Agency of Administration, State Bldgs. Division, In re

• Decision Date: 25 March 1982
• Docket Number: No. 398-80,398-80
• Citation: 444 A.2d 1349,141 Vt. 68
• Parties: In re AGENCY OF ADMINISTRATION, STATE BUILDINGS DIVISION.
• Court: Vermont Supreme Court

Page 1349

444 A.2d 1349

141 Vt. 68

In re AGENCY OF ADMINISTRATION, STATE BUILDINGS DIVISION.

No. 398-80.

Supreme Court of Vermont.

March 25, 1982.

Alan D. Port of Paul, Frank & Collins, Inc., Burlington, for appellant.

McKee, Giuliani & Cleveland, Montpelier, for City of Montpelier.

Paterson, Walke & Pratt, Montpelier, for appellees.

Before BARNEY, C. J., BILLINGS, HILL and UNDERWOOD, JJ., and LARROW, J. (Ret.), Specially Assigned.

BARNEY, Chief Justice.

This case raises for our determination the question of the district environmental commission's jurisdiction over a state demolition project in the city of Montpelier.

In an order dated October 29, 1980, the Environmental Board ruled that demolition of the wood frame house located at # 8 Baldwin Street constituted the commencement of construction on a state project involving more than ten acres of land, and was therefore subject to Act 250, Vermont's land use and development law. This ruling required the State Buildings Division to follow certain permit application procedures specified in the law. It was based on the Board's finding that although the Baldwin Street property itself comprised less than one acre, its demolition was part of a larger plan to construct a state office building in the northwest corner of the statehouse green. This greater project, the Board found, would involve more than the requisite acreage, and would thus be sufficient to trigger the Act 250 process. The Board's decision affirmed an earlier ruling of the district environmental commission to the same effect.

The State Buildings Division, which had petitioned for the ruling in the first place, now challenges the Board's finding and denies that the demolition is part of any larger plan. It argues that the Board misconstrued the legal effect of certain planning documents offered as exhibits, which are admittedly in circulation as general guides to planning, but which, it maintains, have never been approved or adopted by the Legislature and do not amount to a plan of development.

The facts of the case are not in dispute. On May 6, 1980, the Governor approved and signed into law Public Act No. 176 of the Adjourned Session, 1980, "An Act to Appropriate Capital Funds for Various Purposes and to Authorize the Issuance of Bonds Therefore." The Act expressly provided funds for the demolition of # 8 Baldwin Street, a badly deteriorating structure which was felt not to be worth saving.

Following the enactment of No. 176, the director of State Buildings arranged for the demolition to begin in early July. The director testified before the Board that his only plan for the property following demolition was to seed it down and grass it over, and he said that in presenting his request for authorization to demolish to the Legislature he had had nothing in relation to the capitol complex in mind.

Shortly after the work began the director was advised by the agency of environmental conservation that a permit for the demolition work might be required under Act 250, and, although he personally believed he had received an unconditional mandate from the Legislature, in good faith he ordered a halt to the project and requested a ruling on its status from the district environmental commission.

The district commission's response was that the demolition did indeed require the issuance of an Act 250 permit. In an advisory letter dated July 21, 1980, the district coordinator wrote that, based on his review of facts presented by the director, as well as his review of a document entitled State of Vermont Capitol Complex, December 1979 [sic], it was his determination that the demolition constituted the commencement of construction on a proposed development, which he referred to as the "Capitol Complex." The coordinator called the demolition "just one activity among others required to take place in order for the Complex to become a reality."

The State Buildings Division appealed the commission's ruling to the state Environmental Board pursuant to 3 V.S.A. § 808 and Board Rule 4. The City of Montpelier, the Central Vermont Regional Planning Commission, the Division of Historic Preservation and the Montpelier Heritage Group joined in the fray, the last two groups because the building is located within a registered historic district. A public hearing was held on August 12, 1980. Subsequent to the hearing the Board affirmed the commission's ruling, and following that action the State Buildings Division brought its case here.

I.

