RE: Larry Westall, Docket No. CUD-99-02 and RE: James and Catherine Gregory, CUD-99-03 (Consolidated), Findings of Fact, Conclusions of Law and Order Conditional Use Determination (Mar. 15, 2000)
State of Vermont
WATER RESOURCES BOARD
RE: Larry Westall
Docket No. CUD-99-02 (DEC #95-241)
RE: James & Catherine Gregory
Docket No. CUD-99-03 (DEC #95-241)
(Consolidated)
FINDINGS OF FACT, CONCLUSIONS OF LAW, AND ORDER;
CONDITIONAL USE DETERMINATION
This decision pertains to an appeal from a denial of a conditional use determination. For reasons explained below, the Water Resources Board ("Board") affirms the decision of the Agency of Natural Resources ("ANR") with respect to part of the project at issue and reverses and issues a CUD for another part of the project.
I. BACKGROUND
On April 28, 1999, the Director of the Water Quality Division, Department of Environmental Conservation, ANR, issued DEC #95-241, a decision denying a conditional use determination ("CUD") to Larry G. Westall ("Applicant"), for development in a Class Two wetland and its buffer zone, consisting of construction of two houses, associated grading, and the installation of water and wastewater infrastructure, on two lots (Lots #2 and #3) within a three-lot subdivision ("Project"). The Project is located off Browns Trace Road in Jericho, Vermont.
On May 25, 1999, the Applicant appealed the ANR's decision to the Board, requesting reversal and the issuance of a CUD. The Applicant entered his appearance pro se.
On May 27, 1999, James and Catherine Gregory ("Gregorys"), through their attorney William F. Ellis, Esq., filed their own appeal of the ANR's decision. The Gregorys are owners of Lot #2 and one of the homes subject to the CUD denial.
The two appeals were filed pursuant to 10 V.S.A. §1269 and Section 9 of the Vermont Wetland Rules ("VWR"). On July 15, 1999, the appeals were deemed complete.
On July 15, 1999, a Notice of Appeal and Prehearing Conference was issued, which was subsequently published in the Burlington Free Press.
On July 29, 1999, the Board Chair Gerry Gossens convened a prehearing conference in this matter pursuant to Rule 28 of the Board's Rules of Procedure ("Procedural Rules"). On August 4, 1999, a Prehearing Conference Report and Order ("Prehearing Order") was issued with respect to the two appeals. No objections were filed with respect to the Prehearing Order, and on August 14, 1999, it became final and binding upon those who received notice of the appeal and prehearing conference.
In accordance with the Prehearing Order, deadlines for the filing of party status petitions, motions on preliminary issues, and responses were set. On September 1, 1999, the Board issued a Memorandum of Decision and Order re: Preliminary Issues ("Memorandum of Decision"). The Board consolidated the two appeals pursuant to Procedural Rule 33(B), clarified the scope of review, and made certain party status determinations.
Those persons and entities granted party status in this consolidated proceeding were:
Larry Westall, Applicant, pursuant to Procedural Rule 25(B)(1);
Gregorys, Owners of Lot #2, pursuant to Procedural Rule 25(B)(8);
Hobart Heath, as the holder of a purchase and sale agreement for Lot #3, pursuant to Procedural Rule 25(B)(8);
Agency of Natural Resources ("ANR"), pursuant to Procedural Rule 25(B)(5);
Jericho Conservation Commission ("JCC"), pursuant to Procedural Rule 25(B)(6);
Jericho Center Preservation Association ("JCPA"), as owner of property adjoining the subject wetland and as an association of persons residing near
or owning property adjoining the subject wetland, pursuant to Procedural Rule 25(B)(8); and
Various individuals residing adjacent to the Project or in the vicinity of the subject wetland: William and Anita Haviland, Chuck Lacy, Corinne Wilder Thompson, Robert Thompson, Helen and Ruth Tobin, Jon and Deanna Trupp, N.A. van Drimmelen, J.M. Kim, and Robert and Gail Schermer, all pursuant to Procedural Rule 25(C).
Between September 29 and December 29, 1999, all of the parties, with the exception of the Applicant, filed prefiled direct testimony and exhibits. The ANR was the only party to file prefiled rebuttal testimony.
On November 16, 1999, the Board conducted a site visit of the Project site and subject wetland with representatives of the parties.
On January 5, 2000, the Board issued a Notice of Consolidated Appeal Hearing.
On January 6, 2000, Hobart Heath and the ANR each filed evidentiary objections.
On January 13, 2000, ANR filed Proposed Findings of Fact and Conclusions of Law and a Stipulation between ANR and the Gregorys. On that same date, Hobart Heath filed a letter setting forth a proposed CUD mitigation condition.
On January 18, 2000, the Board Chair convened a second prehearing conference for the purpose of (1) making preliminary evidentiary rulings; (2) addressing any out-standing procedural and substantive preliminary issues; and (3) setting the schedule for the hearing day. The Board Chair was assisted by Vice-Chair David J. Blythe, Esq., in the making of preliminary evidentiary and other legal rulings.
At the second prehearing conference, the Applicant was represented by David M. Sunshine, Esq., who represented that his client concurred with and would rely on the evidence provided by Hobart Heath to meet his burden of proof. Counsel for the Applicant also represented that he would make Jeffrey Severson, the wetlands consultant who pre-pared the CUD application in the DEC #95-241 proceeding (Exhibit H-1), available for cross-examination. Further, all of the parties indicated that they did not object to the Board adopting the Stipulation between ANR and the Gregorys, with the exception of the Applicant who had not had an opportunity to review the document and Hobart Heath.(1)
A Second Prehearing Conference Report and Order ("Second Prehearing Order") was issued on January 20, 2000. No objections were filed with respect to the Prehearing Order, including the Chair's preliminary evidentiary rulings contained therein, and on January 25, 2000, the Second Prehearing Order became final and binding upon the parties.
On January 25, 2000, at the Richmond Town Center in Richmond, Vermont, the Board convened a hearing in this matter. Participating in this hearing were:
Applicant by David M Sunshine, Esq.;
Gregorys, by William F. Ellis, Esq.;
Hobart Heath, pro se;
ANR by Jon Groveman, Esq.;
JCC by Thomas Baribault; and
JCPA and Neighbors by Charles (Chuck) Lacy.
The Board held a brief preliminary deliberation after the close of the hearing on January 25, 2000. The Board recessed the hearing pending receipt of proposed supplemental or revised findings of fact, conclusions of law, and orders from the parties.
On February 3, 2000, the Applicant, the Gregorys, ANR, and JCPA each filed proposed Findings of Fact and Conclusions of Law or Orders.
The Board resumed its deliberations on February 15, 2000 and March 14, 2000. On March 14, 2000, the Board declared the record complete and adjourned the hearing. This matter is now ready for decision.
II. ISSUES
The issues on appeal are those framed in the Prehearing Conference Report and Order (Aug. 4, 1999) at 8 and 14, Item 7:
(1) Whether the Project (which encompasses development of Lots #2 and #3), or any part thereof, will result in an undue adverse effect on protected wetland functions? Section 8.5(a) of the VWR.
(2) If the Project, or any part thereof, will result in an undue adverse effect on protected wetland functions are these impacts minimal? Section 8.5(a) of the VWR.
(3) If the undue adverse effect on protected wetland functions is more than minimal, has this impact been sufficiently mitigated to the extent necessary to achieve no net undue adverse effect? Section 8.5(b) of the VWR.
The Board subsequently clarified in its Memorandum of Decision and Order re: Preliminary Issues at 4-5 (Sept. 1, 1999) that the protected wetland functions to be evaluated for impacts in this consolidated proceeding are functions: 5.4 (wildlife and migratory bird habitat), 5.7 (education and research in natural sciences), 5.8 (recreational value), and 5.9 (open space and aesthetics). VWR, Section 5.
III. FINDINGS OF FACT
To the extent that any proposed findings of fact or stipulations are included within, they are granted; otherwise, they are denied. See Secretary, Agency of Natural Resources v. Upper Valley Regional Landfill Corp., 167 Vt. 228, 241-42 (1997); Petition of Village of Hardwick Electric Department, 143 Vt. 437, 445 (1983).
The Project
1. On September 10, 1992, Jacek and Cecelia Smolinski received a Subdivision Permit #EC-4-1673 ("Subdivision Permit") from the Department of Environmental Conservation, ANR, authorizing proposed water and wastewater disposal systems for residential development of a 10.4 acre parcel of land located off Brown's Trace Road in Jericho Center, Vermont.
