In re Barlow

IN_RE_BARLOW.91-491; 160 Vt. 513; 631 A.2d 853


 NOTICE:  This opinion is subject to motions for reargument under V.R.A.P. 40
 as well as formal revision before publication in the Vermont Reports.
 Readers are requested to notify the Reporter of Decisions, Vermont Supreme
 Court, 109 State Street, Montpelier, Vermont 05609-0801 of any errors in
 order that corrections may be made before this opinion goes to press.


                                 No. 91-491


 In re Robert Barlow                          Supreme Court
    and Barbara Barlow
                                              On Appeal from
                                              Environmental Board

                                              May Term, 1992



 Stephen Reynes, Acting Chair

 Lon T. McClintock of Jacobs, McClintock & Scanlon, Bennington, for
    appellants

 Jeffrey L. Amestoy, Attorney General, and John H. Hasen, Assistant Attorney
    General, Montpelier, for State



 PRESENT:  Allen, C.J., Gibson, Dooley, Morse and Johnson, JJ.



      DOOLEY, J.   Petitioners Robert and Barbara Barlow appeal a ruling by
 the Vermont Environmental Board requiring them to obtain an Act 250 permit
 to continue operating their gravel pit.  They argue that their operation is
 exempted from review by 10 V.S.A. { 6081(b) because it preexisted the
 enactment of Act 250.  The State has moved to dismiss this appeal,
 contending that the action is moot because petitioners have now received a
 permit.  We deny the State's motion to dismiss and affirm the Board's
 decision that petitioners' gravel operation is not exempt from the Act 250
 permit requirements.

 

      The land now known as the Barlow gravel pit was purchased in 1959 by
 Joseph and Martha Sarkis.  At that time, the lot consisted of a 122-acre
 parcel on Dean Road in the Town of Pownal.  Some years later, portions of
 the lot were sold, including a four-acre lot now owned by Harriet Burdick.
      Gravel extraction on the parcel occurred as early as 1940.  Prior to
 1970, gravel extraction occurred only on the eastern portion of the lot,
 while sand and dirt, but no gravel, were extracted from the western portion.
 The owners did not operate the gravel pit; independent contractors such as
 John W. Patterson, Sr. and the Town of Pownal worked the pit and paid the
 owners for the gravel they removed.  Exact records were not maintained, and
 the most reliable source regarding the extraction of gravel from the pit is
 Patterson, who took gravel from the property from 1966 through 1978.  The
 Board accepted Patterson's testimony that the annual extraction rate from
 1966 through 1970 ranged between 5,800 and 11,200 cubic meters of gravel,
 sand, and sand and dirt fill, and that the pit was not used on a daily
 basis.  The extraction rate remained approximately the same for the years
 1970 through 1977.
      In 1978, Harwood and Lauretta Moore purchased the property.  In May
 1978, the district coordinator for the District 8 Commission issued to the
 Moores a project review sheet that stated:
         (Tentative as of 5-18-78)  Purchase of existing
         continuously used gravel pit from Joseph Sarkis for
         identical use by Harwood D. Moore.  Currently 2+ acres
         are opened and possibly up to 15-20 acres of the 100
         contain saleable earth resource.  New owner would
         probably be removing 100-200 [cubic yards] per day for
         sale in Massachusetts.  No [Act 250] permit required
         unless operation substantially changes.

 From 1978 to 1982, the Moores increased the extraction rate to approximately
 26,000 cubic yards per year.  In addition, the gravel extraction operation
 
 

 was extended to the western portion of the property because the eastern
 portion was nearly exhausted.
      In 1983, petitioners purchased the western portion of the parcel, as
 gravel extraction had ceased on the eastern portion of the land the previous
 year.  They continued gravel extraction on the western portion and extracted
 from 14,727 to 55,562 cubic yards per year between 1983 and 1990, averaging
 approximately 26,000 cubic yards per year.  Petitioners have operated the
 pit on a daily basis.
      The gravel pit on the western portion has expanded over the years to
 comprise an approximately nine-acre area, and now has approached to within
 150 feet of the Burdick land.  As a result, pit operations have become more
 audible to the residents of that property.  Petitioners plan to continue
 gravel extraction at the same average rate of 26,000 cubic yards per year
 that they maintained during the 1980s.
      While applying for a waste disposal permit, petitioners were advised to
 discover whether they were required to obtain an Act 250 permit.  They did
 so and initially were told they did not need a permit.  On June 14, 1989,
 the district coordinator reconsidered and determined that a permit was
 required.  The Board's executive officer affirmed this determination.
      Petitioners appealed, and the Environmental Board affirmed.  It found
 that there had been three changes in the gravel pit operation: (1) peti-
 tioners used a portable stone crusher where none had been used before; (2)
 the annual extraction rate had greatly increased since 1970; and (3) the
 frequency of gravel extraction had increased, from a sporadic undertaking to
 a daily occurrence.  It found that the latter two changes were "substantial"
 and triggered the need for a permit.  See 10 V.S.A. { 6081(b) ("any

