¶ 25. dissenting. To accept the holding on the second issue in this case, I must agree that residents of a community care home are transients although they are predicted to live in the home, on average, three times as long as the average Vermonter will remain in his or home.41 also must agree that homes that are predicted to keep residents three times as long as average for all residences in Vermont are “intended for habitation on a temporary/intermittent basis.” These propositions are so obviously wrong that no standard of review or creative legal interpretation can save them. Therefore, although I agree with the majority on the first issue — that S-S Corp. has constructed ten or more units — I can’t agree that its facilities are . “commercial dwellings” as defined in Environmental Board Rule 2(M) and respectfully dissent.
¶ 26. S-S Corp.’s facilities need an Act 250 permit only if they are commercial dwellings. I quote the rule:
“Commercial Dwelling” means any building or structure or part thereof, including but not limited to hotels, motels, rooming houses, nursing homes, dormitories and other places for the accommodation of people, that is intended to be used and occupied for human habitation on a temporary or intermittent basis, in exchange for payment of a fee, contribution, donation or other object having value. The term does not include conventional residences, such as single family homes, duplexes, apartments, condominiums or vacation homes, occupied on a permanent or seasonal basis.
*313Rule 2(M). As the majority decision states, “[u]nder Rule 2(M), a commercial dwelling is any building or structure that: (1) is for the accommodation of people; (2) is intended for habitation on a temporary/intermittent basis; and (3) provides facilities in exchange for a payment or fee.” Ante, ¶ 15. I agree that the first and third requirements of the rule are met. Nothing in the evidence, nor in a reasonable construction of Rule 2(M), supports, however, a holding that the second requirement is met.
¶ 27. The meaning of the rule with respect to the second requirement is unambiguous. A building or structure can be a commercial dwelling only if it is intended to be used and occupied for human habitation on a temporary or intermittent basis. While the rule gives examples of buildings that might meet this requirement, they are commercial dwellings only if they meet the general standard. Thus, some, but not all, hotels are commercial dwellings.
¶ 28. The evidence is clear that residents of the homes in question intend to remain in those homes permanently. More importantly, in terms of the regulation wording, the evidence is clear that S-S Corp. intends that the residents will occupy the homes permanently and not on a temporary or intermittent basis. In fact, S-S Corp. has a track record on this issue regarding its residents; in a similar home S-S Corp. owns, the average length of stay is over twenty years. Thus, S-S Corp.’s intent and experience with permanent housing are entirely consistent.
¶ 29. In view of this evidence, how can those people whose occupancy of living places are among the most permanent in Vermont be labeled as transient? The Board and the majority appear to have three arguments to accomplish this legerdemain.
A. The Decision Must be Based on Environmental Impact of the Proposed Development
¶ 30. Exactly where this point leads is not clear from this Court’s decision, but it is very clear from the Board’s majority5 decision. In its reconsideration decision, the Board wrote:
*314Likewise, the Environmental Board is empowered to regulate property based upon its use, not the identity or the specific characteristics or attributes of its users. Thus, the Board, cannot make a distinction between the Harvey and Owen Houses with their long-term residents, and other group homes, which might be identical in all relevant physical and operational respects to the Harvey and Owen Houses, but whose residents stay only a few weeks or months before, for whatever reasons, they move out.
(Emphasis supplied.) Earlier, in footnote 3 of that decision, the Board said of the distinction discussed above that “such a distinction would be irrational, something the Board must avoid.”
¶ 31. If these words appeared in a decision striking down Rule 2(M) as beyond the rule-making authority of the Board or impermissibly arbitrary, I could understand their presence. Their usage in a decision interpreting the rule demonstrates a Board at war with itself. The distinction between intended temporary occupancy and intended permanent occupancy is exactly the distinction drawn in the Environmental Board Rule and it is that distinction that the Board is now calling irrational. While we have no record of why the Board adopted this distinction in the first place, we must assume that it found a difference in environmental impacts. Without even attempting to understand why it drew that distinction in the first place, it is trashing its own work.