2. The Smolinskis created a three-lot subdivision. Lot #1 (3.12 acres), containing an existing residence, was exempt from regulation. The Subdivision Permit authorized a shared on-site sewage disposal system to be located on Lot #2 and two drilled wells for each of two single family residences on Lots #2 (1.88 acres) and #3 (5.04 acres).
3. Professional engineer, John Stuart, prepared and submitted the application for the Subdivision Permit, including required engineering drawings and site
plans.
4. The Applicant purchased Lots #2 and #3 in November 1994. He began construction of a house on Lot #2 and built the shared on-site sewage disposal system referenced in the Subdivision Permit.
5. In February 1995, The Applicant conveyed Lot #2 and associated house to the Gregorys ("Gregory house").
6. Thereafter in 1995, the Applicant began construction of a house on Lot #3 ("Westall house").
7. On or about July 1995, the Applicant received a notice from Catherine O'Brien, Assistant Wetlands Coordinator, Department of Environmental Conservation, ANR, advising the Applicant that she believed the Westall house was being constructed in a wetland buffer area. ANR subsequently advised the Gregorys that the Gregory house might be in the buffer zone of the subject wetland.
8. The Applicant retained Jeffrey Severson, a consulting ecologist, to obtain a CUD for development within the subject wetland and its buffer zone on Lots #2 and #3, including the Westall and Gregory houses and related infrastructure ("Project"). Mr. Severson prepared and filed the CUD Application with the ANR in December 1995.
9. In the CUD Application, the Applicant represented that the Project had created impacts to over 2,000 square feet of wetland and 25,400 square feet of buffer zone. The application was filed "after the fact" to address the impacts of the then-completed construction: the Gregory and Westall houses and graded yards, a subsurface foundation drain system, a partially-shared driveway, and water and shared on-site sewage disposal system. Additionally, the CUD Application sought approval for a propane tank installed in-ground approximately 5 feet from the northern corner of the Westall house in November 1995, and proposed work consisting of the drilling of a well and installation of water lines to connect the Westall house with that well.
10. Since 1995, the Gregory house has been occupied and Lot #2 has been used for related residential purposes. For the last five years, since its construction, the Westall house has remained unoccupied.
The Wetland and Buffer Zone
11. The subject wetland is identified on the National Wetland Inventory ("NWI") map, Map #22D. The buffer zone for this Class Two wetland extends fifty feet from the wetland's edge to the adjacent upland.
12. The subject Class Two wetland consists of a wetland complex approximately 2500-feet long and between 250 and 500 feet wide. The complex includes a cattail marsh, an open-water cattail-fringed beaver pond, and shrub swamp/ wet meadow wetlands. The shrub swamp/ wet meadow wetlands are located along the eastern side of the wetland complex. The wetland complex is known locally as the "Laisdell Pond Wetland Complex."
13. The Project area (Lots #2 and #3) is located on the eastern side of the southern end of the wetland complex. The Project area contains at least one acre of shrub swamp/ wet meadow wetland adjacent to the cattail marsh. The soils of the wetland meadow and shrub swamp wetlands include poorly drained to very poorly drained inclusions within an area mapped as Stetson gravelly fine sandy loam. The wetlands receive surface water from the direction of Browns Trace Road and discharges it to the cattail marsh downgradient and to the west.
14. Lots #2 and #3 contain sloped wet meadow as well as upland. The wet meadow receives its hydrology principally from groundwater seeps and is dominated by goldenrod, aster, steeplebush, sedge, and sensitive fern, with a scattering of red maple trees and willow shrubs.
15. Most of the shrub swamp is located on Lot #3. This area is seasonally fed by a small stream, and is wetter than the sloped wet meadow. The stream drains from the direction of Browns Trace Road and discharges into the cattail marsh to the west of Lot #3. The existing dominant vegetation of the shrub swamp includes American elm, red maple, and poplar trees, willow shrubs, cattails, rushes and sedges.
16. An area of upland ("knoll") is located within the wet meadow wetland at the southwestern end of the Project area, adjacent to the cattail marsh.
17. Aerial infra red photographs taken in 1992 indicate that the wetland buffer zone adjacent to the wet meadow and shrub swamp wetlands was abandoned pasture with shrubs, saplings and herbaceous vegetation.
Lot #3 and the Westall House
18. The CUD Application for the Project depicted the shrub swamp wetland boundary as approximately 10 feet from the northeastern side of the Westall house.
19. A recent investigation conducted by ANR demonstrates that the Westall house was actually constructed in the wetland, rather than just in its buffer zone as represented by the Applicant. Prior to construction, the shrub swamp wetland extended into the location presently occupied by the Westall house. The natural grades were disturbed when the Applicant brought fill to the site and the foundation for the Westall house was erected.
20. The Westall house is located 39 feet from the cattail-fringed open water portion of the wetland complex.
Lot #2 and the Gregory Lawn and Shared On-site Sewage Disposal System
21. The CUD Application for the Project overestimated the wetland boundaries with respect to the Gregory house by more than 30 feet.
22. A new delineation of the wet meadow wetland adjacent to the Gregory house was conducted by the Gregorys' wetlands consultant on October 12, 1999. This was reviewed by the ANR staff on November 5, 1999, and determined to be substantially more accurate than the delineation in the CUD Application. The new delineation demonstrates that the entire Gregory house and most of the Gregorys' lawn is located on upland and not within the buffer zone of the subject wet meadow wetland. Moreover, construction of the Gregorys' house did not result in the disturbance of the wetland boundary by the placement of fill or other construction-related activity.
23. The Gregory house is between 40 and 50 feet away from the wetland buffer zone of the wet meadow wetland. Their lawn encroaches no more than 20 feet into that buffer zone. That portion of the Gregorys' mown lawn that is within the buffer zone is at least 100 feet from the edge of the cattail marsh and 180 feet from the open water portion of the wetland complex.
24. The well and shared on-site sewage disposal system that serve the Gregory house are located within the wetland buffer zone. The shared on-site sewage disposal system is sited on the knoll on Lot #2 referred to in Finding 16.
Function 5.4 - Wildlife and migratory bird habitat
25. The subject wetland is significant for function 5.4 (wildlife and migratory bird habitat). The wetland complex provides the following wildlife habitat functions: VWR 5.4(a)(1), (a)(2), (a)(3), (a)(4), (b)(3), (b)(4), (e)(1)(b), (e)(1)(c), (e)(1)(d), (e)(1)(e), and (e)(3).
5.4(a)(1) & (2) - Waterfowl Breeding and Migration
26. The marsh, beaver pond, and associated transitional habitats are suitable for breeding, nesting, and brood-rearing of waterfowl. The interspersion of water and marsh vegetation provides good brood-rearing habitat since it offers good cover from predators as well as good feeding habitat with relatively shallow water levels less than 18 inches.
27. The peripheral wet meadow and shrub swamp habitat adjacent to the marsh provides suitable nesting sites for ground nesting waterfowl such as black ducks and mallards. Mallards, American black ducks, and wood ducks have been observed in the subject wetland. Nesting Canada geese with eggs as well as Canada geese with their chicks also have been observed in the wetland. There are hummocks and raised features within the marsh that provide suitable nest sites for ground nesting waterfowl. There is likely an abundance of aquatic invertebrates and succulent emergent and submergent vegetation to provide the food resources necessary to support juvenile waterfowl during the brood-rearing season. Ground nesting waterfowl will occasionally utilize muskrat lodges as nesting sites. There are abundant muskrat lodges in the wetland complex.
28. Deep and shallow marsh habitat with sufficient open water is very attractive to migrating waterfowl. The subject wetland offers this type of habitat with good water and vegetation interspersion to afford landing locations adjacent to good concealment cover and feeding and resting habitat. In addition, the adjacent open water beaver pond provides excellent habitat for resting, feeding and staging of migrating waterfowl, particularly during the fall flight period.
5.4(a)(3) - Heron and Snowy Egrets
29. The marsh and beaver pond habitats associated with the subject wetland provide excellent feeding habitat for great blue herons, green herons and snowy egrets. The most likely of these species to occur in this wetland on a frequent basis is the great blue heron. This fact has been substantiated by the direct observation of JCPA members and Neighbors. Heron prefer marsh habitat with open water with fish and amphibians to feed on. The substrate of the subject wetland is firm to support these wading birds, and the water levels are sufficient to support food resources. Small fish have been observed in an open water pocket in the southwest corner of the marsh. In addition, a wetland of this character likely has an abundant frog population which also provides food for herons.
