In re Rusin

Annotate this Case
IN_RE_RUSIN.93-325; 162 Vt. 185; 643 A.2d 1209

[Opinion Filed June 10, 1994]


 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. 93-325


 In re John Rusin                             Supreme Court

                                              On Appeal from
                                              Environmental Board

                                              February Term, 1994


 Elizabeth Courtney, Chair

 William H. Meub and Sarah R. Gray of Keyser, Crowley, Meub, Layden, Kulig
   & Sullivan, P.C., Rutland, for appellant

 Jeffrey L. Amestoy, Attorney General, and John W. Kessler, Assistant
   Attorney General, Montpelier, for amicus curiae State


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


      ALLEN, C.J.   Petitioner John Rusin appeals a decision of the State
 Environmental Board that the jurisdiction of Act 250, 10 V.S.A. {{ 6001-
 6092, continues to apply to his construction project in the Town of
 Manchester.  We affirm.
      On May 12, 1989, the District #8 Environmental Commission issued
 petitioner a land-use permit, authorizing the creation of a housing
 development in Manchester.  The approved plan called for the division of an
 8.9 acre rectangular plot of land into four lots, approximately equal in
 size and roughly rectangular in shape.  The lots were laid out side by side
 and labelled, from east to west, lots one, two, three and four.  Act 250
 jurisdiction was based on the so-called "road rule," which applies to land

 

 involved in the construction of roads exceeding 800 feet and intended to
 provide access to a parcel of more than one acre.  The original plan called
 for a 740-foot access road 25 feet wide, ending in a cul-de-sac on the
 northern edge of the subdivision at the border of lots one and two.  From
 the cul-de-sac, two roads were drawn to provide access to the four lots.
 The first was a 100-foot spur leading south into lots one and two; the
 second was a 480-foot branch providing access to lots three and four,
 running west along the subdivision's northern border adjacent to lots two
 and three, and ending at the eastern border of lot four.
      The permit was amended in March 1990 to authorize the construction of
 two ponds.  The lots were cleared, the ponds constructed, and the roadways
 built.  The 740-foot portion was built as planned, but the spur serving lots
 one and two was constructed to 56 feet instead of 100 feet.  The 480-foot
 roadway leading from the cul-de-sac to lot four was reduced in width, but
 otherwise built as planned.  Petitioner narrowed this roadway because he
 intended to combine lots two and three, and needed access only to lot four,
 where he constructed his personal residence.  Thus, a total of 796 feet of
 roadway provides access to more than one lot: lot one and the lot created
 from the combination of lots two and three.  The 480-foot section originally
 intended to serve lots three and four provides access to lot four only.
      In February 1992, the permit was amended again to add conditions for
 maintaining a buffer strip on either side of a stream flowing through the
 property.  Sometime in April 1992, petitioner requested an amendment to his
 wastewater permit from the Agency of Natural Resources (ANR), based on the
 consolidation of lots two and three into a single building lot.  ANR issued
 an amended permit on May 5, 1992, authorizing the elimination of lot three.

 

      Petitioner then requested a ruling from District Commission #8 that he
 had abandoned his land-use permit, thereby releasing the land from Act 250
 jurisdiction.  After a public hearing, the Commission denied petitioner's
 request in a Memorandum of Decision dated August 6, 1992.  Pursuant to 10
 V.S.A. { 6089(a), petitioner appealed for de novo review before the
 Environmental Board, which held a public hearing on December 16, 1992.  The
 Town of Manchester Planning Commission and petitioner appeared as parties at
 the hearing.  On June 10, 1993, the Board issued Findings of Fact,
 Conclusions of Law and an order that Act 250 jurisdiction continued for the
 project.  Petitioner appeals the Board's decision, and the State of Vermont
 has appeared as amicus curiae.
      Petitioner offers two theories to support his contention that Act 250
 jurisdiction does not extend to the now three-lot project.  According to the
 first, jurisdiction cannot continue because the modified project now slated
 for completion would not have been subject to Act 250 jurisdiction had it
 been proposed that way originally.  Under the second, jurisdiction has
 ceased because petitioner abandoned the permit through nonuse, as described
 in 10 V.S.A. { 6091(b).
                                     I.
      Our review of the Board's decision is circumscribed both by statute and
 by traditional principles of administrative law.  The Board's findings of
 fact are conclusive if grounded in substantial evidence, 10 V.S.A.
 { 6089(c), "which is evidence properly before the Board that is relevant and
 which a reasonable person might accept as adequate to support a conclusion."
 In re Denio, 158 Vt. 230, 236, 608 A.2d 1166, 1170 (1992).  Absent
 compelling indication of error, the Board's interpretation of Act 250 and

