District Environmental Commissions #4, 6 & West Street Essex Jct., Vermont November 9, 2015

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1 District Environmental Commissions #4, 6 & West Street Essex Jct., Vermont November 9, 2015 Steven L. Palmer, P.E. NG Advantage 121 Gonyeau Road Milton, VT David C. Palmer, Jr. Palmer Sugarhouse 332 Shelburne Hinesburg Road Shelburne, VT RE: Jurisdictional Opinion #4-242 Palmer Sugarhouse Dear Messrs. Palmer: This jurisdictional opinion was initiated pursuant to Mr. Steven Palmer s written request of April 20, 2015 regarding the applicability of Act 250 jurisdiction over the construction of an enlarged parking lot at the Palmer Sugarhouse located on the Shelburne-Hinesburg Road in the Town of Shelburne, Vermont. I have based my analysis on the Palmer Sugarhouse website; conversations with and submittals by Steven Palmer; conversations with and submittals by David Palmer; the University of Vermont s Proctor Maple Research Center s web site ( PRMC ); and information from the ANR mapping website and Google Earth. For the reasons set forth below, I have determined that the lack of evidence does not allow me to claim that Act 250 jurisdiction applies for the work done in the parking lot. Facts 1. The Palmer Sugarhouse is located on a parcel of approximately 50 acres located in the Town of Shelburne, Vermont. Palmer s Sugarhouse s tract of land is improved with a barn and a parking lot. 2. On February 22, 2011, David Palmer Sr. passed away. Prior to this the sugar house used the adjacent land now part of the Marjorie T. Palmer Revocable Trust as its sugarbush. The parcel is approximately 111 acres and contains an estimated 2,000 sugar taps. 3. According to Steven Palmer (grandson of David Palmer, Sr.) the Palmer Sugarhouse property currently has approximately 50 taps in the sugarbush. 4. According to PMRC, one tap yields approximately 30 gallons of maple sap. 40 gallons of sap will yield one gallon of maple syrup. Therefore 50 taps will yield approximately 1500 gallons of sap which will produce approximately 37 gallons of maple syrup. According to the April 2, 2015 edition of the local newspaper, The Citizen, Palmer Sugarhouses produces a few hundred gallons annually. 5. According to the Palmer Sugarhouse web site, the Palmer s Sugarhouse has maple demonstrations, sells maple goodies, holds sugar on snow parties, has a petting zoo, provides trails and horse rides, and hosts live music. The website also states that the sugarhouse offers their facilities for private parties. In addition the web site shows pictures of people who have been served food. Telephone: (802)

2 Page 2 of 5 6. State protected Class Two wetlands are found south of the expanded parking lot and to the west of the sugarhouse. 7. Steven Palmer has claimed that over the years since the passing of David Palmer, Sr., David Palmer, Jr. (son of David Palmer, Sr.) has made extensive improvements to the parking lot. In addition the parking lot is now being used for the parking of commercial trucks not associated with the sugarhouse. 8. David Palmer, Jr. submitted a series of photographs taken over a 10-year period showing that no substantial enlargement of the disturbed area has occurred since In 2007 it was estimated that the disturbed area of the parking lot encompassed approximately 3.65 acres. In 2014, that disturbed acreage encompassed approximately 3.88 acres. 9. In this same series of aerial photographs, the parking lot has been improved through deposition of gravel. 10. At all relevant times, the Town of Shelburne has had a duly adopted subdivision and zoning ordinance. Issue Does the enlargement of the parking lot require an Act 250 permit as development, pursuant to 10 V.S.A. 6001(3)(A)(i)? Development (original jurisdiction) Analysis Act 250 jurisdiction is triggered by either development or subdivision. Development is defined, in part, as The construction of improvements on a tract or tracts of land, owned or controlled by a person, involving more than 10 acres of land within a radius of five miles of any point on any involved land, for commercial or industrial purposes in a municipality that has adopted permanent zoning and subdivision bylaws. 10 V.S.A. 6001(3)(A)(i). Act 250 Rule 2(C)(2) defines construction of improvements "as any physical action on a project site which initiates development. Re: Real J. Audet and Joe Audet Auto and Truck Sales, Inc., Declaratory Ruling #409, Findings of Fact, Conclusions of Law and Order at 5 (Vt. Envtl. Bd. December 5, 2002), aff d In re Real Audet, 2004 VT 30. The enlargement of a parking lot is a physical change; hence it could be considered construction of improvements. The tract of land is greater than 10 acres and the owners of the Palmer Sugarhouse are considered persons pursuant to 10 VSA 6001(14)(i). The remaining question should then be whether the Palmer Sugarhouse can be considered a commercial operation. Act 250 Rule 2(C)(4) defines commercial purposes as the provision of facilities, goods or services by a person other than for a municipal or state purpose to others in exchange for payment of a purchase price fee, contribution, donation or other object or service having value. The sale of maple goods, use of the facilities for private parties and live music venues would be an exchange of facilities, goods and services for compensation. Therefore, I conclude that the Palmer Sugarhouse meets the definition of a commercial operation. However, 10 V.S.A 6001(3(D)(i) exempts farming under an elevation of 2,500 feet from the definition of development as used under Act 250.

