In re Stokes Communications Corp.

IN_RE_STOKES_COMMUNICATIONS.94-208; 164 Vt 30; 664 A.2d 712

[Filed 21-Jul-1995]


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. 94-208


In re Stokes Communications                       Supreme Court
Corporation
                                                  On Appeal from
                                                  Environmental Board

                                                  November Term, 1994


Arthur Gibb, Acting Chair

Stephen R. Crampton and Dennis R. Pearson of Gravel and Shea, Burlington, for
appellant 

Gerald R. Tarrant of Tarrant & Marks, Montpelier, for appellees

Jeffrey L. Amestoy, Attorney General, John W. Kessler, Assistant Attorney
General, and Kevin Forjette, Law Clerk (On the Brief), Montpelier, for amicus
curiae State of Vermont 


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


     ALLEN, C.J.   Stokes Communications, Inc. appeals from an Environmental
Board decision, challenging the Board's jurisdiction over its 303-foot 
communications tower and the Board's authority to condition Stokes's Act 250
permit on the installation of light shields on the tower.  We affirm. Stokes
owns and operates a commercial radio station in Randolph, Vermont.  In 1982,

     Stokes leased one acre of a ninety-three-and-one-half acre parcel owned
by Idora Tucker.  The one-acre parcel was located on the crest of a small hill
near Randolph Center, Vermont.  With Tucker's consent, Stokes constructed a 
120-foot radio transmission tower to service its radio station on the parcel.
It did not obtain or apply for an Act 250 permit at that time. In 1992, Stokes
decided to increase the tower's broadcast power by extending its height and 
improving its transmission facilities. After plans for the 303-foot
replacement tower were approved by the Federal Communications Commission
(FCC), Stokes renegotiated its lease with

 

Tucker.  Stokes agreed to pay an amount equal to the annual real estate taxes
on Tucker's entire tract in exchange for a thirty-year lease, renewable for 
one five-year term.  At the same time, Stokes approached the district
coordinator for Environmental District 3 to discuss whether an Act 250 permit
would be required for the new tower.  The district coordinator suggested that
a permit would be necessary. 

     Stokes applied for a permit in July 1992.  Five adjoining landowners
intervened and were allowed to participate on criterion (1) (air pollution)
and criterion (8) (aesthetics, scenic and natural beauty).  See 10 V.S.A. 
6086(a) (identifying ten criteria for evaluating permit applications).  After
a hearing, the district commission concluded that the taller tower would not
result in undue air pollution, but the tower, equipped with four Federal
Aviation Administration (FAA) required aircraft warning lamps, would pose an
adverse aesthetic impact.  The commission granted a permit for the
replacement tower, reasoning that there were "no generally available
mitigative steps that would improve the harmony of the proposed project." 
The adjoining landowners appealed, challenging the commission's decision on
criteria (1) and (8). 

     Stokes commenced construction in January 1993.  The adjoining landowners
moved to stay the construction, arguing irreparable harm. Later that same
month, Stokes moved to dismiss the appeal, challenging the Environmental
Board's jurisdiction.  It argued that because an Act 250 permit was required
only for developments involving more than ten acres of land, its one-acre
leased parcel did not trigger the Board's jurisdiction.  In March, the Board
denied the adjoining landowners' motion to stay, but warned Stokes that in
the event the Board "denies or modifies the permit, [Stokes] will have to
restore the site to its preconstruction condition." The Board also denied
Stokes's motion to dismiss, concluding that the amount of involved land
exceeded the jurisdictional minimum of ten acres. 

     During the pendency of appeal, Stokes negotiated with Contel
Communications to sublease space on the tower for Contel's cellular telephone
service.  As part of the contract, Contel agreed to finance and construct the
tower and antennas, but with extensive modifications. 

 

Stokes neither applied nor received approval for these changes.  The adjoining
landowners filed a motion to revoke Stokes's permit, claiming that the actual 
construction exceeded the scope authorized by the August 1992 permit.  The
Board consolidated the motion to revoke with the underlying appeal. 

     Following a de novo hearing, the Board found that construction deviated
from the permit. The tower was twice the authorized width and was equipped
with four additional "whip" antennas.  A forty-eight square-foot concrete
slab for a back-up generator was embedded near the tower and a
twelve-by-twenty-eight-foot equipment building was erected at its base.  In
addition, a new eight-foot-high, sixty-foot long ice bridge spanned between
the existing utility shed and the new equipment building.  All of the
structures were enclosed by a six-foot high chain-link fence.  After finding
that the district commission had not authorized these changes, the Board
concluded that there were grounds for revocation, but directed Stokes to
apply for and diligently pursue an amended permit. 