5.4(a)(4) - Breeding Species of Birds
30. This wetland complex has the habitat to support one or more breeding pairs of the following listed bird species: Virginia rail, common snipe, marsh wren, and American Bittern. American bittern have been observed in the wetland but not seen. All of the species referenced above breed in marsh and wet meadow habitat in Vermont and prefer the combination of cattail marsh adjacent to wetland meadows and old fields for breeding purposes. These birds are secretive creatures that utilize emergent marsh habitat and wet meadows for their concealment cover and diverse food resources. The subject wetland has these habitat attributes.
5.4(b)(3) - Muskrats, Otter, or Mink
31. A worn trail exists at the interface of the marsh and scrub/shrub wetlands directly west of the Westall house. The trail has been developed by wildlife movement. The trail is used by muskrats, as evidenced by browsed marsh vegetation within the path. It also is quite possible that otter and mink use this trail since those species utilize wetlands such as this for feeding and will tend to concentrate their movements and feeding activities at the edges of wetlands.
32. Muskrat bank dens and bank slides exist in the subject wetland. This is evidence of recent use of the subject wetland by muskrats.
33. A muskrat lodge exists 137 feet from the Westall house and 124 feet from the edge of the Westall porch. An open area exists around this lodge consisting of open water and cover that is attractive to wetland dependent wildlife and migratory waterfowl. The Board noted the existence of the lodge and the open water area with associated cover during its site visit.
34. Evidence indicates that muskrat lodges identified in the subject wetland complex are currently being utilized by muskrats.
35. The muskrats that are using the wetland complex are having a beneficial effect on the water/vegetation interspersion by creating areas of open water within the cattail marsh. Muskrat eat the cattails and other vegetation which helps maintain a high plant diversity in the marsh. This provides attractive habitat for waterfowl to feed and rear broods. It also provides feeding areas for wading birds such as herons and bitterns, and encourages the presence of prey species such as fish, crustaceans, and other invertebrates.
5.4(b)(4) - Beaver
36. There are two beaver lodges associated with the wetland complex. One lodge is located on the west side of the marsh across from the Westall house. This lodge was observed by the Board on its site visit. The second lodge is located roughly in the center of the beaver pond to the north of the marsh. The shrub swamp wetland to the north and adjacent to the Westall house has evidence of historic beaver feeding activity. The wet meadow on the east side of the marsh next to the Westall and Gregory houses has evidence of historic beaver feeding activity. There is an old beaver dam, located approximately under the power line that traverses the interface between the marsh and the beaver pond habitats, that the Board used to cross the wetland on its site visit. Furbearer activity exists over and around this beaver dam. The trails and slides referenced in Findings 31 and 32, while developed by muskrats, may be used by beaver.
5.4(e)(1)(b) - Dominant Wetland Vegetation
37. The dominant wetland vegetation class adjacent to the Westall and Gregory houses is a combination of deep and shallow marsh. The dominant vegetation in this marsh is cattail, but sedges, grasses, and alders also exist. The fruiting bodies of these species provide food for waterfowl, and the cattail vegetation provides excellent concealment cover for wetland dependent wildlife.
5.4(e)(1)(c) - Contiguous to a Lake, Pond, River, or Stream
38. The marsh component of this wetland is contiguous to an open water beaver pond to the north. This juxtaposition of marsh and open water habitats provides important diversity for breeding, brood-rearing, resting and migrating waterfowl, feeding and concealment habitat for wading birds, and feeding, migration and home range habitat for wetland furbearers such as beaver, muskrat, and otter.
5.4(e)(1)(d) - Habitat Types
39. The majority of the landscape surrounding this wetland complex is mixed softwood and hardwood forest cover, old fields and open lands. The wetland is composed of marsh, wet meadow, shrub swamp and open water beaver pond habitats. A complex wetland of this nature, with areas of undisturbed surrounding habitats as described above, provides for a great diversity of wetland-dependent and other wildlife functions and values.
5.4(e)(1)(e) - Emergent or Woody Vegetation / Open Water
40. The marsh habitat to the west of the Westall and Gregory homes is composed roughly of 75 percent emergent vegetation with the remaining 25 percent constituting open water.
5.4(e)(3) - Wetland Dependent Wildlife
41. The wetland complex is used by a variety of wildlife species. In addition to those specifically discussed in Findings 26 through 36 above, the wetland also has suitable habitat for and is used by deer, moose, bear, and fox. Various amphibian and reptile species, including yellow-spotted salamanders and snapping and painted turtles, also likely inhabit this wetland.
Function 5.4 - Impacts on Wildlife and Migratory Bird Habitat
Lot #3 and the Westall House
42. Many of the wetland dependent wildlife that utilize, or may utilize, the subject wetland for breeding, feeding, migration or other purposes essential to their life requisites are highly sensitive to human presence, activities and disturbance.
43. Domestic human activities such as opening and closing home and car doors, vehicle noise and movement, the presence of domestic animals and children playing, and deck parties are incompatible with wildlife use of adjacent wetlands. Many species of birds and mammals are at least sensitive to and some are intolerant of human activity during at least some period in their annual life cycles. This is the most important wildlife-based rationale for maintaining a suitable undisturbed buffer zone between residences and wetland habitat. An extended distance between development and wetland habitat provides the necessary visual and auditory buffer for sensitive wildlife species.
44. Human disturbance causes both behavioral and psychological responses on the part of wildlife. Both responses disrupt energy budgets for the disturbed individuals essentially resulting in increased energy expenditures and decreased energy intake. Both responses also disrupt established patterns of breeding and courtship, incubation, rearing of young, feeding and energy intake, and movement and migration, among others. These disruptions cost the individuals time and energy. For example, a Black Duck disturbed from a nest or resting spot expends nearly 11 times more energy in its flushing response to the disturbance than in an undisturbed state. Such responses are typically associated with human activities such as walking, talking, bike riding, and similar intrusive behavior.
45. Responses may be temporal in nature. Some species, for example, are more susceptible and sensitive to disturbance at one time of the year than another. Often the breeding and reproductive periods in spring and summer for waterfowl, wading birds and wetland furbearers are highly sensitive periods. Response on the part of wildlife to human disturbance may vary depending on a variety of variables including the age of the individual, its surrounding habitat, proximity to escape cover, frequency of disturbance, and time of year, among others. Physiological responses are not easily identified, as opposed to behavioral responses, but can be extremely profound. The most common physiological responses to human disturbance include: (1) increased heart rate and respiration; (2) increased blood flow to skeletal muscle; (3) increased body temperature; (4) increased blood sugar; and (5) reduced blood flow to skin and digestive organs. As described above relative to the effects of behavioral responses, these outcomes ultimately effect the energy budgets of the disturbed individuals, and, if disturbed during the reproductive periods, their reproductive success which affects population growth and viability.
46. Disturbance impacts do not tend to exhibit a direct linear relationship with density of human activity. Rather, the most important factors determining the level of impact include characteristics of the activities, the frequency of the activities, and the behavior of humans. This means that even one residence can have a profound disturbance and displacement effect on the wildlife using this wetland.
47. Other than the Westall and Gregory houses, homes which currently exist in proximity to the subject wetland were built prior to the enactment of the VWR. To some extent, these older residences have had an adverse impact on wetland dependent wildlife. Therefore, new development proposals require careful scrutiny to ensure that further encroachment does not add to the cumulative impact of human disturbance on wetland dependent species.
48. Educational and recreational use of the subject wetland can also have an adverse impact on wetland dependent wildlife and bird species, however, due to its intermittent nature, it generally has less of an impact than human uses of the wetland which are persistent, such as physical occupation of the wetland by homes and attendant residential uses.
49. The Westall house is particularly poorly located and designed for protecting the wildlife and migratory bird function and associated values of the subject wetland. Because the house was constructed on fill directly in the shrub swamp wetland, immediately adjacent to the cattail-fringed open water wetland, and because it was designed with a porch and numerous windows facing directly on the wetland, its occupation and use will create significant visual and auditory impacts disruptive to specific species of wildlife and birds identified with the subject wetland.
50. Great blue heron, which have been documented as using the wetland, are extremely sensitive to human presence. The known potential disturbance for this species relative to its use of feeding habitat is 150 meters (492 feet).
51. An undisturbed, vegetated buffer zone is critical to protecting wildlife species, such as the Great blue heron, from harmful disturbance by human activity. The Westall house is located within the subject wetland only 39 feet from open water and a deck on the western side of the house provides occupants with outdoor residential space overlooking and within a few feet of the cattail marsh. There is little vegetation between the house and the marsh edge capable of creating an effective visual and auditory buffer. Thus, the very presence of the Westall house and any attendant human activity associated with its occupation will impact the feeding behavior of Great blue heron within the southern end of the wetland complex.
