In re Catamount Slate, Inc.
In re Catamount Slate, Inc.
Opinion of the Court
¶ 1. In this appeal from an order of the environmental board, we examine a 1995 amendment to Act 250,10 V.S.A. chapter 151, delineating the Act’s jurisdiction over Vermont’s slate quarries. See 1995, No. 30. The central question presented is whether a district coordinator and the environmental board may reopen a final determination issued pursuant to 10 V.S.A. § 6007(c) on a slate quarry’s exempt status under Act 250 at the request of neighbors who were not notified of and served with the original opinion holding the quarry exempt. Under the facts presented here, we conclude that the environmental board, and the district coordinator, erred by revisiting the exempt status of plaintiffs’ slate quarries registered in accordance with 10 V.S.A. §§ 6007(c) and 6081(1) at the request of three neighbors who did not receive notice of the registration because they were not entitled to it. Accordingly, we vacate the order of the environmental board, and remand the matter for dismissal.
¶ 2. This case takes place against the backdrop of Act 250,10 V.S.A. chapter 151, the state’s historic land-use law. Effective on June 1,1970, Act 250 was “a philosophical compromise” between protecting and
¶ 3. In 1995, the Legislature amended Act 250 to clarify its applicability to Vermont’s slate quarries. See 1995, No. 30. The legislation followed a temporary moratorium on Act 250jurisdiction over slate quarries during a period of study by a legislative committee established for that purpose. See 1993, No. 232 (Adj. Sess.), § 37. The 1995 legislation, known as Act 30, was made retroactive to June 1, 1970. 1995, No. 30, § 4. It added a definition of “slate quarry” to 10 V.S.A § 6001,1995, No. 30, § 1 (codified at 10 V.S. A § 6001(25)), and amended § 6081 to clarify the circumstances under which a slate quarry needs an Act 250 permit. Id. § 2. It also narrowed the concept of abandonment for slate quarries. Under the amended statute, unused holes that appear abandoned are “held in reserve” and are exempt from Act 250 as long as slate was extracted from them before June 1,1970 and the owner registers them under § 6081(1). Id. § 2(j) (codified at 10 V.S.A. § 6081(j)). The Act exempted ancillary slate mining activities from Act 250 review, and provided that nonancil-lary activities at a quarry could be considered “substantial changes” that would trigger Act 250 jurisdiction. Id. § 2(k)(l) (codified at 10 V.S.A § 6081(k)(l)); see also id. § 2(k)(2) (codified at 10 V.S.A. § 6081(k)(2)) (ancillary activities involving crushing may be “substantial changes” for Act 250 purposes if they have a significant impact on any of the ten criteria under § 6086(a)).
¶ 4. Most relevant to this case, Act 30 established a registration process to identify slate quarries that are entitled to grandfathered or exempt status under § 6081(b). The new law gave slate quarry owners until
¶ 5. To implement Act 30’s registration provision, the environmental board approved a slate quarry registration form and prepared instructions to assist the applicant in completing the form. Application for Slate Quarry Registration; Guidelines for Applying for Slate Quarry Registration (hereinafter Slate Quarry Registration Guidelines). Consistent with § 6081(f)(3), the form and accompanying instructions explained that a request for slate quarry registration approval was also a request “for a final determination under subsection 6007(c) of Title 10.” Application for Slate Quarry Registration at 1; see Slate Quarry Registration Guidelines at 1 (the “[fjiling of these registration documents constitutes a request for a final determination of jurisdiction under 10 V.S.A. § 6007(c)”). The registration form directed the applicant to list the names and addresses of all adjoining landowners, and to distribute copies of the registration documents to the relevant municipality, municipal planning commission, regional planning commission, and any adjoining municipalities and planning commissions. Application for Slate Quarry Registration at 1-2.