 

 its own duly promulgated rules must control.  In re Killington, Ltd., 159
 Vt. 206, 210, 616 A.2d 241, 244 (1992).  We also will affirm the Board's
 conclusions of law, provided they are derived from a correct interpretation
 of the law and findings of fact based on substantial evidence.  Id.  We
 note, too, that "[i]n numerous cases, we have recognized the specialized
 expertise of the Board in determining whether it has jurisdiction over a
 particular development proposal."  Denio, 158 Vt. at 235, 608 A.2d  at 1169.
      In this case, the Board ruled that petitioner's project remained
 subject to Act 250 jurisdiction despite departures from the original plan.
 There is no dispute that jurisdiction over the development was predicated on
 Environmental Board Rule 2(A)(6), known as the "road rule."  Under the road
 rule, Act 250 jurisdiction extends to
           [t]he construction of improvements for a road or roads,
           incidental to the sale or lease of land, to provide
           access to or within a tract of land of more than one
           acre owned or controlled by a person. . . .  For the
           purpose of determining jurisdiction, any parcel of land
           which will be provided access by the road is land
           involved in the construction of the road.  This
           jurisdiction shall not apply unless the road is to
           provide access to more than five parcels or is to be
           more than 800 feet in length.  For the purpose of
           determining the length of a road, the length of all
           other roads within the tract of land constructed within
           any continuous period of ten years commencing after
           [March 1982] shall be included.
 Envtl. Bd. R. 2(A)(6) (emphasis added).  Petitioner asserts that the road
 rule no longer applies, because only 796 feet of "road" was actually built.
 The remainder of the roadways, each of which serves only one lot, petitioner
 characterizes as driveways not subject to the road rule.  He argues that his
 project, as constructed, would never have been subject to Act 250
 permitting requirements, and that continued jurisdiction unduly curtails the
 free and unregulated use of his land.

 

      The term "road" is not defined by rule or statute.  The Board
 concluded that petitioner "applied for and obtained a permit to construct a
 1,100 foot road and create four lots.  [Petitioner] commenced construction
 on this project, and appeared to have constructed what was proposed and
 permitted, with the exception of the elimination of one lot."  In doing so,
 the Board interpreted the road rule to cover the 480-foot length of roadway
 leading from the cul-de-sac to lot four, which brought the total road length
 over the jurisdictional threshold.  Absent compelling indication of error,
 we must accept this interpretation of the road rule by the Board, the
 administrative agency responsible for implementation of Act 250
 administrative regulations.  See Rogers v. Watson, 156 Vt. 483, 489, 594 A.2d 409, 412 (1991); In re Vitale, 151 Vt. 580, 582-83, 563 A.2d 613, 615
 (1989) and cases cited therein; see also In re Spencer, 152 Vt. 330, 336-37,
 566 A.2d 959, 963 (1989) (road rule ratified by Legislature).
      In this case, examination of the evidence and the Board's findings
 leads us to conclude that the Board's determination that jurisdiction
 continues under the road rule was not clearly erroneous.  Petitioner
 concedes that the stretch of road leading to lot four, as originally
 planned, qualified as road for jurisdictional purposes.  The road actually
 constructed varies only in width and in the fact that it serves one lot
 instead of two.  Despite the adjustments to the plan originally permitted,
 there has been no change in the amount of land involved or the character of
 its intended use.
      This Court has often observed that Act 250 was not intended to reach
 all land-use changes within the state, or to interfere with local land-use
 decisions, except when substantial changes in land use implicate values of