3 Page 3 of 5 10 V.S.A. ' 6001(22) defines Farming as: (A) the cultivation or other use of land for growing food, fiber, Christmas trees, maple sap, or horticultural and orchard crops; or (B) the raising, feeding or management of livestock, poultry, equines, fish or bees; or (C) the operation of greenhouses; or (D) the production of maple syrup; or (E) the on-site storage, preparation and sale of agricultural products principally produced on the farm; or (F) the on-site production of fuel or power from agricultural products or wastes produced on the farm; or (G) the raising, feeding or management of four or more equines owned or boarded by the farmer, including training, showing and providing instruction and lessons in riding, training, and the management of equines. The production of maple syrup is a listed agricultural activity. It is the intent under Act 250 that the operation occurs on a farm as evidenced by using the phrase on the farm in the definition. The Environmental Board stated (Scott Farm Declaratory Ruling #413 Findings of Fact, Conclusions of Law, and Order at 5 January 16, 2003), quoting the Dept. of Agriculture, Food, and Markets, that the term principally [in 10 VSA 6001(22)(E)] implies that at least 51% of the products used by an operation must be agricultural. Shortly after the passing of David Palmer Sr., the use of the on-farm (land of the Marjorie T. Palmer Revocable Trust) sugarbush has ceased. It is the ingredients that go into making the product, not just the composition of the final product that is the relevant inquiry for determining whether an agricultural product is principally produced on the farm. Re: WhistlePig, LLC, No Vtec, Decision on Motions for Summary Judgment, at 5 (April 11, 2014). Based on the findings above, the revenue of the Palmer Sugarhouse from the sale of 37 gallons of sap produced on the farm could not be at least 51% of the total revenue of the sugarhouse as compared to the sale of a few hundred gallons of maple syrup, sales of maple goodies and use of the facilities. In determining whether crops are principally produced on the farm, 10 V.S.A. 6001(22)(E), lands leased by a farmer are considered part of the farm, if the farmer controls all aspects of cultivation on those leased lands and if the lease is an arms-length transaction and not merely a ruse or mechanism or scheme to allow the farmer to include produce from other growers within his farm. In re Ochs, 2006 VT 122, (Vt. Sup. Ct. 11/27/06), affirming Re: Peter and Carla Ochs, Declaratory Ruling #437, Findings of Fact, Conclusions of Law and Order at 9-11 (Vt. Envtl. Bd. July 22, 2005), citing In re Vitale, 151 Vt. 580, 584 (1989) and Black's Law Dictionary 298 (5th ed. 1979) and In re Eastland, Inc., 151 Vt. 497, (1989). According to Steven Palmer, the Palmer Sugarhouse does not lease the adjacent sugarbush on lands owned by the Marjorie T. Palmer Revocable Trust. This sugarbush was formerly integral to the agricultural operation of the sugarhouse. Mr. David Palmer, Jr. had been requested but has failed to provide any information to establish that his operation meets the agricultural definition. The burden of proof to establish that a project meets the farming exemption is on the party claiming the exemption. In re Ochs, 2006 VT 122, 12 (Vt. Sup. Ct. 11/27/06), affirming Re: Peter and Carla Ochs, Declaratory Ruling #437, Findings of Fact, Conclusions of Law and Order at 8 (Vt. Envtl, Bd. July 22, 2005)(citing United States v. First City National Bank of Houston, 386 U.S. 361, 366