¶ 6. Seeking the protection of the new slate quarry amendment, Cata-mount
¶ 7. In August 1999, two years after the district commission approved Catamount’s registration, Kathleen Donna and six other neighbors, David and Joanne Calvi, Joan Gagnon, Lori Ballard, Lee Sheldon, and Lindsey Waterhouse, wrote the district coordinator asking him to reconsider his April 1997 decision approving Catamount’s registration. Other than Kathleen Donna and Lee Sheldon, the son of Lorene Sheldon, none of the requesters owned property adjoining the parcel containing Catamount’s registered quarries, and Lee Sheldon did not acquire his interest in the adjoining property until 1998, after Catamount’s registration had been approved. The neighbors complained that the two buildings Catamount referenced in its slate quarry registration were hunting camps and were not entitled to grandfathered status. The district coordinator agreed, issued a revised opinion excluding those buildings from protection under Act 30,
¶ 8. In February 2000, the district coordinator received another request for reconsideration. This second request came from the same seven people who sought reconsideration in 1999, in addition to nonadjoining neighbors Margaret Riter, Richard and Christine Sheldon, Joan Sheldon, Priscilla Waterhouse (spouse of previous requestor Lindsey Water-house), and Lorene Sheldon. The second reconsideration request alleged that Catamount’s slate quarry was not used for commercial extraction of slate before June 1,1970, and thus Catamount needed an Act 250 permit to operate the quarry.
¶ 10. Before the board, Catamount argued that its 1997 quarry registration was final and was not reviewable. Catamount claimed that it had followed the statutory and board-mandated steps to register its four quarry holes, and none of the individuals who received notice of Cata-mount’s registration appealed it. Therefore, Catamount argued, none of the present requesters had a right to invoke the authority of the district coordinator or the environmental board to revisit the grandfathered status of Catamount’s registered slate quarries.
¶ 11. The board rejected Catamount’s argument in a preliminary order. The board reasoned that if Catamount wanted a final opinion on jurisdiction, it should have (1) made clear that it was seeking a final determination under § 6007(c) when it filed its registration application, and (2) asked the district coordinator to serve the opinion on Margaret Riter, Christine Sheldon, and Lee Sheldon. Because Catamount did neither of those things, the board concluded that it and the district coordinator could reconsider Catamount’s registration. After the evidentiary hearing that followed, the environmental board concluded that Catamount needed an Act 250 permit to continue quarrying three of its four registered holes. This appeal followed.
¶ 12. On appeal, Catamount claims that the board erred by concluding that it could revisit the jurisdictional question at the behest of three neighbors who were not served with the 1997 jurisdictional opinion. The
¶ 13. Our primary responsibility in resolving this dispute is to ascertain and implement the Legislature’s intent, looking first to the statute’s language. Colwell v. Allstate Ins. Co., 2003 VT 5, ¶ 7, 175 Vt. 61, 819 A.2d 727. Although we normally defer to the environmental board’s construction of the statutes comprising Act 250, in this case “there are compelling indications that the construction is wrong,” and thus we owe the board no such deference. In re Agency of Admin., 141 Vt. at 74-75, 444 A.2d at 1352.
¶ 14. The board erroneously construed § 6007(c) as requiring Cata-mount to serve the district coordinator’s 1997 decision on Lee Sheldon, Margaret Riter, and Christine Sheldon for the decision to be considered final on the question of Act 250 jurisdiction. Safe harbor under Act 30 was available to slate quarry owners who register and obtain “a final determination regarding the applicability of’ Act 250 using the § 6007(c) process. 10V.S.A. § 6081(1)(3). Section 6007(c) allows an applicant to obtain a “final determination” on the question of Act 250 jurisdiction if the district coordinator, “in accordance with rules of the board, ... serve[s] the opinion on individuals or entities who may be affected by the outcome of the opinion, and on parties that would be entitled to notice under section 6084
¶ 15. The board’s decision below implicitly decides that Margaret Riter, Christine Sheldon, and Lee Sheldon were people “who may be affected
¶ 16. Consistent with the temporal limit contemplated by the board’s rule, the board-approved slate quarry registration form asked the applicant to furnish the names and addresses of all adjoining landowners and directed that the application be distributed to all § 6084 parties (e.g., the municipality, municipal and regional planning commissions, and adjoining municipalities). Thus, the individuals “who may be affected by the outcome” of a slate quarry registration were adjoining landowners at the time of registration only, unless the quarry owner identified other individuals in the registration application. For a slate quarry registration approval to be final under § 6007(c), therefore, the owner had to ensure that the district coordinator served the opinion on the adjoining landowners listed in the application, any individuals the owner identified, and the parties entitled to notice under § 6084.
