In re Eustance Act 250 Jurisdictional Opinion (#2-231) (Robert and Lourdes Eustance, Appellants)
No. 07-156
Supreme Court of Vermont
March 13, 2009
2009 VT 16 | 970 A.2d 1285
Present: Reiber, C.J., Dooley, Johnson, Skoglund and Burgess, JJ.
its decision on whether the § 529 funds are marital property, and the parties have not claimed that there are or should be any ramifications. Therefore, we reverse and remand solely with respect to the § 529 accounts and otherwise affirm all aspects of the family court‘s orders that were challenged on appeal.
The family court order that determined that the education savings funds were not marital property is reversed and remanded for further proceedings consistent with this opinion; in all other respects, the judgments are affirmed.
David L. Grayck of Cheney, Brock & Saudek, P.C., Montpelier, for Appellees.
¶ 1. Dooley, J. Robert and Lourdes Eustance appeal an Environmental Court order that required an Act 250 permit amendment for the construction of improvements to their property. The Eustances argue that the improvements they constructed were for alpaca farming and thus are exempt from Act 250 review under
¶ 2. The following facts are not disputed. The Eustances own 47.64 acres on French Hollow Road in Bondville, Vermont. The French Hollow property, with a house on it, was purchased by the Eustances from James Ellis in 1999. Their land abuts that of Harold and Valerie Solomon, who in 1992 purchased their 40.05-acre parcel, with a vacation home on it, from Arthur Hurst. Ellis and Hurst were partners in a residential subdivision plan to include fourteen lots — including the lots later sold to the Solomons and Eustances — on 162 acres.1 In 1991, Ellis and Hurst applied for an Act 250 permit for the proposed subdivision.
¶ 3. In 1993, the District Environmental Commission granted the permit to allow the subdivision of five lots which had wastewater permits from the Vermont Agency of Natural Resources, construction of necessary roads and utilities for the permitted lots, and construction of certain common facilities on another part of the involved land. The permit did not provide for the subdivision to create the lots now owned by the Solomons and Eustances, although these lots were included in the permit application. Ellis and Hurst requested that the decision be modified to remove these lots from consideration in the permit proceeding, but the Commission refused, concluding that it had jurisdiction over the lots as part of the proposed subdivision and because of the length of the road to them.2 The Commission added that “we regard the transfer of the 40.05 lot to Solomon prior to the issuance of this permit as a violation.”
¶ 5. Responding to the Commission‘s conclusion that the subdivision that created the Solomons’ lot was a violation of Act 250, the Solomons sought and obtained a permit amendment to authorize the subdivision and an addition to the house. Neither Ellis nor the Eustances sought a permit amendment when the Eustances purchased their subdivided lot.4 Shortly after the purchase, the Eustances began improvements intended to serve an alpaca breeding operation, starting with the clearing of trees. They then constructed a barn, the westerly part of which is used as a veterinarian room for birthing and treating the alpacas. On the second floor of the westerly portion is a fiber studio, in which alpaca fiber is stored and sold. The easterly portion of the barn houses stalls for the female alpacas. Nearby, the Eustances added a manure bin, built in the form of a ten-by-ten-by-four foot concrete block. Down-slope, they constructed a secondary barn for the male alpacas, cleared land for fenced pastures, and added a second manure bin. The Eustances enclosed the property in wire fencing. Finally, they added a pond at the northern end of the property that caught any surface run-off to protect the wetlands that were further downhill. As completed, the alpaca operation occupies 9.9 acres,5 and approximately 7.4 acres were cleared for the pasture, pond, and one of the barns.
¶ 6. The Eustances’ operation currently houses fifty-three alpacas and five llamas, which are kept to protect the alpacas against predators. In addition to breeding alpacas and llamas, the operation stores and sells alpaca fiber and other products manufactured in the United States and South America, conducts animal husbandry seminars, and gives weekend tours of the property.
