In re Huntley
Annotate this Case
In re Huntley (2003-369); 177 Vt. 596, 865 A.2d 1123
2004 VT 115
[Filed 09-Nov-2004]
ENTRY ORDER
2004 VT 115
SUPREME COURT DOCKET NO. 2003-369
APRIL TERM, 2004
In re Richard and Elinor Huntley } APPEALED FROM:
}
}
} Environmental Board
}
}
} DOCKET NO. Declaratory
Ruling 419
In the above-entitled cause, the Clerk will enter:
¶ 1. Richard and Elinor Huntley, owners of a five-acre gravel
mine, appeal a declaratory ruling by the Environmental Board. The Board
determined that the Huntleys' mine and associated property remained subject
to Act 250 jurisdiction even though the site had been fully reclaimed, and
its former permit had expired. We reverse and hold that, when a permit
expires pursuant to 10 V.S.A. § 6090(b)(1), the land is no longer subject
to Act 250 jurisdiction absent some activity to trigger the statute's
application.
¶ 2. In 1986, the Huntleys' predecessors in interest applied for
an Act 250 permit, under § 6090(b)(1) (extraction of mineral resources), to
extract gravel from a five-acre segment of their approximately 100-acre
farm in Bethel. They proposed a three-phase mining operation with detailed
reclamation requirements to be completed at each phase. The District 3
Environmental Commission approved the proposal contingent that it be
"completed and maintained in conformance with all of the terms and
conditions of that application, and of Land Use Permit #3W0473." That
permit obligated the applicant to "complete and maintain" the project only
as approved by the district commission and permit conditions. The
commission found, that if the project was operated and reclaimed in
accordance with the permit's conditions, it would "not result in undue harm
to the environment and [would] result in an area suitable for continued
agricultural use." The permit specified that the district environmental
commission would "maintain[] continuing jurisdiction during the lifetime of
the permit" and that the permit would expire on July 1, 1995, unless
extended.
¶ 3. The Huntleys subsequently acquired the property. In 1995, they
obtained a permit amendment authorizing minor changes in mining operations
and extending the completion date for all mining and reclamation activities
to October 1, 2002. (FN1) By the October deadline, the Huntleys had ceased
mining operations, and fully reclaimed and rehabilitated the property in
accordance with the permit requirements. A month later, as part of
preparations to sell the property, the Huntleys requested an opinion from
the district commission determining whether their property remained subject
to Act 250 jurisdiction. In response, the District 3 coordinator concluded
that, although all mining had ceased, the permit had expired and the land
had been reclaimed in compliance with permit requirements, the project
remained subject to continuing Act 250 jurisdiction, and that "[a]ny
subsequent activity on the land may require a permit."
¶ 4. The Huntleys appealed to the Environmental Board, which
framed the issue as follows:
Does a sand and gravel extraction project remain subject to Act
250 jurisdiction when the project's land use permit has expired
pursuant to 10 V.S.A. § 6090(b)(1); and where the project tract
has been reclaimed in accordance with the requirements of 10
V.S.A. § 6086(a)(9)(E)(ii); and where said reclamation results in
there being no potential for future environmental impacts from the
prior sand and gravel extraction project?
¶ 5. The Board found that it had continuing jurisdiction over the
project. The Board reasoned that permit duration and jurisdiction are two
different concepts: the permit duration determines the life of a project,
while jurisdiction determines the Board's oversight authority. In cases
involving a sand and gravel extraction operation, the Board concluded that
the need to ensure that future property owners maintain compliance with the
permitted reclamation plan supported continuing jurisdiction beyond the
permit's expiration date. The Board acknowledged, however, that only a
"material or substantial change" to the permitted project would require a
permit amendment. See Environmental Board Rule (EBR) 2(A)(1)(e), 4 Code of
Vermont Rules 12 003 001-6 (2004). This appeal followed.
¶ 6. In reviewing the Board's decision, the Board's interpretation
of Act 250 and its rules control, unless a compelling indication of error
exists. In re Rusin, 162 Vt. 185, 188, 643 A.2d 1209, 1210 (1994). If the
Board operates outside the bounds authorized by its enabling legislation,
we will intervene. In re Agency of Admin., 141 Vt. 68, 75, 444 A.2d 1349,
1352 (1982). When examining the legislative grant of authority to the
Board, we look to the plain meaning of the statutory language and are
guided by the Legislature's intent, "as evidenced by the statutes
themselves." In re Audet, 2004 VT 30, ¶ 9, 15 Vt. L. Wk. 114, 850 A.2d 1000 (internal citations and quotations omitted). We conclude that, under
the circumstances in this case, Act 250 jurisdiction ended when the permit
expired.
