1 STATE OF VERMONT ENVIRONMENTAL COURT

} In re Carson Act 250 JO } Docket No. 1 3-1-08 Vtec (Appeal of Grimes) } (Appeal of JO #3-11 8) }

Decision on the Merits Beverly Grimes (“Appellant”) appeals from the deter mination by the District Coordinator (“Coordinator”) of the Act 250 District 3 Environme ntal Commission (“District Commission”) that her neighbors, SallyAnn and Kenneth Carson, ne ed not obtain an amendment to their preexisting Act 250 state land use permit for the inst allation of a shed on their abutting residential property. When the parties’ negotiations and the C ourt’s ruling on competing motions for summary judgment did not bring about a resolution o f the parties’ dispute, the Court conducted a
site visit and bench trial. Appellant has been assisted in her presentation to this Court and the District Coordinator by C. Daniel Hershenson, Esq.; attorneys David Gray ck and Zachary K. Griefen have assisted Mr. and Mrs. Carson. No other party appeared in th e proceedings before this Court. Based upon the admitted evidence received at trial, including that which was put into context by the site visit the Court conducted with the parties, the Court renders the following Findings of Fact and Conclusions of Law:
Findings of Fact
I. General Background and Procedural History
1. The parties’ adjoining properties are located in a twenty-eight lot subdivision known as Plateau Acres in the Town of Bradford. Appellant purchased and moved onto her residential property in 1995; Mr. Carson has been involved in a farming operation on the property that predated its subdivision and development; his invol vement dates back to the 1950s.
2. The land currently owned by the Carsons once consis ted of three lots, with a total of 4± acres. There is currently one permanent single fam ily residence on this property.
3. On March 12, 2007, the District Commission issued a n Act 250 Permit, with supporting Findings of Fact and Conclusions of Law, authorizin g the reconfiguration of the Carsons’ property into two lots, with Lot 1 including the al ready existing single family residence and Lot2

2 proposed for future development. A copy of this Act 250 Permit, #3R0133-4 (hereinafter referred to as the “-4 Permit”) was admitted into e vidence at trial as Exhibit C.6; a copy of the Findings of Fact, Conclusions of Law, and Order for the -4 Permit (“-4 Findings”) was admitted
as Exhibit C.5. 1

4. Paragraphs 14 through 20 of the -4 Findings address aesthetic concerns that the District Commission considered in the 2007 proceedings, incl uding aesthetic concerns raised by Ms. Grimes, Appellant here. As a consequence of those Findings, the District Commission conditioned their subdivision approval by directing that the Carsons mark and maintain a 25-foot buffer along the boundary shared with Appellant. - 4 Permit at ¶¶ 11 and 14.
5. Subsequent to the issuance of the 1997 -4 Permit, A ppellant Grimes requested that the parties’ electric power supplier, Central Vermont P ublic Service Corporation (“CVPS”), clear some of the trees and other vegetation within the 2 5-foot buffer on the Carsons’ property that was to be maintained as undisturbed pursuant to -4 Permit ¶ 14. The Carsons consented to the CVPS cutting of trees and other vegetation within t his buffer area.
6. The Carsons thereafter sought and obtained an amend ment to their Act 250 Permit, labeled #3R0133-4A and commonly known as the -4A Pe rmit. A copy of the -4A Permit was admitted into evidence at trial as Exhibit C.12; th e underlying Findings of Fact, Conclusions of Law, and Order (“-4A Findings”) were admitted as Ex hibit C.11.
7. In the -4A Permit proceedings, the Carsons sought t o re-establish the 25-foot buffer between their property and that of Appellant. See Exhibit C.11 at 4. The District Commission concluded that due to the CVPS utility line mainten ance work requested by Appellant, “the buffer no longer provides an effective screen along the property line.” Id

. 8. The District Commission directed in the -4A Permit that the Carsons “plant 7 to 9 evergreen trees within the 25-foot setback buffer a long the western property line of Lot 2 shared with Ms. Grimes and Mr. Johnson [Ms. Grimes’ partne r] . . . starting at the top of the upper level of Lot 2, just north of [Ms. Grimes’] shed, for a d istance of at least 90 feet south along the [shared] property line. Exhibit C.12 at ¶ 13.

