In Re Village Associates Act 250 Land Use Permit

Reiber, C.J.,

¶ 29. dissenting in part and concurring in part. The plain language of Act 250 allows only a few carefully circum*129scribed situations in which primary agricultural soils will not be protected. This is not one of those circumstances. Further, when interpreting statutes, “our primary objective is to effectuate the intent of the Legislature.” Swett v. Haig’s, Inc., 164 Vt. 1, 5, 663 A.2d 930, 932 (1995). Through Act 250 and its various amendments, the Legislature has expressed an unequivocal intent to protect Vermont’s primary agricultural soils. Because the majority misinterprets the plain meaning and legislative intent of Act 250 by allowing cost to determine whether soils may be classified as primary agricultural soils, I dissent from that part of the majority’s opinion.8

¶ 30. Developer does not wish to pay a mitigation fee for the roughly ten acres of land that are at issue here. Under 10 V.S.A. § 6086(a)(9)(B) (commonly referred to as Criterion 9B), mitigation is required “for any reduction in the agricultural potential of the primary agricultural soils caused by the development or subdivision.” A developer of a project in a designated growth center complies with § 6086(a)(9)(B) by paying an offsite mitigation fee for “the purpose of preserving primary agricultural soils of equal or greater value with the highest priority given to preserving prime agricultural soils as defined by the U.S. Department of Agriculture.” 10 V.S.A. § 6093(a)(1). Developer alleges that it should not have to pay a mitigation fee because, according to developer, there are no primary agricultural soils on its construction site. I disagree.

¶ 31. Act 250 defines primary agricultural soils as follows:

“Primary agricultural soils” means soil map units with the best combination of physical and chemical characteristics that have a potential for growing food, feed, and forage crops, have sufficient moisture and drainage, plant nutrients or responsiveness to fertilizers, few limitations for cultivation or limitations which may be easily overcome, and an average slope that does not exceed 15 percent. Present uses may be cropland, pasture, regenerating forests, forestland, or other agricultural or silvicultural uses. However, the soils must be of a size and location, relative to adjoining land uses, so that those soils will be capable, following removal of any identified *130limitations, of supporting or contributing to an economic or commercial agricultural operation. Unless contradicted by the qualifications stated in this subdivision, primary agricultural soils shall include important farmland soils map units with a rating of prime, statewide, or local importance as defined by the Natural Resources Conservation Service (N.R.C.S.) of the United States Department of Agriculture (U.S.D.A.).

10 V.S.A. § 6001(15).

¶ 32. This case is about whether developer’s ten-acre parcel of land constitutes “soil map units with the best combination of physical and chemical characteristics that have . . . few limitations for cultivation or limitations which may be easily overcome.” Id. Developer does not dispute the quality or physical and chemical characteristics of the soils on the property, nor the classification of those soils as “soils of statewide importance.” Developer suggests, however, that both the existence of trees on the parcel and the cost of removing them are not only limitations to cultivation, but limitations that are not easily overcome. I disagree. In my view, the Environmental Court was correct in holding that the statutory definition of primary agricultural soils does not allow cost to be considered during classification.9

¶ 33. When interpreting a statute, we aim to implement legislative intent, and we “‘presume the Legislature intended the plain, ordinary meaning of the statute.’ ” In re Ambassador Ins. Co., 2008 VT 105, ¶ 18, 184 Vt. 408, 965 A.2d 486 (quoting Swett, *131164 Vt. at 5, 663 A.2d at 932). Both the plain meaning of the statutory definition of primary agricultural soils and legislative intent support the conclusion that this Court’s determination of the access issue precludes any need for discussing the one other limitation alleged — the cost of removing the trees. Further, contrary to the majority’s conclusion, plain meaning and legislative intent make it clear that financial costs are not among those factors that may be considered in determining whether a parcel meets the definition of primary agricultural soils.

¶ 34. Primary agricultural soils are defined in part as having “few limitations for cultivation or limitations which may be easily overcome.” 10 V.S.A. § 6001(15). The majority promotes the view that the plain language of the statute therefore requires a two-step inquiry: “a determination as to the existence of a limitation,” and then, if a limitation exists, “the next step is to determine whether the limitation can be easily overcome.” Ante, ¶ 14. The majority’s interpretation, however, runs directly counter to the plain language of the statute, which states that the soils at issue here are primary agricultural soils so long as they have “few limitations for cultivation or limitations which may be easily overcome.” 10 V.S.A. § 6001(15) (emphasis added). Here, it is undisputed that these soils have “few limitations,” and we therefore need not even reach whether those limitations are easily overcome. Developer alleges that there are only two limitations on these ten acres: (1) access; and (2) the presence of trees. The majority upholds the Environmental Court’s conclusion that access to the parcel in question is not a limitation. Ante, ¶¶ 25-28. Thus, the presence of trees is the only remaining alleged limitation to cultivation. One limitation necessarily meets the statutory definition of “few limitations.” These soils are therefore primary agricultural soils.