52. Another example of the sensitive nature of this wetland to human disturbances is evidenced by the American bittern, which have been documented as present in the wetland. Bitterns are highly secretive and will also abandon suitable nesting and feeding habitat at the slightest disturbance by humans. Given the proximity of the Westall house to the subject wetland, it is highly likely that the daily activities of normal domestic use would be enough to cause the abandonment of this wetland, or at least a large portion of it, by bitterns. The same can be said of Virginia rail, Common snipe, and Green-backed heron who might use the site.
53. Given the fact that the Westall house and associated infrastructure are located entirely within the subject wetland and associated buffer zone, the disruptive effect resulting from the occupation of the Westall house and human use of Lot #3 not only affects the presence of the above-listed species of birds in the subject wetland and their relative distribution in this and surrounding wetlands, but also affects their reproductive potential which ultimately affects the viability of these species at the population level. If a development reduces a wetland's ability to support breeding by some of these sensitive bird species, then there is a corresponding decline in the overall regional carrying capacity for these species. In other words, such impacts limit the ability of these species populations to both grow and remain viable.
54. Human disturbance of muskrats during the reproductive period can reduce their reproductive success. In other words, muskrats are not comfortable rearing young around people. In the present case, the disruptive effect of human occupation of the Westall house could alter the beneficial relationship between the muskrats and their positive influence on the wetland habitat described in Finding 35, thereby affecting other wetland dependent wildlife such as waterfowl.
55. The shrub swamp/ wet meadow wetland habitat directly adjacent to the Project constitute an important transition zone where a preponderance of the wildlife activity will take place. Habitat transition zones, often associated with the buffer zones of wetlands, are where wetland wildlife and non-wetland wildlife will concentrate their movements. These areas serve as a refuge during high water periods for some of the wetland wildlife. In the present case, the siting of the Westall house in the shrub swamp wetland will likely result in the disruption of animal movement patterns in the transition zone between the open water wetland and cattail marsh and surrounding upland areas.
57. The Westall house has and will continue to have an undue adverse effect on the wildlife and migratory bird habitat function of the subject wetland unless mitigation is possible.
Lot #2 and the Gregory Lawn and Shared Wastewater Disposal System
58. For the reasons stated in Findings 42 through 46 above, the encroachment of the Gregorys' mowed lawn on the buffer zone of the wetland meadow creates more than a minimal adverse impact on the wetland-dependent wildlife function of the subject wetland because it encourages the presence of human activity within the buffer zone -- such as lawn mowing and children playing -- which can be disruptive to the annual life cycle functions of protected wildlife and bird species.
59. Unlike development on Lot #3 which is located squarely in the subject wetland in close proximity to the open water portion of the wetland, the Gregorys' mown lawn is largely outside the buffer zone of the wet meadow wetland, at least 100 feet from the edge of the cattail marsh, and 180 feet from the open water portion of the wetland complex. Therefore, there is a greater degree of physical separation of disruptive human activities from potential nesting sites, feeding areas, and other wetland-dependent wildlife habitat. Moreover, there is greater opportunity to create effective visual and auditory buffers on Lot #2 because there is ample space and better soil conditions within the wet meadow wetland to establish a shrub hedge to further segregate and mask human activities associated with use of the Gregorys' mown lawn.
60. The shared on-site sewage disposal system that serves the Gregory house is located on a knoll, an upland inclusion between the cattail marsh and the Gregory house. It is located in the wetland buffer of the cattail marsh. Installation of the forced main from the septic tank to the leach field resulted in a temporary adverse impact to the Class Two wetland. However, on-going operation of the well and shared on-site sewage disposal system pose only a minimal adverse impact on the wildlife and migratory bird function.
Function 5.7 - Education and Research in Natural Sciences
61. The subject wetland is significant for function 5.7 (education and research in the natural sciences).
70. The wetland is used by environmental groups, local schools and organizations, such as Scout Troops, to educate members and students about wetland characteristics including but not limited to tracking wildlife and identifying wetland dependent plant and animal species.
71. Students at the Essex Technical Center have constructed a wildlife viewing blind on the west side of the subject wetland. The Westall house is readily observable from this site.
72. The subject wetland was the subject of a scientific study and resulting report prepared in the 1960s. It also was the subject of a UVM Masters thesis.
73. Scientific research and educational activities are allowed uses under Section 6.2(k) of the VWR.
Function 5.7 - Impacts on Education and Research in the Natural Sciences
Lot #3 and the Westall House
74. To the extent that the presence and use of the Westall house disturbs the life cycle functions of identified wildlife and bird species, thereby eliminating or reducing the population of these species in the subject wetland, it will adversely affect opportunities for wildlife and bird observation and education.
Lot #2 and the Gregory Lawn and Shared Wastewater Disposal System
75. The Gregorys' mown lawn will have a minimal adverse effect on education and research in the natural sciences. This is because the lawn is located outside of the subject wetland and the Gregorys and ANR have agreed that a planted buffer will effectively separate the area of human activity from critical wildlife and bird habitat in the subject wetland.
76. The shared on-site sewage disposal system has no on-going adverse impact on education and research in the natural sciences.
Function 5.8 - Recreational Value
77. The subject wetland is used for recreational purposes by numerous persons from Jericho Center. Residents of the area regularly snow shoe, cross-country ski, ice skate, sled, bird watch, go for nature walks, swim, fish, boat, horseback ride and track wildlife in the subject wetland.
78. As noted in Finding 48, recreational use of a wetland can create adverse impacts on wildlife and migratory bird habitat. There is no evidence that the current types and intensity of recreational uses of the subject wetland pose a threat to wildlife and migratory bird habitat.
79. Birdwatching, hiking, boating, fishing, horseback riding, swimming, snowshoeing, skiing, and similar outdoor recreational activities are allowed uses under Section 6.2(i) of the VWR.
Function 5.8 - Impacts on Recreational Value
Lot #3 and the Westall House
80. The Westall house has no adverse impact on the recreational value of the subject wetland.
Lot #2 and the Gregory Lawn and Shared On-Site Sewage Disposal System
81. The Gregory lawn and shared on-site sewage disposal system have no adverse impact on the recreational value of the subject wetland.
Function 5.9 - Open Space and Aesthetics
82. The wetland can be readily observed by the public. The wetland is accessible by at least two public recreational paths.
83. The first is the remnants of Varney Road, just to the north of the Westall house, which provides public access to the subject wetland and a path used by the public to cross the cattail marsh. This crossing roughly divides the lower third from the northern two-thirds of the wetland complex and provides views of all of the wetland to the south and much of the wetland to the north. In addition, Varney Road continues to the western side of the wetland and up a hill overlooking the wetland, until it reaches the maintained portion of Varney Road. At this point the road width is wide enough to allow for cars to park and persons to access the wetland from the west side of the wetland.
84. A second recreational path leaves from the north side of Wilder Lane (formerly the east side of Varney Road) and enters a mowed field, adjacent to and immediately to the east of the subject wetland, owned by the Laisdell Pond Association. The entrance to the path is readily visible and the path proceeds north to Tillotson Drive, a residential neighborhood, as well as serves as a route to Jericho Center. Much of the wetland is visible from this path.
85. Numerous residents of Jericho Center utilize the two paths around the wetland, the wetland itself, and private property adjacent to the wetland, to view the subject wetland for its aesthetic qualities.
86. The subject wetland is recognized by town residents and municipal officials as having unique characteristics that make the wetland complex aesthetically important to the residents of Jericho Center.
87. Both the current and previous Jericho Comprehensive Town Plan have identified the area as an important wetland resource. The wetland's value to the Town is articulated in the following statement from the plan: "the elimination or encroachment of these areas by uncontrolled development, drainage, or filling would be an irreplaceable loss to Jericho resident."
88. The positive aesthetic affect the wetland has on the Town of Jericho is one reason that Jericho Village Center was placed on the National Register of Historic Places in 1983.
89. The open water, cattail marsh, and shrub swamps of the subject wetland contrast with the evergreen dominated forested upland slopes on the west and the open fields and encroaching residential development on the east side, making the subject wetland a distinct feature in the surrounding landscape.
Function 5.9 - Impacts on Open Space and Aesthetics
Lot #3 and the Westall House
90. The Westall house is the most dominant man-made feature visible from numerous vantage points in and around the subject wetland. This includes views from the recreational paths.
91. While other houses are visible from the wetland from certain vantage points, several factors set the Westall house apart. First is its location. The Westall house is located at the toe of the sloped shrub swamp wetland and immediately adjacent to the cattail marsh and open water wetland. It is highly visible to people in or near the wetland complex. Second is the scale of the house. The Westall house is a multi-story house that sticks out more than the few older, smaller houses that are visible from the wetland. The westerly elevation of the Westall house, readily visible to the public, is more than three stories tall, consisting of an elevated basement, two stories, and a pitched roof. Third, is the color of the house. It is painted white.
