Orzel, In re, 83-479

• Decision Date: 25 January 1985
• Docket Number: No. 83-479,83-479
• Citation: 145 Vt. 355,491 A.2d 1013
• Parties: In re Andrew L. and Helen K. ORZEL.
• Court: Vermont Supreme Court

Page 1013

491 A.2d 1013

145 Vt. 355

In re Andrew L. and Helen K. ORZEL.

No. 83-479.

Supreme Court of Vermont.

Jan. 25, 1985.

Reargument Denied March 4, 1985.

Lorentz and Lorentz, Rutland, for petitioners-appellants.

John J. Easton, Jr., Atty. Gen., and Merideth Wright, Asst. Atty. Gen., Montpelier, for amicus curiae Environmental Bd.

Before HILL, UNDERWOOD, PECK and GIBSON, JJ., and LARROW, J. (Ret.), Specially Assigned.

HILL, Justice.

The petitioners, Andrew and Helen Orzel, appeal the decision in two declaratory rulings issued by the State of Vermont Environmental Board (Board). Based on the findings of the Board in its rulings, we affirm its decision.

In 1973, petitioners purchased a ten-acre piece of property in the Town of Rutland. This property, which adjoins other property owned by the petitioners, is commonly known as "the gravel pit." The gravel pit had been used intermittently by previous owners for the extraction of gravel. In 1978, the petitioners sold, and had removed, approximately 40,000 cubic yards of gravel from the pit. At that time, an environmental investigator visited the site and determined no permit was required, under the provisions of 10 V.S.A. chap. 151 (hereinafter referred to as Act 250), for that operation. The following year, in 1979, another buyer proposed to remove gravel from the pit. This time, an employee of the Agency of Environmental Conservation advised the petitioners that an Act 250 permit would be required for the proposed operation.

In October of 1982, petitioners petitioned the Board for a declaratory ruling on whether or not an Act 250 permit is required for the removal of gravel from the gravel pit. Petitioners alleged that a permit was not required for two reasons. First, they alleged that the operation was a pre-existing development in operation before the effective date of Act 250 and therefore, under 10 V.S.A. § 6081(b), no permit was required for its continued operation. Second, the petitioners alleged that because an environmental inspector told them in 1978 that no permit was needed, the agency is estopped from later requiring a permit for the gravel pit's continued operation.

Following a hearing, the Board issued findings of facts, conclusions of law, and an order. Based on its findings, the Board concluded that it was unable to determine whether a permit was required. It stated the evidence presented was insufficient to establish whether the gravel pit was a commercial operation in existence as of the enactment of Act 250, or whether it was a substantial change to a pre-existing operation. The Board also concluded that the representations of the inspector in 1978 did not preclude requiring petitioners to obtain a permit for future operations. The Board then ordered the petitioners to obtain an Act 250 permit, or request review by the District # 1 Environmental Coordinator when they have developed more precise information on the elements, scope and nature of the intended operation.

The petitioners again petitioned the Board for a declaratory ruling as to whether an Act 250 permit is required for the operation of their gravel pit. Specifically, they requested the Board to make three determinations: first, whether the gravel pit operation pre-dated the enactment of Act 250; second, under what circumstances and/or conditions the gravel pit could be operated without requiring a permit; and third, whether a permit would have been required for the proposed 1979 excavation. The Board reviewed this request and agreed to reconsider its earlier decision, and to accept additional information for use in reviewing the matter. The only additional information received was two pages from the Town of Rutland Annual Report indicating the purchase of gravel in 1965 and 1967 from previous owners of the gravel pit. The Board found that this information lacked probative value in light of the evidence already in the record. It then denied further consideration of the matter and decided that its prior findings of fact, its conclusions of law and its order constituted its final decision on petitioners' declaratory ruling request.

I.

Petitioners' first two claims on appeal pertain to the Board's failure to determine whether an Act 250 permit is required for continued operation of the petitioners' gravel pit. Petitioners make no objection on appeal to the Board's findings of fact. They are, therefore, controlling in this case. Petitioners, however, do argue that the findings do not support the conclusions of law reached by the Board. On appeal, an agency's conclusions of law will be upheld if they are fairly and reasonably supported by the findings of fact. In re McGrath, 138 Vt. 77, 82, 411 A.2d 1362, 1365 (1980). The petitioners argue that the Board's conclusion that it was unable to determine whether there was an operation in existence as of the enactment of Act 250 is not supported by its findings. We agree with the petitioners. The findings state that the previous owners of the property intermittently had sand and gravel removed from the gravel pit. The findings state that this was done before the enactment of Act 250. No evidence presented, nor finding made, indicates that the operations, although intermittent, were abandoned at any time. Consequently, as the petitioners allege, based on the findings of the Board, it must be concluded that there was a commercial operation in existence as of the enactment of Act 250. This conclusion, however, is not sufficient to preclude the requiring of a permit for continued operation.

Title 10 V.S.A. § 6081(b) states that, although pre-existing operations are exempted from the requirement of having a permit, such exemption does not apply "to any substantial change in such excepted subdivision or development." It must therefore be determined whether the continued operation of the gravel pit constitutes a substantial change in the development. One of the Board's findings of fact stated: "Petitioners have no specific proposal for operation at this time." Based on this finding, the Board concluded that it was unable to determine whether or not there is a substantial change to a pre-existing operation. The Board's finding that there are no specific plans for the continued operation of the gravel pit fairly and reasonably supports its conclusion that it cannot be determined whether future operation will constitute a substantial change. The Board cannot determine whether some activity constitutes a substantial...