¶ 7. The land uses on the Eustances’ property affect the Solomons’ use of their property. A fifty-foot-wide right-of-way
¶ 8. On May 31, 2005, the Eustances filed an application with the District Environmental Commission to amend the 1993 revised permit, seeking approval of their subdivided lot and the alpaca operation on the property.6 The Commission recessed the hearing in order for the Eustances to gather more information, and they tried to appeal at that time, arguing that the Commission had no jurisdiction over their development.7 In order to properly bring the jurisdictional question to a head, the Solomons sought a jurisdictional opinion from the District Coordinator. The District Coordinator issued this opinion on December 23, 2005, holding that the Eustances’ activities: (1) required amendment of the 1993 revised permit under the express terms of the document; (2) were subject to Act 250 jurisdiction; and (3) required an amendment of the revised permit insofar as the improvements and activities represented a material and substantial change.8 In the jurisdictional ruling, the District Coordinator ruled that although farming is not development under Act 250, jurisdiction can attach to farming activity if the activity otherwise requires an amendment to an existing Act 250 permit.
¶ 9. The Eustances appealed this decision to the Environmental Court. Both parties moved for summary judgment as to whether Act 250 applied to the facts of the case. Joined by the Vermont Agency of Agriculture, the Eustances relied particularly on
¶ 10. On February 16, 2006, the Environmental Court granted summary judgment
¶ 11. The court turned next to the issue of whether there was a farming exemption for Act 250 amendment jurisdiction. The court began by surveying the Act 250 exemption set out in
¶ 12. The court turned next to the Eustances’ arguments about the farming exemption, stating:
While the so-called farming exemption from Act 250 jurisdiction serves an important function in preserving individual farms and Vermont‘s strong farming tradition, it is not an unlimited exemption, especially in the context of land that has already received and been sold subject to an Act 250 permit binding successors in interest. Rather, other considerations come into play, including reliance on the terms of an issued Act 250 permit by other parties . . . .
Moreover, the principles of land management embodied in the Act 250 criteria could not be implemented through the permitting program if subsequent exemptions could remove land from the ambit of an issued permit.
Accordingly, the court granted summary judgment to the Solomons on the issue of whether a permit amendment was required.9 This appeal followed.
¶ 13. On appeal, the Eustances argue that the court erred in concluding that the
¶ 14. This Court reviews summary judgment rulings de novo, applying the same standard as the trial court. Washington v. Pierce, 2005 VT 125, ¶ 17, 179 Vt. 318, 895 A.2d 173. Summary judgment is appropriate when the “pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, . . . show that there is no genuine issue as to any material fact and that any party is entitled to judgment as a matter of law.”
¶ 15. We reach the same result as the Environmental Court for two primary reasons: (1) there is no farming exemption from subdivision jurisdiction; and (2) an explicit condition of the preexisting permit requires approval of the Eustances’ development.
¶ 16. First, we examine whether there is a farming exemption applicable to subdivision jurisdiction as the Eustances claim. Act 250 requires a permit in a number of instances. The operative statute is
¶ 17. The Eustances’ argument is not an answer to the jurisdictional basis asserted in this case. If the District Coordinator had found jurisdiction based on the fact that the Eustances had commenced development as provided in
¶ 18. We have a similar reaction to a second statute that the Eustances use to bolster their argument. In 2004, the Legislature added
¶ 19. There is a second reason why the Eustances need a permit amendment that includes full review of their construction, as the Environmental Court and the District Coordinator ruled. As stated above, the amended Act 250 permit issued in May 1993 specifically stated that “[a]ny sale [or] further construction . . . is specifically not approved without an amendment to this permit.” Under
¶ 20. Subsequent applicants are bound by the terms and conditions of the original permit unless it is modified. In re Stowe Club Highlands, 166 Vt. 33, 37, 687 A.2d 102, 104-05 (1996). The permit in this case runs with the land and binds the “permittees, and all assigns and successors in interest.”