92. From the middle of the wetland on old Varney Road, the Westall house is a prominent structure and it noticeably contrasts with the landscape that surrounds the rest of the wetland complex. There is a one-story house built in the 1800s which is in close proximity to the subject wetland. Nevertheless, the difference in size and character between the two houses and the fact that the older house sits on a hill above the wetland makes the older house far less obtrusive than the Westall house. In addition, a row of mature cedar trees hides the older house from view especially when viewing the wetland from the west.
93. The Westall house has and will continue to have an undue adverse effect on the open space and aesthetic function of the subject wetland unless mitigation is possible.
Lot #2 and the Gregory Lawn and Shared On-Site Sewage Disposal System
94. Due to its setback from the subject wetland and its buffer zone, the Gregory lawn is not readily visible from public vantage points in and around the wetland. Likewise, the shared on-site sewage disposal system is not readily visible from public vantage points in and around the wetland. The Gregorys lawn and the shared on-site sewage disposal system therefore have no adverse impact on the open space and aesthetic function of the subject wetland.
Mitigation
Lot #3 and the Westall House
95. The Applicant's wetlands consultant did not take into account the impacts of the Project on American bitterns and Great blue heron when he prepared the CUD Application. He does not dispute, however, the presence of these two species at the subject wetland and he acknowledges that they are extremely sensitive to human disturbance.
96. The Applicant's wetlands consultant did not consider the impacts of the Project on muskrats when he prepared the CUD Application. He acknowledges, however, that a muskrat lodge exists 100-150 feet from the Westall house. He further acknowledges that muskrats have a beneficial effect on the biological functions of the wetland, and impacts to muskrats may have broader impacts on the wetland as a whole.
97. The Applicant's wetlands consultant was not aware that educational activities and wildlife viewing had been conducted at the subject wetland at the time he prepared the CUD Application.
98. The Applicant's wetlands consultant considered only the visual impacts of the Project when viewed from town roads and similar public places in preparing the CUD Application. He did not consider the views of the Westall house from the community paths to be relevant.
99. The Applicant proposes to mitigate the adverse impacts of the Westall house and its attendant use by:
A. Reducing the size of the present deck which faces the wetland so as to limit the potential number of occupants of the deck;
B. Changing the color of the house from white to earth tones so as to blend into the surrounding area;
C. Plant trees so as to screen the visibility of the house from the wetland complex and to create a visual and auditory screen to reduce the adverse impacts of the house and its attendant use on wildlife.
100. Hobart Heath also has proposed down-shielded lighting at the Westall house to localize light and reduce its intensity, as well as window tinting to further mitigate the adverse impacts of the Westall house on the wetland functions.
101. The Applicant has provided no assessment of how measures A. and B. in Finding 99 would mitigate the adverse impacts of the Westall house on functions 5.4, 5.7, and 5.9, nor an implementation plan for such mitigation. The Applicant also has provided no assessment how the measures proposed by Hobart Heath would mitigate the adverse impacts of the Westall house on the same protected functions.
102. The only mitigation measure for which the Applicant has offered any specific information is the planting of a screen of trees. Charles Siegchrist, the Applicant's landscape design consultant, specifically recommends the planting of an ell-shaped line of six- to seven-foot white cedar trees, five feet on center, on the west and north sides of the Westall house within 10 feet of the house. This screen would be located near the edge of the wetland and within a few feet of the exterior walls of the Westall house. Additionally, the mitigation plan calls for the planting of a swamp maple to soften the corner of the cedar hedge, where it forms the ell. To the south of the Westall house, within the disturbed buffer zone, the Applicant's landscape design consultant proposes a planting of shrubs and perennials to provide shelter and forage for certain unspecified species of birds and butterflies. The shrubs proposed are Red Stem Dogwood, Serviceberry, Winterberry, and Arrowwood, which, along with the white cedar, are all moisture tolerant and species native to Vermont.
103. The Westall house is estimated to be 30 feet tall. The Applicant's landscape design consultant initially estimated that it would take 10 years for the proposed cedars to obscure the house in entirety. He now acknowledges that it may take longer to screen the north side of the house. At a growth rate of 1 foot per year or less, it could take from 24 to as many as 30 years for the trees to reach the necessary height to visually mask the house. This growth rate assumes that optimal growing conditions exist in close proximity to the Westall house for the growing of white cedar, an assumption which is not necessarily supported given the site disturbances that have occurred on Lot #3.
104. The Applicant has no implementation plan to assure that the proposed planting plan will be properly executed and maintained and that any dead or dying trees are replaced.
105. The Applicant's landscape design consultant has no qualifications to address the impacts of the Project on wildlife and migratory bird habitat. He specifically designed the planting plan to address the visual impacts of the Westall house only. No evidence was provided to suggest that the shrubs and perennials recommended would provide shelter and forage for the species of wetland-dependent birds identified in the VWR.
106. The Applicant's wetlands consultant does not know whether the proposed planting plan will mitigate the adverse impacts of the Westall house on wildlife and migratory bird habitat. He does not know whether such habitat can even be restored, given the location of the Westall house.
107. Because the Westall house is located directly in the subject wetland, the proposed plantings cannot mitigate the adverse impacts of the building and its attendant use on function 5.4 and its values.
108. The Applicant has not proposed measures other than those identified in Finding 99 to minimize the adverse impacts of the Westall house.
Lot #2 and the Gregory Lawn and Shared Wastewater Disposal System
109. The new delineation demonstrates that the entire Gregory house and most of the Gregorys' lawn are located on upland and not within the 50-foot buffer zone for the subject wetland complex.
110. According to the new delineation, a minor portion of the Gregorys' mowed lawn is within the buffer zone of the wet meadow as well as their well and shared on-site sewage disposal system.
111. Neither the Gregorys' mowed lawn nor the water supply and on-site sewage disposal system approved by the Subdivision Permit cause undue adverse impacts on the following protected functions: 5.7 (education and research in natural sciences), 5.8 (recreational value), and 5.9 (open space and aesthetics). The on-going operation of the well and shared on-site sewage disposal system pose only a minimal adverse impact on function 5.4 (wildlife and migratory bird habitat).
112. The encroachment into the buffer zone by the Gregorys' mowed lawn creates more than a minimal impact on the wildlife and migratory bird habitat function of the wetland. Unless mitigated, the human presence and activity associated with the Gregorys' mowed lawn will have an undue adverse impact on the diverse wildlife and bird species that utilize the wetland complex.
113. The Gregorys and ANR stipulate that the adverse impacts to the wildlife and migratory bird function can be sufficiently mitigated to achieve no net undue adverse effect by limiting the encroachment of the mowed lawn into the buffer to no more than 30 feet and demarking the limit of this encroachment with red cedars that are a minimum of 4 feet tall, planted 10 feet on center. The Gregorys have agreed to file a final planting plan with the ANR for its review and approval.
114. Red cedar may not be the most appropriate species of tree to achieve an adequate visual and auditory buffer given the specific site conditions of Lot #2.
115. The Gregorys have agreed that they and their successors in interest, will plant, maintain, and replace when and as necessary the trees required by the final, planting plan for Lot #2, approved by ANR.
116. The ANR requires and the Gregorys have agreed to record any CUD and any final, approved planting plan in the Land Records of the Town of Jericho.
IV. CONCLUSIONS OF LAW
A. Standard of Review and Burden of Proof
The Appellants in this consolidated proceeding are the Applicant for the CUD and the Gregorys. They filed their appeals with the Board pursuant to Section 9 of the VWR and 10 V.S.A. § 1269, seeking a de novo review of the CUD Application.
There is no dispute that the subject wetland is identified on the National Wetland Inventory map for that portion of Chittenden County encompassing the Jericho Center area. As noted in the Prehearing Order, the Board presumes that a Class Two wetland is significant for all ten wetland functions listed in VWR, Section 5. Therefore, it is not necessary for any party to present evidence on the wetland's significance for any particular function at issue.
In the usual course of events, the Applicant has the burden to demonstrate by a preponderance of the evidence that the Project, or any part thereof, satisfies the standards set forth in VWR, Section 8.5 (Conditional Use Review Standards). Re: Appeal of Larivee, Docket No. CUD 92-09, Findings of Fact, Conclusions of Law, and Order at 14 (Mar. 25, 1994). Where, as here, the Applicant is not the only party interested in and supportive of the issuance of a CUD, the burden of proof and persuasion rests with all of the appellants(2) to demonstrate that the Project, or any part thereof, will not result in an undue adverse effect on the protected functions at issue and, if it does, whether those impacts have been sufficiently mitigated to allow the issuance of a CUD. Memorandum of Decision at 5. Thus, the initial inquiry is not whether the parties advocating for denial of the CUD have proven that the Project will have an undue adverse impact. Rather, the first question is whether the Applicant and the Gregorys have proven that the Project, or any part thereof, will not have an undue adverse impact on any protected function at issue.
