Natural Resources Board District #4 Environmental Commission 111 West Street Essex Jct., Vermont 05452

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1 Natural Resources Board District #4 Environmental Commission 111 West Street Essex Jct., Vermont Brian Dunkiel, Esq. Shems, Dunkiel, Raubvogel & Saunders PLLC 91 College Street Burlington, VT RE: Jurisdictional Opinion Gardener s Supply Company, Burlington Vermont Dear Brian: This jurisdictional opinion is written pursuant to your written request dated July 17, 2009, regarding whether proposed improvements to the Depot Building at the Gardener s Supply Company ( GSC ) parcel, are subject to Act 250 jurisdiction. The facility is located at 128 Intervale Road in Burlington. I have based my determination on the research conducted by me on this request and earlier requests regarding the Intervale Center s operations and GSC s operations in the area. I have concluded that since jurisdiction applies to the parcel on which the Depot Building is located and the proposed changes may affect Criteria protected by Act 250, a land use permit will not be required for the proposed work only if specific conditions are met. Facts 1. On May 25, 2007, JO #4-207 Reconsideration 2 was issued. This Jurisdictional Opinion established that Act 250 jurisdiction was triggered on all contiguous lands owned by Rena Caulkins in 1994 by the construction of the tipping pad at Intervale Compost Products. This Jurisdictional Opinion was not appealed and became final 30 days after issuance. 2. On February 16, 2008, Jurisdictional Opinion #4-213 was issued stating that although the Natural Resources Board ( NRB ) is estopped from requiring a permit for the construction of the original GSC building, constructed on the Rena Caulkins estate after 1994, jurisdiction does attach to the parcel as claimed in JO # The opinion was not changed with subsequent reconsiderations. 3. The Depot Building is located on the GSC parcel. It was surveyed in 1988 and listed on the State Register of Historic Places by the Advisory Council on Historic Preservation in At that time it was believed to be a former railroad depot, given its proximity to the railroad tracks. Further research by historian David Blow, confirmed it as the original rest room building for UVM s Athletic Park. Athletic Park was relocated in 1904 to the Ainsworth Farm (now Centennial Field), so this building was probably built c when general upgrades were made to Athletic Park Telephone Fax

2 Page 2 of 6 4. The Parcel is located in the Burlington Intervale Archeological District which was listed on the State Register of Historic Places in October 2007 by the Vermont Advisory Council on Historic Preservation. The Burlington Intervale Archeological District is one of the most archeologically significant areas in the state and contains fourteen known archeological sites, several of which are multiple acres in extent, and thirteen additional Native American sites have been identified within the floodplain on the Colchester and Winooski side of the Winooski River. 5. ( Stray Cat ) proposes to use the location to arrange and store cut and arranged flowers. Stray Cat operates a flower-cutting farm of Vermont-hardy perennials, specialty annuals, and succession bulbs in two fields leased by Stray Cat from the Intervale Center. More than the majority of the flowers Stray Cat intends to use (at least 51%) are grown at fields in the Intervale. A portion of the flowers stored and arranged will also be grown and harvested by Stray Cat at the Depot Building location. The flowers used for design and storage at the Depot Building would most often be 100% grown on the Stray Cat Flower Farm fields (including flowers harvested at the Depot Building). Occasionally, 75% Stray Cat Farm-grown flowers combined with 25% from other growers or from the wholesale house will be used and stored there. Some maintenance of the Depot Building will be required to render it suitable for Stray Cat's proposed use. The maintenance contemplated includes: Replacing a water line in the same location; Installing an awning; Installing signage; Repainting and repairing/replacing windows; Repairing or replacing the fencing in the same location (but not the fence posts); and Installing flower cultivation beds, other plantings and tree removal and/or trimming. 6. According to the Division of Historic Preservation ( DHP ), the Depot building appears to have their original 6/6 double-hung windows in most of the openings. The symmetry of the front elevation is a character-defining feature of the building, with the two side doors flanking the central window opening. One of the site plans reviewed by DHP and labeled Exhibit 3 showed a gravel path leading to the door on the right, with the left door changed to a window. The other site plan showed the entry on the left side. According to DHP, if the existing historic windows will be repaired and retained, that s fine. The large window in the center of the front facade is a replacement unit in poor repair. If it is to be replaced, the replacement needs to be historically sensitive. 7. Based on an analysis of the area by John Crock of UVM Consulting Arcaeology Program, "Significant ground disturbance already has occurred in the general project area as a result of the construction of the Depot Building (ca. 1895), the railroad, and Intervale Road. Within the immediate project area an existing gas line and the existing waterline presently traverse the small lawn area between the Depot Building and Intervale Road. These existing trenches would have removed/disturbed most if not all significant archaeological deposits that may once have been present along these narrow trench corridors Given the possibility that burials could exist in the small area to be disturbed by the expanded trench, we recommend that the trench excavation be monitored by an archaeologist to ensure that significant archeological deposits, in this case burials, are not adversely affected by the excavation of the expanded trench. If this excavation can be accomplished using a toothless, "clean-up" bucket, that will provide the best conditions for monitoring for the presence/absence of intact deposits and burials."

