Agency of Natural Resources v. Short

Secretary v. Short  (94-091); 165 Vt 277; 682 A.2d 484

[Opinion Filed 05-Jul-1996]

       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. 94-091


Secretary, Agency of Natural Resources       Supreme Court

                                             On Appeal from
    v.                                       Environmental Law Division

Terrence and Camille Short                   March Term, 1996


Merideth Wright, J.

       Jeffrey L. Amestoy, Attorney General, and David M. Rocchio, Assistant
  Attorney General, Montpelier, for plaintiff-appellant

       William E. Dakin, Jr. of Dakin & Benelli, P.C., Chester, for
  defendants-appellees


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


       JOHNSON, J.   The Agency of Natural Resources ("Agency") appeals from
  a decision of the Environmental Law Division ("ELD") involving
  Environmental Board Rule 2(A)(6), commonly known as the "Road Rule."  The
  ELD held that construction of a shared access road, over a thousand feet in
  length, did not trigger Act 250 jurisdiction because part of the road was a
  shared driveway, and not a "road" for purposes of the Road Rule.  We
  affirm.

       Defendants Terrence and Camille Short obtained local approval for a
  four-lot subdivision of the property in 1989, and sold two of the four
  lots.  In 1990, the Shorts inquired of the District 2 Environmental
  Commission regarding further subdivision of one of the remaining lots into
  three lots.  The Assistant District Coordinator issued a project review
  sheet stating that a land use permit under Act 250 would not be required
  for this subdivision, because fewer than six lots would be created and not
  more than 800 feet of road would be improved.

       Nonetheless, the District Commission and the Environmental Board
  concluded that the Shorts had constructed more than 800 feet of road and,
  based on the Road Rule, asserted Act 

 

  250 jurisdiction over the project.  The Road Rule regulates:

     [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 purposes 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 the effective date of this rule shall
     be included.

  Environmental Board Rule 2(A)(6).  The only issue in this case is whether
  the last part of the road built by the Shorts is in fact a "road" and
  should be counted in determining Act 250 jurisdiction.

                                I.

       We rely on the facts as found by the ELD.  Of the six lots involved in
  this project, the Shorts still own lots three and six.  Their house is
  located on lot three, and lot six is undeveloped except for a septic field. 
  All of the lots are served by a stretch of road that is divided into three
  sections for Act 250 purposes.  The first section, 477 feet in length,
  existed and provided access to lot one before the Shorts developed the
  subdivision.  It has not been improved or maintained by them, and is not
  considered in determining jurisdiction.

       The Shorts did build sections two and three of the road.  Section two,
  sometimes called Terry Street, is 730 feet long and was built to the
  standards of the town road specifications, if not better.  All six lots
  have some frontage on this section of the road.  The Shorts do not dispute
  that section two of the road must be considered in determining Act 250
  jurisdiction.  As this section of the road is less than 800 feet long and
  provides access to only five lots, however, section two by itself does not
  trigger Act 250 jurisdiction under the Road Rule.

       The focus of this case, then, is whether section three, which is 286
  feet long and extends from the cul-de-sac at the end of section two, should
  be considered a road in determining Act

 

  250 jurisdiction.  Section three serpentines across lots five and six, and
  then forks, granting access to lots five and six.  The right fork is a
  private driveway leading to the house on lot five. The left fork is a
  grassy path that leads onto lot six. This path was used for construction
  equipment when the septic field on lot six was installed.  This section of
  the road is not built to the town road standards; rather, the ELD found,
  based on width, depth, lack of ditching and general appearance, that
  section three "was constructed to a standard normally associated  with a
  residential driveway in a rural setting."  Although  section three is
  presently used only by the residents of lot five, it could also serve a
  house on lot six should one be built.

                                II.

       The ELD characterized section three as a driveway based solely on its
  finding that section three was built to a standard normally associated with
  a residential driveway.  The court relied on an Environmental Board
  decision, In re Spencer, No. 1R0576-1-EB (Vt. Envtl. Bd. Mar. 10, 1987). 
  In Spencer, the Board concluded that the construction of a road "was not
  merely to provide access to a  single house, but was for the commercial
  purpose of selling lots."  Id., slip op. at 4.  The Board continued, noting
  that:

      [h]ad the road been constructed only on the [applicant's] property,
      had it provided access to only a single residence, or had it been
      constructed to a standard normally associated with a residential
      driveway, we might have concluded that the road was exempt as
      a residential project.

