Nat. Resources Bd. Land Use Panel v. Dorr
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Court: Vermont Supreme Court Citation: 2015 VT 1
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Opinion Date:
January 9, 2015
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Areas of Law: Environmental Law, Government & Administrative Law,
Zoning, Planning & Land Use
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The subject property was two large parcels of land in the Town
of Manchester. Sand, rock, and gravel had been extracted from a portion of one
or both parcels for decades. In September 1990, respondents'
predecessor-in-interest received an Act 250 permit authorizing a nineteen-lot
residential subdivision on the northern parcel.
Among other conditions, the Act
250 permit provided that it would expire one year from the date of issuance if
the permittee had not demonstrated an intention to proceed with the project in
accordance with 10 V.S.A. 6091(b), and otherwise would expire on October 1,
2020 unless extended by the District Environmental Commission. Other permit
conditions prohibited any "changes . . . in the design or use" of the
project without written approval of the district coordinator or commission, and
specified that the permit and all conditions therein would "run with the
land and . . . be binding upon and enforceable against . . . all assigns and
successors in interest."
In September 1992, the district commission issued
an amendment to the permit extending the time for construction of the project
to October 1994. In June 1994, respondent Dorr Oil Company purchased a portion
of the property designated as a residential tract. The warranty deed expressly
referenced the Act 250 permit "and any and all amendments thereto."
Shortly thereafter, respondent Donald Dorr, on behalf of Dorr Oil applied for
and received a further permit amendment extending the time for construction to
October 1995. During this period, another company operated by Dorr, respondent
MGC, Inc., purchased the southerly parcel (the "adjacent tract"), and
continued to operate a gravel pit "most or all" of which the trial
court found was located on the adjacent tract.
Dorr took no steps to begin the
actual subdivision of the project tract or the development of an internal
roadway. In March 2006, following a property-tax reappraisal of the tracts by
the Town, respondents filed a request with the district commission to declare
the Act 250 permit as abandoned through non-use. The commission, in response,
issued a notice of intent to abandon the permit. The owners of a nearby
residential property filed an objection, asserting that respondents had made a
"material change" to the use authorized by the Act 250 permit by
expanding gravel extractions activities onto the residential project tract.
The
commission then "tabled" the abandonment request "pending a jurisdictional
opinion from the district coordinator on the material change question."
The district coordinator thereupon requested further information from the
parties, visited the site with respondent Dorr and his attorney, and issued a
draft jurisdictional opinion for comment.
In January 2007, the coordinator
issued a formal opinion, finding that the "Dorr gravel pit has expanded
onto the parcel covered by [the Act 250 permit]," that this constituted
"a material change to that permit," and therefore that "a permit
amendment [was] required." Respondents neither appealed the jurisdictional
opinion to the Environmental Division, applied for a permit amendment, nor
abated the gravel extraction activities on the project tract.
Following
respondents' inaction, in October 2008, the NRB chair issued an administrative
order determining that respondents had violated conditions of the Act 250
permit by making a material change to the project without a land-use permit
amendment. Respondents appealed the Superior Court, Environmental Division's judgment
affirming the NRB's decision that respondents' gravel-extraction activities
violated an Act 250 residential-subdivision permit.
Respondents argued the
ruling was in error because the permit had expired. Finding no reversible
error, the Supreme Court affirmed.