¶ 35. Our review of the issue should end here. The majority, however, ignores the fact that one limitation to cultivation is not enough to declassify primary agricultural soils and goes on to address how easily that one limitation may be overcome. As I also disagree with the majority’s view of that issue, I address it as well.

¶ 36. The majority holds that, despite the plain language of the statute and legislative intent to the contrary, cost may be taken into account when determining whether soils meet the physical and chemical requirements of the statute. The plain language of *132the statute and legislative intent, however, indicate that chemical and physical limitations to cultivation are the only limitations that may be considered. Thus, the economic feasibility and financial costs of preparing land for cultivation are not limitations that may be considered when determining whether soils of statewide importance are primary agricultural soils.

¶ 37. The majority concludes that the plain language of the statute, because it does not explicitly exclude consideration of cost, allows cost to be a factor in classifying primary agricultural soils. Ante, ¶ 14. However, the plain language does, in fact, indicate that cost is not one of the factors that should be considered. In the first sentence of § 6001(15), the Legislature lists those characteristics which offer “the best combination” for growing crops. This sentence is composed of a list of characteristics that modify “physical and chemical characteristics.” Under the canon of construction noscitur a sociis, we must “seek the meaning from the context and by the light of what precedes or follows.” Parks’ Adm’r v. Am. Home Missionary Soc’y, 62 Vt. 19, 25, 20 A. 107, 108 (1890); accord, e.g., MacDonough-Webster Lodge No. 26 v. Wells, 2003 VT 70, ¶ 11 n.2, 175 Vt. 382, 834 A.2d 25 (stating that “noscitur a sociis” means roughly “it is known by its associates”). In context, the word “limitations” modifies “physical and chemical characteristics” and therefore cannot be meant to encompass economic considerations. In fact, the other attributes included in the list are all physical and chemical characteristics of soil. These include having nutrients or the ability to receive nutrients, enough moisture and drainage, and a gentle enough slope.10 Therefore, the Legislature intended that any limitations to cultivation should, *133like the other attributes included in the list, pertain to the physical or chemical characteristics of the land.

¶ 38. As cost is not a limitation the statute allows us to consider, the expense of overcoming a limitation is not open to consideration either. The majority concludes that cost affects the “ease” of overcoming chemical and physical limitations to cultivation and should therefore not be excluded from consideration. Ante, ¶¶ 14-24. In general, the majority is correct that cost always affects how easily a limitation may be overcome. Nevertheless, under the statute at issue here, the Legislature could not possibly have intended that cost be a factor in the classification of primary agricultural soils. Instead, the Legislature intended that the determination of whether a limitation is easily overcome be based on the extent of any physical impediments to implementing whatever chemical and physical remedies are required in order to overcome existing limitations. Even in its original form, the definition of primary agricultural soils was interpreted as being “based solely on the physical capability and chemical properties of soils,” as opposed to being “defined according to economic as well as physical criteria.” Note, The Effect of Act 250 on Prime Farmland in Vermont, 6 Vt. L. Rev. 467, 475 n.53 (1981). Consideration of cost improperly shifts the focus of the statute from the physical possibility of cultivation to the financial cost-effectiveness of cultivation.

¶ 39. That cost is not a factor to be considered in the classification of primary agricultural soils is not only dictated by the plain meaning of the statute, but it is also supported by the intent of the Legislature in enacting the statutory provision in question here. We have previously held that Criterion 9(B) of Act 250 expresses a clear legislative intent “to preserve the agricultural potential of prime agricultural soils.” In re Nehemiah Assocs., 168 Vt. 288, 290, 719 A.2d 34, 35 (1998). In interpreting Act 250, our “primary objective” must be to give effect to this clearly expressed legislative intent. Swett, 164 Vt. at 5, 663 A.2d at 932.

*134¶ 40. According to the majority, legislative intent to protect Vermont’s farmland “cannot be used to justify imposition of protection measures for fictitious farms — i.e., land that will not be used for farming . . . because it is logistically difficult or too costly to overcome existing limitations.” Ante, ¶ 19. While I agree with the majority that the Legislature intended that “logistical difficulties” such as slope and wetness would in some instances disqualify land from classification as primary agricultural soils, I cannot agree that the Legislature intended to disqualify soils of statewide importance based on cost — a characteristic that has no bearing upon soil quality.