The Board notes that this appeal involves the after-the-fact request for a CUD. That is, the Project had already been constructed when the CUD Application was filed with the ANR, and the Applicant is now seeking a CUD to assure that his encroachment upon the jurisdictional wetland and its buffer zone complies with the VWR after such encroachment has already occurred. The fact that two houses exist on the site has no legal bearing in favor of the appellants on the Board's approach to applying the applicable standards in the VWR to the Project. It would be imprudent public policy and contrary to the Board's mandate under 10 V.S.A. ch. 37 to protect Vermont's significant wetland resources if the Board were to afford any advantage to an applicant for an after-the-fact CUD. Such an approach would only serve to encourage developers to construct first and seek approval later without regard to the impact of their activities on the functions that make particular wetlands significant. Accordingly, the Board has reviewed the Project, and its constituent parts, first, as if the Project were undeveloped and, second, taking into account the impacts of the actual build-out of the Project on the wetland functions at issue.
B. CONDITIONAL USE ANALYSIS
The construction of residential structures and attendant infrastructure are not allowed uses within the meaning of VWR, Section 6.2. Accordingly, such development may be allowed within a significant wetland or its associated buffer zone only under the terms of an order issued by the Secretary of ANR in accordance with the provisions of VWR, Section 8. VWR, Section 6.3. Having been denied a CUD by the ANR and appealed that decision to the Board, the appellants must prove de novo that the Project, or any part thereof, meets the standards in VWR, Section 8.
Section 8.5(a) of the VWR states:
The [Board] may determine that a proposed conditional use in Class One or Class Two wetlands or their buffer zones will have no undue adverse impact only when the [Board] determines that the proposed use will not result in an undue adverse effect on protected functions. In making this determination, the potential effect on any proposed conditional use shall be assessed on the basis of both its direct and immediate effects as well as on the basis of any cumulative or on-going effects on the significant wetland.
The [Board] shall not determine that a proposed conditional use is in compliance with these rules if it has an undue adverse effect on protected functions unless the [Board] determines that these impacts are sufficiently mitigated. Adverse impacts on any protected functions, other than minimal impacts, shall be presumed to constitute an undue adverse effect unless mitigated in accordance with subsection (b), below.
Thus, under VWR Section 8.5(a), there are two ways to qualify for a CUD: either (1) the proposed conditional use will have no undue adverse impact upon the protected wetland functions at issue, or (2) any undue adverse effect on protected functions will be sufficiently mitigated such that there will be "no net undue adverse effect." VWR, Section 8.5(a) and (b); see also 10 V.S.A. § 905(7) and VWR, Section 8.5(c). Re: Barden Gale and Melanie Gale Amhowitz, Docket No. CUD-99-01, Findings of Fact, Conclusions of Law, and Order at 11 (Jul. 16, 1999); Re: Darryl and Stephanie Landvater, Docket No. CUD-96-06, Findings of Fact, Conclusions of Law, and Order at 9 (Aug. 28, 1997); Re: Champlain Oil Company, Docket No. CUD-94-11, Findings of Fact, Conclusions of Law, and Order at 10 (Nov. 1, 1995); Re: Appeal of Larivee, supra at 14. Such determination also shall include an assessment of "the potential effect" of the proposed conditional use "on the basis of both its direct and immediate effects as well as on the basis of any cumulative or on-going effects on the significant wetland." VWR, Section 8.5(a).
The initial task under Section 8.5(a) is to determine whether the Project will have an adverse impact on any protected function, beyond a minimal impact, taking into consideration any cumulative or on-going effects on the subject wetland. The Board has previously determined that the term "minimal" means "smallest in degree or amount." See Re: Barden Gale and Melanie Gale Amhowitz, supra at 11; Re: Appeal of Larivee, supra at 17. The Board has found that most adverse impacts are more than minimal, the exceptions being impacts of very limited duration or those of smallest degree with respect to those functions for which the wetland is significant. See Re: Barden Gale and Melanie Gale Amhowitz, supra (establishment of a lawn and garden area as mitigation in a wetland buffer zone did not have an undue adverse impact); Re: Lost Cove Homeowners Assoc., Inc., Docket No. CUD-98-04, Findings of Fact, Conclusions of Law, and Order (July 16, 1999) (construction of a driveway crossing through a narrow Class Two wetland and buffer zone did not have an undue adverse impact); Re: Darryl and Stephanie Landvater, supra (limited cutting of trees within a wetland buffer zone did not have an undue adverse impact).
Thus, the Board will begin its discussion of conclusions starting with those functions for which it has found that the Project, or its constituent parts, pose no adverse impacts or only minimal adverse impacts to the subject wetland. Then the Board will discuss those functions for which it finds the Project, or its constituent parts, pose adverse impacts and that require the parties to demonstrate adequate mitigation.
1. Function 5.8 - Recreational Value
As the Board found in Findings 80 and 81, the Project will have no undue adverse impact upon function 5.8 (recreational value).(3)
The JCPA presented ample evidence that the subject wetland is used for a variety of recreational purposes by numerous residents of Jericho Center. Many of these activities, however, are not intrinsically dependent upon the wetland's value for other functions. These activities include snow shoeing, cross-country skiing, ice skating, sledding, swim-ming, boating, and horseback riding. Moreover, the limited evidence that was presented suggests that these activities occur, not in the vicinity of the Project, but in those portions of the wetland north of the Project. Thus, the Board concludes that the recreational use of the wetland for these activities is not adversely affected by the Project.
Other recreational activities, however, have some direct connection to the wetland's significance as wildlife and migratory bird habitat such as the use of the wetland for nature walks, bird watching, and tracking. It can be said that the Project, and in particular the Westall house, has some adverse impact upon these activities. Nevertheless, the Board concludes that these activities are best analyzed in conjunction with impacts to educational activities related to the natural sciences under function 5.7. Re: Appeal of Larivee, supra at 10, Finding 55, and 18 (nature observation and animal tracking considered part of education in the natural sciences).
Accordingly, the Board concludes that the Project as a whole will have no adverse impact on function 5.8.
2. Function 5.7 - Education and Research in the Natural Sciences
Due to the fact that the Gregory house is located outside the subject wetland and its buffer zone, the Board concludes that the use of Lot #2 for residential purposes, including the mowed lawn and use of the water supply and shared on-site sewage disposal system, will have only a minimal adverse impact on functions 5.7 (education and research in natural sciences). While the installation of the shared on-site sewage disposal system may have adversely impacted these and other functions due to soil disturbance and construction activities, such disturbance was only temporary in nature and is not on-going. The vegetative screening proposed as mitigation for impacts on function 5.4 (wildlife and migratory bird habitat) will only further minimize any minimal adverse impacts to function 5.7 attributable to the mowed lawn and residential use of Lot #2.
On the other hand, the Board concludes that, given the location of the Westall house within the subject wetland and its attendant residential use, development of Lot #3 has had and will continue to have an undue adverse impact on function 5.4 (wildlife and migratory bird habitat) and concomitantly on specific wildlife and migratory bird species. See discussion at 29. Consequently, the Westall house and its attendant residential use will have an undue adverse impact on function 5.7 (education and research in natural sciences), unless mitigated. Indeed, the Applicant concedes that the Westall house will have more than a minimal adverse impact on function 5.4 and therefore has proposed some mitigation measures, albeit, inadequate, to address these impacts. The Applicant has offered no evidence even addressing the impacts of the Westall house on function 5.7, presumably because his wetlands consultant was not aware that educational activities and wildlife viewing (i.e.: nature walks, bird watching, and tracking) had been conducted at the subject wetland at the time he prepared the CUD Application. Moreover, the Applicant made no attempts to supplement the information contained in the CUD Application to address the impacts under function 5.7 once that function was clearly identified as within the scope of the issues to be decided in this proceeding.
The Board therefore concludes that the Applicant has failed to meet his burden of proof with respect to function 5.7 and the Westall house and residential use of Lot #3 will have an undue adverse impact on the wetland's use for education and research in the natural sciences.
3. Function 5.9 - Open Space and Aesthetics
Contrary to the Applicant's assertion, there are a number of vantage points from which the public can view the Project area from the wetland complex. Moreover, the wetland complex, itself, has been recognized by both the Town of Jericho and its residents, as having special or unique aesthetic characteristics and open space values which make the wetland complex significant.
