Vitale, In re

Decision Date21 April 1989
Docket NumberNo. 87-312,87-312
Citation151 Vt. 580,563 A.2d 613
CourtVermont Supreme Court
PartiesIn re Lou R. VITALE.

Robert P. McClallen and Arthur A. Mitiguy, Law Offices of Robert P. McClallen, Rutland, for petitioner-appellant.

Jeffrey L. Amestoy, Atty. Gen., and John H. Hasen, Asst. Atty. Gen., Montpelier, for amicus curiae State.

Before ALLEN, C.J., PECK, GIBSON and DOOLEY, JJ., and COSTELLO, District Judge (Ret.), Specially Assigned.

GIBSON, Justice.

Petitioner appeals a decision of the Environmental Board (Board) determining that petitioner was subject to Act 250 jurisdiction in the development of his commercial enterprise. We affirm.

I.

The facts are not in dispute. On February 10, 1985, petitioner entered into an agreement to purchase 1.57 acres of land in Rutland Town for use as a site for his concrete step manufacturing business. Petitioner agreed to pay $7,500 for the land, and a closing date was set. On the advice of petitioner's counsel, petitioner and the sellers agreed to delay the closing so that the property could be subdivided into two separate lots, consisting of a .99-acre parcel and a .58-acre parcel. The property was subdivided in this manner in order to avoid Act 250 jurisdiction. Petitioner assisted the sellers in obtaining the permits necessary to effectuate the subdivision.

Closing on the property occurred on November 1, 1985, at which time the seller (one of the two owners had died in the interim) presented petitioner with deeds to both the .99-acre parcel and the .58-acre parcel. On the advice of counsel, petitioner refused to accept the deed to the .58-acre parcel. In accepting the deed to the .99-acre parcel, however, petitioner paid the full purchase price originally agreed upon by the parties for the entire 1.57-acre parcel. The subdivision left the seller with what petitioner's counsel conceded was a "useless" .58-acre parcel, which was virtually landlocked with "infeasible" access from the main road.

By November 17, 1985, petitioner completed construction on the .99-acre parcel of all the improvements necessary for the operation of his business. On November 26, 1985, the seller conveyed the remaining .58-acre parcel to petitioner. In addition to consideration of "one or more dollars," petitioner paid the seller's attorney's fees relative to this conveyance. Petitioner denies that this second transfer was related to the first conveyance for purposes of Act 250 jurisdiction. He admits, however, that he wanted to obtain ownership of the remaining .58-acre parcel because he believed that he had already paid for it and might as well have ownership of it.

Subsequently, the District Coordinator for the local Environmental Commission determined that petitioner's development was subject to Act 250 review. An advisory opinion from the Executive Officer of the Environmental Board affirmed the District Coordinator's decision. Both decisions were based on an erroneous finding that both parcels were involved in petitioner's project because there had been a clearing of vegetation on the .58-acre parcel which constituted a construction of improvements in connection with the project. Petitioner then requested a declaratory ruling from the Board.

The Board rejected the analysis applied by the District Coordinator and the Executive Officer, finding that the clearing of the .58-acre parcel had been undertaken by Central Vermont Public Service Corporation and New England Telephone Company, and was not done at the instigation of petitioner. Nevertheless, the Board ruled on separate grounds that Act 250 jurisdiction was applicable to petitioner's project. The Board defined the issue as whether petitioner had commenced construction of a "development" within the meaning of 10 V.S.A. § 6001(3), 1 thus requiring an Act 250 permit under 10 V.S.A. § 6081. 2 The Board interpreted § 6001(3)'s definition of "development" in light of Board Rule 2(A)(2) 3 and concluded that petitioner had exercised "control" over the full 1.57 acres at the time the project was built. The Board ruled that Act 250 therefore applied to the project.

II.

The crux of this appeal lies in the Board's construction of the term "controlled," as contained in Board Rule 2(A)(2). 4 In reviewing the Board's interpretations of Act 250, we are required to afford those interpretations a high level of deference. See Committee to Save the Bishop's House, Inc. v. Medical Center Hosp. of Vt., Inc., 137 Vt. 142, 150-51, 400 A.2d 1015, 1019-20 (1979) (the " 'construction of a statute by those charged with its execution should be followed unless there are compelling indications that it is wrong' ") (quoting Red Lion Broadcasting Co. v. Federal Communications Comm'n, 395 U.S. 367, 381, 89 S.Ct. 1794, 1802, 23 L.Ed.2d 371 (1969)). In applying this deferential level of review, we have upheld a number of Board interpretations of Act 250 and of its own rules. See, e.g., In re Spear Street Assoc., 145 Vt. 496, 500-01, 494 A.2d 138, 141-42 (1985) (deferring to Board's interpretation of Act 250 regarding procedure required in determining when permit will issue); In re Orzel, 145 Vt. 355, 361, 491 A.2d 1013, 1016 (1985) (no error in Board's definition of "substantial change" contained in Board Rule 2(G)).