     With respect to criterion (1), the Board agreed with the commission that
the taller tower was more efficient and would cause no undue air pollution. 
Under criterion (8), the Board found that the 303-foot tower required four
aircraft warning lights and bright orange stripes to comply with the FAA
regulations for towers over 200 feet.  Because the tower's lights "increase
the visibility of the tower so that it dominates the landscape and unduly
diminishes the aesthetic quality of the nighttime sky," the Board concluded
that the tower would cause an adverse aesthetic impact.  The Board explored
alternatives to mitigate the effect of the warning lights. At the conclusion
of the proceedings, the Board ordered Stokes to install light shields around
the aircraft beacons within sixty days to ensure compliance with criterion
(8).  The Board then issued an amended permit and remanded to the district
commission for further proceedings on the unauthorized changes.  Both Stokes
and the adjoining landowners moved to alter the decision, primarily
challenging the Board's authority to impose the light shield requirement
without prior FAA approval.  The Board denied the motions. 

 

     Stokes now appeals the denial of its motion to dismiss for lack of
subject matter jurisdiction and its motion to alter the decision by revising
the light shield requirement.  The adjoining landowners also filed a brief,
requesting this Court to affirm the jurisdictional issue, but reverse and
remand the light shield requirement.  In addition, the Attorney General
requested and was granted status as amicus curiae.  He presented essentially
the same arguments as the adjoining landowners. 

     Before we address the merits, we consider the adjoining landowners'
standing to participate in this appeal. Eligibility to appeal an
Environmental Board order to this Court is strictly limited to those parties
expressly designated in the statute.  In re George Adams & Co., 134 Vt. 172,
174, 353 A.2d 576, 577 (1974). Section 6085(c) states: "For the purposes of
appeal only the applicant, a state agency, the regional and municipal
planning commissions and the municipalities required to receive notice shall
be considered parties."  10 V.S.A.  6085(c); see also id.  6089(b)
(appeal from decision of board shall be to supreme court as set forth by 
6085(c)).  In In re Wildlife Wonderland, Inc., 133 Vt. 507, 518-19, 346 A.2d 645, 652 (1975), we held that an adjoining property owner lacked standing to
participate in the appeal to this Court even though he had appeared before
the district commission and Environmental Board.  In appropriate
circumstances, V.R.A.P. 29 may provide the proper avenue for an interested
person, who is not a statutory party to participate in the appellate process.
See, e.g., In re Taft Corners Assocs., 160 Vt. 583, 588-89, 632 A.2d 649,
652-53 (1993) (interested property owners participated in appeal as amicus
curiae after initial request to participate as appellees was refused). 
Because the adjoining landowners are not a proper party to this appeal and
have not requested permission to join it as amicus curiae, their
"participation in briefing and argument before this Court [is]
inappropriate," and will not influence our decision.  In re Wildlife
Wonderland, 133 Vt. at 519, 346 A.2d  at 652.  The Attorney General is a
proper participant because of his amicus status. 

 

     We now turn to the jurisdictional issue.(FN1)  Our review of the Board's 
decision is limited. We afford great deference to the Board's interpretation 
of Act 250 and have often recognized the Board's special expertise in 
determining whether it has jurisdiction over a particular development.  In re
Taft Corners Assocs., 160 Vt. at 590, 632 A.2d  at 653; In re Denio, 158 Vt.
230, 235, 608 A.2d 1166, 1169 (1992).  Absent compelling error, we will uphold
the Board's decision regarding the scope of its authority.  In re Taft Corners 
Assocs., 160 Vt. at 590, 632 A.2d  at 653. 

     Pursuant to 10 V.S.A.  6081, in towns with permanent zoning and
subdivision bylaws, such as Randolph, construction of improvements for
commercial purposes on a tract or tracts of land, owned or controlled by a
person, involving more than ten acres of land requires an Act 250 permit. 
See 10 V.S.A.  6001(3) (defining development); Committee to Save the
Bishop's House, Inc. v. Medical Ctr. Hosp. of Vt., 137 Vt. 142, 151, 400 A.2d 1015, 1020 (1979).  In determining amount of land involved for jurisdictional
purposes, "the area of the entire tract or tracts of involved land owned or
controlled by a person will be used."  Envtl. Bd. R. 2(A)(2). "Involved land"
is defined as: 

     (1) The entire tracts or tracts of land upon which the construction 
     of improvements for commercial or industrial purposes occurs; and

     (2) Those portions of any tract or tracts of land within a radius of 
     five miles owned or controlled by the same person or persons, 
     which is incident to the use of the project; and

     (3) Those portions of any tract or tracts of land within a radius of 
     five miles owned or controlled by the same person or persons, 
     which bear some relationship to the land actually used in the 
     construction of improvements, such that there is a demonstrable 

 

     likelihood that the impact on the values sought to be protected by 
     Act 250 will be substantially affected by reason of that 
     relationship.