  Id.  The ELD apparently construed this passage as a three-prong test; if
  the road in question met any one of the prongs, it would be deemed a
  driveway, rather than a road.  Although noting that section three was built
  on and provided access to two lots, and thus failed the first two prongs,
  the ELD concluded, based on the third prong, that section three was in fact
  a driveway.

       The Agency argues that the ELD misapplied what was essentially dicta
  in Spencer.  We agree that the ELD took this passage out of context; the
  Board merely listed several factors that "might" have led to a different
  conclusion, and in no way formulated a definitive test.  The Board's actual
  holding was based on "the  facts presented by the Applicants and observed
  during 

 

  the site visit," id., suggesting that this kind of decision is inherently 
  fact-bound and difficult to reduce to a straightforward test. The ELD's
  analysis is also inconsistent with our decision in In  re Rusin, 162 Vt.
  185, 190, 643 A.2d 1209, 1212 (1994), where we recognized that "a
  reasonable measure of discretion inheres in  the determination of what
  qualifies as a road."  In Rusin, we  affirmed the Environmental Board's
  conclusion that a 480-foot  roadway leading from a cul-de-sac to a single
  lot should be counted in determining Act 250 jurisdiction.  Id.

       Moreover, we agree with the Agency that the test employed by the ELD
  would encourage developers to avoid Act 250 jurisdiction by building
  substandard access roads and characterizing them as "shared driveways." 
  Following the ELD's analysis, a road well  over 800 feet in length and
  providing access to several houses would not trigger Act 250 jurisdiction,
  as long as the road was poorly built.  We can see no benefit in encouraging
  the construction of more substandard roads in the state.  Such a result
  would also contravene the public policy behind the Road Rule, as "land
  involved in the construction of sizable roads --  that is, significant
  development projects," id., 643 A.2d  at 1211  -- would not be covered by
  Act 250.

                              III.

       Although we reject the ELD's analysis, we nonetheless affirm its 
  conclusion that section three should not be considered a road for purposes
  of the Road Rule.  See Hudson v. Town of East Montpelier, 161 Vt. 168, 170,
  638 A.2d 561, 563 (1993) (Court need not adopt trial court's rationale in
  affirming its  conclusion).  Based on the facts as found by the ELD, we
  agree that section three is a shared driveway, rather than a road.

       The Agency maintains that a driveway providing access to more than one
  dwelling should be deemed a road, thus mandating that any shared driveway
  be included in the Road Rule calculus.  It is not apparent that the Board
  has interpreted the Road Rule in this way, and we are not persuaded that
  such a rigid approach is necessary to serve the purposes of Act 250.  A
  shared driveway may have a lesser environmental impact than two individual
  driveways; as the rule proposed by the Agency would lessen the incentive
  for building shared driveways, the

 

  perverse result might be that developers would build more roads.  We hold
  to our statement in Rusin that outcomes in these cases are "not 
  preordained by an inflexible definition of `road' or `driveway,'"  but
  instead involve the exercise of "a reasonable measure of  discretion." 
  Rusin, 162 Vt. at 190, 643 A.2d  at 1211-12.

       In this case, the factual context supports the ELD's conclusion.   As
  already mentioned, section two of the road ends in a cul-de-sac, on which
  both of the lots served by section three have frontage.  One option open to
  the Shorts was to build two individual driveways, but they instead chose to
  build a single shared driveway, presumably lessening the impact of the
  project. The shared driveway leads to only two lots, and the 286-foot
  stretch is substantially shorter than, for example, the 480-foot road at
  issue in Rusin, or the 1500-foot road considered by the Board in Spencer. 
  Finally, the deed for lot five refers to section three as a "common
  driveway" serving lots five and six. Under these circumstances, we agree
  with the ELD that section three is a driveway, not a road, and does not
  trigger Act 250 jurisdiction under the Road Rule.

       Affirmed.

                              FOR THE COURT:



                              _______________________________________
                              Associate Justice