 

 substantial change" to preexisting development triggers Act 250
 jurisdiction).  It explained its rationale as follows:
         In making this determination, the Board is examining not
         whether the impacts actually exist, but whether they
         potentially exist.  The Board is only evaluating whether
         a permit is required because of the potential for signi-
         ficant impacts, and it is for the District #8 Commis-
         sion, following submission of a permit application, to
         review the projects impacts in deciding whether to issue
         a permit.

 (emphasis in original.)  The Board also rejected petitioners' argument that
 it was estopped from finding Act 250 jurisdiction because petitioners
 reasonably relied on the 1978 project review sheet.
      After commencing of this appeal, petitioners applied for and were
 granted an Act 250 permit for their gravel operation, subject to specified
 conditions.  The State has moved to dismiss this appeal, claiming that the
 permit renders it moot.
      Before addressing the merits, we must determine whether this appeal is
 moot.(FN1) As a general rule, a case is moot if "the issues presented are no
 longer 'live' or the parties lack a legally cognizable interest in the
 outcome."  In re Moriarty, 156 Vt. 160, 163, 588 A.2d 1063, 1064 (1991).
 The controversy must remain alive through the course of appellate review.
 Id.  A case can become moot because the appellant obtains relief by another
 
 

 means.  See Town of Cavendish v. Vermont Pub. Power Supply Auth., 141 Vt.
 144, 147, 446 A.2d 792, 793 (1982).  Any alternative relief, however, must
 be complete so that "nothing further would be ordered by the court."  13A C.
 Wright, A. Miller & E. Cooper, Federal Practice and Procedure { 3533.2, at
 238 (2d ed. 1984).
      This case does not meet the test of mootness for three reasons.  First,
 petitioners have simply complied with the order of the Board during the
 pendency of this appeal because of the coercive effect of that order.  Com-
 pliance with a judgment pending appeal does not make a case moot "unless
 the parties intended to settle, or unless it is not possible to take any
 effective action to undo the results of compliance."  Id. at 247.
 Similarly, compliance with injunctions or specific orders will not moot the
 appeal "if it remains possible to undo the effects of compliance or if the
 order will have a continuing impact on future action."  Id. at 249.  The
 facts here indicate that if petitioners prevail in this appeal, the effects
 of compliance would be immediately reversible.
      This principle applies to orders of administrative agencies.  An
 illustrative example is Metropolitan Transportation Co. v. Pennsylvania
 Public Utility Commission, where the governing state agency denied the
 request of a taxicab company to self-insure and ordered the company to
 purchase third-party insurance or cease operating.  563 A.2d 228, 229-30
 (Pa. Commw. Ct. 1989).  The taxi company made the mandatory purchase during
 its appeal in order to remain in operation.  The court refused to dismiss
 the case as moot because the company continued to desire to operate without
 outside insurance and thus had a "necessary and continuing stake in the
 outcome."  Id. at 230.  The court added that it wanted to encourage parties

