In re Merritt

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In re Merritt (2002-306); 175 Vt. 624; 833 A.2d 1278

2003 VT 84

[Filed 12-Sep-2003]

                                 ENTRY ORDER

                                 2003 VT 84

                      SUPREME COURT DOCKET NO. 2002-306

                              APRIL TERM, 2003

  In re Dexter and Susan Merritt       }	APPEALED FROM:
                                       }
                                       }
                                       }	Environmental Board
                                       }	
                                       }
                                       }	DOCKET NO. D.R. Request #407

             In the above-entitled cause, the Clerk will enter:

       ¶  1.  Plaintiffs Dexter and Susan Merritt appeal from a decision of
  the Environmental Board sustaining a jurisdictional opinion that Act 250
  applied to a five-lot subdivision that they sold at public auction.  On
  appeal, plaintiffs argue that the Environmental Board erred because: (1)
  the jurisdictional opinions were issued sua sponte by district
  environmental coordinators in violation of our holding in In re Vt. Verde
  Antique Int'l, Inc., ___ Vt. ___, 811 A.2d 181 (2002); and (2) plaintiffs
  were not required to obtain an Act 250 permit under the plain language of
  10 V.S.A. § 6001a.  We affirm.
    
       ¶  2.  In 1987, plaintiffs purchased an undeveloped thirty-nine-acre
  tract of land in East Montpelier.  In 1991, they desired to use the
  property as collateral for a loan, and, to optimize the value of the land,
  divided it into five lots.  Plaintiffs recorded the subdivision plot in the
  East Montpelier land records.  In October 1999, plaintiffs decided to sell
  the property, but were unsuccessful in their attempts to do so through
  advertising and a real estate agent.  They then decided to sell the lots at
  public auction.  The auction was held in October, and all five lots were
  sold.  In November, while securing subdivision permits from the Department
  of Environmental Conservation, plaintiffs received a "project review sheet"
  containing an assistant district commissioner's jurisdictional opinion
  stating that an Act 250 permit was not required "as long as owners have not
  subdivided more than 9 lots."  The project description supplied to the
  Department did not mention that the subdivided lots were to be sold at
  public auction.  Closings on the lots occurred in December 1999 and the
  following March.   

       ¶  3.  On June 27, 2001, based on information received that the five
  lots had been sold at public auction, the district coordinator issued a
  second jurisdictional opinion revising the first.  Relying on 10 V.S.A. §
  6001a, which defines "development" as the partitioning of land into five or
  more separate parcels for the purpose of resale by public auction, the
  district coordinator concluded that an Act 250 permit was required. 
  Plaintiffs filed a request for reconsideration, which was denied. They did
  not appeal the June 27, 2001 jurisdictional opinion.
   
       ¶  4.  In October 2001, plaintiffs filed an application for an Act
  250 permit.  In March 2002, they moved to dismiss their application,
  arguing that Act 250 did not apply.  The district environmental commission
  denied plaintiffs' motion to dismiss, explaining that the proper avenue for
  obtaining a jurisdictional opinion was through the district coordinator
  pursuant to 10 V.S.A. § 6007(c).  Also in March, the district coordinator
  issued a third jurisdictional opinion, stating that the June 27, 2001
  jurisdictional opinion was final because plaintiffs had not timely
  appealed.
   
       ¶  5.  Plaintiffs filed a motion for leave to take an interlocutory
  appeal to the Environmental Board based on the commission's refusal to rule
  on the question of whether there was jurisdiction over the subdivided lots. 
  Plaintiffs did not appeal the district coordinator's March 2002
  jurisdictional opinion.  The Environmental Board converted plaintiffs'
  motion into a petition for a declaratory ruling on jurisdiction because the
  issue on appeal was whether Act 250 applied to plaintiffs' subdivision. 
  The Environmental Board concluded that the June 27, 2001 jurisdictional
  opinion was final because it had not been appealed within thirty days and
  thus Act 250 applied.  Plaintiffs then appealed to this Court. 

       ¶  6.  On appeal, plaintiffs argue that all three jurisdictional
  opinions in this case are void under In re Vt. Verde Antique Int'l, Inc.,
  ___ Vt. ___, 811 A.2d 181 (2002).  In that case, we held that
  jurisdictional opinions issued sua sponte by district coordinators are
  unenforceable and invalid.  Id. at ___, 811 A.2d  at 185.  Plaintiffs
  maintain that the jurisdictional opinions in this case were issued sua
  sponte, and therefore, the Environmental Board erred in concluding that
  plaintiffs were bound by their failure to appeal an "invalid and
  unenforceable order."  

       ¶  7.  We do not address this argument because plaintiffs failed to
  preserve it for our review.  "[T]o properly preserve an issue for appeal a
  party must present the issue with specificity and clarity in a manner
  [that] gives the trial court a fair opportunity to rule on it."  In re
  White, 172 Vt. 335, 343, 779 A.2d 1264, 1270 (2001) (internal quotation
  marks and citation omitted).  This Court is "particularly solicitous
  regarding this requirement" in appeals from the Environmental Board because
  "preservation is statutorily required as part of the Act 250 scheme."  Id.
  at 343, 779 A.2d  at 1271; see 10 V.S.A. § 6089(c) ( "No objection that has
  not been urged before the board may be considered by the supreme court,
  unless the failure or neglect to urge such objection shall be excused
  because of extraordinary circumstances.").  In this case, plaintiffs failed
  to argue below that the district coordinator's jurisdictional opinions were
  void because they were issued sua sponte; indeed, they did not present
  evidence that the jurisdictional opinions were actually issued sua sponte. 
  Plaintiffs therefore failed to preserve this issue for our review.  See
  White, 172 Vt. at 343, 779 A.2d  at 1270-71.

       ¶  8.  Based on our conclusion above, we need not address
  plaintiffs' second argument that 10 V.S.A. § 6001a does not create Act 250
  jurisdiction over their land auction because they did not initially
  partition their land for the purpose of resale by public auction. 

       Affirmed. 

                                       BY THE COURT:


                                       _______________________________________
                                       Jeffrey L. Amestoy, Chief Justice

                                       _______________________________________
                                       John A. Dooley, Associate Justice

                                       _______________________________________
                                       Denise R. Johnson, Associate Justice

                                       _______________________________________
                                       Marilyn S. Skoglund, Associate Justice

                                       _______________________________________
                                       Ernest W. Gibson III, Associate Justice 
                                       (Ret.) Specially Assigned



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