Due to its setback from the subject wetland and buffer zone, the Gregory house, which is not subject to the Board's jurisdiction, is not readily visible from the Varney Road crossing and the several recreational trails. The Gregory's lawn and the shared wastewater system disposal system, which are located in the wetland buffer zone and are therefore subject to the Board's jurisdiction, also are not readily visible from public vantage points in and around the wetland. Therefore, in accordance with Finding 94, the Board concludes that development on Lot #2 within the wetland buffer zone has no adverse impact on the open space and aesthetic function.
The Westall house, in contrast, is the most dominant man-made feature visible to the public from numerous vantage points. It literally stands out "like a sore thumb," due to its scale, color, and, most importantly, its location within the wetland itself. Accordingly, the Board concludes that the Westall house creates an undue adverse impact upon function 5.9, unless that impact can be mitigated applying the standards in VWR, Section 8.5(b). See discussion below starting at 31.
4. Function 5.4 - Wildlife and Migratory Bird Habitat
In Finding 25, the Board found that the wetland complex provides a number of wildlife habitat functions which give rise to the wetland's significance for function 5.4. The Board found that the well and shared on-site sewage disposal system on Lot #2 had only a minimal impact adverse impact on function 5.4. See Finding 60. The Board also found that the presence of the Gregory's lawn constitutes more than a minimal adverse impact on wildlife and migratory bird habitat.(4) See Finding 58. Therefore, the question which yet needs to be decided is whether the adverse impact of the Gregorys' mown lawn can be adequately mitigated, given its location and the mitigation measures proposed in the Stipulation.
As described at length in Findings 42 through 56, the very presence of the Westall house within the wetland, coupled with its intended residential use, creates direct conflicts with function 5.4 habitat functions and specific bird and wildlife species. Therefore, the Board found that the Westall house has and will continue to have an undue adverse effect on the wildlife and migratory bird habitat function of the subject wetland unless mitigation is possible.
C. MITIGATION
Lot #2 and the Gregory House and Shared On-Site Sewage Disposal System
The Board concludes that, with certain conditions, the adverse impacts on function 5.4 (wildlife and migratory bird habitat) attendant to the residential use of Lot #2 can be mitigated such that there will be no net undue adverse effect.
In order to mitigate human presence and activity on that portion of the Gregorys' mowed lawn that is within the wetland buffer zone, ANR and the Gregorys have entered into a Stipulation requiring the planting of a vegetative screen at the edge of the lawn, thereby effectively preventing further human encroachment on the subject wetland and providing adequate separation of residential uses of the lawn from wildlife and migratory bird habitat. The Board has previously authorized planted buffers at the edge of a yard for the purpose of visually and auditorially masking human activity associated with residential use of a property, particularly where the encroachment into a wetland buffer zone is minor. Re: Barden Gale and Melanie Gale Amhowitz, supra at 13.
The Board concludes that the planting of a vegetative screen will be an effective mitigation measure for Lot #2 in that it will prevent further human intrusion into the subject wetland buffer zone by establishing a fixed edge for the mowed lawn. The ANR and Gregorys have agreed to use red cedar trees, four (4) feet tall, planted (10) ten feet apart to establish this boundary planting. The purpose of the planting is intended primarily to prevent the extension of the lawn, over time, into the undisturbed areas of the buffer zone, and secondarily to create a visual and auditory barrier. No party to this consolidated proceeding objected to the agreement reached by the ANR and the Gregorys regarding the proposed planting.(5) The Board, based on its independent review of the record, believes that the Stipulation reached by ANR and the Gregorys adequately mitigates the limited adverse impact upon function 5.4 (wildlife and migratory bird habitat) attributable to the Gregorys' lawn and its use. Provided adequate safeguards are imposed to assure the continued maintenance and, if necessary, replacement of trees in the buffer planting, this planting will accomplish its purpose by effectively limiting further physical encroachment into the buffer zone. It also will assure continued protection of the wildlife and migratory bird resource in support of function 5.7 (education and research in the natural sciences).
The shared on-site sewage disposal system does not create an undue adverse impact to function 5.4. and so therefore need not be mitigated.
Accordingly, because the Board concludes that the residential use of Lot #2 will not result in an undue adverse impact on function 5.4, a CUD should be issued for the Gregorys' lawn and water supply and the shared on-site sewage system.
Lot #3 and the Westall House
The Applicant asserts that the impact of the Westall house and its attendant use on functions 5.4 (wildlife and migratory bird habitat), 5.7, and 5.9 is not undue, although it has proposed certain mitigation measures to address human disturbance and visual impacts of the development on Lot #3 if the Board concludes otherwise.
With respect to function 5.4, the Board concludes that the wetland complex provides at least the following wildlife habitat functions: 5.4(a)(1), (a)(2), (a)(3), (a)(4), (b)(3), (b)(4), (e)(1)(c), (e)(1)(d), (e)(1)(e), and (e)(3). The Applicant provided no evidence to refute the testimony of the ANR's expert witnesses regarding the sensitivity of the wildlife that utilize or may utilize this wetland to human presence, activities, and disturbance. Indeed, the ANR's evidence strongly supports the conclusion that the Westall house is located entirely within the subject wetland, although site disturbance including the placement of fill make it difficult to determine where the actual wetland and buffer zone boundaries used to exist. Nonetheless, it is evident that the Westall house is located in a habitat transition zone, 39 feet from open water, in a significant wetland, and that certain species of birds and mammals recognized in VWR, Section 5.4, that are sensitive to human disturbance, utilize the subject wetland.
The Board has previously noted that there is a link between function 5.4 and other functions such as 5.7 (education and research in the natural sciences). Re: Appeal of Larivee, supra at 10, Finding 55, and 18. Consistent with this approach, the Board concludes that the impairment of wildlife and migratory bird functions attributable to the Westall house and its residential use constitute more than a minimal adverse impact upon the wetland's functions for education and research in the natural sciences. The Applicant has provided no evidence addressing this impact. Indeed, the Applicant's wetland consultant failed to address it in the CUD Application because he was not aware that the wetland was actually used for function 5.7 uses.
Finally, the Applicant has provided no evidence to refute the fact that the Westall house is highly visible from numerous areas where the public has access to and views the wetland. It is clear to the Board that the intrusion of the Westall house into the subject wetland has created more than a minimal degree of adverse visual impact under function 5.9 (open space and aesthetics).
Under VWR Section 8.5(b), a CUD applicant is required to demonstrate the following:
(1) The proposed activity cannot practicably be located on the upland portion of the site in question or on another site owned, controlled or available to satisfy the basic project purpose; and
(2) All practicable measures have been taken to avoid adverse impacts on protected functions; and
(3) The applicant has evaluated each of the protected functions in accordance with the protocols determined by the Department of Environmental Conservation; and
(4) The proposed conditional use has been planned to minimize potential adverse impacts on the protected functions; and
(5) A plan has been developed for the prompt restoration of any adverse impacts on protected functions.
Compensation is not available to avoid undue adverse impacts on functions (a)(3), (a)(4), (b)(3), (b)(4), (e)(1)(c), (e)(1)(d), (e)(1)(e), and (e)(3), and the Applicant has not offered compensation as a mitigation measure with respect to other functions such as 5.4(a)(1), (2), and 5.9.
As noted in the findings of fact, the Applicant provided no evidence that the Project purpose of residential development was not satisfied by the construction of the Gregory house on Lot #2. Second, the Applicant has not demonstrated that it explored all practicable measures to avoid adverse impacts on protected functions at issue. Third, it is apparent from the testimony, that the Applicant's wetlands consultant was handicapped in preparing in the CUD Application, given the changes that had already occurred at the Project site before he had been retained. Even taking into account this fact, it is apparent that the wetlands consultant did not conduct a thorough evaluation of the Project's impact on all wetland functions using Department of Environmental Conservation protocols, since he failed to adequately evaluate the Project's impacts on the wetland's use for education and research in the natural sciences, recreation, and open space and aesthetics.
Instead, the Applicant has attempted to propose after-the-fact measures to minimize the adverse impacts on the protected functions at issue. Specifically, the Applicant proposes to mitigate all impacts associated with the Westall house and its residential use by planting a six-foot cedar hedge to screen the house on the west and north sides. On its face, however, this proposal is not designed to address the adverse impacts on wildlife and migratory bird habitat but rather the aesthetic impacts.