¶ 21. There is no doubt that the permit condition in this case is reasonable. Additionally, as we have outlined above, it simply mirrors the requirements of the jurisdictional statute. Moreover, because Ellis
¶ 22. The Eustances have not argued contrary to the Environmental Court conclusion that the express language of the permit condition required them to obtain a permit amendment irrespective of whether their construction activity would have been exempt as related to farming. There can be no argument against the conclusion that the sale to the Eustances, without a permit amendment, violated the permit condition. The Eustances have not challenged the court‘s conclusion that certain specified conditions relating to matters like erosion control and dumping of waste into surface waters applied irrespective of their farming usage. We accept these conclusions as conceded. We also find that they are reasonable constructions of the permit which we would affirm even if there were no concession.
¶ 23. The dissent has attempted to create a disagreement by calling a “vague reference to ‘further construction‘” an insufficient ground to invoke jurisdiction over farming activity. Post, ¶ 39. We fail to see how the term “further construction” — a specific trigger in the permit — is vague, especially when applied to the construction of two barns and two manure bins. The Eustances clearly violated the requirement of the permit that they seek an amendment if they engaged in further construction.
¶ 24. Since we have affirmed on the two grounds discussed above, we need not reach the third ground, that amendment jurisdiction applies under former Environmental Board Rule 34(A) because the Eustances made a material or substantial change in the project. The court ruled that such jurisdiction could apply, but material facts were in dispute that prevented reaching a conclusion on summary judgment. The court‘s judgment read as follows:
Appellants must apply for Act 250 approval of the as-built and any further proposed development on their property, both because the express terms of the Revised 1993 Act 250 Permit require it, and because the property is already subject to Act 250 jurisdiction, so that the so-called farming exemption does not divest it of jurisdiction. The parties agree that the appeal of the third ground for jurisdiction discussed in the jurisdictional opinion, whether the current status of Appellants’ property constitutes a material or a substantial change under former Environmental Board Rule 34(A), is moot in light of this decision, concluding this appeal.
Although the parties have briefed this issue, and virtually all of the Eustances’ argument is against the analysis of the court on this issue, it would be inappropriate for us to reach it because, as the lower court recognized, it is moot.
¶ 25. We also do not reach in detail another legislative amendment to Act 250 that the Eustances argue applies and requires that they prevail. Effective May 21, 2007, the Legislature added
¶ 26. The effectiveness of the amendment on pending litigation is governed by
Affect any suit, remedy or proceeding to enforce or give effect to any right, privilege, obligation or liability acquired, incurred or accrued under the amended or repealed provision prior to the effective date of the amendment or repeal; and the suit, remedy or proceeding may be instituted, prosecuted or continued as if the act or provision had not been repealed or amended.
Id.
¶ 27. In this case, the Eustances’ obligation to obtain a permit for its construction arose under the pre-amended language. As we explained in a comparable situation in Sanz v. Douglas Collins Construction, 2006 VT 102, ¶ 7, 180 Vt. 619, 910 A.2d 914 (mem.), the amended statute “can only be applied here if [it] . . . will not affect any right, privilege, obligation, or liability acquired prior to the statute‘s effective date.” Because the amendment does not pass this test, we will not apply it to this case.
¶ 28. Although we have ruled based on the temporal applicability of the amendment, we note that it would not apply to this case in any event. By its relevant terms, the statute amendment applies to permit amendments only if the farming will not conflict with any permit condition. As we have affirmed the Environmental Court‘s determination that the Eustances’ unpermitted construction activity violated an explicit condition of the 1993 permit, the amended provision would not apply.
Affirmed.
¶ 29. Reiber, C.J., dissenting. The gist of the majority‘s decision is that whenever a parcel of land, regardless of its size or its history as agricultural or forested land, is subject to an overarching Act 250 permit, any commencement of construction for farming improvements on any part of that land requires another permit, notwithstanding the Legislature‘s longstanding and explicit exemption from Act 250 for such activities. I do not agree, and therefore I dissent.
