In re Eustance Act 250 Juris. Opinion (No. 2-231)

Decision Date13 March 2009
Docket NumberNo. 07-156.,07-156.
Citation2009 VT 16,970 A.2d 1285
PartiesIn re EUSTANCE ACT 250 JURISDICTIONAL OPINION (# 2-231) (Robert and Lourdes Eustance, Appellants).
CourtVermont Supreme Court

Elizabeth A. Boepple of Witten, Woolmington, Campbell & Boepple, P.C., Manchester Center, for Appellants.

David L. Grayck of Cheney, Brock & Saudek, P.C., Montpelier, for Appellees.

Present: REIBER, C.J., DOOLEY, JOHNSON, SKOGLUND and BURGESS, JJ.

DOOLEY, J.

¶ 1. 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 10 V.S.A. § 6001(3)(D)(i). We disagree that the farming exemption applies and affirm.

¶ 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."

¶ 4. The Commission's permit decision stated that "[a]ny sale, further construction, or subdivision of the remaining eight lots compromising the balance of this 162-acre tract of land is specifically not approved without an amendment to this permit."3 A series of conditions followed, several of which are relevant for the instant appeal. Condition one stated that "[n]o changes shall be made in the project without the written approval of the District Environmental Commission." Condition three added that "[b]y acceptance of the conditions of this permit without appeal, the permittees confirm and agree for themselves and all assigns and successors in interest that the conditions of this permit shall run with the land and the land uses herein permitted, and will be binding upon and enforceable against the permittees and all assigns and successors in interest." Condition twenty-five further stated that "[n]o further subdivision, alteration, or development of any parcels in this project shall be permitted without the written approval of the District Environmental Commission."

¶ 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 from French Hollow Road runs between the two properties. The Eustances' main driveway is 148 feet down the right-of-way, with the Solomon driveway another 270 feet beyond. However, the Eustances built a second driveway directly across from the Solomons' to access one of the barns and the associated manure bins. The barn and manure bins are visible from the Solomons' house when the leaves are off the trees. The second driveway is used by farm vehicles and trucks, including trucks that remove manure twice per day. The Solomons claim that the manure bins regularly emit an odor that reaches their house.

¶ 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 V.S.A. § 6001(3)(D)(i), which states that farming on land below 2,500 feet in elevation is not development for purposes of Act 250. The Solomons made three arguments in response: (1) the permit governing the subdivision specifically required a permit amendment for further construction; (2) there is no exemption for farming where Act 250 jurisdiction is based on the presence of a subdivision; and (3) the project required an Act 250 permit as a material and/or substantial change to the permit.

¶ 10. On February 16, 2006, the Environmental Court granted summary judgment to the Solomons on the issue of Act 250 applicability. First, the court addressed the bearing of the revised 1993 permit on the facts of the case. Reasoning that the revised permit had not been appealed and was therefore final, the court concluded that, under the express terms of the permit, the Eustances were "required to seek further amendments ... prior to their constructing any barns ... or other related infrastructure."

¶ 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 § 6001(3)(D), which states that development does not include, for the purposes of the statute, "construction of improvements for farming, logging or forestry purposes below the elevation of 2,500 feet." The court also mentioned that "the statute was amended in 2004 to clarify that, when development is proposed for a tract of land that is devoted to farming, only those portions of the land `that support the development shall be subject to regulation under' Act 250, and permits `shall not impose conditions on other portions' of the property," citing § 6001(3)(E). The court noted first that the issue of Act 250 jurisdiction over a parcel of land proposed for development is determined at the commencement of the project and thereafter runs with the land unless the permit has expired or the proposed activity is governed by an alternative statutory scheme giving another state agency exclusive jurisdiction to regulate it. Once Act 250 jurisdiction attached, the court reasoned, "Environmental Board Rule 34(A) requires a permit amendment to be obtained `for any material or substantial change in a permitted project, or any administrative change in the terms or conditions of a land use permit.'" The court concluded that once Act 250 jurisdiction has attached to a project, subsequent changes to a permit's terms or conditions, or material or substantial changes in a planned project, require a permit amendment. The...

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