 145 Vt. 355, 360-361 (1985). Based on the findings of fact made herein, the Driveway portion of the Project will be a cognizable change to Lots #20 and #21 as authorized by the 4C0426 Permits. The Driveway is not depicted or authorized by any of the 4C0426 Permits. Of the Driveway's 1000 foot length, 600 feet will be over Lot #20 and #21, and the Driveway's construction will result in earth moving and vegetation removal to achieve a width of 12 feet throughout. The Driveway's surface area will change from dirt to gravel, and a culvert will be installed which will change the direction of surface water runoff. The Driveway portion of the Project constitutes a cognizable change. Having found the Driveway to be a cognizable change, the Board concludes that the Driveway has the potential for significant impacts under 10 V.S.A. §§ 6086(a)(1)(B)(waste disposal); (4)(soil erosion); and 8 (aesthetics). With regard to waste disposal, the Driveway's construction might interfere with the operation of the sewage disposal leach field on Lot #21. Where the Driveway crosses over Lot #21, it will either cross over or come within 25 feet of the leach field, and it will cross over the septic pipe that connects Lot #21's septic tank to the leach field. The Driveway s construction and its future use has the potential to interfere with the proper functioning of the leach field and septic pipe, including the possibility of a break in the septic pipe which could result in a sewage discharge to the environment. Based on these findings of fact, the Board concludes that the Driveway has the potential for significant impacts under Criterion 1(B). With regard to soil erosion, the potential for significant impacts exists because the Driveway is to be constructed on steep slopes, earth moving equipment will be used, and vegetation will be removed. Moreover, the potential for significant impacts is evidenced by the improvements that are part of the Driveway's proposed construction. The gravel is to prevent erosion along the course of the Driveway. In one place that has become muddy from a seasonal drainage way, a culvert will be installed to direct water under the Driveway to provide drainage and thereby further reduce erosion. As part of this construction, ditching will be constructed to direct surface water runoff into the culvert. A second culvert may be needed in another location. Based on these findings of fact, the Board concludes that the Driveway has the potential for significant impacts under Criterion 4. With regard to aesthetics, the Driveway is to be 1000 feet in length and 12 feet in width. Vegetation will be removed to maintain the Driveway. This will occur within the context of an area made up of flat terraces separated by steep slopes and ledges which are vegetated with trees and underlying brush. Of the Driveway's 1000 foot length, 600 feet of it will cross over Lots #20 and #21, and the Driveway's centerline will pass within 100 feet of the residence located on Lot #20. Based on these findings of fact, the Board concludes that the Driveway has the potential for significant impacts under Criterion 8. Accordingly, the Driveway portion of the Project constitutes a substantial change to Lots #20 and #21 as authorized by the 4C0426 Permits, and an Act 250 permit is required prior to the commencement of the Driveway s construction in the Forest Subdivision. b. material change EBR 2(P) defines Material change as an alteration to a project which has a significant impact on any finding, conclusion, term or condition of the project's permit and which affects one or more values sought to be protected by the Act. The Board's material change test involves a two-step analysis. Re: City of Barre Sludge Management Program, Declaratory Ruling #284, (Oct 7, 1994); Re: Robert Blair and CS Architecture, Declaratory Ruling #241 (April 29, 1992). First, the Board must find that an alteration has taken place or will take place. This alteration may be either a physical change or a change in use. Re: Mount Mansfield Co., Inc., Declaratory Ruling #269 (July 22, 1992); Re: Town of Sunderland, Declaratory Ruling #200 at 10 (June 24, 1988). Second, the Board must find that the alteration has a significant impact on any finding, conclusion, term or condition of the project's permit and that the alteration affects one or more of the values Act 250 protects. First, as discussed above under substantial change, the Board has concluded that the Driveway constitutes a cognizable change to Lots #20 and #21 as authorized by the 4C0426 Permits. Second, the Driveway will have a significant impact on condition #1 of Land Use Permit #4C0426 since the Driveway was not reviewed as part of the application for any of the 4C0426 Permits, and is not depicted in any of the exhibits which are part of the 4C0426 Permits. The Driveway will have a significant impact on condition #2 of Land Use Permit #4C0426-3 since this condition provides, in part, that no roads or other construction that might interfere with the operation of the sewage disposal field is permitted. Finally, the Driveway will affect the values protected under Criteria 1(B), 4, and 8, as discussed above. Accordingly, the Driveway constitutes a material change to Lots #20 and #21 of the Forest Subdivision as authorized by the 4C0426 Permits, and an Act 250 permit is required prior to the commencement of the Driveway s construction in the Forest Subdivision. ii. 4C0853 Permits The 4C0853 Permits