 

 in the position of the taxi company to operate in compliance with the law
 and would not discourage such compliance by a ruling that renders this type
 of appeal moot.  Id.  The same reasoning is directly applicable here.
      The second reason this appeal is not moot is that the relief
 petitioners seek is different from that provided by obtaining their permit.
 The fact that petitioners have received a permit is irrelevant to the issue
 presented by this appeal.  They seek to operate entirely free of Act 250
 regulation and the numerous restrictions and conditions that accompany the
 permit.  Petitioners should be able to pursue the separate claim that they
 do not need a permit and do not have to abide by its conditions.  See Miesz
 v. Village of Mayfield Heights, 111 N.E.2d 20, 22 (Ohio Ct. App. 1952)
 (receipt of zoning permit did not moot landowner's attack on
 constitutionality of zoning ordinance); cf. Polak v. Kavanah, 368 N.Y.S.2d 563, 565 (N.Y. App. Div. 1975) (gravel pit owner may attack zoning
 ordinance without seeking permit because permit would not give adequate
 relief where operation of ordinance allegedly constituted present invasion
 of property rights).
      Finally, the appeal is not moot because its resolution could have a
 significant impact on the value of petitioners' land and their ability to
 use it for its present purpose.  If a permit is required, the value of their
 land could be significantly reduced due to the restrictions created by Act
 250 jurisdiction.  The limitations inherent in operating under the permit
 are significant, even though the permit conditions are not improper if Act
 250 jurisdiction is found.  Alternatively, if no permit is required,
 petitioners' land would retain its value as determined independently of any
 Act 250 permit considerations.  Thus, the controversy is still clearly live.

 

      The Attorney General, acting as counsel to the Board, asserts two other
 bases for dismissing the appeal.  The first is that, by accepting the
 permit, petitioners are estopped from challenging Act 250 jurisdiction.
 This theory is not applicable in the circumstances present here, where the
 applicant complies with an order to obtain a permit to avoid penalties or,
 alternatively, the loss of its business.  Begin v. Inhabitants of Sabattus,
 409 A.2d 1269, 1272 (Me. 1979).  Because the Board compelled petitioners to
 seek a permit, they are not estopped from challenging the Board's
 jurisdiction.
      The second ground is that petitioners are manipulating the process by
 inconsistent actions so that "equity and economy require dismissal."  We do
 not agree that attempting to obtain a definitive ruling on Act 250 juris-
 diction while remaining in business is manipulation.  If the Board had an
 alternative method for petitioners to achieve these proper goals, the
 objection would be appropriate.  Under these circumstances, our endorsement
 of this objection would effectively insulate the Board's decisions from
 review.
      Given petitioners' legitimate interest in a resolution of the issues
 presented here, the continuing impact on future rights that Act 250 juris-
 diction carries with it, and the potential for a significant change in the
 value of the property, this appeal is not moot.  We therefore proceed to
 examine the merits.
      On the merits, petitioners make three arguments: (1) the Board applied
 the wrong legal standard to determine whether a permit was needed; (2) under
 any standard, the findings do not support the conclusion that a permit is
 needed; and (3) the Board is estopped from requiring a permit.  The first

 

 argument is a challenge to the Board's conclusion that it need find only
 potential impacts on Act 250 criteria to determine that a substantial change
 of use has occurred and that a permit is required.  The governing statute
 states that any "substantial change" in the use of the subject property
 disqualifies such property from the grandfather clause exemption to the Act
 250 requirements, and therefore necessitates a permit for its continued
 operation or development.  See 10 V.S.A. { 6081(b).  The Board acted under
 Environmental Board Rule (EBR) 2(G), which defines when a "substantial
 change" has occurred.  The rule looks to whether a change "may result in
 significant impact with respect to any of the criteria specified in 10
 V.S.A. section 6086(a)(1) through (a)(10)."  EBR 2(G) (emphasis added).
 Petitioners' claim that the rule is invalid if it means that a potential
 impact is sufficient to find a substantial change, and that it therefore
 cannot be interpreted as looking only at potential impacts.
      The claim of invalidity cannot be sustained.  We have specifically
 upheld the validity of EBR 2(G) in similar cases.  See In re H.A. Manosh
 Corp., 147 Vt. 367, 369, 518 A.2d 18, 19 (1986); In re Orzel, 145 Vt. 355,
 360, 491 A.2d 1013, 1016 (1985).  More importantly, however, in 1985, the
 Legislature, "in unambiguous terms," ratified all Board rules relating to
 administration of Act 250, including EBR 2(G).  In re Spencer, 152 Vt. 330,
 336, 566 A.2d 959, 962 (1989); see 1985, No. 52, { 5.  Thus, we must give
 EBR 2(G), as well as other rules relating to the administration of Act 250,
 "the same effect as . . . any law passed by the Legislature in the first
 instance.  It has effectively become part of the Act 250 legislative scheme
 codified at chapter 151 of Title 10."  Spencer, 152 Vt. at 336, 566 A.2d  at
 962.

