Verburg, In re

• Decision Date: 04 September 1992
• Docket Number: No. 91-196,91-196
• Citation: 159 Vt. 161,616 A.2d 237
• Parties: In re Jacob and Harmke VERBURG and Wesco, Inc.
• Court: Vermont Supreme Court

Page 237

616 A.2d 237

159 Vt. 161

In re Jacob and Harmke VERBURG and Wesco, Inc.

No. 91-196.

Supreme Court of Vermont.

Sept. 4, 1992.

Craig Weatherly and Charles T. Shea of Gravel and Shea, Burlington, for appellants.

William E. Roper of Neuse, Smith, Roper & Venman, Middlebury, for appellee Richmond Land Trust.

Jeffrey L. Amestoy, Atty. Gen., John H. Hasen, Asst. Atty. Gen., and John Beiswenger, Law Clerk (On the Brief), Montpelier, for Dept. of Environmental Conservation.

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

DOOLEY, Justice.

Petitioners, Wesco, Inc. and Jacob and Harmke Verburg, appeal from a declaratory ruling by the Commissioner of Environmental Conservation. That ruling makes it impossible for Wesco to build a gas station and convenience store on two lots owned by the Verburgs because the land lies in a flood plain. We affirm in part and reverse in part.

The two lots lie at the Richmond exit of Interstate 89 and were subdivided by the Verburgs under a deferral of permit issued by the Department of Environmental Conservation (DEC). The deferral requires that, for the lots in question, a permit be obtained before the erection of any structure needing the installation of plumbing and sewage treatment facilities. Wesco proposes to place such a building on one of the lots and a sewage disposal system to service the structure on the other lot.

Both lots lie within the 100-year flood plain of the Winooski River. DEC regulations require that an on-site sewage disposal system be located at least one foot above the 100-year flood plain. The flood plain elevation for the lot on which the sewerage system would be constructed lies at 304 feet. The actual elevation of the lot varies between 302 feet and 304.25 feet. The 100-year flood plain elevation for the lot on which the building would be constructed lies at 305 feet. Part of that lot has an actual elevation under 306 feet. In order to meet the DEC requirement, Wesco proposes to place one foot or more of fill on the area where the sewage disposal system would be located.

Petitioners' application for a subdivision permit was rejected by the DEC regional office because of the flood plain restriction. Thereafter, petitioners brought this petition for a declaratory ruling that they could meet the regulatory requirements by adding fill to the site. After a hearing, ¹ a hearing officer appointed by the Commissioner ruled that petitioners could not meet the elevation requirements by adding fill.

This case involves the interaction of a number of DEC regulations. The DEC requires that sewage "be safely and effectively disposed of through lawful and proper means." Department of Environmental Conservation, Environmental Protection Rules § 3.09B ("DEC Rules"). Where sewage is disposed of on site, each lot must contain "a minimum required area of suitable soil sufficient for the building site[ ]" and for the sewerage system, separate from other features that might adversely affect the functioning of the sewage disposal system or be polluted by it. Id. § 3.09B(1). The size of the minimum area depends on the percolation rate of the soil and whether a public water system will be used. Id. Ninety percent of the minimum required area must lie at least one foot above the flood plain of any stream. Id. § 3.09B(2)a. As a separate requirement, the lot must contain a continuous area equal to twenty percent of the required minimum area, and the sewage disposal system must be located in the continuous area. Id. § 3.09B(4). The continuous area must be at least one foot above the flood plain. Id. § 3.09B(4)a.

Chapter 7 of the DEC Rules deals specifically with sewage disposal systems. Section 7-14 is titled "Site Modifications" and states that "it may be possible to convert marginal or unsuitable sites to sites which comply with the specific requirements of these regulations." Id. § 7-14A. It goes on to state that "[s]ite conditions which may be improved by some degree of site modification are shallow depth to impervious layer, seasonal high ground water level, shallow depth to bedrock and excessive slope." Id. The section does not mention the addition of fill to a site to bring the elevation above that of the flood plain.

In reaching her decision, the hearing officer appears to have relied upon the absence of mention in § 7-14A of adding fill to comply with the flood plain requirements of § 3.09B. She also emphasized, however, that the DEC Rules were intended to implement policies in addition to the prevention of pollution. She reasoned:

The state should not take a position which either encourages or tacitly allows residential or commercial development in a flood plain area. This position would not only be bad public policy but also an unwarranted increased risk to public health and the environment in the event of a flood. This is particularly true when the development in question is not only a subdivision but also a public building selling food and gas to the public at large as well as storing gasoline and other hazardous materials.

Petitioners attack both this policy statement and the hearing officer's conclusion that they cannot meet the flood plain requirements by adding fill. They also challenge the officer's conclusion that they must meet the minimum area requirement on both lots.

The first issue is whether the regulations allow petitioners to place fill on the property in order to bring the elevation at least one foot above the flood plain. In construing a statute or regulation, our overall goal is to discern the intent of the Legislature or administrative agency. Muzzy v. Chevrolet Division, General Motors Corp., 153 Vt. 179, 187, 571 A.2d 609, 614 (1989). We must look to the " 'subject matter, its effects and consequences, and the reason and spirit of the law.' " Nash v. Warren Zoning Board of Adjustment, 153 Vt. 108, 112, 569 A.2d 447, 450 (1989) (quoting In re R.S. Audley, Inc., 151 Vt. 513, 517, 562 A.2d 1046, 1049 (1989)). Ordinarily, however, we employ a deferential standard of review for an agency's interpretations of its own regulations. See In re Denio, 158 Vt. 230, ----, 608 A.2d 1166, 1171 (1992) (decisions within the expertise of an administrative agency "are presumed to be correct, valid and reasonable," and generally receive deference). Even so, we must endeavor to ensure that such deference does not result in "unjust, unreasonable or absurd" consequences. O'Brien v. Island Corp., 157 Vt. 135, 139, 596 A.2d 1295, 1297 (1991). Therefore, the presumption of validity for an agency's interpretations of its regulations may be overcome by the existence of "compelling indications of error" in such interpretations. See Rogers v. Watson, 156 Vt. 483, 489, 594 A.2d 409, 412 (1991) (such compelling indications justify the rejection of administrative regulatory interpretations).

The decision in question here was made by a lawyer, serving as the hearing officer in this case, who apparently had no prior involvement with the issues. The decision was based, however, on the testimony of the DEC Chief of Engineering Services. For this reason, we will accord the decision of the hearing officer the deference ordinarily accorded to interpretations of regulations by the administrative agency responsible for their implementation.

To support its interpretation of the rule, DEC relies primarily on the precept of "expressio unius est exclusio alterius." See Grenafege v. Department of Employment Security, 134 Vt. 288, 290, 357 A.2d 118, 120 (1976) (the expression of one thing is the exclusion of another). That is, DEC argues that the recitation of means by which a site may be altered to create a complying sewage disposal system is comprehensive, and the failure to mention the placement of fill to raise the elevation above the flood plain demonstrates that this method of alteration has been prohibited. This argument, however, fails to view the regulation as a whole. See Williston Citizens for Responsible Growth v. Maple Tree Place Associates, 156 Vt. 560, 563, 593 A.2d 469, 470 (1991) (court's inquiry not limited to the consideration of an isolated sentence within an ordinance; a court must look the regulation as a whole). Although the regulation contains a list of permissible methods of site alteration, as DEC emphasizes, it also contains specific prohibitions. The prohibition list does not include the placement of fill to raise the elevation above the flood plain. See DEC Rules §§ 7-14B(6), (7). Moreover...