authorize the creation of the 4 lot subdivision located on the Enman-St. George Parcel. The Driveway will traverse over Lot #3B which is now owned by Lisa Nicholson. a. substantial change Based on the findings of fact made herein, the Driveway will be a cognizable change to Lot #3B in the Enman-St. George Parcel for the same reasons that the Driveway is a cognizable change to Lots #20 and #21 in the Forest Subdivision. Further, the Driveway has the potential for significant impacts under Criteria 4 and 8 for the reasons discussed relative to Lots #20 and #21 relative to the portion of the Driveway which will cross over Lot #3B within the Enman-St. George Parcel. Accordingly, the Driveway constitutes a substantial change to Lot #3B of the Enman-St. George Parcel as authorized by the 4C0853 Permits, and an Act 250 permit is required prior to the commencement of the Driveway s construction on Lot #3B. b. material change Based on the findings of fact made herein, and as discussed above under substantial change, the Board has concluded that the Driveway constitutes a cognizable change to Lot #3B as authorized by the 4C0853 Permits. Second, the Driveway will have a significant impact on condition #1 of Land Use Permit #4C0853 and condition #2 of Land Use Permit #4C0853-1, and will affect the values protected under Criteria 4 and 8 for the reasons discussed above relative to Lots #20 and #21. Accordingly, the Driveway constitutes a material change to Lot #3B of the Enman-St. George Parcel as authorized by the 4C0853 Permits, and an Act 250 permit is required prior to the commencement of the Driveway s construction on Lot #3B. D. Issue #3: Co-applicancy As provided in the Prehearing Order, the third issue is whether, pursuant to EBR 10(A), the Petitioners were required to have been a co-applicant with Joseph and Laura Dandurand for any of the 4C0426 Permits and, if so, is the Board estopped from requiring the Petitioners to obtain an Act 250 permit for the Project notwithstanding the conclusion that the Project requires an Act 250 permit. EBR 10(A) provides, in part: An application shall be signed by the applicant and any co-applicant, or an officer or duly-appointed agent thereof. The record owner(s) of the tract(s) of involved land shall be the applicant(s) or co-applicant(s) unless good cause is shown to support waiver of this requirement. . . . The application shall list the name or names of all persons who have a substantial property interest, such as through title, lease, purchase or lease option, right-of-way or easement, in the tract or tracts of involved land by reason of ownership or control and shall describe the extent of their interests. The district commission or board may, upon its own motion or upon the motion of a party, find that the property interest of any such person is of such significance that the application cannot be accepted or the review cannot be completed without their participation as co-applicants. EBR 10(A) requires that the record owner of the tract of involved land be a co-applicant unless good cause is shown for a waiver of the requirement. It empowers the commissions and Board to require persons having a substantial property interest in the involved land to become co-applicants on a finding that the property interest is of such significance that the application cannot be accepted without their participation. Requiring a person to be a co-applicant is at the discretion of the commissions and the Board. In re Pilgrim Partnership, 153 Vt. 594, 595 (1990)(Board acted within its discretion to order that a party be made a co-applicant). At the time that Joseph and Laura Dandurand applied for Land Use Permit #4C0426, George Dutil owned the Project Tract. The application for Land Use Permit #4C0426 disclosed the existence of the right-of-way over which the Driveway is now proposed, and identified Dutil as an adjoining landowner. If anyone could have been required to be a co-applicant, it would have been Dutil and not the Petitioners. Further, when the Dandurands applied for all of the 4C0426 Permits, the Petitioners had no property interest in the Project Tract. There was and is no basis for the Petitioners to have been co-applicants with the Dandurands for any of the 4C0426 Permits. The Board also concludes that whether Dutil was required to have been a co-applicant was a decision that needed to be, and, in effect, was first made by the Commission at the time of the applications for the 4C0426 Permits. In re Juster Associates, 136 Vt. 577, 581 (1978)(initial consideration of a land use proposal is a function assigned by the Legislature to the district commissions). There is no evidence that Dutil requested that he be made a co-applicant, nor did the Commission on its own motion require that Dutil (or Boardman and Pecor) participate or become co-applicants for any of the 4C0426 Permits. In fact, the Commission completed its review of the applications for the 4C0426 Permits without Dutil, or Boardman and Pecor, or their respective successors in interest, being made co-applicants with the Dandurands. Even if the Commission erred by not making Dutil a co-applicant, this error should have been raised within 30 days of the issuance of the respective 4C0426 Permits. See 10 V.S.A. § 6089; In re Taft Corners Associates, Inc., 160 Vt. 583, 593 (1993)(permit is final decision unless appealed within thirty days of issuance). There having been no appeal, the findings, conclusions and 