2014 VT 103


In re Musto Wastewater System and Water Supply Permit WW-1-1949,
In re Musto Wastewater System and Water Supply Permit Revocation (2013-366
& 2013-367)
 
2014 VT 103
 
[Filed 29-Aug-2014]
 
NOTICE:  This opinion is subject
to motions for reargument under V.R.A.P. 40 as well as formal revision before
publication in the Vermont Reports.  Readers are requested to notify the
Reporter of Decisions by email at: JUD.Reporter@state.vt.us or by mail at: Vermont
Supreme Court, 109 State Street, Montpelier, Vermont 05609-0801, of any errors
in order that corrections may be made before this opinion goes to press.
 
 

2014 VT 103

 

Nos. 2013-366 & 2013-367

 

In re Musto Wastewater System
  and 
Water Supply Permit WW-1-1949


Supreme Court


 


On Appeal from


In re Musto Wastewater System and 
Water Supply Permit Revocation


Superior Court,
Environmental Division


 


 


 


March Term, 2014


 


 


 


 


Thomas
  G. Walsh, J.


 

Mark L. Sperry and F. Rendol Barlow of Langrock Sperry &
Wool, LLP, Burlington, for
  Appellant.
 
Gary R. Kupferer and S. Stacy Chapman, III of Webber,
Chapman & Kupferer, Ltd., Rutland,
  for Appellee.
 
William H. Sorrell, Attorney General, and Gavin J. Boyles,
Assistant Attorney General,
  Montpelier, for Appellee Agency of Natural Resources.
 
 
PRESENT:    Reiber, C.J., Dooley, Skoglund and Crawford, JJ.,[1]
and Morse, J. (Ret.), 
                       Specially Assigned
 
 
¶ 1.            
SKOGLUND, J.   This case involves a disputed permit for a
wastewater system and potable water supply granted to applicants David and
Martha Musto for a home on Lake Bomoseen.  Next-door neighbor Carolyn
Hignite appeals the environmental court’s decision to deny her request to
revoke the permit issued to applicants in 2009, and to dismiss her direct
appeal of the permit.  Applicants cross-appeal from the environmental court’s
holding that neighbor had standing to appeal in either instance.  We affirm the
court’s holding in both of neighbor’s appeals.
¶ 2.            
Along with her brothers, neighbor is part owner of a lake property that
has been in their family for sixty-two years.  Applicants’ property is a .38-acre
lot on the western shore of the lake, which at present contains a single-story
seasonal camp of about 960 square feet.  In 2009, applicants submitted a permit
application to the Agency of Natural Resources (ANR) to replace the camp’s
septic system and on-site water supply.  On the permit application, applicants
described the project as the “reconstruction of a 3 bedroom year-round single
use family residence using a new wastewater disposal system and drilled bedrock
water supply well.”  
¶ 3.            
ANR issued the requested permit to applicants on March 30, 2009.  In August
2009, neighbor filed a petition with ANR to revoke the permit, claiming that
applicants submitted false or misleading information on the permit application
regarding the number of bedrooms in the camp.  ANR held a hearing in May 2010, and
denied neighbor’s petition to revoke the permit.  Neighbor subsequently
appealed the permit to the environmental court on May 27, 2010, over a year
after the permit was issued to applicants.  Neighbor also appealed ANR’s denial
of revocation on January 9, 2013.  The environmental court reviewed both cases de
novo but did not conduct a new hearing, instead basing its review on exhibits
and testimony from the ANR hearing, as the parties stipulated.  Neighbor now appeals
the court’s decision on both dockets.  We address each appeal in turn, beginning
with the appeal of the wastewater permit itself.
I.
¶ 4.            
As noted above, ANR issued applicants’ permit on March 30, 2009. 
Although in the interim neighbor filed a petition to revoke the permit with
ANR, neighbor did not appeal issuance of the permit to the environmental court until
well over a year after the permit was granted.  The environmental court held
the appeal was untimely under 10 V.S.A. § 8504(a), which provides that any
person aggrieved by an act of ANR can appeal to that court “within 30 days of
the date of the act or decision.”  See also 10 V.S.A. § 1977 (directing
that appeals of potable water supply or wastewater system permits to
environmental court be made in accordance with § 8504).  Because
neighbor’s appeal was filed with the environmental court well after thirty days
had passed from the date the permit was issued, the court dismissed the
appeal.  Neighbor contends the dismissal was error and that her rights to due
process and “fundamental administrative fairness” were violated by the court’s
order.  We disagree.
¶ 5.            
Neighbor’s primary argument for the timeliness of her appeal is that she
did not discover one ground on which she could challenge the permit until certain
evidence came to light on April 30, 2010, during the permit revocation
proceedings.[2]
 Specifically, neighbor claims that prefiled testimony by the ANR employee who issued
the permit revealed to neighbor for the first time that ANR liberally construed
the definition of “bedroom” when considering the sleeping arrangements in
actual use at a given property.  Therefore, she argues, the thirty-day appeal
period in § 8504 should not begin until the date of the prefiled testimony
announcing the practice, and the trial court’s failure to hold as such violated
her due process right to notice.  
¶ 6.            
The period to file an appeal is a jurisdictional requirement defined by
statute, and failure to file within the stated timeframe results in the court’s
loss of jurisdiction over the matter.  See Boutwell v. Town of Fair Haven,
148 Vt. 8, 10, 527 A.2d 225, 226 (1987) (“The failure to effect a timely appeal
extinguishes subject matter jurisdiction.”).  In limiting the appeal
period to thirty days, § 8504(a) does not deny neighbor the opportunity to
appeal; rather, it simply defines the period in which such an appeal is
possible.  Neighbor appears to argue both that the appeal period should be
subjective, beginning only when an interested party feels they have grounds to
appeal, and that she was unconstitutionally denied notice of when the permit
was issued.  
¶ 7.            
As we stated in In re Cingular Wireless PCS, LLC, “the
constitutional dimension of the rights of landowners with respect to permitting
on adjoining properties depends upon the legal framework applicable to the
permitting scheme in question.”[3] 
2012 VT 46, ¶ 14, 192 Vt. 20, 54 A.3d 141.  The legal framework applicable
to this permit is Chapter 64 of Title 10 of Vermont’s statutes, which governs potable
water and wastewater system permits.  As neighbor acknowledges, ANR was not
required under Chapter 64[4]
to provide neighbor with notice of either the filing of the application or the
issuance of the permit.  Beyond arguing that she discovered a particular basis
for appeal only after the revocation proceeding prompted the ANR employee’s
testimony, neighbor raises no reason why she could not have filed her appeal earlier.
 
