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NATURAL RESOURCES BOARD Districts #2&3 Environmental Commission
100 Mineral Street, Suite 305 Springfield, VT 05156-3168
Tel: 802-885-8855 www.nrb.state.vt.us Fax: 802-885-8890
December 18, 2013 Nathan H. Stearns, Esq. Hershenson, Carter, Scott and McGee, P.C. P.O. Box 909 Norwich, VT 05055-0909 [email protected] Re: Jurisdictional Opinion 3-164 / Fuster Trucking, Inc., Pittsfield Dear Nate: The following is a jurisdictional opinion in response to your written request for a ruling on whether or not Act 250 jurisdiction attaches to the “sand shed” and the activity associated with it. It is my opinion that all commercial trucking at this site is subject to Act 250 jurisdiction. The following are the facts I have relied upon in making this determination:
1. Jurisdictional Opinion #3-142, issued on September 25, 2013, concluded that an Act 250 permit was required for the construction of improvements and the commercial operation of the trucking business at the Fuster Trucking property located at 39 Diablo Lane, a private road off Route 100.
2. Land Use Permit (LUP) #3W1073 (the Permit), issued on July 15, 2013, authorized the previous improvements to the access road and authorized the continued operation of a commercial trucking facility for up to six trucks.
3. As requested by the Permittee, the scope of Act 250 jurisdiction was limited under the Permit “to the approximate one acre that is related to the commercial trucking operation, as depicted in Exhibit C. This does not exempt any future “development” or “subdivision” that may, on its own, require an Act 250 permit.”
4. The application stated that “the only portion of the Applicant’s property that is used by the Applicant’s trucks is the driveway and parking area. . . . From time to time the Applicant washes his trucks in the driveway and performs minor maintenance in the barn, but no materials are unloaded from or loaded onto the trucks and the trucks do not drive onto other parts of the property. . . “
5. Under Criterion 5 Traffic Safety and Congestion, Findings of Fact and Conclusions of Law and Order #3W1073 (Findings) at 26, in part, states:
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The access road, Diablo Lane, is also used by two existing residences as well as by farm equipment and trucks with trailers to pick up and deliver agricultural products.
6. Finding 28 states, in part: The Applicants propose a maximum of twelve trip ends (6 round trips) per day. Generally, there will be an average of four trip ends per day.
7. Finding 29 states: Not all trucks that use the site are owned by Fuster Trucking. Mr. Fuster
is not the only truck driver that uses the site or drives the trucks that he owns.
8. Finding 30 states: The trucking business is an around-the-clock operation, seven days a week. Materials hauled include tankers of water, enclosed box trailers that might carry firewood for Coltons, and other products or materials. Testimony.
9. Condition 1 of the Permit states:
The project shall be completed, operated and maintained in accordance with: (a) the conditions of this permit; (b) Findings of Fact and Conclusions of Law #3W1073; and (c) the permit application, plans, and exhibits on file with the District Environmental Commission and other material representations.
10. Condition 3 of the Permit states:
No change shall be made to the design, operation or use of this project without a permit amendment issued by the District Environmental Commission (Commission) or a jurisdictional opinion from the District Coordinator that a permit is not required.
11. Condition 8 of the Permit states:
Running/warming of diesel engines and the use of the access drive by commercial trucks is prohibited between 10:00 p.m. and 6:00 a.m., Monday through Saturday, and between 10:00 p.m. and 7:00 a.m. on Sundays and holidays.
12. The Fusters store winter driveway sand in an existing shed that is located just
outside the one-acre jurisdictional area. This sand is used on the Fuster
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driveway and Diablo Lane which serves as a driveway for the farming operations, the trucking operation, and the home of Brett Fuster. A Fuster family member also operates a sanding and snow plowing business and uses this sand.
13. Sand is delivered by dump truck approximately one time per year. Sand is then loaded onto trucks to be applied to roads and driveways on an as-needed basis.
14. Commercial sanding and snow plowing trucks use the driveway throughout the night during storms.
15. The Applicants did not disclose the commercial sanding and snow plowing operation at the time that Jurisdictional Opinion #3-142 was written or as part of the Act 250 permit application.
Issue: Is the commercial sanding and snow plowing operation subject to the Act 250 permit?
Conclusion Jurisdictional Opinion #3-142 concluded that an Act 250 permit was required for the construction of improvements and the commercial operation of the trucking business at the Fuster Trucking property. The fact that there are additional commercial enterprises which use the facilities besides “Fuster Trucking” would not have changed the conclusion that a permit was required for trucking operations. Had the Applicants disclosed that the sand shed was used for commercial trucking activities on the site, it would have been included within the jurisdictional area by the District Environmental Commission as well. At this point, the permittees have several options. Either have all commercial trucking operations abide by the requirements in the permit – such as the condition of maximum of twelve trip ends (6 round trips) and restrictions on use of the access road, or amend the permit to include the other commercial truck trips and the times they need to operate. It is my opinion that all commercial trucking at this site is subject to Act 250 jurisdiction. It is unfortunate that the permittees did not disclose the other enterprises during the application process so that these trips and the operational constraints could have been addressed at that time. 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
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reconsideration. The mailing address is: Natural Resources Board, Dewey Building, National Life Drive, Montpelier, VT 05620-3201. For additional information, see the Board’s Interim Procedure on Jurisdictional Opinions and Reconsideration [http://www.nrb.state.vt.us/policies/recon.pdf]. Best regards,
Linda Matteson District Environmental Coordinator cc: See Certificate of Service
E-Notification CERTIFICATE OF SERVICE #3-164
I hereby certify that I sent a copy of the foregoing Jurisdictional Opinion on December 18, 2013, by U.S. Mail, postage prepaid, to the individuals without email addresses and by electronic mail, to the following with email addresses: 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 email below. If you have elected to receive notices and other documents by email, it is your responsibility to notify our office of any email address changes. All email replies should be sent to [email protected] Nathan Stearns, Esq. Hershenson, Carter, Scott and McGee, P.C. P.O. Box 909 Norwich, VT 05055-0909 [email protected] Pittsfield Selectboard Mark Begin, Chair P. O. Box 556 Pittsfield, VT 05762 [email protected] Pittsfield Town Planning Suana Bicek, Chair P. O. Box 556 Pittsfield, VT 05762 Two Rivers-Ottauquechee Regional Commission 128 King Farm Rd, Woodstock, VT 05091 [email protected] [email protected] Elizabeth Lord, Esq. / Land Use Attorney Agency of Natural Resources Office of Planning & Legal Affairs 1 National Life Drive, Davis 2 [email protected] [email protected] [email protected] Fuster Trucking, Inc. and Joseph R. and Patricia A. Fuster 4477 Route 100 North, Pittsfield, VT 05762 [email protected] William Oren P.O. Box 523, Pittsfield, VT 05762 [email protected]
Ray Colton, Trustee for Robert & Virginia Colton Irrevocable Trust P.O Box 688 Pittsfield, VT 05762 Roger & Joyce Stevens Swiss Farm Inn P.O. Box 510, Pittsfield, VT 05762 [email protected] Dot Williamson – Snowmobiles 176 West Branch Farm Road Pittsfield, VT 05762 Suzanne Butterfield P.O. Box 80, Gaysville, VT 05746
By: Terry Ranney NRB Technician