This deferential level of review, however, does not equate with mere judicial passivity in determining the propriety of Board "interpretations" of its own rules. See In re Agency of Administration, 141 Vt. 68, 80, 444 A.2d 1349, 1354 (1982) (reversing Board's interpretation of terms "plan" and "construction of improvements" where the demolition of a building was not tied to any plan for construction). We are guided, as always, in our construction of legislative schemes by our attempt to discern the legislative intent, as evidenced by the plain meaning of the statute. See In re Spear Street Assoc., 145 Vt. at 499, 494 A.2d at 140. An attempt to discern the meaning of the word "controlled" through an examination of the statutory history of Act 250 is of limited value, however, primarily because the term comes from a Board rule and is not a direct derivative of the statute itself. The term "controlled" is not defined in either the statute or the Board's rules.

In the first instance, the meaning of the word "controlled" as used by the Board is a question of fact for determination by the Board. Other courts, in unrelated areas of the law, have also treated the issue of control as a question of fact. See, e.g., Alleghany Corp. v. Breswick & Co., 353 U.S. 151, 163, 77 S.Ct. 763, 770, 1 L.Ed.2d 726 (1957) (railroad company exerted de facto control over other railroad company despite owning only 10% of other company's stock); Rochester Tel. Corp. v. United States, 307 U.S. 125, 145, 59 S.Ct. 754, 764, 83 L.Ed. 1147 (1939) (by assigning Federal Communications Commission the duty of "ascertaining 'control' of one company by another, Congress did not imply artificial tests of control. This is an issue of fact to be determined by the special circumstances of each case."); Public Serv. Co. of N.M. v. Federal Energy Regulatory Comm'n, 628 F.2d 1267, 1269 (10th Cir.1980) (control is a question of fact; no basis for finding of control despite evidence of 50% ownership in company in question). The manner in which the Board used this term in the instant case must be upheld on appeal, absent compelling indications of error. See Committee to Save the Bishop's House, 137 Vt. at 151, 400 A.2d at 1019-20.

This approach is not an invitation for an arbitrary expansion of its jurisdiction by the Board. See In re Agency of Administration, 141 Vt. at 76, 444 A.2d at 1352. The statute carefully defines what may be covered by the term "development" for purposes of Act 250 jurisdiction, and certain activities are specifically excepted from this definition. See 10 V.S.A. § 6001(3). Also, it is a well-established rule in this state that in construing land use regulations any uncertainty must be decided in favor of the property owner. See Murphy Motor Sales, Inc. v. First Nat'l Bank, 122 Vt. 121, 123-24, 165 A.2d 341, 343 (1960). The Board is thus limited to determining in a factual context whether petitioner has "control" over the property in question. If petitioner is legally barred from exercising "control" over the property, the Board may not avoid a searching judicial review of its decision by labeling its determination a finding of fact. See In re Agency of Administration, 141 Vt. at 75, 444 A.2d at 1352; see generally Lorain Journal Co. v. Federal Communications Comm'n, 351 F.2d 824, 829 (D.C.Cir.1965) (distinguishing actual control from legal control). Finally, this Court will reverse even findings of fact by the Board when such findings are clearly erroneous. In re Spear Street Assoc., 145 Vt. at 499, 494 A.2d at 140. Thus, numerous safeguards are present to protect against arbitrary actions on the part of the Board.

The primary rule when reviewing construction of an administrative rule is to give language its plain, ordinary meaning. In re Hydro Energies Corp., 147 Vt. 570, 573, 522 A.2d 240, 242 (1987). The dictionary defines the term "control" as: "To exercise restraining or directing influence over. To regulate; restrain; dominate; curb; to hold from action; overpower; counteract; govern." Black's Law Dictionary 298 (5th ed. 1979); see also Webster's New Collegiate Dictionary 245 (1981) ("control: ... to exercise restraining or directing influence over").

The Board concluded that due to the impossibility of direct access to the property, the "extremely" short length of time between the sales of the two lots, and the lack of marketability of the property to any buyer other than petitioner, the acquisition of the two parcels by petitioner was all part of the same transaction and that petitioner "controlled" both lots for purposes of Act 250 jurisdiction. The Board also noted that petitioner suggested the subdivision,...

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