Southview Associates, In re, 87-313

• Decision Date: 01 December 1989
• Docket Number: No. 87-313,87-313
• Citation: 569 A.2d 501,153 Vt. 171
• Court: Vermont Supreme Court
• Parties: In re SOUTHVIEW ASSOCIATES.

Page 501

569 A.2d 501

153 Vt. 171

In re SOUTHVIEW ASSOCIATES.

No. 87-313.

Supreme Court of Vermont.

Dec. 1, 1989.

Weber, Perra & Wilson, Brattleboro, for appellant.

Jeffrey L. Amestoy, Atty. Gen., and Mark J. Di Stefano, Asst. Atty. Gen., Montpelier, for appellee.

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

MORSE, Justice.

Southview Associates appeals from a ruling of the Environmental Board denying its application for a permit to build a residential development in Stratton and Jamaica Vermont. The Board based its decision on the finding that the proposed project failed to meet the requirements of Act 250 criterion 8 pertaining to "necessary wildlife habitat." 10 V.S.A. § 6086(a)(8)(A). We affirm.

Southview proposed to build a 33 lot subdivision for vacation homes on 88 acres of land, situated in a "deeryard" comprising some 280-320 acres. The Board found that, although Stratton once contained 600 acres of deeryard, the 280-320 acre area is the only "active deeryard" in a 10.7-square mile region. It supports approximately 20 deer over the winter.

The deeryard contains two significant areas of mature softwood cover, which is critical deer wintering habitat. One of these areas covers approximately half of the Southview property. The Board found that the softwood stand on the Southview property is necessary to the deer population. The development, it found, would destroy ten acres of this critical habitat, with likely secondary effects in a larger area.

Southview submitted a Wildlife Management Plan to mitigate the loss of the ten acres by increasing available deer food and encouraging the growth of immature softwood to replace the cover lost to the development. The Board found, however, that increased food supply would only partially mitigate the adverse effect of the development on the deer, as availability of browse is less important to the deer's survival than good softwood cover, which provides shelter from winter elements and reduces heat loss by radiation. Also, it is critical to the deer population's survival during winter that the deer do not exhaust their fat reserves. Increased physical activity due to the presence of humans, pets, and vehicles would consume these reserves more rapidly.

The Board concluded:

As a result of the development, it is likely that there will be a loss of deer in this habitat. It is likely that the deer will abandon the remaining cover altogether and those that remain will be less likely to survive due to the high potential of stress created by wintertime noise and activity from people, vehicles, and pets.

The Board concluded further "that the environmental and recreational loss to the public from the destruction and imperilment of the habitat is not outweighed by the economic, social, cultural, recreational or other benefit to the public from the project." Nor did Southview, in the Board's opinion, employ "all feasible and reasonable means of preventing or lessening the destruction and imperilment of the deer habitat." Finally, the Board could not exclude "the possibility of less intensive development in other areas of the site." The Act 250 permit was accordingly denied.

Southview challenges the Board's construction of the relevant statute and argues that the record does not support several of the Board's findings and conclusions.

I.

Under 10 V.S.A. § 6086(a)(8), a permit will be granted only if the subdivision or development "[w]ill not have an undue adverse effect on the scenic or natural beauty of the area, aesthetics, historic sites or rare and irreplaceable natural areas." The subsection further provides:

(A) Necessary wildlife habitat and endangered species. A permit will not be granted if it is demonstrated by any party opposing the applicant that a development or subdivision will destroy or significantly imperil necessary wildlife habitat or any endangered species, and

(i) the economic, social, cultural, recreational, or other benefit to the public from the development or subdivision will not outweigh the economic, environmental, or recreational loss to the public from the destruction or imperilment of the habitat or species, or

(ii) all feasible and reasonable means of preventing or lessening the destruction, diminution, or imperilment of the habitat or species have not been or will not continue to be applied, or

(iii) a reasonably acceptable alternative site is owned or controlled by the applicant which would allow the development or subdivision to fulfill its intended purpose.

The permit's opponents--here, the Agency of Natural Resources and the Vermont Natural Resources Council--thus have a dual burden: first, to show that the project "will destroy or significantly imperil necessary wildlife habitat or any endangered species" (only the former is involved in this case); and second, to prove one of the three statements prefaced by small roman numerals.

Southview's first claim on appeal pertains to the meaning of "necessary wildlife habitat." That term is defined at 10 V.S.A. § 6001(12) as a "concentrated habitat which is identifiable and is demonstrated as being decisive to the survival of a species of wildlife at any period in its life including breeding and migratory periods." Southview contends that the term refers to a habitat that is decisive to the survival of an entire species, rather than to the population of the species that resides in the habitat.

In reviewing a statute, we must construe its language so as to give effect to the legislative intent. We will avoid a construction that would render the legislation ineffective or irrational. State v. Rice, 145 Vt. 25, 34, 483 A.2d 248, 253 (1984); In re A.C., 144 Vt. 37, 42, 470 A.2d 1191, 1194 (1984).

With this rule of construction in mind, we turn to the question stated succinctly by the Board as follows:

The threshold issue that must be decided is whether the language "necessary wildlife habitat" in 10 V.S.A. § 6086(a) and defined in § 6001(12), as it applies to the white-tailed deer in Vermont, means habitat that is decisive to the survival of the entire population of deer in Vermont or decisive to the survival of the deer that are dependent upon the habitat.

If the former definition controlled, only the last landowner in the state to develop a deeryard would be subject to the provisions of criterion 8. All other developers would escape a criterion 8 challenge because, no matter how devastating to particular habitats, their projects would not decimate the entire deer herd in Vermont so long as one deeryard remained. This interpretation would render the statute largely ineffective to accomplish its purpose of regulating development throughout the state with an eye to the preservation of the natural environment. See 1969, No. 250 (Adj.Sess.), § 1. As the Board noted, "[t]he statute would be rendered meaningless if it were interpreted to mean that only the last deeryard in the state would be subject to review ... so that the state deer herd would have to be on the verge of extinction before Criterion 8(A) would apply." ¹ The Board must be afforded deference in its interpretation of its own enabling legislation. In re Eastland, Inc., 151 Vt. 497, 499, 562 A.2d 1043, 1044 (1989). We affirm the Board's conclusion that a "necessary wildlife habitat" under Act 250 is one that is decisive to the survival of the population of a particular species that depends upon the habitat. ² The definition in § 6001(12) uses the words "a species" only to make clear that for habitat to be "necessary" under criterion 8 it need not be decisive to the survival of all species of wildlife that flourish there.

Southview vigorously argues that this construction of the statute produces its own absurdity: "For under the Board's definition, no matter how numerous and robust the deer herd in...