In re Woodford Packers, Inc.

• Decision Date: 26 June 2003
• Docket Number: No. 02-056.,02-056.
• Citation: 830 A.2d 100
• Parties: In re WOODFORD PACKERS, INC.
• Court: Vermont Supreme Court

830 A.2d 100

In re WOODFORD PACKERS, INC.

No. 02-056.

Supreme Court of Vermont.

June 26, 2003.

Before AMESTOY, C.J., DOOLEY, JOHNSON, SKOGLUND, JJ., and FREDERIC W. ALLEN, C.J. (Ret.), Specially Assigned.

ENTRY ORDER

¶ 1. Woodford Packers, Inc. (WPI) appeals the Environmental Board's decision vacating a land use permit that had been granted to it by the District Environmental Commission. WPI claims that the Board erred by: (1) permitting the Secretary of the Agency of Natural Resources (ANR) to determine both the floodway and floodway fringe when no such determination had been made by the Agency at the District Commission level; (2) allowing the ANR to change the standard for determining floodways and floodway fringes without following the Vermont Administrative Procedure Act (VAPA), and enabling the Secretary of ANR to determine the floodway and the floodway fringe on a case-by-case basis; (3) finding that the proposed development project was located in the floodway; and (4) finding that the project failed to meet Act 250 criteria concerning floodways, shorelines, and soil erosion. We affirm.

¶ 2. WPI proposed to build a thirty-unit retirement village on a 12.5 acre parcel in Bennington, Vermont, bordered on the north by the Roaring Branch River and on the south and east by Route 9. WPI applied to District Commission # 8 for an Act 250 permit, which was granted in October 2000. The Commission found that both WPI's and ANR's engineers agreed that no proposed buildings or roads would be located within the floodway or floodway fringe of the Roaring Branch River. See 10 V.S.A. § 6086(a)(1) (requiring the District Commission to find that the development will not result in undue water pollution and, "[i]n making this determination it shall at least consider: the elevation of land above sea level; and in relation to the flood plains, the nature of soils and subsoils and their ability to adequately support waste disposal . . . ."). The Commission further determined that the project would not impinge upon the ability of the river to carry flood waters in the event of a 100-year flood, which the Commission explained was a "theoretical time frame" for determining the frequency of major flooding occurrences. ANR filed a motion to alter the District Commission's decision, which was denied. ANR appealed the Commission's decision to the Environmental Board, asserting that the Commission erred in its conclusions regarding criteria 1(D) "floodways," 1(F) "shorelines," 4 "erosion," and 9(K) "development affecting public investments" under 10 V.S.A. § 6086(a).

¶ 3. The Environmental Board concluded that WPI's proposed project failed to comply with criterion 1(D) for floodways. See id. § 6086(a)(1)(D)(ii) ("A permit will be granted whenever it is demonstrated by the applicant that, in addition to all other applicable criteria ... the development... of lands within a floodway fringe will not significantly increase the peak discharge of the river or stream ... and endanger the health, safety, or welfare of the public or riparian owners during flooding."). The Board found that, for the purposes of Act 250, the Secretary of ANR determined that the entire project would be situated in the floodway. Consequently, the Board observed that placement of buildings and other materials in the floodway would restrict or divert the flow of waters in the event of a 100-year flood, resulting in a significant increase in peak flow adjacent to and downstream from the project, thereby "pos[ing] a safety risk to anyone on the Project site, including but not limited to the senior citizens residing at the Project." The Board also concluded that the project did not meet criterion 1(F), pertaining to shorelines, because WPI failed to show that the project served some water-related purpose necessitating its location on the shoreline of the Roaring Branch River, pursuant to 10 V.S.A. § 6086(a)(1)(F) (applicant must demonstrate that the project "must of necessity be located on a shoreline in order to fulfill the purpose of the development"). Furthermore, the Board found that the project failed to meet criterion 4 for soil erosion, due to the presence of substantial erosion, at and near the proposed project site. Because WPI's project failed to comply with three separate criteria under Act 250, the Environmental Board vacated WPI's land use permit. This appeal followed.

¶ 4. When reviewing a decision of the Environmental Board, this Court gives deference to the Board's "interpretations of Act 250 and its own rules, and to the Board's specialized knowledge in the environmental field." In re Wal*Mart Stores, Inc., 167 Vt. 75, 79, 702 A.2d 397, 400 (1997). Absent a compelling indication of error, we will sustain the Board's interpretations on appeal. Id. Given this deferential standard of review, we conclude that the Environmental Board did not abuse its discretion when vacating WPI's Act 250 permit.