3 Page 3 of 6 Issues Is an Act 250 permit required for the proposed modifications to the Depot Building? Analysis & Conclusion Act 250 jurisdiction is triggered by either development or subdivision. Act 250 defines development (10 V.S.A. 6001(3)) as: the construction of improvements on a tract or tracts of land, owned or controlled by a person, involving more than 10 acres of land within a radius of five miles of any point of any involved land, for commercial or industrial purposes. Development shall also mean the construction of improvements for commercial or industrial purposes on more than one acre of land within a municipality which has not adopted permanent zoning and subdivision bylaws. JO #4-207 Reconsideration2 established that Act 250 jurisdiction applied to all lands of the Rena Caulkins Estate by the construction of improvements and this was confirmed also for the GSC parcel by JO # In addition, material changes to jurisdictional projects also require a permit amendment, pursuant to Act 250 Rule 34(A). Act 250 Rule 3(C)(6) defines a material change is any change to a permitted development or subdivision which has a significant impact on any finding, conclusion, term or condition of the project's permit and which may result in an impact with respect to any of the criteria specified in 10 V.S.A. Section 6086(a)(1) through (a)(10). Criterion 8 states that no permit can be issued if there is an undue adverse impact on an Historic Site. 10 V.S.A. 6001(9) defines Historic site as any site, structure, district or archeological landmark which has been officially included in the National Register of Historic Places and/or the state register of historic places or which is established by testimony of the Vermont Advisory Council on Historic Preservation as being historically significant. The Depot Building is listed on the State Register of Historic Places. Therefore, potential impacts to its historic character may be considered material changes. The Burlington side of the Intervale is also listed on the State Register of Historic Places as an Archeological District. Therefore, potential impacts to the integrity of its archaeological resources may also be considered material changes. However, 10 V.S.A. 6001(3)(D)(i) exempts farming under an elevation of 2,500 feet from the definition of development as used under Act V.S.A. 6001(3) was amended in 2004 to add Section (E): When development is proposed to occur on a parcel or tract of land that is devoted to farming activity as defined subdivision 6001(22) of this section, only those portions of the parcel or tract that support the development shall be subject to regulation under this chapter. Permits issued under this chapter shall not impose conditions on other portions of the parcel or tract of land which do not support the development and that restrict or conflict with accepted agricultural practices adopted by the Secretary of Agricultural, Food and Markets. 10 V.S.A. 6001(22) defines Farming as: (A) the cultivation or other use of land for growing food, fiber, Christmas trees, maple sap, or horticultural and orchard crops; or

4 Page 4 of 6 (B) the raising, feeding or management of livestock, poultry, equines, fish or bees; or (C) the operation of greenhouses; or (D) the production of maple syrup; or (E) the on-site storage, preparation and sale of agricultural products principally produced on the farm; or (F) the on-site production of fuel or power from agricultural products or wastes produced on the farm (G) - the raising, feeding, or management of four or more equines owned or boarded by the farmer, including training, showing, and providing instruction and lessons in riding, training, and the management of equines. Farming encompasses the cultivation or other use of land for the growing of Christmas trees and horticultural crops, the operation of greenhouses, and the on-site storage, preparation, and sale of agricultural products principally produced on a farm. Richard and Marion D. Josselyn, Declaratory Ruling #333 Findings of Fact, Conclusions of Law and Order at 6 (Vt. Env. Bd. Feb 23, 1997). The majority of the products cultivated and sold by Stray Cat are produced on-the-farm and therefore, I conclude that the activities of Stray Cat Farm are considered farming. However, the Eustance decision (Env. Court Docket No Vtec) states that a proposed project's farming exemption does not divest it of jurisdiction. The exemption is for original jurisdiction as defined by development. Once jurisdiction attaches to a project subsequent changes to a permitted project must