¶ 30. In this case, the subject parcel consisted of open or forested land suitable for farming at the time the sellers sought and obtained an Act 250 permit for a proposed residential subdivision. As the majority states, the Act 250 permit obtained by sellers authorized them to create five approximately five-acre subdivided lots within sellers’ 162-acre parcel of land. Although the District Environmental Commission ruled that the entire parcel had to be included within the permit application, most of the specific permit conditions were directed at the five small subdivided lots being developed at the time. The permit included no provision relating to farming activities. The Eustances later purchased a forty-seven-acre parcel of land within the original 162 acres and commenced construction of improvements for an alpaca farm. Although the Eustances engaged exclusively in bona fide farming activities, and Act 250 exempts such activities from the permitting process, the majority upholds the Environmental Court‘s ruling that the Eustances were required to obtain an amended Act 250 permit for those activities.
¶ 31. This decision is a misapplication of Act 250. The statute was originally enacted to protect agricultural and forest lands from residential and commercial development, and thus has always included an explicit exemption from permit jurisdiction for farming and logging activities. See
¶ 32. The majority contends that its decision is mandated for two reasons. The first one is that “there is no farming exemption from subdivision jurisdiction.” Ante, ¶ 15. According to the majority, the exemption applies only to original developments. The majority seems to suggest that the Legislature has established a separate “subdivision jurisdiction” under Act 250 that is independent from “development jurisdiction.” In my view, there is no formal dichotomy in Act 250 creating any such thing as “subdivision jurisdiction.” Rather, the Legislature merely has set forth different situations in which an Act 250 permit is required: when a person or entity “sell[s] or offer[s] for sale any interest in any subdivision located in this state, or commence[s] construction on a subdivision or development, or commence[s] development.”
¶ 33. The critical question raised by this appeal is whether the Eustances were required to obtain a permit to commence construction of improvements for farming on their parcel of land. The majority‘s view is that the Eustances were required to obtain an Act 250 permit amendment because their parcel was considered part of the permit application subject to the 1993 Act 250 permit subdividing the original 162-acre parcel, and thus they “commence[d] construction on a subdivision.” Id. Hence, as noted, the majority construes
¶ 34. But Act 250 treats farming differently, and does not command such a result. “The construction of improvements for farming” is not development subject to Act 250. Id.
¶ 35. To the contrary, it appears that the Legislature intended a broad exemption from the permitting process for farming activities. We should construe the statute to implement this intent. See Dep‘t of Corr. v. Human Rights Comm‘n, 2006 VT 134, ¶ 7, 181 Vt. 225, 917 A.2d 451 (stating that paramount goal is to effectuate intent of Legislature, and that legislative intent is effectuated by examining not only statutory language and any legislative history, but also legislative policies that statute was designed to implement); Trickett v. Ochs, 2003 VT 91, ¶ 22, 176 Vt. 89, 838 A.2d 66 (stating that primary purpose in interpreting statute is “to determine and implement the intent of the Legislature,” which requires examining statute in its entirety, along with its purpose, effect, and consequences); State v. Baldwin, 140 Vt. 501, 511, 438 A.2d 1135, 1140 (1981) (noting that plain meaning of statutory language
¶ 36. As the Legislature stated in its findings accompanying a recent amendment to Act 250, “Act 250 was enacted as a land use law in 1970 by a general assembly concerned about large scale, unregulated development in Vermont.” 2007, No. 176 (Adj. Sess.), § 1a. “Revisions were made to Act 250 in 1973, . . . but the focus of the law remained to review large scale developments as those developments were defined.” Id. Although Act 250 had broad purposes, “the Legislature in passing the Act did not purport to reach all land use changes within the state,” or to impose upon them “the substantial administrative and financial burdens of the Act.” In re Agency of Admin., 141 Vt. 68, 76, 444 A.2d 1349, 1352 (1982). Specifically, because Act 250 was intended in large part to protect traditional agricultural and forest uses, from the beginning the law exempted farming and logging activities.