¶ 41. The majority concludes that the mitigation provisions of Act 250 allow the cost of overcoming limitations to be considered when classifying primary agricultural soils because the compromise between “economic necessity of development” and conservation is inherent in mitigation. Ante, ¶ 17. The majority is mistaken in its understanding of the Legislature’s, intent in enacting the mitigation provisions as a whole and mitigation’s bearing on the specific definition of primary agricultural soils. Contrary to the majority’s interpretation, the process of classifying primary agricultural soils is not supposed to be a compromise. While the mitigation provision itself does allow primary agricultural soils to be destroyed in certain areas to permit smart, concentrated development, the majority overlooks the fact that, in enacting the mitigation provision, the Legislature was in no way lessening or weakening protections of primary agricultural soils. Not only does the Legislature require through mitigation that the developer pay to protect the same amount of high-quality soil somewhere else, but the Legislature has, throughout the history of Act 250, worked to strengthen protections of primary agricultural soils.

¶42. The Vermont Legislature enacted Act 250 to protect agricultural and forested lands from development. See 1969, No. 250 (Adj. Sess.), §§ 1, 19 (finding that “the unplanned, uncoordinated and uncontrolled use of the lands and the environment of the state of Vermont has resulted in usages of the lands and the environment which may be destructive to the environment and which are not suitable to the demands and needs of the people of the state of Vermont” and requiring the adoption of “a capability and development plan . . . which will . . . tend toward . . . the conservation and production of the supply of food”). Throughout the years since Act 250 was enacted, the Legislature has passed *135numerous amendments to Act 250 that reiterate its intent to protect agriculturally productive soils. In 1973, the Legislature enacted Act 85, finding that the “[preservation of the agricultural and forest productivity of the land ... [is a] matter[] of public good” and that “[u]ses which threaten or significantly inhibit these resources should be permitted only when the public interest is clearly benefited thereby.” 1973, No. 85, § 7(a)(2). In the same act, the Legislature added Criterion 9(B) to Act 250 (codified at 10 V.S.A. § 6086(a)(9)(B)), which outlines when permits for development of primary agricultural soils may be granted. 1973, No. 85, § 10. The Legislature also added a definition of primary agricultural soils (codified at 10 V.S.A. § 6001(15)). 1973, No. 85, § 8. In 2006, the Legislature took additional steps to protect primary agricultural soils when it amended § 6001(15) by adding language that explicitly expanded the types of present land uses that may be considered as occurring on primary agricultural soils. 2005, No. 183 (Adj. Sess.), § 6.

¶ 43. In 2006, the Legislature also amended 10 V.S.A. § 6086 to allow development when it “will not result in any reduction in the agricultural potential of the primary agricultural soils,” compared to the previous wording of § 6086 which disallowed development if the agricultural potential of primary agricultural soils was “significantly” reduced. Id. § 7 (emphasis added). Where development is allowed, the Legislature now requires mitigation “for any reduction in the agricultural potential of the primary agricultural soils caused by the development or subdivision.” Id. (emphasis added). While mitigation is a compromise that recognizes that development sometimes necessitates the destruction of primary agricultural soils, the mitigation provision highlights a clear legislative intent to require developers to pay for soil preservation when they destroy any primary agricultural soils.

¶ 44. One final problem with the majority’s interpretation is that it forces parties to present testimony on cost when, as a practical matter, cost cannot possibly lead to the declassification of primary agricultural soils. “[C]onsideration of the cost of removing a limitation,” the majority states, “will involve only a consideration of whether the cost of removal is so high that conversion of the land into agricultural use is not economically feasible.” Ante, ¶ 23. In making this determination, a court must also take into consideration that Act 250 is designed to preserve the future value of soils to farmers if the land were to be left alone. See, e.g., *136Nehemiah Assocs., 168 Vt. at 290, 719 A.2d at 35 (noting that Act 250 aims to protect “agricultural potential” (emphasis added)). Thus, the question is not whether someone wants to farm the land at issue now, but whether it might ever be profitable to farm this land in the future. The intent of the Legislature in protecting primary agricultural soils was to presume that such soils could have a high future value. It is well known that crop prices are susceptible to large upswings based on any number of factors, including natural and manmade disasters that can greatly limit the amount of farmable land available to future generations: in the future, crops could be much more valuable than they are today. Thus, farming that is unprofitable today could be profitable tomorrow, reinforcing the fact that Vermont’s primary agricultural soils have chemical and physical properties that make them invaluable.

