In Re Eustance Act 250 Juris. Opinion (No. 2-231)

Reiber, C.J.,

¶ 29. dissenting. The gist of the majority’s decision is that whenever a parcel of land, regardless of its size or its history as agricultural or forested land, is subject to an *459overarching Act 250 permit, any commencement of construction for fanning improvements on any part of that land requires another permit, notwithstanding the Legislature’s longstanding and explicit exemption from Act 250 for such activities. I do not agree, and therefore I dissent.

¶ 30. In this case, the subject parcel consisted of open or forested land suitable for farming at the time the sellers sought and obtained an Act 250 permit for a proposed residential subdivision. As the majority states, the Act 250 permit obtained by sellers authorized them to create five approximately five-acre subdivided lots within sellers’ 162-acre parcel of land. Although the District Environmental Commission ruled that the entire parcel had to be included within the permit application, most of the specific permit conditions were directed at the five small subdivided lots being developed at the time. The permit included no provision relating to farming activities. The Eustances later purchased a forty-seven-acre parcel of land within the original 162 acres and commenced construction of improvements for an alpaca farm. Although the Eustances engaged exclusively in bona fide farming activities, and Act 250 exempts such activities from the permitting process, the majority upholds the Environmental Court’s ruling that the Eustances were required to obtain an amended Act 250 permit for those activities.

¶ 31. This decision is a misapplication of Act 250. The statute was originally enacted to protect agricultural and forest lands from residential and commercial development, and thus has always included an explicit exemption from permit jurisdiction for farming and logging activities. See 10 V.S.A. § 6001(3)(D)(i) (excluding from definition of “development” any “construction of improvements for farming, logging or forestry purposes below the elevation of 2,500 feet”). As discussed below, the Legislature has steadfastly demonstrated its intent over the ensuing years, through amendments to Act 250 and other laws, to foster and protect Vermont agriculture, including the emerging emphasis on small, local farming operations such as the one involved in this case. The majority’s decision is directly antithetical to this legislative intent.

¶ 32. The majority contends that its decision is mandated for two reasons. The first one is that “there is no farming exemption from subdivision jurisdiction.” Ante, ¶ 15. According to the majority, the exemption applies only to original developments. The *460majority seems to suggest that the Legislature has established a separate “subdivision jurisdiction” under Act 250 that is independent from “development jurisdiction.” In my view, there is no formal dichotomy in Act 250 creating any such thing as “subdivision jurisdiction.” Rather, the Legislature merely has set forth different situations in which an Act 250 permit is required: when a person or entity “sell[s] or offer[s] for sale any interest in any subdivision located in this state, or commenced] construction on a subdivision or development, or commence[s] development.” 10 V.S.A. § 6081(a).

¶ 33. The critical question raised by this appeal is whether the Eustances were required to obtain a permit to commence construction of improvements for farming on their parcel of land. The majority’s view is that the Eustances were required to obtain an Act 250 permit amendment because their parcel was considered part of the permit application subject to the 1993 Act 250 permit subdividing the original 162-acre parcel, and thus they “commence[d] construction on a subdivision.” Id. Hence, as noted, the majority construes § 6081(a) to mean that once an overarching Act 250 permit for the subdivision of property has been issued, even if the subdivided parcels consist of large tracts of open or forested lands, any subsequent agricultural activities on any of those lands requires an Act 250 permit.

¶ 34. But Act 250 treats farming differently, and does not command such a result. “The construction of improvements for farming” is not development subject to Act 250. Id. § 6001(3)(D)(i). Plainly, the Legislature intended Act 250 to protect farming operations, not only by requiring permits for residential or commercial developments that would replace farm lands, but also by insulating farming activities from the expense and litigation of the permitting process. There is no indication that the Legislature intended the permit requirement for commencing construction on a subdivision to trump this broad and explicit farming exemption. No language in the statute expressly states that the farming exemption is to be superseded any time lands are subject to an initial subdivision permit. The majority’s construction effectively overturns the Legislature’s express preference.

¶ 35. To the contrary, it appears that the Legislature intended a broad exemption from the permitting process for farming activities. We should construe the statute to implement this intent. See Dep’t of Com v. Human Rights Comm’n, 2006 VT 134, ¶ 7, *461181 Vt. 225, 917 A.2d 451 (stating that paramount goal is to effectuate intent of Legislature, and that legislative intent is effectuated by examining not only statutory language and any legislative history, but also legislative policies that statute was designed to implement); Trickett v. Ochs, 2003 VT 91, ¶ 22, 176 Vt. 89, 838 A.2d 66 (stating that primary purpose in interpreting statute is “to determine and implement the intent of the Legislature,” which requires examining statute in its entirety, along with its purpose, effect, and consequences); State v. Baldwin, 140 Vt. 501, 511, 438 A.2d 1135, 1140 (1981) (noting that plain meaning of statutory language may be disregarded if it is contrary to legislative intent).

¶ 36. As the Legislature stated in its findings accompanying a recent amendment to Act 250, “Act 250 was enacted as a land use law in 1970 by a general assembly concerned about large scale, unregulated development in Vermont.” 2007, No. 176 (Adj. Sess.), § la. “Revisions were made to Act 250 in 1973, . . . but the focus of the law remained to review large scale developments as those developments were defined.” Id. Although Act 250 had broad purposes, “the Legislature in passing the Act did not purport to reach all land use changes within the state,” or to impose upon them “the substantial administrative and financial burdens of the Act.” In re Agency of Admin., 141 Vt. 68, 76, 444 A.2d 1349, 1352 (1982). Specifically, because Act 250 was intended in large part to protect traditional agricultural and forest uses, from the beginning the law exempted farming and logging activities.