¶ 37. Over time, the Legislature has reiterated its intent to exempt farming activities from the Act. For example, effective in 2004, the Legislature added a provision to Act 250 stating that when a nonagricultural development occurs on land devoted to farming, “only those portions of the parcel or the tract that support the development shall be subject to regulation under this chapter.” 2003, No. 121 (Adj. Sess.), § 75 (codified at
¶ 38. In short, the message from the Legislature since the inception of Act 250 has been clear and unwavering — farming activities are exempt. For this reason, the Agency of Agriculture filed a memorandum of law with the Environmental Court in support of the Eustances’ position in this case. For the same reason, I do not believe that the Legislature intended Act 250 to require a permit amendment for subdivided agricultural land based on the commencement of farming activities, certainly not when the subdivision permit did not require such an amendment.
¶ 39. This last point relates to the majority‘s second reason for requiring a permit amendment in this case — the 1993 permit purportedly requires it. In support of this position, the majority cites several conditions in the 1993 permit, none of which refers to farming activities. The principal permit condition cited is the following: “Any sale, further construction, or subdivision of the remaining eight lots comprising the balance of this 162 acre tract of land is specifically not approved without an amendment to this permit.” The majority focuses on the term “further construction,” insofar as the subject parcel has not been further subdivided since 1993. But vague reference to “further
¶ 40. Although an Act 250 permit may impose conditions restricting otherwise exempted activities, see In re Green Crow Corp., 2007 VT 137, ¶ 18, 183 Vt. 33, 944 A.2d 244 (“Act 250 may certainly impose permit conditions limiting tree-cutting activities associated with a subdivision“), such conditions must be explicitly directed at the normally exempted activity. Decisions of the former Environmental Board are consistent with this proposition. For example, in one decision, the Board concluded that logging, an exempted activity, did not require an amended permit on land subdivided pursuant to a previous Act 250 permit because the previous permit did not have an explicit condition precluding or restricting tree-cutting or logging. See In re Van Buskirk, Declaratory Ruling No. 302, slip op. at 8-9 (Vt. Envtl. Bd. Aug. 15, 1995). In the same vein, a recent amendment to Act 250 requires permits to include statements indicating that farming is permitted on lands containing agricultural soils, unless the activity is in direct conflict with a permit condition. 2007 No. 38, § 15 (codified at
¶ 41. Here, the general permit condition cited above is far too vague, given the explicit statutory exemption for farming, to prohibit the commencement of construction for improvements related to farming. In construing permit conditions, we examine the ordinary meaning of words, but we “also keep in mind . . . that because land-use regulations are in derogation of property rights, any uncertainty in their meaning must be decided in favor of the property owner.” Agency of Natural Res. v. Weston, 2003 VT 58, ¶ 16, 175 Vt. 573, 830 A.2d 92 (mem.); see Sec‘y, Vt. Agency of Natural Res. v. Handy Family Enters., 163 Vt. 476, 481-82, 660 A.2d 309, 312 (1995) (stating that any uncertainty in Act 250 land-use regulations must be construed favorably to property owner, and that permit conditions must be expressed with sufficient clarity to apprise property owner of limitations on land use). The phrase “further construction” does not explicitly prohibit otherwise exempted farming operations.
¶ 42. Nor do any of the other permit conditions cited by the majority preclude farming activities without a permit amendment. A condition stating that the District Environmental Commission must approve any changes to the project is also too vague, even assuming that the instant activities can be considered a change in the residential development project, to prevent an otherwise exempted activity. Another condition cited by the majority merely states that the successors and assigns of the permittees are subject to the permit conditions, which begs the question. Nor do I find applicable the last condition cited by the majority: “No further subdivision, alteration, or development of any parcels in this project shall be permitted without the written approval of the District Environmental Commission.” The Eustances’ farming activities are not a further “subdivision” or “alteration” of the project, and their commencement of construction for improvements related to farming is not “development” under the law.
¶ 43. In the forty years since the enactment of Act 250, the Legislature has reiterated its intent to exempt farming activities from Act 250 purview. I believe that this broad exemption should apply in the circumstances of this case because neither the statute nor the specific conditions in the original permit invoke Act 250 jurisdiction. Accordingly, I would reverse the Environmental Court‘s decision that the