In re Agency of Transportation

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, 111 State Street, Montpelier, Vermont 05602 of any errors in order
that corrections may be made before this opinion goes to press.


                                No. 90-299


In re Agency of Transportation               Supreme Court

                                             On Appeal from
                                             Environmental Board

                                             April Term, 1991


Stephen Reynes, Chairman

Jeffrey L. Amestoy, Attorney General, and Scott A. Whitted, Assistant
  Attorney General, Montpelier, for plaintiff-appellant

Stephanie J. Kaplan, Executive Officer, and Aaron Adler, Assistant Executive
  Officer, Montpelier, for amicus curiae Environmental Board


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


     MORSE, J.   We are asked if a highway necessity determination in
superior court may be modified under Act 250 with respect to cattle passes.
The Agency of Transportation (AOT) appeals an Environmental Board decision
requiring it to install, as part of a highway improvement project, a larger
cattle pass than was found necessary at a superior court condemnation
proceeding.  We affirm.
                                 I.
     AOT filed a necessity petition in the superior court, 19 V.S.A. {{ 504-
510, to condemn land for proposed improvements to route 2 east of Danville.
The petition included a proposal to install a 5' wide, 6'3" high, and 98'
long cattle pass under the highway to allow Harold and Catherine Beattie,
who own a farm situated on both sides of the road, to move cattle between
the barn and fields.  In October 1987, the superior court granted AOT's
petition in all respects.  Neither the Beatties nor any other party
appealed the court's decision, and only a portion of the record of that
proceeding is before us.
     The highway project was subject to Act 250 jurisdiction because it
involved more than ten acres of land, 10 V.S.A. { 6001(3), and District
Environmental Commission #7 issued AOT a land use permit for the project.
The Commission found that a widened road would create a hazard when
equipment moved across it and accepted the need for a cattle pass.  The
Commission determined that the Beatties crossed route 2 with their farm
equipment and cattle approximately 1100 times per year.  Roughly 45 out of a
total herd of 100 cattle were milked at any given time and crossed route 2
twice daily.  The busiest time of the farming year coincided with the
tourist season of mid-June through the foliage season.
     The Commission also found that an underpass of the size AOT proposed
would be difficult to maintain, the passage being so narrow that injured
animals and manure would have to be removed by hand.  Based on the number
of annual crossings and the relatively slow speed of the farm equipment
compared to traffic on route 2, the Commission issued a permit requiring AOT
to submit plans for a cattle underpass that was to be at least twelve feet
wide at the bottom and thirteen feet high, which it found to be the minimum
size necessary to accommodate the Beatties' farm equipment.  The Commission
retained jurisdiction over the project to review AOT's placement of traffic-
warning signs, speed-limit signs, and traffic-control programs, and reserved
the right to impose further conditions with respect to them.  AOT appealed
the Commission's decision to the Board.  None of the parties challenged the
findings of fact.  The Board accepted the Commission's findings of fact
without a de novo hearing and issued conclusions of law.   AOT now appeals
the Board's rulings to this Court.
                                    II.
     AOT contends that 19 V.S.A. { 507(b) gives the superior court exclusive
jurisdiction to decide the need for and size of cattle underpasses and that
therefore the Board exceeded its authority under 10 V.S.A. { 6086(a)(5)
(criterion 5, traffic safety), when it increased the size of the underpass.
Viewing this issue from a different perspective, AOT maintains that the
doctrine of res judicata bars relitigation of the cattle pass issue.  We
disagree and hold that the Board was not precluded from determining the need
for, and size of, the Beatties' cattle underpass under criterion 5.
     In a condemnation proceeding, after finding that a taking is necessary
for a proposed highway, the superior court may direct AOT to install a
cattle underpass.  19 V.S.A. { 507(b).  That section establishes two kinds
of cattle underpasses:  a standard underpass 5' wide by 6'3" high made of
reinforced concrete, metal, or other suitable materials or a larger-than-
standard underpass when required by present and future highway traffic
volume, future land development in the area, and the amount and type of
acreage separated by the highway.  An underpass 8' wide by 6'3" high
constructed of reinforced concrete is authorized if a herd of greater than
fifty milking cows is consistently maintained on the property.
     In a case where a larger-than-standard underpass is ordered, the farm
owner is required to pay one-fourth of the difference in the overall cost
between the standard underpass and the larger one.  If the owner of the
farm property desires an underpass of dimensions greater than 8' wide by
6'3" high, "the underpass may be constructed if feasible and in accordance
with acceptable design standards," and the entire additional cost is
incurred by the farm owner.  19 V.S.A. { 507(b).  In this case, the superior
court found that the standard underpass, 5' wide by 6'3" high, would be
