Secretary, Vermont Agency of Natural Resources v. Earth Const., Inc.

• Decision Date: 12 January 1996
• Docket Number: No. 93-427,93-427
• Citation: 676 A.2d 769,165 Vt. 160
• Parties: SECRETARY, VERMONT AGENCY OF NATURAL RESOURCES v. EARTH CONSTRUCTION, INC. and Rodney Jordan.
• Court: Vermont Supreme Court

Page 769

676 A.2d 769

165 Vt. 160

SECRETARY, VERMONT AGENCY OF NATURAL RESOURCES v. EARTH CONSTRUCTION, INC. and Rodney Jordan.

No. 93-427.

Supreme Court of Vermont.

Jan. 12, 1996.

Motion for Reargument Denied

March 6, 1996.

Motion for Reconsideration Denied

March 29, 1996.

Christine Melicharek, Waterbury, for plaintiff-appellee.

Rodney Jordan, Groton, pro se, and for defendant-appellant Earth Construction, Inc.

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

GIBSON, Justice.

Defendants Earth Construction, Inc. and Rodney Jordan appeal two orders of the Environmental Law Division (ELD) imposing penalties for the renovation, expansion and use of an access road and portions of their gravel pit in East Montpelier in violation of Act 250 and the Vermont Wetland Rules. We affirm.

Rodney Jordan is the president and executive officer of Earth Construction. In February 1992, Earth Construction purchased a seventy-five-acre tract containing a gravel pit in East Montpelier, with a plan to continue extracting gravel. That same month, Earth Construction began to improve the access road from Route 2 that descends into the gravel pit and forks around the western and southern borders of an area that the National Wetlands Inventory map identifies as a Class Two Wetland. Under Jordan's supervision, Earth Construction cut trees and levelled a 54-by-102-foot turnaround area for trucks, removed a clay bank that obstructed the planned path of the road, applied gravel to 115 feet of the road, paved a seventy-three-foot section of the road at the intersection with Route 2, and installed eight cubic yards of asphalt to the edge of the gravel pit to facilitate truck passage. Defendants did not apply for a permit to improve the access road or for conditional use approval for filling, excavating and grading activities that occurred within fifty feet of the wetland. Nor did they apply for reclassification of the wetland to Class Three status so that it would not require protection. During the spring of 1992, after defendants started to remove part of a clay berm on the edge of the gravel pit, 200 cubic yards of clay slid down the slope of the pit into the wetland. Defendants removed most of the clay with a backhoe, but were unable fully to restore the wetland to its previous condition.

In March 1992, the District 5 Environmental Coordinator asked defendants to submit information that would enable the Board to determine whether the activities on the site were preexisting and therefore exempt from Act 250 jurisdiction. Defendants responded, but did not provide enough information for the Board to make the determination. On April 17, 1992, the District Coordinator issued an advisory opinion that, because a substantial change had taken place on the property, an Act 250 permit was required for the entire site. Later, after inspecting the site, the Agency of Natural Resources (ANR) Enforcement Division served a Notice of Alleged Violation on defendants advising them to obtain Act 250 approval before continuing any aspect of the gravel pit operation. In May 1992, defendants sought an advisory opinion from the Executive Officer of the Environmental Board as to whether there was Act 250 jurisdiction over the project, and continued to operate.

While the Board deliberated the jurisdiction question, the Secretary of ANR, on June 3, 1992, served defendants with an Administrative Order citing violations of Act 250 and the Vermont Wetland Rules, ordering that certain activities cease and remedial actions be taken, requiring defendants to apply for an Act 250 permit, and assessing a penalty. Defendants continued to operate without an Act 250 permit, however, until an Emergency Order issued from the ELD on June 17, 1992. Defendants requested a hearing before the ELD regarding the Administrative Order. The ELD held hearings on September 9 and 11, and October 22, 1992, and then continued the hearings at defendants' request to await the Board's ruling regarding Act 250 jurisdiction. Pending receipt of the Board's jurisdictional decision, the ELD ruled on February 9, 1993 that defendants had violated the wetland rules.