We approach this review of administrative agency action with a gingerly step. Bathed in a singleness of concern and anointed with an aura of expertise, administrative actions have traditionally kept reviewing courts an arm's length away. This Court has been no exception. Repeatedly we have articulated our willingness to defer to agency determinations, Genier v. Department of Employment Security, 140 Vt. 453, 438 A.2d 1116 (1981); State Department of Taxes v. Tri-State Industrial Laundries, Inc., 138 Vt. 292, 294, 415 A.2d 216, 218 (1980); In re Young, 134 Vt. 569, 570, 367 A.2d 665, 666 (1976); International Association of Firefighters Local # 2287 v. City of Montpelier, 133 Vt. 175, 178, 332 A.2d 795, 797 (1975), and we have no wish to repudiate that position here.

Where warranted by the evidence, an administrative board's findings of fact are conclusively binding on this Court. Norman v. American Woolen Co., 117 Vt. 28, 31, 84 A.2d 125, 127 (1951). We will uphold the validity of an administratively adopted rule where we can do so without compromising the intent of the statute which authorized it, Committee to Save the Bishop's House, Inc. v. Medical Center Hospital of Vermont, Inc., 137 Vt. 142, 150, 400 A.2d 1015, 1019 (1979), and construction of statutes by those charged with their execution will be followed unless there are compelling indications that the construction is wrong. Id. at 150, 400 A.2d at 1019-20 (citing Red Lion Broadcasting Co. v. Federal Communications Commission, 395 U.S. 367, 381, 89 S.Ct. 1794, 1801, 23 L.Ed.2d 371 (1969)).

Still, under our constitutional system, administrative agencies are subject to the same checks and balances which apply to our three formal branches of government. An agency must operate for the purposes and within the bounds authorized by its enabling legislation, or this Court will intervene. Where it exercises its adjudicative function we will be especially vigilant, since proper utilization of the judicial process is unrelated to expertise in any particular subject matter. Although findings of fact of an administrative agency will not be set aside unless clearly erroneous, In re Young, supra, conclusions of law are not so protected. In re McGrath, 138 Vt. 77, 82, 411 A.2d 1362, 1365 (1980).

With this understanding in mind we must first look to the statutes for guidance in determining whether or not this demolition project was intended to be subject to their provisions. The Act 250 permit requirement itself declares that "[n]o person shall ... commence construction on a ... development, or commence development without a permit....", 10 V.S.A. § 6081(a). The law then limits that sweeping requirement, however, by defining development, in pertinent part, as "the construction of improvements on a tract of land involving more than 10 acres which is to be used for municipal or state purposes." 10 V.S.A. § 6001(3).

The Environmental Board saw fit to interpret this statute by defining development in its Rule 2(A)(4) as follows:

"Development" means: (4) The construction of improvements for state, county or municipal purposes, on a tract or tracts of land involving more than ten acres of land. For state and municipal projects only, the computation of involved land shall include the land which is incidental to the use such as lawns, parking lots, driveways, leach fields, and accessory buildings. In the case where a state or municipal project is to be completed in stages according to a plan or it is evident under the circumstances that a project is incidental to or a part of a larger undertaking, all land involved in the entire project shall be included for the purposes of determining jurisdiction;

It is with the application of this rule to the facts of this case that our problems with the Environmental Board begin.

An administrative agency may not use its rule-making authority to enlarge a restrictive grant of jurisdiction from the legislature. Where a statute is said to be susceptible of more than one meaning, and an agency seeks to define it, we will consult not only the bare statutory language, but will seek out the interpretation intended by the statute's drafters to assure that the statute is being construed, rather than constructed anew. National Petroleum Refiners Association v. FTC, 482 F.2d 672, 690 (D.C.Cir.1973), cert. denied, 415 U.S. 951, 94 S.Ct. 1475, 39 L.Ed.2d 567 (1974).

As this Court has previously stated, although the purposes of Act 250 are broad, the Legislature in passing the Act did not purport to reach all land use changes within the state, nor to impose the substantial administrative and financial burdens of the Act, or interfere with local control of land use decisions, except where values of state concern are implicated through large scale changes in land utilization. Bishop's House, supra, 137 Vt. at 151, 400 A.2d at 1020. The Act was a philosophic compromise between a desire to protect and control all the lands and environment of the state of Vermont, and the need to avoid an administrative nightmare. Hearing on H.417, Senate Natural Resources Committee, March 16, 1970. The importance of this compromise aspect of the legislation to our decision here is well illustrated by the history behind the legislative definition of "development" now codified at 10 V.S.A. § 6001(3).

A.

When first introduced in the House on January 30, 1970, Act 250 specifically exempted all activities of state government from...