Id. 2(F).  Thus, Act 250 jurisdiction turns on whether the amount of involved
land exceeds ten acres. 

The Board has construed a "tract of land" for jurisdictional purposes to
include all contiguous land in common ownership, regardless of the functional
relationship between the parcels.  We affirmed this construction in In re
Gerald Costello Garage, 158 Vt. 655, 656, 614 A.2d 389, 390 (1992) (mem.). 

     In the present case, the one-acre parcel was created out of a
ninety-three-and-one-half- acre lot owned by Tucker.  There was no doubt that
the one acre was contiguous to Tucker's remaining ninety-two-and-one-half
acres.  Tucker was the record owner of parcels; therefore, she was the owner
of the tract upon which the improvement was located.  The Board concluded,
and we agree, that the project exceeded the jurisdictional minimum, because
Tucker's entire ninety-three-and-one-half-acre tract was involved land. 

     Stokes contends that the amount of involved land is only one acre.  It
reasons that because the improvements on the one-acre parcel bear no
functional relationship to the remaining acreage owned by Tucker, the
one-acre parcel is a separate and distinct tract.  In support of its theory,
Stokes relies on our decision in Bishop's House, in which we held that "land
is involved within the meaning of 10 V.S.A.  6001(3) only where it is
incident to the use within the meaning of that section, or where it bears
some relationship to the land actually used in the construction of
improvements."  137 Vt. at 153, 400 A.2d  at 1021.  Notably, subparts (2) and
(3) of Rule 2(F) reflect that decision.  Stokes also argues that, by virtue
of its nonrenewable thirty-year lease with Tucker, it effectively "owns and
controls" the one-acre parcel.  We disagree. 

    Stokes's emphasis on Bishop's House and Rule 2(F)(2) and (3) is misplaced. 
Rules 2(F)(2) & (3) pertain to tracts which are physically separate from the
improved tract.  Rule 

 

2(F)(1) addresses the size of the tract upon which the improvements are
located.  In this instance, Rule 2(F)(1) is controlling.  See In re Costello
Garage, 158 Vt. at 656, 614 A.2d  at 390 (contiguous parcels held in common
ownership are involved land under Rule 2(F)(1)). 

    Moreover, we are not persuaded by Stokes's argument that the nature of
its particular agreement amounted to ownership and control of the parcel. 
While the thirty-year lease provided Stokes with limited ownership interests,
see Guild v. Prentis, 83 Vt. 212, 214, 74 A. 1115, 1116 (1910) (lessee
allowed to maintain action as owner to recover treble damages for trespass),
Tucker remained the record owner of the parcel.  The Board may not disregard
Tucker's ownership interests, simply because Stokes as the developer also
maintained an interest in the parcel.  See In re Spencer, 152 Vt. 330,
337-38, 566 A.2d 959, 963 (1989) (rejecting argument that jointly owned
parcel was separate and distinct from individually owned parcel for
jurisdictional purposes).  Under Stokes's approach, developers could
circumvent the administrative process by simply leasing parcels which do not
exceed the jurisdictional thresholds.  In light of the Legislature's goals,
we cannot endorse such a tactic. 

     Stokes's second challenge is to the Board's authority to require the
installation of light shields.  Stokes argues that the Board acted beyond its
authority by requiring the installation of the light shields regardless of
FAA approval and by not providing sufficient time to lawfully comply with
such a condition. Stokes reasons that because the FAA's regulatory scheme
over the nation's airspace is pervasive, prior FAA approval must be sought. 

     First, we do not construe the Board's order as imposing a condition
regardless of FAA approval. The Board acknowledged the FAA's overlapping
jurisdiction and that Stokes would have to obtain FAA approval.  It is fair
to infer from the Board's comment that it realized the FAA could preempt its
light shield requirement. 

     Second, as the Board concluded, "the fact that . . . [Stokes] may have to 
obtain FAA approval for the light shields does not prevent the Board from
exercising Act 250 jurisdiction over the tower with regard to the light
shields."  The Board is an independent regulatory body

 

with supervisory powers over environmental matters.  In re Hawk Mountain
Corp., 149 Vt. 179, 185, 542 A.2d 261, 264 (1988). Pursuant to 10 V.S.A. 
6086(c), the Board may impose reasonable permit conditions within the limits
of its police power to ensure that projects comply with the statutory
criteria.  See In re Denio, 158 Vt. at 239-40, 608 A.2d  at 1172; In re Quechee
Lakes Corp., 154 Vt. 543, 550 n.4, 580 A.2d 957, 961 n.4 (1990).  The Board is
not obligated to delay its decision to accommodate concurrent state agency
rulings.  See In re Hawk Mountain, 149 Vt. at 185, 542 A.2d  at 264
(Environmental Board not bound by approval or permits of other state agencies
when imposing conditions for Act 250 permits). Under these circumstances, we
see no reason why the Board should not require swift compliance with its
directives, when the conflict between its order and an FAA determination is
purely speculative. 