¶ 37. Over time, the Legislature has reiterated its intent to exempt farming activities from the Act. For example, effective in 2004, the Legislature added a provision to Act 250 stating that when a nonagrieultural development occurs on land devoted to farming, “only those portions of the parcel or the tract that support the development shall be subject to regulation under this chapter.” 2003, No. 121 (Adj. Sess.), § 75 (codified at 10 V.S.A. § 6001(3)(E)). Moreover, just recently, the Legislature added a provision restricting permit amendment jurisdiction for farming activities. 2007, No. 38, § 15 (codified at 10 V.S.A. § 6081(s)). In support of the Act containing this provision, the Legislature explicitly cited, among its goals, to “[sjupport programs and policies that foster the development of a diversified agricultural sector,” and to “[ejnable agricultural operations of diverse sizes producing a wide array of products to prosper in Vermont and *462contribute to the state and regional economy.” 2007, No. 38, § 1. Finding, among other things, that “[f]arms are an integral part of Vermont’s overall economy,” and that “[t]he general public is increasingly interested in locally produced food,” id. § 2, the Legislature stated that its intent, in part, was “[t]o support and develop a more robust and self-sustaining agricultural sector that also promotes emerging agricultural industries,” and to “support and promote the Vermont agriculture industry as a vital component of the state’s economy and essential steward of our land.” Id. §3.

¶ 38. In short, the message from the Legislature since the inception of Act 250 has been clear and unwavering — farming activities are exempt. For this reason, the Agency of Agriculture filed a memorandum of law with the Environmental Court in support of the Eustances’ position in this case. For the same reason, I do not believe that the Legislature intended Act 250 to require a permit amendment for subdivided agricultural land based on the commencement of farming activities, certainly not when the subdivision permit did not require such an amendment.

¶ 39. This last point relates to the majority’s second reason for requiring a permit amendment in this case — the 1993 permit purportedly requires it. In support of this position, the majority cites several conditions in the 1993 permit, none of which refers to farming activities. The principal permit condition cited is the following: “Any sale, further construction, or subdivision of the remaining eight lots comprising the balance of this 162 acre tract of land is specifically not approved without an amendment to this permit.” The majority focuses on the term “further construction,” insofar as the subject parcel has not been further subdivided since 1993. But vague reference to “further construction,” which was part of a condition imposed in response to a residential development permit application, is insufficient to invoke jurisdiction over bona fide farming activities that are otherwise expressly excluded from Act 250’s purview.

¶40. Although an Act 250 permit may impose conditions restricting otherwise exempted activities, see In re Green Crow Corp., 2007 VT 137, ¶ 18, 183 Vt. 33, 944 A.2d 244 (“Act 250 may certainly impose permit conditions limiting tree-cutting activities associated with a subdivision”), such conditions must be explicitly directed at the normally exempted activity. Decisions of the former Environmental Board are consistent with this proposition. *463For example, in one decision, the Board concluded that logging, an exempted activity, did not require an amended permit on land subdivided pursuant to a previous Act 250 permit because the previous permit did not have an explicit condition precluding or restricting tree-cutting or logging. See In re Van Buskirk, Declaratory Ruling No. 302, slip op. at 8-9 (Vt. Envtl. Bd. Aug. 15, 1995). In the same vein, a recent amendment to Act 250 requires permits to include statements indicating that farming is permitted on lands containing agricultural soils, unless the activity is in direct conflict with a permit condition. 2007 No. 38, § 15 (codified at 10 V.S.A. § 6081(b)(2)).

¶ 41. Here, the general permit condition cited above is far too vague, given the explicit statutory exemption for farming, to prohibit the commencement of construction for improvements related to farming. In construing permit conditions, we examine the ordinary meaning of words, but we “also keep in mind . . . that because land-use regulations are in derogation of property rights, any uncertainty in their meaning must be decided in favor of the property owner.” Agency of Natural Res. v. Weston, 2003 VT 58, ¶ 16, 175 Vt. 573, 830 A.2d 92 (mem.); see Sec’y, Vt. Agency of Natural Res. v. Handy Family Enters., 163 Vt. 476, 481-82, 660 A.2d 309, 312 (1995) (stating that any uncertainty in Act 250 land-use regulations must be construed favorably to property owner, and that permit conditions must be expressed with sufficient clarity to apprise property owner of limitations on land use). The phrase “further construction” does not explicitly prohibit otherwise exempted farming operations.

¶ 42. Nor do any of the other permit conditions cited by the majority preclude farming activities without a permit amendment. A condition stating that the District Environmental Commission must approve any changes to the project is also too vague, even assuming that the instant activities can be considered a change in the residential development project, to prevent an otherwise exempted activity. Another condition cited by the majority merely states that the successors and assigns of the permittees are subject to the permit conditions, which begs the question. Nor do I find applicable the last condition cited by the majority: “No further subdivision, alteration, or development of any parcels in this project shall be permitted without the written approval of the District Environmental Commission.” The Eustances’ farming activities are not a further “subdivision” or “alteration” of the *464project, and their commencement of construction for improvements related to farming is not “development” under the law.

¶ 43. In the forty years since the enactment of Act 250, the Legislature has reiterated its intent to exempt farming activities from Act 250 purview. I believe that this broad exemption should apply in the circumstances of this case because neither the statute nor the specific conditions in the original permit invoke Act 250 jurisdiction. Accordingly, I would reverse the Environmental Court’s decision that the Eustances are required to obtain an Act 250 permit for their farming operations.