 

      We also disagree with petitioners' interpretation claim.  In
 interpreting agency regulations, "the primary rule is to give language its
 plain, ordinary meaning."  Slocum v. Department of Social Welfare, 154 Vt.
 474, 478, 580 A.2d 951, 954 (1990).  By defining "substantial changes" to
 include changes that may result in significant impact, the plain language of
 EBR 2(G) does not limit Act 250 jurisdiction to changes that produce actual
 impact on the statutory criteria.  Moreover, we accord substantial weight to
 an agency's interpretation of its own rules.  See In re Killington, Ltd.,
 ___ Vt. ___, ___, 616 A.2d 241, 244 (1992).  For these reasons, we conclude
 that potential significant impact will satisfy the regulatory requirements.
      Petitioners argue that this conclusion is inconsistent with our
 decision in Manosh, where we stated that we did "not necessarily disagree"
 with the assertion that a determination of substantial change requires the
 finding of an actual, rather than potential, impact.  147 Vt. at 370, 518 A.2d  at 20.  Reliance on Manosh is misplaced, however, as in that case
 there was evidence supporting a finding of actual impact and we found it
 unnecessary to reach the issue now before us.  Further, Manosh came before
 our decision in Spencer noting that the Legislature had ratified the Board's
 rules.
      Our concern, in both Manosh and the instant case, is that sufficient
 emphasis be placed on the significance of any potential impacts found by the
 Board.  We recognize that too loose an interpretation of EBR 2(G) effec-
 tively eliminates this element of the substantial change test.  Any change
 of use has the potential for some impact on the statutory criteria.  Thus,
 while we agree that the Board may act on potential impacts, we believe a
 finding of significant impacts is necessary if the requirement of

 

 "substantial change" is not to be illusory.  The Board may not merely look,
 as petitioners suggest, for any potential impact, but must find that any
 such impacts are significant.
      Understandably, the Board has been unwilling to specifically define
 the term "significant."  Often, the determination as to whether there is a
 potential significant impact is inextricably fact-bound and not susceptible
 to the application of pre-set definitional rules.  Such determinations,
 however, are within the Board's area of expertise and enjoy a presumption
 of validity.  See Killington, Ltd., ___ Vt. ___, ___, 616 A.2d  at 244.
      Petitioners next claim that the conclusion there was a substantial
 change is unsupported by the findings, whatever standard is used.  "On
 appeal, an agency's conclusions of law will be upheld if they are fairly and
 reasonably supported by the findings of fact."  Orzel, 145 Vt. at 359, 491 A.2d  at 1015.  The findings of fact show that both the extraction rate and
 the frequency of usage of the gravel pit have increased since the 1970
 enactment of Act 250.  The evidence shows that the yearly extraction rate
 has been as high as five times the pre-Act 250 rate, and its average has
 reflected at least a 150 % increase over the highest pre-Act 250 figure.
 The Board also found that there was a "greater number of larger trucks
 entering and exiting the pit on a daily instead of a sporadic basis," which
 contributed to traffic, pollution, and aesthetic concerns.
      Petitioners do not challenge these findings of fact, arguing only that
 the findings do not support the conclusions.  We hold that the findings
 support the Board's conclusion that petitioners' operation of the gravel
 pit constitutes a substantial change to the development, as defined in the

 