     "[S]tate law is pre-empted to the extent that it actually conflicts with
federal law," English v. General Electric Co., 496 U.S. 72, 79 (1990), but
there is no actual conflict where a collision between two regulatory schemes
is not inevitable.  See Florida Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132, 143 (1963); see also English v. General Electric, 496 U.S.  at 90
(rejecting preemption argument that injured employees would forgo federal
relief and rely solely on state remedies as too speculative). There was no
evidence that compliance with both regulatory authorities would be
impossible.  In fact, the testimony was quite the opposite; Stokes's expert
testified that based on his understanding of FAA regulation, "the shields
will comply and the FAA will approve the use of the shields on the Stokes's
tower." Additionally, Stokes has not offered any substantive support, such as
citations to FAA regulations, suggesting that installing light shields prior
to FAA approval is prohibited or that the shields would violate established
requirements.  Because there has been no showing of an inevitable collision
between the Board's order and an FAA ruling, there is nothing to prevent the
Board from imposing an otherwise lawful condition.  Further, Stokes has not
shown how or why that sixty days is an insufficient time period to install
the shields.  Therefore, the time given to comply with the Board's order is
also reasonable. 

 

     Next, both Stokes and amicus contend that because the light shields have
not been approved by the FAA, requiring their installation is not a "generally 
available mitigating step," and therefore exceeds the Board's authority.  We 
will affirm the Board's decision if it is supported by substantial evidence 
and is a reasonable interpretation of its duly promulgated rules.  In re BHL
Corp., 161 Vt. 487, 490, 641 A.2d 771, 773 (1994). 

     It has been the Board's practice to require applicants to take generally
available mitigating steps to reduce the negative aesthetic impact of a
particular project.  See In re McShinsky, 153 Vt. 586, 591-92, 572 A.2d 916,
919-20 (1990).  Failure to take advantage of available alternatives may
render an aesthetic impact unduly adverse.  See id. at 592, 572 A.2d  at 920. 
Although the Board has not defined the term "generally available mitigating
step," it has applied the term broadly.  See In re Denio, 158 Vt. at 240Ä41,
608 A.2d  at 1172-73 (imposition of mitigating conditions, including
requirement to retain open spaces and limit agricultural and forestry use,
was reasonable under circumstances); In re Quechee Lakes, 154 Vt. at 546,
549-50,  580 A.2d  at 959, 961  (removal of installed skylights, construction
of visual barriers and installation of nonglare glass were reasonable
mitigating steps). 

     Based on the Board's prior applications, we do not think that an
alternative must be formally recognized or widely available to be generally
available.  Instead, we think a generally available mitigating step is one
that is reasonably feasible and does not frustrate the project's purpose or
Act 250's goals.  We note that in some circumstances mitigating steps may be
unaffordable or ineffective.  In those circumstances, it is within the
Board's discretion to grant or deny a permit. 10 V.S.A.  6086(c). 

     In this instance, we agree with the Board that neither the possibility of
federal disapproval nor the novelty of the light shields renders the devices
generally unavailable.  Based on Stokes's representations to the Board, light
shields have been manufactured, purchased and installed for use on at least
one other tower.  There was no suggestion that the shields posed a
technological, logistical or financial impediment.  Stokes's expert testified
that with installed 

 < shields, the tower would comply with FAA regulations and likely receive FAA
approval.  The Board's conclusion that the light shields were a generally 
available mitigating step is supported by the evidence. 

     Affirmed.


                              FOR THE COURT:



                              _______________________________________ 
                              Chief Justice


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                              Footnotes

FN1.  Amicus argues that Stokes should be estopped from challenging
jurisdiction because it waited five months after receiving its initial permit
to challenge the Board's jurisdiction.  This objection was never brought to
the Board's attention by the adjoining landowners. 10 V.S.A.  6089(c) (no
objection that has not been urged before the Board may be considered by the
Supreme Court).  Because amicus was not a party below, it could not properly
preserve the issue for appeal.  Nevertheless, we need not decide the
propriety of the estoppel claim, because of our disposition of the
jurisdictional issue.