Killington, Ltd., In re

• Decision Date: 11 September 1992
• Docket Number: No. 90-535,90-535
• Citation: 616 A.2d 241,159 Vt. 206
• Court: Vermont Supreme Court
• Parties: In re KILLINGTON, LTD. and International Paper Realty Corp.

Page 241

616 A.2d 241

159 Vt. 206

In re KILLINGTON, LTD. and International Paper Realty Corp.

No. 90-535.

Supreme Court of Vermont.

Sept. 11, 1992.

Allan R. Keyes and John A. Serafino of Ryan Smith & Carbine, Ltd., Rutland, for appellant Killington, Ltd.

Robert E. Woolmington of Witten, Saltonstall & Woolmington, P.C., Bennington, for appellees Town of Shrewsbury and Shrewsbury Planning Com'n.

Jeffrey L. Amestoy, Atty. Gen., and Mark J. Di Stefano, Asst. Atty. Gen., Montpelier, for appellee Vermont Agency of Natural Resources.

Before ALLEN, C.J., and GIBSON, DOOLEY and MORSE, JJ., and PECK, J. (Ret.), Specially Assigned.

DOOLEY, Justice.

The Vermont Environmental Board denied an Act 250 permit to Killington, Ltd., for construction of a pond intended to enhance Killington's snowmaking capacity at its ski area. Killington appeals that ruling, which was based on the Board's conclusion that the proposed construction would not satisfy 10 V.S.A. § 6086(a)(8)(A) because it would imperil a habitat necessary to the survival of a population of black bears. We affirm.

Application for the permit was filed on February 18, 1986, with District Environmental Commission No. 1. The application sought approval to divert the waters of Madden Brook to build a snowmaking pond in an area known as Parker's Gore East in the Town of Mendon. After extensive hearings and procedural maneuvering, the District Commission denied the application on July 14, 1987. The Commission found that construction of the pond would threaten a population of black bears by making inaccessible a stand of beech trees used by the bears for food. The Commission also found that the construction would prevent the bears from using a tract of spruce and fir to travel into Parker's Gore East, where they build up body fat in the fall in preparation for winter hibernation.

Pursuant to 10 V.S.A. § 6089(a), Killington appealed the Commission's denial to the Environmental Board on August 13, 1987. The appeal challenged the Commission's decisions to grant party status to certain organizations and municipalities and to impose conditions on any permit that might be issued. Its fundamental challenge, however, was to the conclusion, under 10 V.S.A. § 6086(a)(8)(A) (hereinafter criterion 8(A)), that the project would significantly impair necessary wildlife habitat, would not utilize all feasible and reasonable means of lessening the alleged impairment, and would be a detriment to the general welfare of the public. Killington asserted that the Commission's findings did not support its conclusions and that the conclusions were based on a fundamental misconstruction of the term "necessary wildlife habitat" as used in the statute.

Pursuant to Environmental Board Rule 14(A), and over Killington's objection, the Board granted party status to Two Rivers-Ottauquechee Regional Planning Commission and the towns and planning commissions of Shrewsbury and Bridgewater because they adjoined land "contiguous to the site of the proposed project that is owned or controlled by Killington." During the evidentiary stage of the Board's review, the Town of Shrewsbury sought to present evidence that, in addition to the harm likely to be done to the bears' use of the beech, spruce and fir trees, the proposed pond construction would also destroy wetlands in Parker's Gore East critical to the animals' survival. The subject of the wetlands had not been raised by any party before the Commission and was not addressed in the Commission's findings, conclusions or order. Over Killington's objection, the Board allowed the evidence to be presented because it was probative of "the existence of necessary bear habitat in Parker's Gore East" and the likely effect of pond construction and operation on that habitat, the issues raised by Killington's appeal.

On May 11, 1989, the Board ruled that the term "necessary wildlife habitat" in criterion 8(A) covered habitat critical to the survival of the particular wildlife population dependent on it, and that Parker's Gore East constituted necessary wildlife habitat. It also concluded that construction and operation of the pond would destroy or significantly impair that habitat in a number of respects. On September 21, 1990, the Board issued its final findings. It concluded that Killington met none of the subcriteria of criterion 8(A), ¹ which, if satisfied, allow the issuance of a permit regardless of the imperilment of necessary wildlife habitat. Therefore, the Board also denied the permit.