 regulatory framework.  Therefore, we will not disturb the Board's decision
 that petitioners are subject to Act 250 jurisdiction.
      Finally, petitioners argue that the Board should be estopped from
 requiring them to obtain an Act 250 permit because they reasonably relied on
 the 1978 project review sheet to establish the historical rates of extrac-
 tion for the property.  Although the Board, in its ruling, stated that
 petitioners had not specifically argued equitable estoppel, it did recognize
 that this theory was the basis of petitioners' claim regarding the effect of
 their reliance on the project review sheet.  It also briefly indicated its
 belief that, on a substantive level, at least one of the elements of
 estoppel had not been met.  The State makes no argument that petitioners are
 barred from raising this claim on appeal, and we will therefore consider its
 merits.
      To prevail, petitioners must prove each of the elements of equitable
 estoppel: (1) the party to be estopped must know the facts, (2) that party's
 conduct must be intended to be acted on by the other, or reasonably
 perceived as such, (3) the party asserting the estoppel must be ignorant of
 the true facts, and (4) the party asserting the estoppel must rely on the
 other party's conduct, causing injury.  In re McDonald's Corp., 146 Vt. 380,
 384, 505 A.2d 1202, 1204 (1985).
      Petitioners' estoppel claim founders upon the first of these elements.
 In view of the uncontested evidence as to the historical extraction rate,
 the language of the project review sheet demonstrates that the Board had an
 incomplete knowledge of the relevant facts when the review sheet was issued,
 and therefore could not have given petitioners' predecessors in title any
 assurances upon which they or later owners were entitled to rely.  According

 

 to petitioners the review sheet specifies an extraction rate that is roughly
 comparable to the rate that both petitioners and their predecessors, the
 Moores, have maintained.  The sheet was issued to the Moores, however, for
 "identical use" to that of the previous owners.  The evidence received by
 the Board shows that the Moores' use was not identical to that of the
 previous owners; indeed, it grew substantially, from an annual high of
 approximately 11,200 cubic yards to an annual average of 26,000 cubic yards.
 Thus, the project review sheet is internally inconsistent.  It is apparently
 the product of incomplete or inaccurate information on the part of the
 inspector who issued it.  At the least, petitioners are unable to establish
 that the party to be estopped -- the Board -- knew the relevant facts.  As
 they cannot prove this first requisite element of estoppel, their claim
 fails, and we need not examine the remaining elements.
      We note, however, that petitioners' estoppel claim fails for two other
 reasons.  We have previously addressed the issue of whether the Board may be
 estopped from finding a substantial change because of prior representations
 made by an environmental agency employee.  See Orzel, 145 Vt. at 361, 491 A.2d  at 1016.  In Orzel, we stated that to hold that "the representation by
 the Agency's inspector prevents the Board from ever finding that petitioners
 need a permit fails to give meaning to the 'substantial change' language of
 the statute."  Id. at 361, 491 A.2d  at 1017.  The governing statute clearly
 specifies that substantial changes trigger the permit process.  It would
 defeat the legislative intent to allow the statutory requirement to be
 avoided in this way.  See In re Agency of Administration, 141 Vt. 68, 80,
 444 A.2d 1349, 1355 (1982) (remarks of state employee will not color court's
 construction of legal language).  This reasoning holds especially true here,
 
 

 where the representations were based on inaccurate information and were, at
 best, highly ambiguous.
      Further, petitioners face an added burden in that they are asserting
 estoppel against an agency of the state.  "This Court is reluctant to apply
 estoppel against the state unless there are 'extraordinary circumstances' or
 the 'injustice which would result from a failure to uphold an estoppel is of
 sufficient dimensions to justify any effect upon public interest or policy
 which would result from the raising of an estoppel.'"  Spencer, 152 Vt. at
 342, 566 A.2d  at 966 (quoting In re McDonald's Corp., 146 Vt. at 383, 505
 A.2d at 1203-04).  We find no "extraordinary circumstances" or substantial
 injustice here that would compel us to recognize petitioners' estoppel
 claim.
      Affirmed.

                                    FOR THE COURT:



                                    ______________________________
                                    Associate Justice



FN1.    The State asserts that the issue is controlled by an unpublished
 entry order in K.E.V., Inc. v. Environmental Bd., No. 88-359 (Dec. 4, 1989)
 and has provided us papers from that case to show that the cryptic order
 really means that obtaining a permit moots any claim that there is no Act
 250 jurisdiction.  We are unwilling to give controlling effect to an
 unpublished decision.  We note also that we have decided cases in a similar
 posture.  See In re Vermont Gas Sys., Inc,, 150 Vt. 34, 549 A.2d 627
 (1988); In re Baptist Fellowship of Randolph, Inc., 144 Vt. 636, 481 A.2d 1274 (1984).  In any event, this decision represents the first in-depth
 analysis of the mootness issue and is not foreclosed by the cursory action,
 and inaction, that came before.

