VERMONT ENVIRONMENTAL BOARD
10 V.S.A. Chapter 151 i /
Re: Charles and Barbara Bickford
Land Use Permit #5W1093-EB (Revocation)
MEMORANDUM OF DECISION
This decision pertains to a petition to revoke Land Use
Permit #5W1093 filed by Curtis and Ruth Whiteway.
The permit authorizes Charles and Barbara Bickford (the
Respondents) to extract up to 50,OOp cubic yards of rock per year for 50 years and to operate a crusher between May 1 and
November.
The Petitioners allege that the permit should be revoked because the Respondents did not list them as adjoining property owners on the original application, and because the Respondents submitted false information with their application.
For the reasons explained below, the
Board has declared the permit void.
I.
BACKGROUND
On January 22, 1993, the Board
Decision in which it ruled that the issued a Memorandum of proceeding would be bifurcated and that, before addressing the issue off revocation, the Board would first decide whether the
Respondents failed to list the Whiteways on the application and, if so, whether the permit is void.
A hearing was scheduled for the parties to present evidence on this issue.
The parties decided that they would stipulate to the facts and that a hearing would not be necessary for presenting either evidence or oral argument.
On February 5,
1993, the Petitioners and Respondents filed a Stipulation of
Facts.
On February 17, the Petitioners filed a memorandum and on February 18, the Respondents filed a memorandum. On
February 18, the Petitioners and the Respondents filed a waiver of hearing.
The Board deliberated on March 10, 1993 in Danville.
II.
ISSUE
Whether the permit is void for failure of the
Respondents to list the Petitioners as adjoining property owners on their original application.
III. FINDINGS OF FACT
The following findings of fact are based upon the parties' Stipulation of Facts filed on February 5, 1993 and i

Charles and Barbara Bickford
Land Use Permit #5W1093-EB (Revocation)
Memorandum of Decision
Paqe 2 the memoranda filed by the Petitioners on February 17 and the Respondents on February 18.
The Stipulation includes a copy of the lease between the Respondents and Caledonia Sand
& Gravel Co., the deed conveying spring rights and a spring to the Petitioners, and a copy of the Marshfield tax map showing the properties in question.
The Respondents own a 192-acre tract of land in
Marshfield, Vermont (the tract).
A quarry is located on the tract.
In 1963, the Respondents entered in a five-year lease with Caledonia Sand & Gravel Co. which established a 26-acre portion of Respondents' land as the site of a quarry (the quarry site).
On July 13, 1990, the Respondents filed an application for an Act 250 permit with the District #5
Environmental Commission to authorize operation of the quarry.
The application did not list Curtis and Ruth
Whiteway as adjoining landowners.
The Petitioners own approximately 63 acres of.woodland
north of, and physically abutting, the Respondents'
192-acre tract.
The Petitioners' 63-acre parcel does not abut the quarry site.
The boundary of the
Petitioners' land and the boundary of the quarry site are approximately 100 feet apart at the nearest point.
The Petitioners also own a parcel of land, on which are located the Petitioners' house an&rental tourist cabins, approximately 500 feet su?%heast of, and across
U.S. Route 2 from, the quarry site.
A 4.7 acre parcel of land owned by Parker is located between the tract and Route 2 directly across Route 2 from the
Petitioners' land.
The Petitioners also own a spring and the land containing the spring on the tract, together with an easement to access, maintain, and operate the spring.
The spring is located approximately 75 feet west of the quarry site boundary.
The spring serves as the water supply for the Petitioners' household.
The Petitioners did not receive personal notice of the
Respondents!
original Act 250 application or of an amendment application subsequently filed.
The
Petitioners did not attend any of the hearings because they did not know that an application had been filed.
An Environmental Board training and procedure manual is

m
11
! i
;! Charles and Barbara Bickford
I; Land Use Permit #5W1093-EB (Revocation) i Memorandum of Decision j; i' Paoe 3 maintained in each district office, pursuant to § 835 of 3 V.S.A.
Ch. 25 (Administrative Procedure Act).
Section JP-10-7 of the manual, dated November 28, 1983, addresses notice of applications and hearings under
Board Rule 10 and includes the following:
The Coordinator must:
. . .
2.
Provide written notice to adjoining landowners.
Although there is no statutory requirement to provide notice to adjoiners, coordinators should make all reasonable efforts to provide such notice, and should consult with the Executive
Officer before waiving the normal requirement to provide the list of adjoiners with the application. . . .
” III. CONCLUSIONS OF LAW
10 V.S.A. 56084(b) provides:
[T]he district commission shall forward nqtice and a copy of the application to the board and any state agency directly affected, and any other municipality or state agency, or person the district commission or board deems appropriate.
Notice shall also be published in a local newspaper generally circulating in the area where the land is located not more than 7 days after receipt of the application.
Environmental Board Rule 10(F) requires applicants to file with their application a list of adjoining property owners to the tract of land proposed to be developed.
Rule 10(F) states:
The applicant shall file with the application a list of adjoining property owners to the tract or tracts of land proposed to be developed or subdivided, unless this requirement is waived by the district coordinator.
Provision of personal notice to adjoining property owners and other persons not listed in section (E) of this Rule shall be solely within the discretion and responsibility of the district commission.
: :
/
The instructions on Schedule E included with the Act 250 application direct the following:

Charles and Barbara Bickford
Land Use Permit #5W1093-EB (Revocation)
Memorandum of Decision
Paae 4
Submit with the application a list of all adjoining landowners with mailing addresses. An
"adjoiner" is a person or organization which owns or controls land or easements on lands which physically abut the tract or tracts of land on which your project is located.
Be certain to include landowners on the opposite sides of highways, railways, and rivers (unless you can prove the highway is owned in fee by the state or municipality).
Also include homeowner associations, utility companies, and others with significant legal interest in the project land.
It is very helpful if you indicate the location of each adjoiner on your site plan.
The language of the instructions is clear: The names of any person whose land adjoins the tract on which the project is located must be listed.
There is no dispute that when the Respondents filed their application for an Act 250 permit in 1990, they did not include Curtis and Ruth
Whiteway on the list of adjoining property owners.
The Whiteways own a parcel of land across Route 2 from the tract.
This parcel, however, is separated from the tract by a 4.7 acre parcel owned by the Parkers and by U.S.
Route 2.
This parcel owned by the Petitioners does not, therefore, adjoin the tract.
The Petitioners' 63-acre parcel, however, directly abuts the tract on the north.
They also own a spring, the land underlying the spring, and an easement on the tract.
The instructions clearly require identification of persons with easements or any other legal interest in the lands.
The Respondents argue that they did not need to list the Petitioners as adjoiners based upon their ownership of the 63-acre parcel of land that abuts the tract to the north, because the word lVtractt' in the instructions refers to the quarry site and not the 192-acre tract.
The boundaries of the quarry site, the Respondents argue, were established in the lease between the Respondents and
Caledonia Sand & Gravel Co.
The Respondents contend that they did not list the Petitioners as adjoiners because the
Petitioners' land does not adjoin the quarry site.
The Board believes that the instructions are clear: any persons whose property adjoins the tract on which development will occur, or who own an easement on such
.
* d

Charles and Barbara Bickford
Land Use Permit #5W1093-EB (Revocation)
Memorandum of Decision
Paae 5 tract, must be identified on the Act 250 application. In numerous decisions, the Board has ruled that the "tract" on which development will occur includes all contiguous land owned by the owner of the land on which development will occur.
&, e.q., Re: Gerald Costello Garaae, D.R. #243
(July 2, 1991), aff’d., In re Gerald Costello Garaae, No.
91-379 (Vt. June 26, 1992); Re: Stokes Communication Corv.
and Idora Tucker, Land Use Permit #3R0703-EB, Memorandum of
Decision (March 31, 1993).
Although the 26-acre quarry site was delineated as part of the lease between the Respondents and Caledonia Sand & Gravel Co., fee ownership of the land remained with the Respondents.
Moreover, the term of the lease was only five years,, and the Respondents have been operating the gravel pit themselves for a number of years.
There is no question thatthe Respondents were required to list the Petitioners as adjoiners.
Failure to do so resulted in failure of the district commission to notify the
Petitioners, and, asp a result, the Petitioners did not know of the application or the hearings.
The right for adjoining property owners to participate as parties in Act 250 proceedings is granted at 10 V.S.A.
§ 6085(c).
Notice and an opportunity to participate in a hearing are fundamental elements of due process.
&ae,e.q.,
Zaaoreos v. Conklin, 109 N.Y.A.D.2d 1981, 491 N.Y.S.2d 358
(1985); Gav
V
. Countv Commissioners of Bonneville Countv
103 Idaho 626, 651 P.2d 560 (1982).
The Board's oroceduies require personal notice to adjoining property owners.
This is predicated, however, upon identification of adjoiners on the application.
Identification of adjoiners is explicitly required in Schedule E of the Act 250 application.
Board
Rule 10(F) provides that personal notice to adjoining property owners is solely within the discretion and responsibility of the district commission.
In this case, as in Conway, the district commission took no action with respect to providing personal notice to the Petitioners because the Respondents had failed to identify them.
When agency procedures and regulations require personal notice to adjoiners, such notice must be given.
"'Where the rights of individuals are affected, it is incumbent upon agencies to follow their own procedures.
This is so even where the internal procedures are possibly more rigorous then otherwise would be required'." In re Conwav, 152 Vt
526, 529, citina Morton v. Ruiz, 415 U.S. 199, 235 (1974).
The Board will therefore void Land Use Permit #5W1093.
Since the permit is void, the issue of whether the permit

_
Charles and Barbara Bickford
Land Use Permit #5W1093-EB (Revocation)
Memorandum of Decision
Paae 6 should be revoked is moot.
The revocation petition will be dismissed without prejudice.
IV.
ORDER
1.
Land Use Permit #5WlO93 is void.
,!
,
2.
The petition to revoke Land Use Permit #5W1093 is dismissed without prejudice.
3.
Jurisdiction is returned to the District #5
Environmental Commission.
1993.
Dated at Montpelier, Vermont this 12th day of April,
ENVIRONMENTAL BOARD
::\wp51\bickford.dec (v)
Elizabeth Courtney, Chair
Ferdinand Bongart;.
Lixi Fortna
Arthur Gibb
Samuel Lloyd
William Martinez
Steve E. Wright