4 Page 4 of 5 (1967)); Re: WhistlePig, LLC, No Vtec, Decision on Motions for Summary Judgment, at 5-6 (April 11, 2014). Mr. David Palmer has been repeatedly asked for the information to determine if his operation is agriculture. He has refused to provide that information, thus his operation does not qualify for the agriculture exemption. However, regardless of whether the Palmer Sugarhouse can be considered agricultural, that is whether the products that go into the making of maple syrup come from the farm - the trigger for the requirement to apply for an Act 250 permit is the commencement of construction. Under Act 250, any construction activity, no matter minute, triggers Act 250 jurisdiction. In re Real Audet, 2004 VT 30, 11 (4/1/04), affirming, Re: Real J. Audet and Joe Audet Auto and Truck Sales, Inc., Declaratory Ruling #409, Memorandum of Decision at 2 (Vt. Envtl. Bd. February 25, 2003). The definition includes any physical disturbance on a project tract which initiates development for any purpose enumerated in Rule 2(A) [now 10 VSA 6001(3)(A)]. Re: Real J. Audet and Joe Audet Auto and Truck Sales, Inc., Declaratory Ruling #409, Findings of Fact, Conclusions of Law and Order at 5 (Vt. Envtl. Bd. December 5, 2002), aff d In re Real Audet, 2004 VT 30 (4/1/04); Re: Roger Loomis d/b/a Green Mountain Archery Range and Richard H. Sheldon, #1R EB, Findings of Fact, Conclusions of Law, and Order at (Vt. Envtl. Bd. December 18, 1997). The evidence presented to demonstrate the existence or non-existence of construction of improvements has mostly been color photocopies of aerial images from Google (Map or Earth). Aerial photointerpretation is a highly skilled technique. None of the principals providing evidence have shown that they (or their consultants) have either course work in aerial photointerpretation or extensive experience. Aerial photographs viewed on Google have been georeferenced to fit with other spatial layers. Georeferencing stretches and distorts the actual photograph thus spatial (areal) calculations can have extreme variability. Since the actual areal extent of the parking lot is the crux of my determination, I cannot claim that expansion of the parking lot has or has not been accomplished. The other evidence of the construction of improvements has been the parking of commercial trucks, not associated with the sugarhouse on the parking lot. Mere use of land is not construction of improvements. Re: Harold Rock, Declaratory Ruling #372 (Vt. Envtl. Bd. December 23, 1998). Based on the submitted evidence, I cannot conclude that a substantial enlargement of the Palmer Sugarhouse parking lot has occurred since a time that it was unambiguous whether the Palmer Sugarhouse was commercial or qualified as an agricultural operation. Conclusions The alleged enlargement of the parking lot cannot be substantiated and therefore I cannot determine that an Act 250 permit was required. However based on the lack of evidence submitted, the Palmer Sugarhouse does not qualify for the agriculture exemption, pursuant to 10 V.S.A 6001(3(D)(i). This is a jurisdictional opinion issued pursuant to 10 V.S.A. 6007(c) and Act 250 Rule 3(A). A request for reconsideration by the district coordinator, pursuant to Act 250 Rule 3(B), must be sent to the district coordinator at the above address within 30 days of the mailing of this opinion. Effective July 1, 2013, no appeal may be taken from a jurisdictional opinion or coordinator s decision on reconsideration without reconsideration by the Natural Resources Board. Requests for reconsideration by the Board must be submitted to the Board within 30 days of the mailing of this decision or a coordinator s decision on reconsideration. The mailing address is: Natural Resources Board, Dewey Building, National Life Drive, Montpelier, VT For additional information, see the

5 Page 5 of 5 Board s Interim Procedure on Jurisdictional Opinions and Reconsideration [ If you have any questions regarding this jurisdictional determination, please call me at (802) Sincerely, /s/peter E. Keibel Peter E. Keibel District #4 Coordinator Cc: Louis Borie, Executive Director, NRB Greg Boulbol, Esq., General Counsel, NRB w:\nrb\dist4\jo\jo to jo 4-250\4-242\4-242 jo.docx

6 CERTIFICATE OF SERVICE I hereby certify on this 9 th day of November 2015, a copy of the foregoing JURISDICTIONAL OPINION #4-242 to Steven Palmer, PE, NG Advantage and David Palmer, Palmer Sugarhouse re Palmer Sugarhouse, Shelburne, VT, was sent by U.S. mail, postage prepaid to the following individuals without addresses and by to the individuals with addresses listed. Note: any recipient may change its preferred method of receiving notices and other documents by contacting the District Office staff at the mailing address or below. If you have elected to receive notices and other documents by , it is your responsibility to notify our office of any address changes. All replies should be sent to nrbact250essex@state.vt.us. You can now fill out and submit the Act 250 survey online at: Steven Palmer, PE NG Advantage 121 Gonyeau Road Milton, VT spalmer@ngadvantage.com David Palmer, Jr. Palmer Sugarhouse 332 Shelburne Hinesburg Road Shelburne, VT davepalmer@palmerinsurancevt.com Chair, Selectboard/Chair, Planning Commission Town of Shelburne PO Box 88 Shelburne, VT Chittenden County Regional Planning Commission 110 West Canal Street, Suite 202 Winooski, VT rmahony@ccrpcvt.org Elizabeth Lord, Land Use Attorney Agency of Natural Resources 1 National Life Drive, Davis 2 Montpelier, VT anr.act250@vermont.gov Jon Groveman, Chair Lou Borie, Executive Director Greg Boulbol, Esq., General Counsel Kimberley Lashua, Administration Manager Natural Resources Board Dewey Building Montpelier, VT Dated at Essex Junction, Vermont, this 9 th day of November, Natural Resources Board Technician christine.commo@vermont.gov W:\NRB\DIST4\JO\JO to JO 4-250\4-242\JO cos.docx FOR YOUR INFORMATION District #4 Environmental Commission 111 West Street Essex Junction, VT Barry Murphy/Vt. Dept. of Public Service 112 State Street, Drawer 20 Montpelier, VT barry.murphy@vermont.gov Craig Keller/John Gruchacz/Jeff Ramsey VTrans Policy, Planning & Research Bureau One National Life Drive, Drawer 33 Montpelier, VT craig.keller@vermont.gov john.gruchacz@vermont.gov jeff.ramsey@vermont.gov Vt. Agency of Agriculture, Food & Markets 116 State Street, Drawer 20 Montpelier, VT AGR.Act250@vermont.gov Division for Historic Preservation National Life Building, Drawer 20 Montpelier, VT scott.dillon@vermont.gov james.duggan@vermont.gov