 

 state concern.  In re Agency of Administration, 141 Vt. 68, 76, 444 A.2d 1349, 1352 (1982).  These values include protecting and conserving the lands
 and environment of the state and insuring that they are "devoted to uses
 which are not detrimental to the public welfare and interests."  1969, No.
 250 (Adj. Sess.), { 1 (Act 250 legislative findings and declaration of
 intent).  In establishing an 800-foot touchstone for road rule jurisdiction,
 the Board evidently meant to place only land involved in the construction of
 sizable roads -- that is, significant development projects -- under the
 aegis of Act 250.  Petitioner's development remains a significant land-use
 project, and therefore it was reasonable to include the 480-foot roadway
 leading to lot four in the jurisdictional determination.
      Petitioner contends that a prior Board decision mandates that the 480-
 foot stretch be excluded from the jurisdictional calculus.  In In re Burns,
 Envtl. Bd. Decl. Ruling #236, slip op. at 3 (Apr. 3, 1991), the Board ruled
 that a 216-foot roadway, used by only one of four lots in a subdivision, was
 a "driveway" that could not be counted as "road" for purposes of the road
 rule.  In contrast to petitioner's case, in Burns the Board found that the
 development was never subject to Act 250 jurisdiction at any point in its
 existence.  More importantly, Burns was based on an earlier declaratory
 ruling in which the Board had stated that "'[o]rdinarily, a driveway is a
 private way leading from a house to a street and incidental to the
 residential purpose.'"  Id. (quoting In re Petrie, Envtl. Bd. Decl. Ruling
 #130, slip op. at 2 (Feb. 25, 1982)) (emphasis added).  The outcome in Burns
 was not preordained by an inflexible definition of "road" or "driveway,"
 and illustrates that a reasonable measure of discretion inheres in the
 determination of what qualifies as a road.  We believe that the Board

 

 reasonably exercised its discretion in interpreting the road rule to cover
 petitioner's project as constructed.
                                     II.
      Turning to petitioner's second purported basis for termination of Act
 250 jurisdiction, we agree with the Board that petitioner did not abandon
 his land-use permit.  According to 10 V.S.A. { 6091(b):
           Nonuse of a permit for a period of two years
         following the date of issuance shall constitute an
         abandonment of the project and the permit shall be
         considered expired.  For purposes of this section, for a
         permit to be considered "used," substantial construction
         must have commenced within the two-year period . . . .
      Petitioner first contends that he never "used" his permit within the
 meaning of the statute because:  (1) the project modifications brought the
 development outside of Act 250 jurisdiction under the road rule, and (2) any
 construction actually performed could have been done without a permit, or
 was not substantial enough to qualify as "use" under { 6091(b).  As we have
 concluded that jurisdiction remains viable under the road rule, the first
 part of this argument fails.  The second part of this "nonuse" theory also
 fails, for it runs counter to the plain language of the Act.  Once
 jurisdiction is established, 10 V.S.A. { 6081(a) mandates a land-use permit
 before commencement of any construction on a development.  The record shows
 that petitioner cleared the land, constructed the roadways and two ponds,
 and built his private residence after securing the permit and two amendments
 to it.  According to { 6081(a), none of this work could have been done
 without the permit.  The work was conducted under the authority of the
 permit, and therefore the permit was "used" within the meaning of
 { 6091(b).

 

      The contention that the work fell below the requisite level of
 "substantial construction" also lacks merit.  The original plans called for
 the construction of 1100 feet of roads, four residences and two ponds on
 what began as a wooded lot; petitioner cleared the lot and constructed the
 roads, ponds, and one house.  The statute does not define "substantial
 construction," but we are guided by the definition of "substantial change"
 in Board Rule 2(G) as "any change in a development . . . which may result in
 significant impact with respect to [permitting criteria]."  Envtl. Bd. R.
 2(G).  Just as substantial change involves significant impact, it makes
 sense to define substantial construction as construction significant in
 light of the project contemplated.  Petitioner has taken significant steps
 to realize his project.  Therefore, for purposes of { 6091(b) the permit has
 not been abandoned, and jurisdiction continues.
      Affirmed.

                                    FOR THE COURT:



                                    _____________________________
                                    Chief Justice

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