¶ 32. If the Board wants to strike down its own regulation, the effect of its action in this case, it at least has to give notice to persons who will rely on the language of the rule. This case is a good example of why we should not accept repeal-by-interpretation, as occurred here. S-S Corp. concluded that it did not need Act 250 permits for the Harvey and Owen Houses, accepted large federal grants for their construction and began construction on the Owen House before it was finally informed that a state official had months earlier sought an official opinion on whether an Act 250 permit was needed. Anyone who read the regulations would conclude that dwellings intended to be residences for persons for twenty years or more are not intended to be occupied on a temporary basis. Persons should not be put in the position of making investment decisions on the risk that the Board will unpredictably change the rules without warning. If the Board is to abandon the distinction it made in the rule, it must do so by rule making.
*315B. The Intent and Record of S-S Corporation is Irrelevant
¶ 33. In fact, both the majority and Board appear to be talking out of both sides of their mouths on this point. Although the Board said it would not rely on the “subjective particulars”6 of the operation of the homes, it went on to do just that where it thought those “subjective particulars” supported its result. The majority has followed that same path. This is particularly apparent in the Board’s findings that some residents leave the care of the S-S Corp. homes for periods of time and some of those do not return.7 Having ruled that the specific intent and track record of S-S Corp. is irrelevant, these facts are also irrelevant if one accepts the Board’s rationale.
¶ 34. Yet, the Board spends a third of its reconsideration decision quibbling over these irrelevant facts. The point for the Board is not that residents leave the homes for some periods, and some do not return, but that these facts differentiate the residents from others and warrant Act 250 review. Although the facts are entirely against it, the Board wants to raise the inference that the residents of S-S Corp. homes — or mentally disabled residents of community care homes generally — are transient and temporary. The inference is wrong, transparently an attempt to evade the permanency of occupancy in S-S Corp. homes without a factual basis. Rather than adding to the Board’s decision, the unexplained caviling over the facts of occupancy in S-S Corp. homes raises questions about its confidence in its primary rationale.
*316¶ 35. Assuming that the majority of the Board remained true to its point that S-S Corp.’s current operations were irrelevant, this position is plainly inconsistent with the wording of the regulation. Again the holding of the Board was that the permanency of occupancy of the residents, or S-S Corp.’s intent with respect to that permanency, could not be considered. Thus, the exact determination that the regulation required the Board to make — the same determination the majority of this Court states is a requirement to find that S-S Corp.’s homes are “commercial dwellings” — is found to be irrelevant by the Board. The rule specifically requires that the buildings being constructed be “commercial dwellings.” That requirement is simply not met by a generalization that community care homes are “commercial dwellings” without examining the particular buildings involved.
C. All Nursing Homes are Commercial Dwellings; Community Care Homes are Indistinguishable from Nursing Homes
¶ 36. This is the actual rationale of the Environmental Board. Since the majority of this Court has not stated an alternative rationale, I assume it has accepted the Environmental Board’s rationale without stating so. This rationale involves a construction of the rule that is patently wrong.
¶ 37. The premise of this' argument is that all nursing homes are commercial dwellings since nursing homes are contained in the nonexclusive list in the regulation. The logic after the premise is that: (1) community care homes are like nursing homes so all community care homes are commercial dwellings; and (2) S-S Corp.’s homes are community care homes so they are commercial dwellings. The problem with this construction is that the premise is clearly wrong because of the presence of the inconvenient language “that is intended to be used and occupied for human habitation on a temporary or intermittent basis.” In order to accept the premise, we must accept that the inconvenient language has no independent regulatory significance or that all nursing homes are intended for temporary occupancy as a matter of fact.
¶ 38. Not even the majority of this Court accepts that the language has no independent regulatory significance since it holds that occupancy on a temporary or intermittent basis is a requirement of a commercial dwelling. See ante, ¶ 15. Indeed, such a construction makes the language superfluous, or mere surplusage, contrary to our construction maxim to avoid such a result. See, e.g., In re Estate of Cote, 2004 VT 17, ¶ 13, 176 Vt. 293, 848 A.2d 264. We could sustain the *317Board’s construction of the regulation only if we hold that there is no independent requirement that any facility be intended to be occupied on a “temporary or intermittent basis.”