¶ 8.            
Furthermore, in response to neighbor’s protestations over her lack of
opportunity to appeal until late April 2010, we note that neighbor had notice of
the issuance of the permit at the very least as early as the date on a letter that
she wrote to ANR “to inform” the agency that information provided by the septic
system designer was “incorrect.”  In the letter, neighbor states that “[t]he
seasonal residence is NOT three bedrooms” and that applicants provided
“inaccurate” information on their rebuilding plans, requesting that ANR “make
the necessary adjustments to [applicants’] Wastewater Permit.”  The letter is
dated June 18, 2009—two months before neighbor filed for revocation of the
permit, and almost a full year before she filed her appeal—and clearly
indicates that neighbor had notice of her issues with the permit as early as
that time.  Further still, neighbor was accorded the opportunity to have the
environmental court examine her property interests in this dispute against
applicants through the court’s consideration of the permit-revocation request, in
which issues surrounding the validity of the permit were joined and in which neighbor
requested the same relief as in the direct appeal.  See In re Hignite, 2003
VT 111, ¶ 9, 176 Vt. 562, 844 A.2d 735 (mem.) (declining to resolve due
process notice issue where claims neighbor “apparently hoped to raise with
respect to the granting of the permit were essentially comparable to those
underlying” secondary appeal properly before court).  Therefore, we uphold the
environmental court’s dismissal of neighbor’s direct appeal as untimely under
§ 8504(a).
II.
¶ 9.            
Turning to the environmental court’s decision on the revocation
proceedings, we arrive at the heart of neighbor’s objections to applicants’
permit.  Neighbor alleges that the application contained false and misleading
information as to the number of bedrooms present in the camp, which ANR relied
on in issuing the permit.  On the permit application, applicants identified the
house as a “3 bedroom” residence.  Neighbor claims that in doing so, applicants
deliberately provided ANR with false and misleading information because one of
the bedrooms is a multi-use room containing several built-in beds rather than a
traditional bedroom.  According to neighbor, this constitutes an “egregious manipulation
of the state permitting system,” which resulted in applicant’s success in
obtaining the permit and a variance to reconstruct the building over the same
approximate footprint as the current building.  On appeal, neighbor objects to
both, claiming that the trial court erred in not finding that there were only
two bedrooms and that applicants’ submission of false and misleading
information about the number of bedrooms and their reconstruction plans require
revocation of the permit.  
¶ 10.        
To begin, we note that neighbor’s issues revolve around interpretations
of ANR’s Wastewater System and Potable Water Supply Rules.  We have stated
before that where an issue involves interpreting an agency’s regulations, “our
overall goal is to discern the intent of the drafters.”  Conservation Law
Found. v. Burke, 162 Vt. 115, 121, 645 A.2d 495, 499 (1993).  As a result,
“[w]e employ a deferential standard of review of an agency’s interpretation of
its own regulations,” which “may be overcome only by compelling indications of
error.” Id.  
¶
11.        
Submission of false or misleading information in support of a permit is
a basis on which a permit “may” be revoked.  See Wastewater System and Potable
Water Supply § 1-404(b)(2), Code of Vt. Rules 12 033 001, http://www.lexisnexis.com/hottopics/codeofvtrules/
[hereinafter Wastewater Rules].  Neighbor’s first claim of error—that
the environmental court should have found that there were only two bedrooms
instead of three, as applicants stated—relies on the definition of “bedroom” in
the ANR rules.  Id. § 1-201(a)(8).  Neighbor
argues that the description “any room within a building or structure that
actually serves primarily as sleeping quarters,” id.
§ 1-201(a)(8)(B),  excludes applicants’ room with built-in beds because the
room also serves other functions as part of the kitchen and living room.  In
its decision, ANR found testimony from the Department of Environmental
Conservation that this subsection “is interpreted ‘liberally’ ” to be persuasive
“because the primary objective of the Rules is to assure that there is
sufficient capacity for wastewater disposal based on the use of any given
building or structure.”  ANR further concluded that a strict interpretation of
bedroom “would not assure adequate design capacity for the actual use of the
building and therefore would not be protective of human health and the
environment.”  Under this reasoning, ANR found applicants’ third room to be a
bedroom under the rules, and the environmental court held that applicants did
not intend to submit false or misleading information on the number of bedrooms.