1 A copy of the -4 Permit was also offered by Appel lant at trial and admitted as Exhibit 2; a copy of the -4 Findings was admitted as Exhibit 3. This duplication arose because the parties stipulated to accepting into ev idence packets of documents that were prepared prior to trial and presented at trial to the other party.3

9. In addition to the planting of these new evergreen trees, the District Commission continued the prohibition against the cutting of tr ees or other vegetation along the entire 25-foot buffer, which runs along the common boundary line. Id . at ¶ 14.
10. A copy of a portion of the Carsons’ revised site pl an was offered by Appellant at trial and admitted into evidence as Exhibit 4. Appellant’s p roperty is not completely shown on this site map. The boundary line Appellant shares with Lot 2 of the revised Carson subdivision is shown at the bottom portion of Exhibit 4; the shared boun dary line runs in a northerly-southerly
direction.
11. The area on the Carsons’ property that includes the 90-foot long, 25-foot wide buffer is sometimes referred to as the “upper plateau,” an ar ea located in the southwest corner of Lot 2. The upper plateau area of Lot 2 is at a similar ele vation to Appellant’s house lot. Lot 2 thereafter slopes downward to the east and north.
12. To the north of the upper plateau area of Lot 2, in an area that is about eleven feet lower in elevation than the upper plateau (and Appellant’ s property), is a rectangle labeled “Proposed House Site (Approximate).” The graphic scale on Ex hibit 4 suggests that the Proposed House Site area measures about 25’ by 35’. 2

13. The site plan (Exhibit 4) evidences development tha t is authorized outside of the Proposed House Site area, including a driveway, wat er lines, septic tank, leach field, and a reserve area for a replacement leach field.
14. Pursuant to ¶ 13 of the -4 Permit, the Carsons were directed to “construct the house in the site marked ‘proposed house site’ on the plans. Th e house shall be no higher than 35 feet from the ground as measured from the back [the southerly side, closest to Appellant’s property] of the building.” Exhibit C.6 at ¶ 13.
15. Neither the -4 Permit nor the -4A Permit contain li mitations as to where ancillary, nonresidential structures may be located on the proper ty. 16. The Carsons have not yet constructed the house auth orized in the -4 Permit. They have placed a residential trailer at the house site on L ot 2, which they use as their home on a seasonal
basis. The back side of the trailer is closest to Appellant’s property line. The trailer is 13 feet tall; the top portion of it can be seen from Appell ant’s property. We therefore deduce that the -4

2 These measurements are rough approximations, deri ved from a site plan that has been reduced in size through photocopying. We also note that the proposed house site is specifically labeled “Approximate.”4

Permit authorizes the Carsons to build a permanent home within the proposed house site that is as much as 22 feet taller than the existing trailer on Lot 2.
II. The Complained-of Shed
17. Sometime in 2007, the Carsons installed a pre-assem bled shed on the upper plateau portion of their Lot 2, outside of the buffer area adjacent to their common boundary line with Appellant. This shed measures 16’ by 16’ and sits on skids installed on its base, thereby allowing it to be moved. It is located outside of and to the southwest of the 25’ by 35’ area marked as the proposed house site.
18. The Carsons use the shed for storage of personal it ems; it has no electrical, heating, or plumbing fixtures or services; it serves as an anci llary structure to their residence. They intend to continue to use the storage shed after they cons truct a permanent house on Lot 2.
19. Appellant also has a separate storage shed on her p roperty, between her house and the boundary line she shares with Lot 2. Appellant’s s hed is located on the northeast corner of her property; it blocks a small portion, but by no mean s all of her view to the east.
20. Appellant’s view to the east is obscured—but not co mpletely obstructed—by the trees and vegetation within the 25’ buffer area along the Lot 2 western boundary, by the Carsons’ storage shed, by the upper portion of the Carsons’ trailer, and by Appellant’s own shed. The
view to the east includes beautiful scenes of hills ides and a partial view of the Connecticut River.
21. On September 14, 2007, the District Coordinator iss ued a Project Review Sheet 3 addressing the Carsons’ “[c]onstruction of a 16-foo t by 16-foot storage shed on the ‘upper plateau’ of the previously permitted single-family house lot (Lot 2).” The Coordinator concluded that ‘[a]dding a shed to the previously p ermitted single-family lot is not a material change to the permit. Act 250 Rule 2(C)(6).” A co py of the single-page project Review Sheet
was admitted at trial as Exhibit C.2.
22. Appellant requested reconsideration of the District Coordinator’s September 14, 2007 jurisdictional determination. By way of a four-pag e letter dated December 18, 2007, the District Coordinator announced that it was her continued opi nion that the Carson storage shed did not constitute a material change and therefore did not require an Act 250 permit. It is from that reconsidered determination that Appellant filed a t imely appeal with this Court.