4C0426 Permits are final, and are not subject to attack in a subsequent proceeding regardless of whether they were properly granted in the first instance since [t]o hold otherwise would severely undermine the orderly governance of development and would upset reasonable reliance on the process. Id. The fact that Dutil is not a co-applicant on any of the 4C0426 Permits has no bearing on whether the Project is a substantial or material change to the 4C0426 Permits or the 4C0853 Permits. The Petitioners contend that the purpose of EBR 10(A) is to satisfy due process requirements of providing landowners with notice and opportunity for a hearing. The Board disagrees. The purpose of EBR 10(A) is to ensure the enforceability of permit provisions by requiring the record owners of involved land to sign the application. Re: Tanger, #3W0125-3-EB, Memorandum of Decision at 2 (Aug. 29, 1989); Re: Flanders Building Supply, Inc., #4C0634-EB, Findings of Fact, Conclusion of Law and Order at 5 (Oct. 18, 1985) (the enforceability of a permit must not depend upon the ability of the permit holder to secure the consent of another landowner). Rather, the issue of notice is addressed under EBR 10(E) and (F). Nevertheless, the substance of the Petitioner's contention is that because neither the Petitioners nor their predecessors in title were co-applicants for the 4C0426 Permits, they did not consent to the assertion of Act 250 jurisdiction over the right-of-way described in the Peets-to-Davis December 6, 1965 conveyance. The Petitioners also contend that the denial of party status to Boardman and Pecor in the application proceeding for Land Use Permit #4C0426 supports the contention that they did not consent to Act 250 jurisdiction over the right-of-way which benefits both the Enman-St. George Parcel and the Project Tract via the Forest Subdivision. The Board disagrees that the right-of-way is not subject to the 4C0426 Permits. The application for Land Use Permit #4C0426 disclosed the existence of the right-of-way and identified Dutil, and Boardman and Pecor as adjoining property owners. Dutil and Boardman and Pecor were notified of the application for Land Use Permit #4C0426. Dutil did not seek to participate. While Boardman and Pecor requested party status, the Commission denied the request. Regardless of whether the Commission acted properly, Boardman and Pecor did not appeal from the Commission's denial of party status such that Land Use Permit #4C0426 is final, as are all of the other 4C0426 Permits. Taft Corners, supra. Pursuant to 10 V.S.A. § 6090 and EBR 32(B) and 33, the 4C0426 Permits run with the land, and such land, including the use thereof, is subject to these permits such that any substantial or material change requires an Act 250 permit amendment. See Barlow, 160 Vt. at 520. Moreover, Boardman and Pecor did not object to the Forest Subdivision; rather, their party status request was made to prevent the Enman-St. George Parcel (owned by them at that time) from becoming landlocked. Since the Enman-St. George Parcel is not landlocked, Land Use Permit #4C0426 did not adversely affect Boardman and Pecor's interest. The fact that Boardman and Pecor are not co-applicants on the 4C0426 Permits has no bearing on whether the Project is a substantial or material change to the 4C0426 Permits or the 4C0853 Permits. Accordingly, the Board concludes that the Petitioners were not required to have been a co-applicant with Joseph and Laura Dandurand for any of the 4C0426 Permits and, therefore, the Board need not decide whether it is estopped from requiring the Petitioners to obtain an Act 250 permit. VI. ORDER 1. The Project is not a substantial change to a pre-existing development or subdivision. 2. The Driveway portion of the Project is a substantial and material change to the 4C0426 Permits and the 4C0853 Permits and, as such, an Act 250 permit amendment must be obtained prior to the commencement of the Driveway's construction within the Forest Subdivision and on Lot #3B in the Enman-St. George Parcel. 3. The Petitioners were not required to have been a co-applicant with Joseph and Laura Dandurand for any of the 4C0426 Permits. Dated at Montpelier, Vermont this 23rd day of December, 1996. VERMONT ENVIRONMENTAL BOARD /s/John T. Ewing John T. Ewing, Chair Art Gibb Marcy Harding Samuel Lloyd Rebecca Nawrath Steve E. Wright ---------------------------------------------------------------------------- Footnotes FN1. In 1985 the Legislature ratified the Board's rules such that they have effectively become part of the Act 250 legislative scheme codified at chapter 151 of Title 10. In re Barlow, 160 Vt. 513, 521 (1993); In re Spencer, 152 Vt. 330, 336 (1989). FN2. If the Project included the subdivision of the Project Tract into two or more lots, then EBR 2(A)(6) would apply and such a project would require an Act 250 permit as development. However, since the Project Tract is not to be subdivided as part of the Project, the Project is not development under EBR 2(A)(6). FN3. 10 V.S.A. § 6001(19) was amended generally by 1987 Vt. Laws No. 64, § 2. The 10 lot requirement was unchanged by the 1987 amendment. EBR 2(G) was also amended to be consistent with the 1987 amendment. FN4. While the Forest Subdivision and the Enman-St. George Parcel are subject to Act 250 jurisdiction, not every change thereon requires an Act 250 permit amendment. Rather, only those changes which are substantial or material changes require a permit amendment.