On appeal, Killington contends that (1) the Board erred in granting party status to the municipalities and planning commissions; (2) the Board erred in considering the issue of wetlands in Parker's Gore East; (3) the Board erred in defining "necessary wildlife habitat" for the purpose of criterion 8(A) to mean habitat critical to the survival of a particular population of wildlife rather than to that of an entire species in Vermont; and (4) the Board's findings did not support its conclusions that necessary black bear habitat existed in Parker's Gore East and that such habitat would be destroyed or imperiled by the proposed project.

It is important at the outset to emphasize the deference with which we treat decisions by the Environmental Board as to matters properly within its jurisdiction. See In re Denio, 158 Vt. 230, ----, 608 A.2d 1166, 1171 (1992) (Board's decisions presumed to be " 'correct, valid and reasonable ... and we will normally defer to its determinations' ") (quoting Vermont State Colleges Faculty Federation v. Vermont State Colleges, 151 Vt. 457, 460, 561 A.2d 417, 419-20 (1989)). The Board, of course, is required to follow both the standards established by the Legislature and the procedures which it has itself adopted in order to carry out its statutory mandate. However, " 'absent compelling indication of error,' we will sustain the interpretation of a statute by the administrative body responsible for its execution." In re Duncan, 155 Vt. 402, 408, 584 A.2d 1140, 1144 (1990). The same is true for an agency's interpretation of its own rules. See Rogers v. Watson, 156 Vt. 483, 489, 594 A.2d 409, 412 (1991). As to findings of fact, we must affirm the Board if its findings are based on substantial evidence. 10 V.S.A. § 6089(c); see Denio, 158 Vt. at ----, 608 A.2d at 1170-71. Conclusions, in turn, are affirmed when "rationally derived from [the] findings and based on a correct interpretation of the law." In re Southview Associates, 153 Vt. 171, 178, 569 A.2d 501, 504 (1989).

Killington first argues that the Board erred in admitting parties to the permit-approval proceeding that were not entitled to be included. At the outset, we must narrow this claim to the Town of Shrewsbury and the Shrewsbury Planning Commission (hereinafter Shrewsbury). The parties to which Killington objects, other than Shrewsbury, did not present evidence, cross-examine Killington's witnesses, or otherwise participate in the hearings. In order to obtain relief on appeal, Killington must show that an asserted error prejudiced its rights. See Cadel v. Sherburne Corp., 139 Vt. 134, 136, 425 A.2d 546, 547 (1980) (on appeal, burden is on appealing party to show that error resulted in prejudice). It has not done so with respect to these parties.

The situation is arguably different with respect to Shrewsbury. Shrewsbury participated in the hearings before the Board and presented witnesses, on whose testimony the Board relied in part regarding the wetlands issue. Although we have doubts as to whether this participation could be the cause of a new hearing before the Board, ² we will examine the merits of Killington's claim that the admission of Shrewsbury into the proceeding was improper.

Shrewsbury petitioned the Board to be admitted either as a statutory party, under 10 V.S.A. §§ 6084(a), 6085(c), or as a permitted party, pursuant to Environmental Board Rule 14(B)(2), on the ground that such admission would materially assist the Board in its proceedings. The Board decided that Shrewsbury was entitled by statute to party status, and so did not reach the issue of whether Shrewsbury should be a permitted party.

Act 250 provides that a municipality that is required to be given notice of a permit application will be considered a party to the proceeding. 10 V.S.A. § 6085(c). Parties entitled to notice include "a municipality, and municipal and regional planning commissions wherein the land is located, and any adjacent Vermont municipality, municipal or regional planning commission if the land is located on a boundary." Id. § 6084(a). Environmental Board Rule 14(A), which implements this statute, states that "if the project site is located on a boundary, any Vermont municipality adjacent to that border and the municipal and regional planning commissions for that municipality" will be statutory parties. Killington argues that, under this statutory and administrative scheme, a bounding municipality must border directly on the land where the project site is located in order to be considered a statutory party. For this proposition, Killington points to the specific language of Rule 14(A). Appellees argue, and the Board held, that a municipality may be a statutory party if it lies adjacent to any portion of the land owned or controlled by the applicant that is part of the property on which the proposed project site will sit and is in any way affected by the proposed project.

The facts on which the positions of the parties are based are not in dispute. The proposed pond would lie wholly within the Town of Mendon, and not immediately adjacent to the Shrewsbury town line. The area known as Parker's Gore East, however, is bounded on the south by the Shrewsbury town line. Moreover, parts of Killington's ski area lie in Mendon along the Shrewsbury town line, and the purpose of the pond development is to enhance snowmaking throughout Killington's ski area.

For two reasons, we do not...