The Board concludes that the Westall house and its attendant use constitute an undue adverse impact that cannot be mitigated through the planting of a cedar hedge, precisely because it is the location of the house within the wetland and its protected buffer that creates the zone of human disturbance. This is supported by the testimony of the Applicant's own wetlands consultant who stated at hearing that he does not know whether the proposed planting plan will mitigate the adverse impacts of the Westall house on wildlife and migratory bird habitat nor whether such habitat, once compromised, can even be restored through a planting plan given the location of the Westall house.
For similar reasons, the Applicant has failed to demonstrate that it can mitigate the adverse impacts of the Westall house and its attendant residential use on function 5.7 (education and research in the natural sciences) since that function, including the use of the wetland for nature walks, birding and tracking, is dependent on there being sufficient quality wildlife and migratory bird habitat to support species of birds and other animals that can be studied, researched and passively observed. The Applicant has simply failed to meet his burden of proof that the mitigation measures that he has proposed can adequately address the adverse impacts of the Westall house and its attendant use on function 5.7.
Even if the Board were to conclude that the planting of a cedar hedge could create an effective visual screen, as the Applicant's landscape designer has suggested, this does not address the adverse impacts of development and use of Lot #3 on function 5.9 (open space and aesthetics). First, the proposal provided is insufficient in detail. Evidence was submitted to the Board by JCC and JCPA that the plantings may never actually grow to screen the house, and if they do, it would in all likelihood take up to 30 years for the trees to reach the requisite height. Moreover, the Applicant failed to produce any evidence to refute this claim. It is unacceptable to the Board to accept as mitigation a planting proposal that will never fully and adequately screen a project within a reasonably short period of time. Moreover, the Applicant, while he has suggested other visual mitigation measures in his Proposed Findings of Fact and Conclusions of Law, offered no details at hearing concerning their implementation. In short, the Applicant has failed to meet his burden of proof that the visual mitigation measures that he has proposed can minimize actual and potential adverse impacts upon function 5.9.
The Board observes that in after-the-fact CUD applications, there is the temptation to envision other ways a project might have been developed to avoid adverse impacts upon protected wetland functions. Nevertheless, it is not the Board's role to re-design projects subject to its review to assure their compliance with the VWR. Re: Appeal of Larivee, supra at 20. It is incumbent upon those who have the burden of proof and persuasion to come forward with appropriate and credible mitigation measures. In this proceeding, the Gregorys have done so with respect to their uses on Lot #2. The Applicant, however, has failed to do so with respect to development and use of Lot #3.
C. CONCLUSION
For the reasons stated above, the Westall house and attendant residential use have an undue adverse impact on functions 5.4, 5.7, and 5.9. Therefore, the Applicant's request for approval of a CUD for the Westall house and attendant use is denied.
The encroachment of the Gregorys' lawn into the wetland buffer zone constitutes an adverse impact to function 5.4, which has been adequately mitigated by the buffer planting proposed in the Stipulation. Accordingly, a CUD for development activity on Lot #2 is issued, with appropriate conditions.
In their filing of February 3, 2000, the Gregorys ask the Board to include in its order the text intended to indemnify and hold them harmless against subsequent prosecution by the ANR for any alleged violations of the VWR occurring prior to entering into the Stipulation. The Board denies the Gregorys' request, because it has no authority to enforce the VWR and no discretion to release any party from liability for violating those rules. Enforcement authority and discretion rests solely with the Secretary of ANR. See 10 V.S.A. § 1274 and 1275; 3 V.S.A. § 2822 and VWR, Section 1.2. The Board observes, however, that the Gregorys were innocent purchasers of a non-comforming lot within the meaning of the VWR, and to the extent that they have diligently pursued compliance with the VWR by working toward a mitigation plan acceptable to the ANR, they should be rewarded, not punished, for their corrective actions.
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V. ORDER
1. The ANR's decision in DEC #95-241 is affirmed in part and denied in part.
2. The Board hereby denies without prejudice a CUD for residential development and related use of the subject wetland and buffer zone located on Lot #3.
3. The Board hereby issues a CUD, with the following conditions, for residential development and related use of the wetland buffer zone on Lot #2.
A. All activity shall be completed, operated and maintained as set forth in accordance with the CUD Application #95-241, as modified by the Stipulation, and in accordance with the above Findings of Fact and Conclusions of Law ("Decision").
B. With respect to Lot #2, the Gregorys, their assigns, and successors in interest (hereinafter, the "Gregorys"), shall limit the encroachment of the mowed lawn into the buffer zone to 30 feet and shall demark the limit of this encroachment with red cedars that are a minimum of 4 feet tall, planted 10 feet on center, or another species of tree approved by ANR. The Gregorys shall file a final planting and maintenance plan with the ANR for its review and approval prior to the execution of the planting plan.
C. The Gregorys shall plant, maintain, and replace when and as necessary the trees required by the final, approved planting and maintenance plan for Lot #2.
D. The Gregorys shall not disturb any native vegetation within the buffer zone not included in the designated area to be occupied by the mown lawn and above-referenced tree planting as indicated in the final, approved planting plan, without the prior written authorization of the ANR.
E. For five years following the installation of the above-referenced planting, the Gregorys shall monitor the buffer zone of Lot #2 no later than July 15 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 installation of the above-referenced planting shall be cleaned so as to contain no observable soil or vegetation prior to work in the wetland buffer zone of Lot #2 to help prevent the spread of nuisance plant species.
F. The Gregorys, shall have the above Decision, this CUD, and any final, approved planting and maintenance plan recorded in the land records of the Town of Jericho for Lot #2 of the affected lands and shall have the Decision, CUD, and final, approved planting and maintenance plan referenced in any deed for the property. The Gregorys shall supply the Vermont Wetlands Office with a copy of correspondence to the Town of Jericho certifying that the Decision, CUD, and final, approved planting and maintenance plan have been recorded within 30 days of the date of the final approval by the ANR of the planting plan.
G. By acceptance of this CUD, the Gregorys agree to allow representatives of the Department of Environmental Conservation, ANR, access to the property covered by the CUD, at reasonable times, for the purpose of ascertaining compliance with the Vermont Wetland Rules and the Vermont Water Quality Standards.
4. The above Decision and CUD do not relieve the Applicant or the Gregorys, or their assigns, or successors in interests, of the responsibility to comply with any other applicable federal, state, and local laws, regulations, and permits.
5. Jurisdiction over this matter is returned to the ANR. The ANR shall maintain continuing jurisdiction over activities within the subject wetland and its buffer zone on Lots #2 and #3 of this subdivision. The ANR may at any time order that remedial measures be taken if it appears likely that adverse impacts to the protected functions and values have and will occur.
Dated at Montpelier, Vermont, this 15th day of March, 2000.
WATER RESOURCES BOARD
\s\ Gerry Gossens
Gerry Gossens, Chair
David J. Blythe
Barbara S. Farr *
Jane Potvin
John D.E. Roberts *
* Board Members Barbara S. Farr and John D.E. Roberts were not present for deliberations on March 14, 2000; however, they have reviewed and concur with this decision.
1. On January 21, 2000, counsel for the Applicant filed a letter with the Board which, among other things, represented that his client and Hobart Heath had reviewed the Stipulation and agreed not to contest it.
2. The Board observes that in this particular appeal, the parties that bear the burden of proof are the appellants, the Applicant and the Gregorys. As noted at page 3, the Applicant did not file his own prefiled direct or rebuttal evidence, but instead adopted and relied upon the prefiled evidence submitted by Hobart Heath as his case in chief.
3. The subject wetland is presumed to be significant for function 5.8 (recreational value and economic benefit). There was no evidence, however, to support the conclusion that the subject wetland is an important fishery, or is regularly used for hunting and trapping, or for uses recognized as having some economic benefit under function 5.8.
4. Catherine Gregory argued in her prefiled direct testimony that the Gregorys' mowed lawn should be deemed an allowed use pursuant to VWR Section 6.2(r) and therefore exempt from Board review under the theory that that provision treats "[t]he mowing of existing lawns. . . within a buffer zone" as an allowed use. The Board concludes that the Gregorys' lawn was created after February 7, 1990, the effective date of the VWR. Therefore, the lawn does not qualify as an "existing lawn" and therefore is not an allowed use.
5. After indicating at the second prehearing conference that it had no objection to the Stipulation, JCC's representative, at hearing, indicated that it had serious questions concerning the choice of tree species proposed for the Gregorys' buffer planting. The Board believes that discretion to approve a final planting plan should be given to the ANR upon return of jurisdiction over this matter. If JCC continues to have concerns about the choice of tree species to be used in the Gregorys' planting plan, it may communicate such concerns directly to the ANR once the Board's decision becomes final. The ANR may take the JCC's suggested changes under advisement, in approving a final planting scheme for the buffer planting.