RE: Lost Cove Homeowners Assoc. Inc., Docket No. CUD-98-04, MEMORANDUM OF DECISION AND ORDER; RE: MOTION TO ALTER (Sept. 1, 1999)

State of Vermont


RE: Lost Cove Homeowners Assoc. Inc.

Docket No. CUD-98-04 (DEC #97-185)

(Gale Driveway, near Brickyard and Red Rocks Road, Colchester, Vermont )



On July 16, 1999, the Water Resources Board ("Board") issued its Findings of Fact, Conclusions of Law, and Order in the above-captioned matter. The Board affirmed the decision of the Agency of Natural Resources ("ANR") issuing Conditional Use Determination DEC #97-185 to Barden Gale and Melanie Gale Amhowitz for a driveway crossing through a Class Two wetland and its buffer zone in the Town of Colchester, Vermont ("Project"). In so doing, however, the Board amended a condition imposed by the ANR requiring monitoring and control of nuisance plant species within the wetland and its buffer zone.

On August 3, 1999, the ANR filed a Motion to Alter, asking the Board to further amend the condition to require the CUD Applicants to monitor for nuisance plant species during early July of each year.

On August 6, 1999, the Chair of the Board issued an Order advising the parties of receipt of the ANR's Motion to Alter and providing them with an opportunity to file any objections on or before August 17, 1999. On August 17, 1999, the Appellants, Lost Cove Homeowners Association and certain individual property owners within the Lost Cove subdivision, consented to the requested relief. On August 18, 1999, the Applicants, Barden and Melanie Gale Amhowitz, also consented to the substance of the ANR's Motion to Alter.

The Board deliberated with respect to the parties' filings at its meeting on August 31, 1999. The Board granted the ANR's request and agreed to amend its Order of July 16, 1999, to both address the substance of the ANR's request and to correct the numbering of the conditions imposed by the Board to more accurately correspond the ANR's Order in DEC #97-185.

Accordingly, it is hereby ordered that:

1. The ANR's Motion to Alter is granted.

2. Condition 1 of the Board's Findings of Fact, Conclusions of Law, and Order at 22 (July 16, 1999, is amended to read as follows:

The ANR's decision to issue DEC #97-185 is affirmed. All conditions of that decision are effective and of full force, with the exception of Condition 1(G), which is amended to read as follows:

1(G) For five years following the execution of the Project, the CUD Applicants shall monitor the wetland and buffer zone in the designated Project area no later than July 15th of each year for the presence of nuisance plant species purple loosestrife (Lythrum salicaria) and common reed (Phragmites australis). All nuisance plants found shall be pulled by hand and disposed of by burial or burning in a location outside the wetland and its buffer zone. Additionally, all equipment used in the implementation of the Project shall be cleaned so as to contain no observable soil or vegetation prior to work in the wetland buffer zone to help prevent the spread of invasive species.

3. Condition 2 of the Board's Findings of Fact, Conclusions of Law, and Order at 22 (July 16, 1999, is amended to read as follows:

Additionally, the Board imposes the following additional requirements as a part of Condition 1:

(H) The CUD Applicants and their successors in interest are prohibited from applying

chemical fertilizers or pesticides in the wetland or buffer zone of the subject Class Two

wetland, either as a part of executing or maintaining the Project.

(I) The CUD Applicants shall not disturb any native vegetation within the buffer zone

not included in the designated area to be occupied by the Project.

4. In all other respects, the Board's Findings of Fact, Conclusions of Law, and Order (July 16, 1999) remains in full force and effect. Jurisdiction over this matter is returned to the ANR.

Dated at Montpelier, Vermont, this 1st day of September, 1999.


/s/ Gerry Gossens

Gerry Gossens, Chair

/s/ William Boyd Davies

William Boyd Davies *

/s/ Jane Potvin

Jane Potvin

* Member Davies has participated in this decision pursuant to 3 V.S.A. 849.