                                     STATE OF VERMONT

                                   ENVIRONMENTAL COURT

            Vermont Environmental Board,
            Plaintiff,                            }
                                                  }
            v.                                    }   Docket No. 96-5-02 Vtec
                                                  }
            Allen Road Land Company, Inc.,        }
            and John Larkin, Respondents.

                          Decision and Order on Respondents= Motion

On April 23, 2002, the Chair of the Vermont Environmental Board (the Board) issued an
administrative order pursuant to 10 V.S.A. ' 8008 regarding Respondents, who timely requested a
hearing in Environmental Court. The Environmental Board is represented by Thomas G. Walsh,
Esq. Respondents are represented by Carl H. Lisman, Esq. Respondents have moved to limit the
issues to be heard at the hearing on the merits of the Administrative Order, now scheduled for
July 2, 2002 (and to continue if necessary on July 3, 2002).

Respondents argue essentially that the violations stated in the Administrative Order do not
constitute violations of the permit conditions of Land Use Permit #4C1060-EB issued by the
Board or of Land Use Permit #4C1060 issued by the District Commission. The Board agrees that
the merits hearing would > benefit= from a ruling in advance of the scheduled hearing defining
the permitted hours of operation and which activities or operations are subject to the permitted
hours, but argues that questions as to whether the alleged actions violated those hours of
operations are disputed issues of fact.

Essentially, Respondents have posed and the Board has responded to a motion for the
disposition of legal issues prior to the hearing. See V.R.C.P. 76(d)(3)(D). However, due to the
nested sets of incorporations-by-reference found in the Land Use Permits, it may turn out to be
necessary for the parties either to submit agreed facts or to submit more of the materials that
were incorporated into the permits by reference, in order for the Court to rule on some of those
legal issues.

The Land Use Permit issued by the Board defines the project as the subdivision of a 28.21 acre
parcel (known as Parcel C) on Allen Road in South Burlington to create 32 single-family
residential lots and one lot (Lot 36) with six residential duplex structures (also described as 12
multi-family units), to be served with municipal water and sewage facilities, plus three additional
lots: Lot 35 to be retained by the Allen Road Land Company, Inc., Lot 33 proposed as open
space, and Lot 34 for a city park. The project includes new roadways to be dedicated to the City
of South Burlington and a stormwater system including three detention basins to be maintained
by the homeowners= association. The Permittee is required by the Board= s decision to A
complete, operate and maintain@ the project in accordance with the terms and conditions of both
the Land Use Permit as issued by the District Commission and the Land Use Permit as issued by
the Board, with the A plans and exhibits on file with@ the Board and with the conditions of the
Board= s permit. In turn, the District Commission= s permit requires that the project be A
completed, operated and maintained@ in accordance with the Commission= s Findings of Fact
and Conclusions of Law, with the A plans and exhibits on file with@ the Commission, and with
the conditions of the Commission= s permit. In the present proceeding, the Board has attached to
its motion a number of exhibits submitted to the District Commission and to the Board; it is not
possible to determine whether or which of the A plans and exhibits on file with@ the Commission
or the Board are not provided in these the materials. It appears from the materials that the
applicant proposed itself to construct the multi-family structures (whether or not it intended
thereafter to sell the units) but to sell the undeveloped subdivided lots to individual homeowners
to construct single family homes with a footprint of 1,880 square feet. Nothing in the project
description or the attachments suggests that the design or construction of the single-family
houses were submitted for approval as part of the project application, as contrasted with the
multi-family buildings. The architectural drawings by the architect for the multi-family buildings
appear to have been attached as a supplement to the application (although not to the materials
filed with this Court). (See reference to A Attachment D@ at p. 7 of the Board= s memorandum.)

In their argument, Respondents group the asserted violations into the categories of indoor work,
outdoor work A requiring@ completion A after hours,@ and outdoor work beginning before 7:00
a.m., finishing after 5:00 p.m., or work on weekends A as required by the circumstances.@ To
the extent that Respondents= arguments require any factual determination of whether the indoor
work produced noise, or whether any of the outdoor work outside the > standard= hours of
operation was made necessary by the circumstances of construction, those are disputed matters
of fact that must await the evidentiary hearing. Further, although both parties are probably aware
of whether any additional outdoor construction work remains to be done on the project (that is,
whether there is any potential for continuing or additional violations), they have not provided this
information to the Court.

The question of whether any of the work asserted to be a violation constituted a substantial or
material change requiring a permit amendment is not only a disputed question of material fact,
but is a question which would have to be posed at the administrative level before it could be ruled
on by this Court. That is, the Board does not allege as a violation that Respondents failed to
obtain a permit amendment for the work done outside the > standard hours of operation= ;
therefore that issue is not before the Court in the present case.

The Court is able to resolve in this order only the following issue raised by the memoranda:

Whether the requirement that the project be constructed in accordance with the application
established enforceable hours of 7 a.m. to 5 p.m., Monday through Friday, during construction, at
least with respect to outdoor site work and construction on the retained lots, on the multi-family
buildings, and on the infrastructure and roadway installation and associated construction and
landscaping.

The permit requirement that the project be constructed in accordance with the application did
impose on the Permittee enforceable hours of 7 a.m. to 5 p.m., Monday through Friday, during
construction (at least for outdoor site work and construction on the three retained lots, on the
multi-family buildings, and on the infrastructure and roadway installation and associated
construction and landscaping), because those are the hours proposed by the applicant as the
hours of operation during construction. We reach this conclusion without ruling on whether the
Commission or the Board could have imposed construction hours solely for noise control
purposes if those hours had not been offered by the applicant.

On the other hand, while several other issues raised or alluded to by the parties may be able to
be resolved by legal rulings in advance of the hearing, the parties have not fully provided their
arguments or associated documents in support of their positions on these arguments:

Whether indoor construction activities are limited by the construction hour limitations.

Whether construction on the single-family homes constructed by purchasers of the single-family
home lots are limited by the construction hour limitations and, if so, whether the lot purchaser, the
Permittee, or both, may be responsible under the permit for compliance with those limitations.
(Compare the responsibility under an Act 250 permit for construction by the lot purchaser of a
home in excess of the square footage of coverage, or in excess of the number of bedrooms or
number of toilets provided in the Act 250 permit, and whether that responsibility also remains
jointly with the permittee-seller of the lot after the lot is sold.)

Whether the processing of any of Respondents= pending Act 250 applications should be stayed,
which in turn depends on whether the violations asserted in the Administrative Order are directly
related to the activity which is the subject of the other pending applications.

Because both parties appear to recognize that it may be helpful to resolve these additional issues
regarding the scope of the permit conditions prior to the presentation of the evidence on the
alleged violations, we will hold a telephone conference as soon as possible, to discuss the effect
of this ruling on the hearing scheduled for July 2, 2002. It may be possible to submit these issues
entirely on agreed facts, and to schedule a hearing at a later date on the question of whether a
violation has occurred, and whether and how much of a penalty should be imposed. Indeed, it
may be possible to submit on agreed facts the question of whether a violation has occurred, and
only to hold the hearing on the question of a penalty. The conference to discuss these issues will
be held later today, Monday, June 24, 2002 if it is possible for the parties to set up a telephone
conference with Judge Wright at the Windsor Superior Court, or tomorrow when Judge Wright
returns from a scheduled early morning site visit in White River Junction. Please call the
Environmental Court at 479-4486 as soon as you receive this order, to make arrangements for
the conference.

                                th
Done at Barre, Vermont, this 24 day of June, 2002.




___________________
Merideth Wright
Environmental Judge