¶ 18. Under these circumstances, after the district coordinator’s approval, the 1997 opinion was final on whether Catamount’s slate quarry holes were subject to Act 250 review. That the district coordinator did not serve the 1997 opinion on Margaret Riter, Christine Sheldon, and Lee Sheldon does not alter the finality of the jurisdictional question because they were not among the persons Catamount and the district coordinator identified as people “who may be affected by the outcome” of the opinion. Margaret Riter and Christine Sheldon were not entitled to notice and service of the original opinion because they were neither § 6084 parties nor adjoining property owners. Lee Sheldon had no right to notice or service of the 1997 approval because he was not an adjoining landowner at the time the opinion issued nor was he a § 6084 party. The board’s decision below faulting Catamount for failing to notify and serve those three individuals in 1997 when neither the board nor the district coordinator identified them as people “who may be affected by the outcome” of the opinion frustrates the intent of § 6007(c) and the purpose of the slate quarry legislation to settle the question of Act 250 jurisdiction. As such, the decision cannot stand.
¶ 19. The State argues that the board’s interpretation of the law is correct because § 6007(c) allows “any person” to file a request for a jurisdictional opinion. Thus, the State asserts, nonadjoining neighbors could invoke the district coordinator’s authority and challenge the 1997 opinion years after the opinion issues. While we agree that § 6007(c) gives Catamount’s neighbors the right to seek an opinion from the district coordinator, we disagree that such a request gave the district coordinator and the board authority to reopen the 1997 opinion exempting Cata-mount’s quarries from Act 250 jurisdiction. The issue of jurisdiction was finally settled once the appeal and reconsideration periods lapsed to challenge the district coordinator’s 1997 opinion on Catamount’s registration.
¶ 21. Catamount has raised other arguments challenging the board’s final order that Catamount must obtain an Act 250 permit to extract slate from its registered quarries. We do not address those arguments in light of our decision vacating the board’s order on jurisdictional grounds.
The decision of the environmental board is vacated and the matter is remanded for entry of judgment that no Act 250 jurisdiction exists for the slate quarries identifiedin Catamount’s 10 V.S.A. § 6081(1) registration.
Appellants are Fred and Suellen Reed and their company Catamount Slate, Inc. d/b/a Reed Family Slate Products. This opinion refers to appellants collectively as Catamount.
Although the district coordinator’s first reconsidered opinion is not before us, we observe that its conclusion is doubtful under the last sentence of § 6081(k)(l), which states that “[bjuildings that existed on April 1,1995 ... shall be considered ancillary.” In any event, because we conclude that Catamount’s registration was final after the appeal period lapsed following the 1997 approval, our observation need go no further.
The district coordinator found that Priscilla Waterhouse “arguably” received constructive notice of the 1999 opinion because it was served on her husband, Lindsey Waterhouse. The district coordinator and the board premised their jurisdiction on the requests of Margaret Riter, Christine Sheldon, and Lee Sheldon. Although we limit our review of the matter as it relates to those three neighbors, we observe that Priscilla Waterhouse’s request could not give the board or district coordinator authority to revisit the preexisting status of Catamount’s registered quarry holes for the reasons we explain in this opinion.
Section 6084 prescribes notice procedures upon the filing of an Act 250 permit application. The statute requires notice to the owner of the land if the applicant is not the owner; the municipality in which the land is located; the municipal and regional planning commissions for the municipality in which the land is located; and any adjacent Vermont municipality and municipal and regional planning commission if the land is located on a boundary. 10 V.S.A. § 6084(a).
Case-law data current through December 31, 2025. Source: CourtListener bulk data.