be evaluated to determine if it is a material change even if the newly-proposed activities would not themselves have triggered the permit requirements. Therefore, according to Eustance, a change which is determined to be a material change still requires a permit amendment. Furthermore since we have Act 250 jurisdiction on the parcel in question then the farming exemption does not apply. The Environmental Board has adopted a two-prong test when applying Rule 34(A): (a) whether alteration (physical change or change in use) has or will take place; and (b) whether alteration has a significant impact on any finding, conclusion, term or condition of the project's permit, and the alteration may affect one or more of the values Act 250 protects. McDonald s Corporation, #1R EB, Memorandum of Decision at 9-10 (Vt. Env. Bd. May 3, 2000); Hiddenwood Subdivision, Declaratory Ruling #378, Findings of Fact, Conclusions of Law and Order at 9-10 (Vt. Env. Bd. Jan. 12, 2000); George Stump and Joelle King, Declaratory Ruling #309 (Vt. Env. Bd. Feb. 29, 1996); City of Barre Sludge Management Program, Declaratory Ruling #284 (Vt. Env. Bd. Oct. 7, 1994); William and Tarra Ferrone, Declaratory Ruling #294 (Vt. Env. Bd. May 9, 1994); Putney Paper Company, Inc., Declaratory Ruling #305 (Vt. Env. Bd. Oct. 30, 1995). All the proposed modifications to the site (Findings of Fact #5) are physical changes. Therefore, they passes the first test of the material change analysis. The second prong of the test is whether the proposed project has a significant impact on any finding, conclusion, term or condition of the project's permit, and the alteration may affect one or more of the values Act 250 protects. Criterion 8 states that a permit cannot be issued if a proposed project has an undue effect on historic resources. Under Criterion 8, one must first determine whether the Depot building is an historic site. 10 V.S.A. 6001(g) defines: "Historic site" as any site, structure or district or archaeological landmark which has been officially included in the National Register of Historic Places and/or the state register of historic places or which is established by the testimony of the Vermont Advisory Council on Historic Preservation as being historically significant." The Depot Building is listed on the State Register of Historic Places and

5 Page 5 of 6 therefore, I conclude that the building is a historic site, pursuant to 10 V.S.A. 6086(8). In addition, the parcel is located within the Intervale Archaeological District, therefore the parcel, itself, is a historic site. In evaluating adverse effect on any finding, conclusion, term or condition of the project's permit under Criterion 8 - historic resources, it is central to determine whether a proposed project is in harmony or fits with the historic context of the site. Important guidelines in evaluating this fit include: (1) whether there will be physical destruction, damage, or alteration of those qualities which make the site historic, such as an existing structure, landscape, or setting; and (2) whether the proposed project will, have other effects on the historic structure, landscape, or setting which are incongruous or incompatible with the site's historic qualities, including, but not limited to, such effects as isolation of an historic structure from its historic setting, new property uses, or new visual, audible or atmospheric elements. The undue quality of an effect on a historic site is judged in several different ways. A positive conclusion on any one of the following guidelines can lead to a determination that an adverse effect is undue: a. The failure of an applicant to take generally available mitigating steps which a reasonable person would take to preserve the character of the historic site. b. Interference on the part of the proposed project with the ability of the public to interpret or appreciate the historic qualities of the site. c. Cumulative effects on the historic qualities of the site by the various components of a proposed project which, when taken together, are so significant that they create an unacceptable impact The Secretary of the Interior's Standards for Rehabilitation #9 (codified in 36 CFR 67) states "New additions, exterior alterations, or related new construction shall not destroy historic materials that characterize the property. The new work shall be differentiated from the old and shall be compatible with the massing, size, scale, and architectural features to protect the historic integrity of the property and its environment." Also of interest is Secretary of the