3 We understand that a project review sheet is a fo rm often used by Act 250 district coordinators to r espond quickly to requests for jurisdictional determinations, such as those contemplated by Act 250 Rule 3, applying the jurisdictional definitions in Act 250 Rule 2(C)(6) and 10 V.S.A. § 6001(3).5 Discussion Appellant poses seven Questions in this Act 250 app eal, all of which focus our inquiry on the general legal question of whether the Carsons’ storage shed constitutes a material or significant change, in light of their pre-existing Act 250 permit and subsequent amendments, so as to require further Act 250 review and approval. For the reasons detailed below, we conclude that the already constructed and installed shed doe s not require an amendment to the pre-existing permit. We start with the basic—though not often stated—pre mise that our state land use regulations, commonly known as Act 250, do not gove rn all manner of development on Vermont lands. In fact, Act 250 is commonly described as t he regulation of major land uses in Vermont; only development significant enough to fit the narr ow definition of “development” contained in 10 V.S.A. § 6001(3) is required to obtain an Act 25 0 permit. Similarly, not all changes to lands already governe d by an Act 250 permit require an amendment to that pre-existing permit. Under Act 2 50 Rule 34(A), only changes which are “material” trigger the need for a permit amendment. 4 A material change is defined as “any change . . . 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 [Act 250] criteria specified in 10 V.S.A. Section 6086(a)(1) through ( a)(10).” Act 250 Rule 2(C)(6). It is within this context that we address the generalized legal question of whether the Carson storage shed triggers an independent obligation to obtain an ame ndment to their pre-existing Act 250 permits. We first note that there has been no suggestion in the record before us that the Carson storage shed, in and of itself and without the cont ext of the pre-existing Act 250 permits, constitutes “development” that would independently trigger Act 250 jurisdiction. See 10 V.S.A. § 6001(3)(A). We specifically conclude that it doe s not. However, since the Carson property is already governed by the -4A Permit and its predeces sors, we must determine whether the complained-of shed constitutes a material or substa ntial impact. We have previously summarized that an Act 250 permi t allows a property owner “to conduct the improvements specifically authorized by the permit, but no more than that.” In re

4 By virtue of 10 V.S.A. § 6025(b), the Vermont Leg islature conferred the authority upon the Land Use Panel of the Natural Resources Board to “adopt substantive rules , in accordance with the provisions of chapter 25 o f Title 3, that interpret and carry out the provisions of this chap ter that pertain to land use[s] regulated under sec tion 6086 of this title.”6

Mountainside Props., Inc., Land Use Permit Amendmen t , No. 117-6-05 Vtec, slip op. at 9 (Vt. Envtl. Ct. Dec. 13, 2005) (Durkin, J.); accord In r e Stowe Club Highlands , 166 Vt. 33, 37 (1996) (“[T]here is no dispute that the applicant is bound by the provisions of the original permit.”).
Both the former Environmental Board and its success or, the Natural Resources Board, have codified this legal doctrine in the current Act 250 Rule 34, which provides that “[a]n amendment shall be required for any material change to a perm itted development or subdivision.” Act 250 Rule 34(A). In our quest to determine what constit utes a “material” change, we note again that one requirement of materiality is that the change i s one “which has a significant impact on any finding, conclusion, term or condition of the proje ct’s permit and which may result in an impact with respect to any of the [Act 250] criteria speci fied in 10 V.S.A. Section 6086(a)(1) through (a)(10).” Act 250 Rule 2(C)(6) (emphasis added). Thus, we must first determine what Act 250 criteria , if any, are potentially impacted by the complained-of shed. In her Question 6 (and onl y in that Question), Appellant questions the shed’s impact upon Act 250 Criterion 8, which addre sses whether the complained-of shed will
“have an undue adverse effect on the scenic or natu ral beauty of the area, aesthetics, historic sites or rare and irreplaceable natural areas.” 10 V.S.A . § 6086(a)(8). The Carsons have argued both during the trial and i n their post-trial filings that their shed is so insignificant as to not constitute any change . We reject this argument. Their shed has certainly created a change in the appearance of the ir property and in the manner in which it may be used. That said, the question before us here is whether the change is a significant change to what was specifically permitted and whether any suc h change potentially affects Act 250 Criterion 8 relative to what was already permitted. See Act 250 Rules 34(A) and 2(C)(6). In this regard, to develop the baseline from which any change might be considered material or significant, we must turn to the aesthe tic effects of the development that was specifically permitted under the -4 and -4A Permits . In its two most recent reviews of the Carsons’ proposed development of their Lot 2, the D istrict Commission concluded that a buffer was warranted between the Carsons’ proposed develop ment and Appellant’s property. See -4 Permit at ¶ 14 and -4A Permit at ¶ 13. In fact, th e Commission was called upon to revisit the Carsons’ proposed development when this buffer was partially removed by CVPS, in response to Appellant’s request that CVPS maintain its utility easement. From the evidence presented at trial and the language used by the District Commission in its Findings and Permits following both7