¶ 7. The Board's decision in this case equates jurisdiction with
continuing oversight of the land and the authority to "ensure" that the
Huntleys followed certain aspects of the reclamation plan and other permit
requirements. For example, the original permit required a vegetative
buffer to screen the project. The Board was concerned that if jurisdiction
was lifted, the Huntleys could remove this buffer. The Board further
believed it needed jurisdiction to ensure that the Huntleys did not ignore
the reclamation plan. The Board's decision, in effect, extended its
enforcement powers beyond the permit's expiration date.
¶ 8. In enacting Act 250, the Legislature conferred authority on
the Board to bring enforcement actions. For example, the Board can impose
penalties for violations of a permit or failure to obtain a permit. 10
V.S.A. § 6003. The Board can revoke permits if a holder violates a
permit's terms or conditions and fails to correct the violation. Id. §
6090(2)(c); EBR 38, 6 Code of Vermont Rules 12 003 001-33 to 001-34 (2004).
Additionally, the Board can investigate to determine compliance with a
permit, 10 V.S.A. § 8005, and the Board can request that the secretary
issue a warning for violations. Id. §§ 8004, 8006(b).
¶ 9. However, the Board's enforcement authority is tied to
development, as defined in Act 250, and the existence of a permit. Under
Act 250, commencing development triggers jurisdiction and the obligation to
obtain a permit. 10 V.S.A. § 6081. "Development" includes, among other
things: (1) the construction of improvements for commercial or industrial
purposes on more than one acre within a municipality that does not have
zoning laws and bylaws, or on more than ten acres if the municipality does
have permanent zoning and bylaws, or in municipalities that choose to have
one-acre jurisdiction apply; (2) construction of ten or more housing units;
(3) construction above 2500 feet in elevation; and (4) extraction of oil,
gas, or fissionable source materials. 10 V.S.A. § 6001(3)(A). In the
present case, the Huntleys ceased the sand and mining operation and
reclaimed the land. At this time, they are not conducting any activity
that constitutes development as defined by Act 250. Thus, the Board has no
enforcement authority over the Huntley's land because no development is
taking place.
¶ 10. Furthermore, the permit's plain language states that the
permit expired on October 1, 2002. Because the Huntley's permit expired,
the Board has no authority to enforce the terms and conditions of the
expired permit. See Sec'y, Vt. Agency of Natural Res. v. Handy Family
Enter., 163 Vt. 476, 481, 660 A.2d 309, 312 (1995) (relying on the plain
meaning of permit's words). In reaching the opposite conclusion, the Board
relied on a 2001 amendment to Act 250, § 6086, which terminated continuing
jurisdiction for temporary film, television, or advertising projects that
had no long-term impacts. (FN2) The Board interpreted this amendment to
mean that, the Legislature knew how to terminate jurisdiction but it had
not terminated jurisdiction for permits granted under § 6090(b)(1)
(extraction of mineral resources).
¶ 11. Permits for the development of physical improvements for
film, television, or advertising are granted for an indefinite term. §
6090(b)(1). In enacting § 6086(e), the Legislature did not want permits
for the temporary construction of film, television, and advertising
projects that caused no long-term impact to go on indefinitely. To
effectuate this intent, it stated in § 6086(e), that if all the permit's
conditions are met, and improvements are no longer in place, the permit
ends earlier than it would have and, thus, the Board has no more
jurisdiction. In contrast, with respect to other permits issued under Act
250, even if a permit's conditions are met, the permit's expiration date
remains effective. Or, if the permit is valid indefinitely under §
6090(b)(1), then the Board's jurisdiction continues indefinitely. §
6090(b)(1). In those situations, the Board's jurisdiction continues beyond
the point when the permit's conditions are met and the improvements have
been removed. § 6086(e). Thus, this section does not create a new rule
that the Board's jurisdiction extends beyond the permit's expiration date
in cases involving the extraction of mineral resources, but merely
terminates the Board's jurisdiction under a specific set of circumstances.
¶ 12. The Board also erroneously interpreted our case law to mean,
that once Act 250 is triggered, subsequent events, including the permit's
expiration and the completion of reclamation, do not dissolve jurisdiction.