¶ 39. Further, such a construction necessarily means that the dependent clause in issue — “that is intended to be used ... on a temporary or intermittent basis” — modifies and explains the list of facilities — “hotels, motels, rooming houses, nursing homes, dormitories” — and not the general description of facilities “any building or structure or part thereof.” Rule 2(M) (emphasis added). The construction is impossible because the dependent clause is stated in the singular, and thus plainly limits the term “any building or structure or part thereof,” which is also in the singular. Rule 2(M). The phrase reads: “‘[cjommercial [d]welling’ means any building or structure or part thereof... that is intended to be used ... on a temporary or intermittent basis.”
¶ 40. Nor is there anything in the record to support the proposition that all nursing homes intend occupancy on a temporary basis. Terms like “nursing homes” or “community care homes” are broad umbrellas differentiated only by the extent to which they offer nursing care. I have no doubt that, similar to the community care homes run by S-S Corp., there are nursing homes with long-term permanent residents. In any event, if there are facts on this issue, the Board must find them. It failed to do so here.
¶41. Although the Board adopted the rationale that all nursing homes are commercial dwellings, it failed utterly to square that rationale with the wording of the regulation. In response to S-S Corp.’s argument that under the regulation some nursing homes would be commercial dwellings, and others would not — depending on whether or not the nursing homes were operated on an intermittent occupancy basis — the Board answered “there is no such distinction in the Rule” and “the Board is empowered to interpret its own Rules.”8 The former statement is totally inconsistent with the wording of the rule. The latter is essentially a statement that the Board can do whatever it wants.9
*318¶ 42.1 end where I started. Labeling buildings with tenants who stay-in them for at least twenty years as intended for temporary or intermittent occupancy is nonsensical. But equally bad is the fancy footwork it takes to reach such a decision. The Board adopted a rule that contains a regulatory distinction the Board now opposes. The right response to this new opposition is to amend the rule to eliminate the distinction. The wrong answer is to eliminate the distinction under the guise of tortured construction. By upholding a decision based upon the wrong answer because of a narrow standard of review, we abdicate our responsibility to ensure a fair and just adjudication system.
¶ 43. S-S Corp.’s homes are not commercial dwellings as a matter of law. I dissent.
The 2000 Census provides the median year in which Vermont residents moved into the housing they occupied when they answered the census questionnaire. For all residents, the median year was 1993, seven years before the census. For homeowners, the median year was 1989. For renters it was 1998. Thus, occupants of S-S Corp.’s houses stay in the home approximately three times longer than the average stay for other Vermont residents; they stay twice as long as homeowners, and ten times as long as other renters. Vermont Housing Data Website, at http://mm.homingdatcLorg/pmfüe/profdeMam Remltphp?sidrnitted=stateProfile (last modified Aug. 4,2005).
The Environmental Board decision was decided five to three on the issue on which I dissent. The Environmental Board dissenters, led by the Chair of the Board concluded:
These Houses (and other homes developed for this population) are not intended to be occupied on a “temporary or intermittent” basis.
The Board’s concept of “subjective particulars” migrated between its first and second decision. In the first decision it explained as follows:
While S-S’s record of providing quality care may be inferred from the length of time that residents lived in the Washington Street Home, the Board’s jurisdictional determination in this case cannot depend on the personal level of satisfaction of the residents in the care that they receive. Rather, the Board must look to the aspects of the Harvey House and the Owen House that are relevant to Act 250 and ask whether the type of construction and occupation at issue in this matter is typical of the sorts of housing described in Rule 2(M). Thus, the Board must look to the physical structures and general usage of the Harvey House and the Owen House, not to the subjective particulars that may result from their operation.
By the second decision, the only thing relevant about the homes was that they have similarities to nursing homes. It specifically held that the long-term occupancy by the residents was irrelevant.
These “facts” are truly irrelevant because they describe any residency of any type.
It also answered that the distinction is irrational as discussed in ¶¶ 30-31 above.
It is particularly unpersuasive for the Board to quote, in support of this reason for its construction, the standard of review applicable to this Court when it reviews a Board’s interpretation of a regulation. Essentially, the Board is saying its interpretation is correct because it is the Board and is entitled to deference. I would urge the Board not to use this “might makes right” rationale in future cases.