proceedings, we do not find credible Appellant’s as sertion that the Commission implicitly or explicitly conditioned the Carsons’ development of Lot 2 upon either (1) an intention to protect Appellant’s view shed or (2) an absolute restrictio n that all structures, no matter of what significance, only be constructed or installed in t he area labeled as “Proposed House Site.” Based upon the credible trial evidence and the plai n language used by the District Commission in the -4 and -4A Findings and Permits, we conclude th at only the proposed house was limited to this 25-foot by 35-foot portion of Lot 2, not any o ther accessory structures or related development. We do not dispute the value Appellant currently pla ces upon the view she enjoys to the east, across the Carsons’ property, especially of t he nearby New Hampshire mountains and a portion of the Connecticut River. But the buffer t he District Commission originally directed the Carsons to maintain in the -4 Permit proceedings (a nd authorized the Carsons to re-establish, after the CVPS cutting, in the -4A Permit proceedin gs) can only be regarded, in our assessment, as a conclusion by the District Commission that obs curing the view between these two neighbors’ properties was the more valued aesthetic concern. Where there is no specific condition requiring the Carsons to maintain Appella nt’s view shed, we decline to create one now. Our conclusions here are also supported by the Comm ission’s authorization of the Carsons’ construction of a permanent structure at t he proposed house site location that could be as tall as the municipal zoning ordinances allowed: 35 feet in height. To allow a house of that height to be built between Appellant’s property and her view to the east, in a location where a 13-foot trailer already obscures Appellant’s view t o some degree, allows us to conclude that the
District Commission had aesthetic and other concern s that did not include the view that Appellant now asserts. In short, the aesthetic baseline created by the -4 and -4A Permits is one of a view obscured by natural vegetation, see -4 Permit at ¶ 14, by “7 to 9 evergreen trees” and any other vegetation “as long as the vegetated buffer is enha nced,” -4A Permit at ¶ 13, and by a house that could be up to 35 feet tall. In comparison to this collection of view obstructions, the Carsons’ shed is modest in size, including when compared to neighboring houses and even Appellant’s own nearby shed. The Carsons’ shed is not a reside nce, has no plumbing, electrical, or heating systems and therefore cannot be used as a residence . We therefore cannot conclude, as Appellant requests, that the District Commission re stricted such accessory structures to the 25-8

foot by 35-foot portion of Lot 2 identified as the proposed house site. Nor can we conclude that the Carsons’ shed has a potential impact on Act 250 Criterion 8. Rather, we conclude that, compared to the aesthetic baseline already permitte d by the -4 and -4A Permits, the Carsons’ shed is not a material change as that term is defin ed in Act 250 Rule 2(C)(6). Therefore, no permit amendment is needed. See Act 250 Rule 34(A)

. Conclusion For all the reasons more fully discussed above, we conclude that the shed the Carsons installed on the upper plateau of their Lot 2 is no t a material change with a potential impact upon Act 250 Criterion 8, which was the only criterion p reserved for our review in this appeal. We therefore conclude that the complained-of shed is n ot a material change and therefore does not obligate the Carsons to obtain an Act 250 permit am endment. For these reasons, we AFFIRM the original jurisdictional determination announced by the District Coordinator in her Project Review Sheet of September 14, 2007. This concludes the current proceedings in this appe al before this Court. A Judgment Order accompanies this Decision.

Done at Ripton, Vermont, this 1st day of June 2009.

______________________________________ Thomas S. Durkin, Environmental Judge