-------------------------------------------------------------------------------
                        Concurring and Dissenting
  

 NOTICE:  This opinion is subject to motions for reargument under V.R.A.P.
 40 as well as formal revision before publication in the Vermont Reports.
 Readers are requested to notify the Reporter of Decisions, Vermont Supreme
 Court, 109 State Street, Montpelier, Vermont 05609-0801 of any errors in
 order that corrections may be made before this opinion goes to press.


                                 No. 91-491


 In re Robert Barlow                          Supreme Court
    and Barbara Barlow
                                              On Appeal from
                                              Environmental Board

                                              May Term, 1992



 Stephen Reynes, Acting Chair

 Lon T. McClintock of Jacobs, McClintock & Scanlon, Bennington, for
    appellants

 Jeffrey L. Amestoy, Attorney General, and John H. Hasen, Assistant Attorney
    General, Montpelier, for state



 PRESENT:  Allen, C.J., Gibson, Dooley, Morse and Johnson, JJ.



      ALLEN, C.J., concurring in part and dissenting in part.  While I agree
 with the majority's treatment of the mootness and estoppel issues, I dissent
 from its affirmance of the Environmental Board's conclusions regarding
 significant impacts.
      The Board established a two-part test to invoke Act 250 jurisdiction.
 Once the Board finds a change in development, the second prong of the test
 is that the Board must find that the change has caused a significant impact
 under one or more of the ten criteria.  In re H.A. Manosh Corp., 147 Vt.
 367, 370, 518 A.2d 18, 20 (1986).  There, the Board examined for and found
 actual and potential impacts.  In this case, the Board has departed from
 
 

 this test and relied solely on potential impacts.  It emphasized in its
 opinion that it did not determine whether there were actual impacts, but
 only whether there were potential impacts.  Its findings indicate that the
 increased extraction rate had been in existence for some twelve years and
 that the change from sporadic to daily use had probably existed for that
 same period, although the findings are not totally clear on this point.  The
 failure to determine whether impacts actually exist because of the changes
 during this period is incomprehensible.  Although we give substantial weight
 to an agency's interpretation of its own rules, this deferential level of
 review does not equate with passivity in determining the propriety of these
 interpretations.  In re Vitale, 151 Vt. 580, 583, 563 A.2d 613, 615 (1989).
      The Board found that there were three changes at issue:  the use of a
 crusher at the pit, a significant increase in the yearly extraction rate,
 and a change after 1970 from sporadic use to daily use.  It concluded that
 the crusher did not have the potential for significant impacts but that the
 increase in the rate of extraction and the frequency of use did.(FN1) The
 potential impacts relied upon were an increase in noise, which might impact
 on air pollution and aesthetics, and an increase in trips, which has the
 potential for significant impacts on traffic safety and congestion, air
 pollution and aesthetics.  The findings are sparse or nonexistent on these
 potential impacts.  With respect to noise, they indicate that "the pit is
 now approximately 150 feet from the closest edge of the Burdick tract" and
 
 

 as a result pit operations have become more audible to persons residing on
 that tract.  This finding might support a conclusion of actual impact, but
 it hardly supports a conclusion of potential impact.  The findings do not
 indicate whether the pit operation will come closer to the Burdick property
 with a resulting increase in noise or will move away with a decrease.  The
 increase in the number of trips (from ten or twelve to sixteen) is
 characterized by the Board as slight, and it is not explained how a slight
 increase in number has the potential for a significant impact.  The Board
 made no attempt to determine whether the increase over the twelve-year
 period had had any adverse impact on the criteria with which it was
 concerned.
      An examination for potential impacts makes sense in a case where the
 change in the development is immediately challenged and actual significant
 impacts cannot be ascertained.  But where, as here, the changes occurred
 years ago, it is absurd not to determine whether they have substantially
 impacted any of the criteria.  At the very least, the impacts from what has
 occurred and what is actually occurring should be examined in deciding
 whether potential impacts may result.  The Board studiously avoided doing
 this.  The order should be reversed and the matter remanded with a direction
 to consider the actual impacts of the changes found.




                                              Chief Justice


FN1.    Interestingly, in its proposed findings and conclusions the Board
 concluded that the change in operation had not increased the noise and
 traffic and that the gravel pit was exempt from the Act 250 permit
 requirement.  It concluded otherwise in its final order with no change in
 the findings of fact.