¶ 45. Nothing in the majority’s decision today alters the fact that, if some type of economic analysis is made, it must take into account the possibility that farming could be much more profitable in the future than it is today. Therefore, the burden on the developer is impossible to overcome because the developer would be required to show that it could never be economically feasible to farm the area, when, in fact, the future economic value of Vermont’s primary agricultural soils is virtually limitless. As a result, the majority’s decision today requires agencies and courts to engage in a pointless exercise that will always result in a finding that cost is not a basis for declassifying parcels that have been found to be primary agricultural soils based on their chemical and physical characteristics.

¶ 46. Although the majority opinion notes that the intent of Act 250 is to protect agricultural resources, their words ring hollow. That the land is “capable of sustaining any sort of agricultural venture,” ante, ¶ 16, is a chemical and physical determination — not an economic one. Not only is the language of the subsection defining primary agricultural soils unambiguous about cost not being a subject for consideration, but an interpretation that does consider cost runs contrary to the Legislature’s intent in enacting the primary agricultural soils provisions of Act 250.

¶ 47. Here, the N.R.C.S. designated the parcel in question as being of statewide importance. Under the statute, this explicitly qualified the parcel as primary agricultural soils. From that starting point, the statute requires a review of the chemical and *137physical characteristics of the soil map unit to ensure that primary agricultural soils do in fact exist on that parcel. In this case, the initial presumption that these are, in fact, primary agricultural soils, is not contradicted. The review of chemical and physical characteristics of the soil map unit showed that this parcel met the criteria outlined by the statute. The land at issue here is capable, both chemically and physically, of sustaining an agricultural venture. Act 250 demands that this land be protected or that, if it is to be destroyed, primary agricultural soils elsewhere in the state must be protected in its stead. I would therefore hold that a remand is not necessary here because, as a matter of law, developer has presented no legitimate basis for avoiding the mitigation fee that the Environmental Court properly held to be required here. For these reasons, I respectfully dissent.

I concur in Part II of the majority opinion on developer having adequate access to the parcel.

1 agree with the majority that the standard of review of this purely legal question of statutory interpretation is de novo. See ante, ¶ 7 & n.2. That said, nothing in the majority’s decision today disturbs our precedents stating that we afford deference to the Environmental Court in the interpretation of municipal zoning ordinances, e.g., In re Jenness, 2008 VT 117, ¶ 22, 185 Vt. 16, 968 A.2d 316 (“Our review is deferential, and we will reverse the court’s construction of the ordinance only if it is clearly erroneous.”); In re Weeks, 167 Vt. 551, 554, 712 A.2d 907, 909 (1998) (“Our standard for reviewing the Environmental Court’s interpretation of a zoning ordinance is whether the construction is clearly erroneous, arbitrary or capricious.”), and that we also defer in the interpretation of permit conditions, e.g., In re Hamm Mine Act 250 Jurisdiction, 2009 VT 88, ¶ 9, 186 Vt. 590, 980 A.2d 286 (mem.) (“We defer to the Environmental Court’s construction of land-use permit conditions.”); Agency of Natural Resources v. Weston, 2003 VT 58, ¶ 16, 175 Vt. 573, 830 A.2d 92 (mem.) (“[W]e must accord deference to the environmental court’s construction of a permit condition, particularly when the court’s expertise will assure consistent interpretations of the law.”).

According to testimony and evidence provided by the Agency of Agriculture, these characteristics must be assessed separately from the N.R.C.S. determination of importance because the soil map units are general and may not take into consideration ridges, rivers, or other physical and chemical characteristics specific to the parcel in question. For example, one of the Agency of Agriculture’s exhibits, Farmland Classifications Systems for Vermont Soil, showed that “[d]elineations of some soil map units that are Prime, Statewide, or Local have limitations, such as excessive wetness, limited depth to bedrock, or slope .... It is assumed that delineations of these map units are Prime, Statewide, or Local, unless an on-site determination finds that the delineation should not be Important Farmland.” Similarly, the Agency of Agriculture can take into account other physical impediments such as the difficulty or impossibility of tree removal due to poor access. For example, during testimony in front of the Environmental Court, an expert for the Vermont Agency of Agriculture stated that “if there is a million dollar price tag to take trees out because you have to lift them out with a helicopter, then that *133would be taken into consideration . . . became there was no access." (Emphasis added.) Here, however, that is not the case. The Agency of Agriculture presented evidence and the Environmental Court made a factual finding that there were no physical impediments that would act as a limitation to the cultivation of the ten acres at issue.