The Board relied on In re Rusin, 162 Vt. 185, 643 A.2d 1209 (1994), and In
re Wildcat Construction. Co., 160 Vt. 631, 648 A.2d 827 (1993) (mem.) for
this proposition. However, in both cases, the permits had not expired and
the permit holders were arguing that events that occurred after the permit
was issued dissolved the Board's jurisdiction. In re Rusin, 162 Vt. at
188, 643 A.2d at 1210 (rejecting argument that jurisdiction could not
continue because the modified project would not have been subject to Act
250 in the first instance); In re Wildcat Constr. Co., 160 Vt. at 632, 648 A.2d at 828-29 (rejecting argument that jurisdiction dissolved because town
adopted permanent zoning and subdivision bylaws.) Under these
circumstances, we held that "[o]nce jurisdiction attaches [under § 6081(a)
(permits required)], and a permit . . . is issued, that permit and its
conditions will remain in force." In re Wildcat Constr. Co., 160 Vt. at
632, 648 A.2d at 828. In contrast, the Huntleys are not trying to avoid
the permit's expiration date; their permit has expired. The above cases
involved only subsequent events after jurisdiction had attached, but before
the permit expired. Thus, those cases are inapplicable here.
¶ 13. The State in its amicus curiae brief also relies on In re
Audet for a similar proposition. In re Audet involved a landowner who had
not yet received an Act 250 permit, and argued that, even though the
activities on his land originally triggered Act 250, he abandoned his use
and no longer needed to obtain a permit. 2004 VT 30, at ¶ 13. We noted
in dicta that, in most circumstances, once Act 250 jurisdiction attaches,
it does not dissolve. Id. However, we agreed with the landowner and held
that he abandoned use of his land. Id. ¶ 14. In re Audet does not
contradict our holding today that addresses the situation where a person
obtained a permit and the permit expired.
¶ 14. The danger that the Board tries to address-the Huntleys
failing to maintain the permit's reclamation requirements-by applying
continuing jurisdiction beyond the permit's expiration date can be
addressed through the Board's statutory authority. First, the Board has
the power to attach appropriate conditions to the permit to "ensure that
the development is completed as approved." EBR 32, 6 Code of Vermont Rules
12 003 001-29 (2004). Any condition the Board places on the permit is
subject to the requirement that it is an "allowable proper exercise of the
police power" and is appropriate. § 6086 (c). Second, when a sand and
gravel mining operation is involved, the Board must approve the site
rehabilitation plan before it grants the permit. § 6086(a)(9)(E)(ii). At
this stage, the Board has the power to require compliance with the plan by
setting the permit expiration date beyond reclamation. See id.
(containing no language to prevent such an arrangement).
¶ 15. Because the Board's decision extends its power beyond the
bounds authorized by its enabling legislation, we reverse its decision. We
hold that when the Huntleys' permit expired pursuant to 10 V.S.A. §
6090(b)(1), the land was no longer subject to Act 250 jurisdiction.
Reversed.
BY THE COURT:
_______________________________________
John A. Dooley, Associate Justice
_______________________________________
Denise R. Johnson, Associate Justice
_______________________________________
Marilyn S. Skoglund, Associate Justice
_______________________________________
Paul L. Reiber, Associate Justice
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Footnotes
Note: Chief Justice Amestoy sat for oral argument but did not
participate in this decision.
FN1. Despite a 1994 revision to Act 250 requiring that gravel mine permits
"shall be for a specified period," 1993, No. 232 (Adj. Sess.), § 35
(codified at 10 V.S.A. § 6090(b)(1)), the permit stated that it was "issued
for an indefinite term, as long as there is compliance with the conditions
herein." The Huntleys, the Environmental Board, and the district
coordinator all agree that this provision was a mistake. There is no
dispute that the permit in fact expired on October 1, 2002.
FN2. Section 6086(e) of Title 10 states:
This subsection shall apply with respect to a development that
consists of the construction of temporary physical improvements
for the purpose of producing films, television programs, or
advertisements. These improvements shall be considered "temporary
improvements" if they remain in place for less than one year,
unless otherwise extended by the permit or a permit amendment, and
will not cause a long-term adverse impact under any of the 10
criteria after completion of the project. In situations where
this subsection applies, jurisdiction under this chapter shall not
continue after the improvements are no longer in place and the
conditions in the permit have been met, provided there is not a
long-term adverse impact under any of the 10 criteria after
completion of the project; except, however, if jurisdiction is
otherwise established under this chapter, this subsection shall
not remove jurisdiction. This termination of jurisdiction in
these situations does not represent legislative intent with
respect to continuing jurisdiction over other types of development
not specified in this subsection.
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