¶ 5. WPI's principal contention is that the Board erred in vacating WPI's land use permit for failing to meet Act 250's 1(D) "floodways" criterion under 10 V.S.A. § 6086(a)(1)(D). In support of its argument, WPI contends that: (1) it was error to permit the Secretary of ANR to determine the floodway when no such determination had been made by ANR at the District Commission level; (2) ANR should not be allowed to determine floodways and floodway fringes on a case-by-case basis, and it was error to allow ANR to determine floodways and floodway fringes without first proceeding through VAPA; and (3) the Board erred in finding that the proposed development would be located in the floodway.

¶ 6. WPI first asserts that the Environmental Board erred by permitting the Secretary of ANR to determine the floodway when no such determination had been made by the Agency at the District Commission level. Act 250 provides that "[t]he [environmental board] shall hold a de novo hearing on all findings requested by any party that files an appeal or cross appeal, according to the rules of the board." 10 V.S.A. § 6089(a)(3). In a de novo proceeding, the Board is required to hear the issues "as if there had been no prior proceedings in the district commission." In re Killington, Ltd., 159 Vt. 206, 214, 616 A.2d 241, 246 (1992). WPI argues that ANR filed an appeal on four separate Act 250 criteria, yet it only presented testimony on two criteria at the District Commission level. However, the statute is clear that an appeal to the Environmental Board is heard de novo, and the District Commission made findings on all four criteria appealed, including 1(D) floodways criterion.

¶ 7. Nor are we persuaded by WPI's alternative theory that ANR should have been estopped from appealing the District Commission's decision because an ANR employee made a prior determination that WPI's project would not be located in the floodway or floodway fringe. Assuming arguendo that WPI relied on the representations of an ANR employee that the proposed project was not located in the floodway or floodway fringe when using the Federal Emergency Agency (FEMA) National Flood Insurance Program (NFIP) maps, ANR was not foreclosed from presenting evidence on appeal regarding the inadequacy of the NFIP maps to support a finding that the site would be free from flood hazards. Estoppel is rarely invoked against the government and is only appropriate when the injustice that would ensue from a failure to find an estoppel sufficiently outweighs any effect upon the public interest that would result from estopping the government in a particular case. In re Letourneau, 168 Vt. 539, 547, 726 A.2d 31, 37 (1998). However well-founded WPI's criticism that the current permit system enables ANR to burden an applicant with inconsistent and contradictory information, the remedy is more likely to be found in the executive and legislative branches, rather than by resorting to the rarely invoked judicial estoppel of a governmental agency. The determination of the floodway and floodway fringe was properly before the Board.

¶ 8. WPI next argues that ANR's alteration of its long-standing practice of relying on NFIP maps to determine whether a proposed development was within a floodway or floodway fringe required ANR to promulgate the change by rule pursuant to VAPA's rulemaking procedures set forth in 3 V.S.A. §§ 836-844. As a corollary to this argument, WPI contends that without such promulgation, the Secretary of ANR is without legal authority to make floodway determinations on a case-by-case basis.

¶ 9. WPI asserts that for approximately twenty years ANR used NFIP maps to determine whether a proposed development was within either a floodway or a floodway fringe for Act 250 purposes, and that during WPI's permit application process, ANR unilaterally changed the floodway standards by employing fluvial geomorphology techniques in lieu of the maps.¹ The Environmental Board's opinion noted that NFIP maps, while accurate at the time they were first drafted, often contain inaccuracies, since flood volumes change over time. Because of these inaccuracies, it is common for developers to have more detailed surveys done when the NFIP maps show that part of a proposed development is within the 100-year floodplain. The Board found that it is also customary for ANR to review the resurveyed maps when making its floodway determinations.

¶ 10. That is what happened in this case. In 1998, WPI's predecessor-in-interest, Aaron & Sons, Inc., had the project resurveyed. The new survey of the property revealed that a smaller portion of the project site was located in the floodplain than was depicted on the NFIP maps. During the Board proceedings, ANR Floodplain Engineer Karl Jurentkuff testified that he reviewed both the NFIP maps and the new survey map, and determined that the new survey map was more accurate. In a letter to the Bennington zoning administrator, however, he cautioned that, because the Roaring Branch River is a "wild stream,"...