Interior's Standards for Rehabilitation #2: The historic character of a property shall be retained and preserved. The removal of historic materials or alteration of features and spaces that characterize a property shall be avoided." The addition of an awning if anchored in the mortar would not be considered a significant impact on the historic character of the building. In addition, if adding signage to the building can be accomplished without a compromise on the building s historic character, then it too will not trigger the need for a permit. Lastly, the existing windows should repaired and retained following the guidelines published in the Secretary of the Interior's Preservation Brief #9: The Repair of Historic Wooden Windows "Storm windows may be installed over the existing windows to improve their efficiency. If the existing windows are deteriorated beyond reasonable expectations of repair, the replacement windows must match the existing windows in material, dimensions and muntin pattern." It is recommended that any replacement of the windows be reviewed by DHP to prevent an undue adverse impact on the building s historic character. If in the event that agreement cannot be reached between the project sponsors and DHP, I will re-evaluate the need for a permit. The replacement of the aboveground features of the fence will also not have a significant impact under Criterion 8, provided no ground disturbance takes place. However, it is assumed that the waterline was installed with construction of the building in the late 1800s. If that is the case, then the waterline trench

6 Page 6 of 6 was probably hand dug. If the replacement of the waterline does not disturb any more than the original hand dug trench (approximately one-foot wide) it would not trigger the need for a permit as a significant impact under Criterion 8 because it would be considered maintenance. In-kind replacement of existing equipment with substantially similar equipment is not a cognizable change. F.W. Whitcomb Const.Co., Declaratory Ruling #408, Findogs of Fact Conclusions of Law and Order at 10 (Vt. Env. Bd. Dec. 19, 2002) Without an archeological study of the proposed trench (if in a new location or wider than one foot and therefore would not be in-kind), it is not possible to definitively state that there would not be a significant impact under Criterion 8. Therefore, the alteration may affect one or more of the values Act 250 protects and a permit would be required. However, an initial investigation by the UVM Archaeology Program determined that the area of the proposed waterline has been previously disturbed to a limited extent. Therefore, it is reasonable that on-site monitoring of the excavation with use of a toothless cleanup bucket for the new waterline can prevent impacts to potential historic resources. Conclusions Provided that all building additions are completed pursuant to the Secretary of the Interior's Standards for Rehabilitation, a permit will not be required for the awning, signage or windows and the fence repair, if no ground disturbance occurs. Provided that monitoring of the waterline trench by a qualified archaeologist is performed impacts to historic resources would be prevented. Therefore, with these conditions, a land use permit will not be required. This is a jurisdictional opinion issued pursuant to 10 V.S.A. 6007(c) and Act 250 Rule 3(B). Reconsideration requests are governed by Act 250 Rule 3(B) and should be directed to the district coordinator at the above address. Any appeal of this decision must be filed with the clerk of the Environmental Court within 30 days of the date of issuance, pursuant to 10 V.S.A. Chapter 220. The appellant must also serve a copy of the Notice of Appeal on the Natural Resources Board, National Life Records Ctr. Bldg., Drawer 20, Montpelier, VT, , and on other parties in accordance with Rule 5(b)(4)(B) of the Vermont Rules for Environmental Court Proceedings. For further information, see the Vermont Rules for Environmental Court Proceedings, available on line at For further information, see the Vermont Rules for Environmental Court Proceedings, available on line at The address for the Environmental Court is: Environmental Court, 2418 Airport Rd., Suite 1, Barre, VT (Tel. # ) If you have any questions regarding this jurisdictional determination, please call me at (802) Sincerely, /s/peter E. Keibel District #4 Coordinator cc: Lou Borie, Chief Coordinator, Natural Resources Board John Hasen, General Counsel, Natural Resources Board Devin Colman & Scott Dillon, DHP W:\Act250\DIST4\JO\4-218 JO.wpd