Eastland, Inc., In re, 87-302

• Decision Date: 05 May 1989
• Docket Number: No. 87-302,87-302
• Citation: 562 A.2d 1043,151 Vt. 497
• Parties: In re EASTLAND, INC.
• Court: Vermont Supreme Court

Page 1043

562 A.2d 1043

151 Vt. 497

In re EASTLAND, INC.

No. 87-302.

Supreme Court of Vermont.

May 5, 1989.

Kristensen, Cummings, Murtha & Stewart, Brattleboro, for appellant.

Robin Stern of Gale, Gale & Corum, Brattleboro, for appellee.

Jeffrey L. Amestoy, Atty. Gen., and Conrad W. Smith, Asst. Atty. Gen., Montpelier, for amicus curiae State of Vt.

Before ALLEN, C.J., and PECK, GIBSON, DOOLEY and MORSE, JJ.

MORSE, Justice.

Eastland, Inc. appeals a decision of the Environmental Board requiring an Act 250 permit for a subdivision in the Town of Grafton. We affirm.

The essential facts are not in dispute. On May 2, 1985, Eastland, a corporation engaged in the business of marketing land, entered into an agreement with Norman Tuttle for the purchase of 81.9 acres of land in Grafton. The parcel had not been subdivided prior to the execution of the sales agreement, and the agreement makes no reference to a subdivision. On May 20, 1985, at Eastland's request, the parcel was surveyed by DiBernardo Associates, dividing the parcel into eight lots. The sales price of the property was increased to include the cost of the new survey. On June 12, 1985, Mr. Tuttle conveyed to Eastland by deed the entire 81.9 acre parcel with an addendum describing the eight lots as shown on the survey. The Property Transfer Tax Return prepared at this time, however, made no reference to an existing subdivision. Subsequently, Eastland sold all eight lots in the subdivision to separate parties.

Title 10 V.S.A. § 6081(a) requires that a permit (a so-called Act 250 permit) be obtained prior to the sale of any interest in any subdivision located in Vermont. At the time relevant to these events, the term "subdivision" was defined in the statute as:

a tract or tracts of land, owned or controlled by a person, which have been partitioned or divided for the purpose of resale into 10 or more lots within a radius of five miles of any point on any lot, and within any continuous period of 10 years....

10 V.S.A. § 6001(19) (emphasis added). ¹ During the months prior to the purchase of the Tuttle land, Eastland had subdivided into six lots another parcel in Grafton about a mile distant. It is not disputed by the parties that Eastland would be required to obtain a permit under § 6081 if the current subdivision was made while Eastland "owned or controlled" the land, since, along with the previous transaction, it then would have created more than ten lots for the purpose of resale within a five-mile radius in the requisite period. The Environmental Board concluded that Eastland did control the land for purposes of Act 250 jurisdiction, and ruled accordingly.

Eastland challenges the Board's construction of the statute, maintaining that since it was not the record titleholder of the property at the time the May 20, 1985 subdivision plan was drawn and could not force Mr. Tuttle to accomplish the subdivision, it did not therefore control the property for purposes of Act 250.

The Town of Grafton and the State of Vermont, as amicus, argue that the Board's construction of the term "controlled" is correct, and that the Board's finding that Eastland controlled the land at the time in question is supported by the record. In the alternative, they argue that Eastland was in fact the owner of the property for purposes of the Act at the time of its subdivision, because the subdivision plan was not filed in the town clerk's office until after the closing. Because we affirm the Board's decision on the issue of control, we need not decide the issue of ownership.

Even if Eastland did not "own" the parcel for purposes of the Act, it exercised sufficient control at the time of the subdivision to bring the parcel under Act 250 jurisdiction as intended by the Legislature.

The Legislature created the Environmental Board "in order to protect and conserve the lands and the environment of the state and to insure that these lands and environment are devoted to uses which are not detrimental to the public welfare and interests." An Act to Create an Environmental Board and District Environmental Commissions, Pub.Act. No. 250, § 1, 1970 Vt.Laws (Adj.Sess.) 237. To accomplish these tasks, the Board was conferred "the power to regulate the use of lands and to establish comprehensive state capability, development and land use plans" as provided by the terms of the statute. Id. In light of this delegation of power, the Board must be afforded broad deference in its interpretation of Act 250. "It is a 'venerable principle that construction of a statute by those charged with its execution should be followed unless there are compelling indications that it is wrong.' " Committee to Save the Bishop's House, Inc. v. Medical Center Hospital of Vermont, Inc., 137 Vt. 142, 150-51, 400 A.2d 1015, 1019-20 (1979) (quoting Red Lion Broadcasting Co. v. Federal Communications Commission, 395 U.S. 367, 381, 89 S.Ct. 1794, 1802, 23 L.Ed.2d 371 (1969)). Applying this deferential standard of review, we have upheld a number of Environmental Board interpretations of Act 250. See, e.g., In re Vitale, --- Vt. 563 A.2d 613 A.2d ---- (1989); In re Spear Street Associates, 145 Vt. 496, 499-501, 494 A.2d 138, 140-42 (1985).

Eastland insists that the word "controlled" denotes legal control. We disagree. It is true that we will enforce a statute according to its plain meaning, Paquette v. Paquette, 146 Vt. 83, 86, 499 A.2d 23, 26 (1985), but the meaning of "controlled" in § 6001(19) is not entirely plain. Indeed, appellant's restrictive reading, if correct, would effectively make the term "controlled" superfluous. This reading contravenes our well-established rule that "[i]n construing a statute, every part of the statute must be considered, and every word ... given effect if possible." State v. Stevens, 137 Vt. 473, 481, 408 A.2d 622, 627 (1979).

The Board's ruling is consistent with the definition of the verb "control" found in Black's Law Dictionary: "To exercise restraining or directing influence over. To regulate; restrain; dominate; curb; to hold from action; overpower; counteract; govern." Black's Law Dictionary 298 (5th ed. 1979). The Board found several facts, uncontested here, that support its conclusion that Eastland controlled the land by exercising a restraining or directing influence over it. Eastland had made arrangements with the surveyor, chosen the number of subdivisions to create, directed where the survey lines should be drawn, and paid for the survey. Furthermore, once the sales contract was signed, Eastland was equitable owner of the parcel, giving Eastland certain rights in the land. See Troy v. Hanifin, 132 Vt. 76, 81, 315 A.2d 875, 878 (1974); Black River Associates, Inc. v. Koehler, 126 Vt. 394, 399, 233 A.2d 175, 179 (1967) (equitable owner has rights over subsequent purchaser with notice). ² The seller received no tangible benefit from the subdivision; its sole purpose was to enable Eastland to escape the burdens of Act 250. The subdivision also cost the seller nothing; it was a small favor in the interests of concluding a harmonious business transaction. Under these circumstances, Eastland's status as equitable owner conferred upon it sufficient control to induce the seller to assist Eastland by subdividing the property as Eastland wished.

The Board's construction of the term "controlled" is also in accord with the legislative intent of Act 250. Eastland urges to the contrary that the legislative history of Act 250 suggests a narrow meaning of "controlled," noting a remark by Representative Hackett that "development means the use or intended use of a tract of land which aggregate ten acres or more within a radius of five miles in which a person is a record holder of a legal title." Remarks of Rep. Hackett, Minutes of House Appropriations Committee (Feb. 23, 1970) (emphasis added). This one citation...