Vermont Gas Systems, Inc., In re, 86-086
| Decision Date | 20 May 1988 |
| Docket Number | No. 86-086,86-086 |
| Citation | 150 Vt. 34,549 A.2d 627 |
| Parties | In re VERMONT GAS SYSTEMS, INC. |
| Court | Vermont Supreme Court |
John T. Sartore and Charles E. Finberg of Paul, Frank & Collins, Inc., Burlington, for plaintiff-appellant.
William E. Wargo, Winooski City Atty., Winooski, for defendant-appellee.
Jeffrey L. Amestoy, Atty. Gen., and Merideth Wright, Asst. Atty. Gen., Montpelier, for amicus curiae Environmental Bd.
Before ALLEN, C.J. and BARNEY, C.J. (Ret.), KEYSER and UNDERWOOD, JJ. (Ret.) and COSTELLO, District Judge (Ret.), Specially Assigned.
In November of 1985, the Vermont Environmental Board (Board) issued an Act 250 land use permit to Vermont Gas Systems, Inc. (VGS), authorizing the expansion of VGS's transmission and distribution system in the cities of Burlington and Winooski, as well as in nine other towns. The permit took the form of a "master permit" and required that VGS warrant all work involving road pavement cuts for a period of three years. VGS appeals, and Winooski cross-appeals. We reverse.
The primary questions presented on appeal are jurisdictional. Contending that the Board exceeded its authority under Act 250, VGS argues that neither its existing distribution system nor its potential expansion comes within the scope of the Act. VGS also raises issues regarding procedural irregularities below, municipal standing, and the legal basis for the permit's warranty condition. On cross-appeal, Winooski maintains that the Board erred by refusing to assert jurisdiction over VGS's repair and maintenance activities in addition to its proposed expansion.
On May 31, 1984, VGS filed an application with the Vermont Industrial Development Authority (VIDA), seeking revenue bonds to support its capital improvements over a three-year period. The VIDA application included a "Project Description" that contemplated two types of activities: the repair of existing gas distribution lines and the expansion of the transmission and distribution network.
Because VIDA requires assurances that proposed projects will comply with all environmental laws, VGS sent a letter of inquiry to the District Coordinator of the District Environmental Commission (Commission), requesting an opinion as to whether the proposed repair and expansion of its network would be subject to Act 250 jurisdiction. The Coordinator offered an informal, oral opinion to the effect that the expansion work was subject to Act 250 review while the repair work was not.
In December of 1984, VGS filed an application with the Commission for an Act 250 permit to proceed with the expansion portion of the three-year project and listed eighteen areas where the expansion might take place. After a hearing, a generalized "master permit" was granted, requiring the filing of specific amendment applications prior to the commencement of construction on each particular site.
The City of Winooski, which had not appeared at the hearing before the Commission, filed a motion to alter the decision, arguing that VGS's repair activities, like its expansion work, should be held subject to Act 250 review. This motion was denied, in part because of Winooski's failure to appear at the earlier hearing, and Winooski appealed to the Board. VGS cross-appealed to the Board, questioning the basis for Act 250 jurisdiction over its expansion work.
In the proceedings before the Board, VGS alleged that its self-professed, three-year expansion project was actually nothing more than a loose grouping of possible developments in unrelated areas. Because VIDA only backs financing for three-year "projects," VGS claimed that it had simply speculated as to areas of potential development over the next three years and combined these items of hypothetical capital spending into a nominal project for its VIDA application. VGS alleged further that it was only VIDA's concern regarding environmental law that led to the Act 250 permit application for the purported project. VGS requested that the Board make findings to this effect, but the Board declined to do so.
The Board found instead that the project proposed expansion of VGS's distribution systems in the municipalities of Winooski, Burlington, St. Albans, Georgia, Milton, Colchester, Essex, Williston, South Burlington, and Shelburne. Because installation of the approximately 130,380 linear feet of gas distribution line would require existing highway rights-of-way fifteen feet wide, the Board calculated that the project would involve 44.9 acres of land. A small portion of the proposed gas mains and many of the individual service connections were to be installed under the paved portion of highway rights-of-way in the various municipalities, and the Board found that VGS's expansion activities "may have an impact on municipal services and public road investments."
Based on these findings, the Board concluded that VGS's existing transmission and distribution system qualified as a "pre-existing development" under Act 250. It then determined that, while VGS's proposed repair activities did not trigger Act 250 jurisdiction, the expansion project did, qualifying as a substantial change to a pre-existing development.
Because of the unique and uncertain nature of the proposed expansion, the Board adopted the Commission's master permit concept, noting that such a procedure would allow analysis of system-wide impacts and the use of uniform permit conditions to mitigate overall adverse effects. The Board amended the Commission's permit, however, by detailing specific rules and procedures.
Finally, after making extensive findings regarding the impact of pavement cuts and subsequent patching on municipal roadways and traffic safety, the Board imposed an additional permit condition that VGS warrant all pavement patching work for a period of three years. The order expressly allowed the affected municipalities to impose their own regulatory standards upon VGS's excavation activities, however. The Board then issued an amended land use permit--involving extensive modifications of the Commission's master permit--and VGS brought the instant appeal.
The threshold question on appeal involves the underlying basis for the Board's assertion of jurisdiction under the provisions of 10 V.S.A. §§ 6001-6092, otherwise known as Act 250. In pertinent part, § 6081(a) of the Act dictates that: "No person shall ... commence construction on a ... development ... without a permit." Section 6001(3) defines "development" as, among other things, "the construction of improvements on a tract or tracts of land, owned or controlled by a person, involving more than 10 acres of land within a radius of five miles of any point on any involved land, for commercial or...
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