sufficient, but we do not know how or upon what evidence the court reached
its decision because the record is not before us.
     Under Act 250, state development projects involving more than ten acres
of land require a land use permit.  10 V.S.A. { 6001(3).  Under criterion 5,
the Board or the Commission must find that the subdivision or development
"[w]ill not cause unreasonable congestion or unsafe conditions with respect
to use of the highways, waterways, railways, airports and airways, and other
means of transportation existing or proposed."  10 V.S.A. { 6086(a)(5).  A
permit cannot be denied for a project that creates unsafe conditions within
the meaning of criterion 5, but permit conditions can be imposed to remedy
those conditions.  10 V.S.A. { 6087(b).
     AOT maintains that these two legislative schemes -- both dealing with
traffic safety -- conflict with each other and argues that rules of
statutory construction must be applied to resolve the conflict.  We
disagree, however, with AOT's premise that the statutes are in conflict.
     Section 507(b), dealing with the necessity of cattle underpasses in
condemnation proceedings, is narrowly drawn.  The court may only "direct the
agency of transportation to install passes under the highway as specified in
this chapter for the benefit of the large modern farm properties . . . where
a reasonable need is shown by the owner."  19 V.S.A. { 507(b) (emphasis
added).  Thus, { 507(b) is intended to benefit owners of farms by fully
subsidizing the cost of standard underpasses and partially subsidizing the
cost of larger ones.  The Legislature recognized that larger farms ("large
modern farm properties") may need larger-than-standard underpasses and
provided a mechanism for their installation on a shared-expense basis.
     In necessity proceedings, the determination of an underpass size is
restricted by the farm owner's willingness and ability to contribute to the
cost.  A larger underpass is considered only if the farm owner has
demonstrated a desire and reasonable need for one, not because environmental
considerations dictate that a larger underpass is in the public good.  In
Act 250 proceedings, underpass size is solely a traffic safety issue.  Once
an underpass is deemed necessary for environmental reasons, the farm
owner's need and financial contribution are not critical in determining its
size.
     We have recognized that Act 250, although not applicable to all
development, is broad legislation designed to preserve the state's
environment.  In re Hawk Mountain Corp., 149 Vt. 179, 184, 542 A.2d 261, 264
(1988).  The Legislature provided that an Act 250 permit "shall not
supersede or replace the requirements for a permit of any other state agency
or municipal government."  10 V.S.A. { 6082.  Section 6082 makes plain that
a less stringent Act 250 permit may not substitute for a more stringent
provision required elsewhere.  On the other hand, a less stringent
provision required elsewhere does not preclude stricter Act 250 review.  The
corollary of { 6082 is found in { 6086(d), allowing the Board to give
presumptive effect to permits and approvals of state agencies and
municipalities, but requiring independent Act 250 review.  An Act 250 permit
may be denied if the Board finds an ancillary approval or permit does not
satisfy the environmental criteria of { 6086(a) or was, in the words of
this Court, "improvidently granted."  Hawk Mountain, 149 Vt. at 185, 542 A.2d  at 264.
     AOT argues that this case is not affected by { 6086(d) because, in
necessity determinations, approval is granted by the court, not an agency
or municipality.  This distinction, however, does not take into account
that de novo review by courts in granting zoning permits, e.g., 24 V.S.A. {
4471 (appeal of decisions of board of adjustment to superior court), does
not preclude Act 250 supervision.  Act 250 itself explicitly proclaims its
primacy over, without preemption of, ancillary permit and approval
processes.  The fact that a court is employed in giving approval has no
bearing on the overall process of protecting the environment as envisioned
by the legislation.  Hawk Mountain, 149 Vt. at 185, 542 A.2d  at 264 (Act 250
scheme indicates legislative intention that Environmental Board have
supervisory powers in environmental regulation).
     It follows from the varying purposes of the two legislative schemes
that the doctrine of res judicata is inapplicable and that, when Act 250
requires more stringent standards than provided in an ancillary permit
process, Act 250 controls.
                                     III.
     We need not reach the remaining issues raised on appeal because no
actual dispute between the Board and AOT has arisen.  AOT challenges the
authority of the Board to dictate the placement of traffic-control devices
and, if the Board does have authority, it claims the Board must follow
federal standards under 23 V.S.A. { 1025.  Nowhere in the record, however,
does it appear that the Board and AOT disagree with each other as to what
devices are appropriate. This Court's power to adjudicate is limited to
"'actual controversies arising between adverse litigants.'"  In re
Constitutionality of House Bill 88, 115 Vt. 524, 529, 64 A.2d 169, 172
(1949) (quoting Muskrat v. United States, 219 U.S. 346, 361 (1911)).
     Finally, the issue over the applicability of the cost-sharing provision
of 19 V.S.A. { 507(b) in the Act 250 proceeding was waived by AOT at oral
argument.
     Affirmed.

                                        FOR THE COURT:




                                        Associate Justice