On October 1, 1992, on behalf of the Executive Officer of the Environmental Board, Board counsel issued an advisory opinion, concluding that Act 250 jurisdiction did extend over the disputed site. On November 9, 1992, defendants petitioned the Board for a declaratory ruling on the opinion, but the Board dismissed the petition as untimely on March 16, 1993.

At the close of the ELD hearings, defendants moved to dismiss, claiming the State had not presented sufficient evidence to support either a wetland or an Act 250 violation. In its order of February 9, 1993, the ELD denied the motion, determined that defendants had violated the Vermont Wetland Rules, and imposed a penalty of $3,500. On July 6, 1993, after receiving notice of the Board's March 16 dismissal of defendants' petition, the ELD reviewed the jurisdictional issue, and determined that defendants' activities had brought them under Act 250 jurisdiction. It held that defendants had violated Act 250, and imposed a penalty of $36,497.

We give deference to the Environmental Board's interpretations of Act 250 and its own rules, Vermont Agency of Natural Resources v. Duranleau, 159 Vt. 233, 237, 617 A.2d 143, 146 (1992), and to the Board's specialized knowledge in the environmental field. In re Sherman Hollow, Inc., 160 Vt. 627, 628, 641 A.2d 753, 755 (1993) (mem.). We also defer to the conclusions of the ELD, in recognition of the ELD's "expertise in environmental enforcement," Secretary v. Handy Family Enters., 163 Vt. 476, ----, 660 A.2d 309, 313 (1995), and will affirm the ELD if the record supports its findings and the findings support its conclusions. Id. at ----, 660 A.2d at 314.

I.

A.

With respect to the Act 250 violation, defendants argue that their project is exempt from Act 250 under the so-called "grandfather" provisions of 10 V.S.A. § 6081(b). ^* Section 6081(b) exempts certain preexisting uses, but also states that permits are required for any "substantial change" in otherwise exempt developments. We have upheld the Environmental Board's two-pronged test used to determine whether a substantial change has occurred at a preexisting development. In re H.A. Manosh Corp., 147 Vt. 367, 369-70, 518 A.2d 18, 20 (1986). Under that test, the Board must determine whether a "cognizable physical change" to the preexisting development has occurred, id. at 370, 518 A.2d at 20, and if so, whether it would have potential significant impact on the Act 250 criteria in 10 V.S.A. § 6086(a)(1)-(10). In re Barlow, 160 Vt. 513, 521-22, 631 A.2d 853, 858-59 (1993).

Defendants argue that there was insufficient evidence to support the ELD's finding that, since 1970, there had been substantial change at the site. Inasmuch as the ELD assessed an Act 250 penalty only for defendants' expansion of the Route 2 access road, we need decide only whether the record contains evidence that this portion of defendants' project resulted in a substantial change to the preexisting development. The evidence shows that the clearing of trees and excavation of the turnaround, the application of gravel to 115 feet of the road, the paving of a larger portion of the road, the paving of an apron on the access road, and a direct rather than oblique access down into the pit had the potential to cause significant impacts. The possible impacts include air and noise pollution from the changed routing of truck traffic (§ 6086(a)(1)), soil erosion where the access road entered the pit and at the perimeter of the site (§ 6086(a)(4)), reduced highway safety due to a more direct truck entrance onto Route 2 (§ 6086(a)(5)), and degradation of the aesthetics of the surrounding area (§ 6086(a)(8)). The evidence supports the ELD's findings; consequently, defendants' project comes within Act 250 jurisdiction.

Defendants contend, however, that a Memorandum of Understanding between the Environmental Board and the Vermont Agency of Transportation defeats Act 250 jurisdiction, or, in the alternative, that the Act 250 enforcement action is barred by an undefined "Statute of Limitations." These claims were not presented to the ELD and are not preserved for our review. See Dunning v. Meaney, 161 Vt. 287, 292, 640 A.2d 3, 6 (1993) (Supreme Court will not address issues not raised in trial...