¶
12.        
Contrary to neighbor’s assertion, we do
not view the evidence before the environmental court as pointing to “the
incontrovertible truth” that the “so-called third ‘bedroom’ ” was not a
bedroom under the Wastewater Rules.  Neighbor’s evidence consists of the real-estate
listing for a two-bedroom camp, the town listing card for the property stating
it had two bedrooms, testimony by the former owner in 2006 that the built-in
beds were used approximately 30% of the time as sleeping space, and a
declaration that a room used for other functions, like a kitchen or living room,
cannot by definition primarily function as a bedroom.  However, in discussions
about the property prior to purchasing it, the real estate agent told applicant
it slept six people comfortably.  The town listing card is not a reliable
source, as evidenced by the fact that neighbor’s property is erroneously listed
as having zero bedrooms.  And to neighbor’s contentions about what constitutes
“primarily used,” ANR pointed out that there are many examples of single-room
buildings used for multiple purposes, including sleeping, such as yurts or
hunting cabins.  ANR further suggested that if it was to construe primary bedroom
use as more than 50% of the time, properties with convertible sleeping spaces,
such as pull-out sofas, would never qualify for adequate wastewater design
capacity.  
¶
13.        
Considering the entire record and ANR’s reasoning in its interpretation
of the wastewater rules, neighbor’s evidence does not demonstrate any compelling
error by ANR in determining the number of bedrooms here, or prove any intentional
deception of the wastewater permitting process by applicants.  ANR’s
interpretation of its own definition of bedroom is based on a sound public-safety
concern that, for permitting purposes, a determination of the number of
bedrooms be “based on actual use to assure sufficient wastewater capacity.”  We
therefore affirm the trial court’s affirmance of ANR’s decision not to revoke
the permit for false or misleading information on the number of bedrooms in the
property.
¶
14.        
Neighbor’s argument that applicants also submitted false and misleading
information as to the “reconstruction” of their camp similarly fails.  Neighbor
asserts that applicants intentionally misrepresented the nature of their plans for
reconstructing the camp building so as to be eligible for a variance
under the Wastewater Rules.  According to neighbor, when applicants described
the project on their permit application as “reconstruction of a 3 bedroom
year-round single family residence” requiring “a conversion from seasonal to
year-round use” on the same footprint as the existing camp, they were attempting
to get around the strict requirement that variances “not be granted for
replacement [wastewater] systems . . .[where] the replacement
system or supply will allow an increase in design flow.”  Wastewater Rules
§ 1-806(6)(B).  Applicant submitted plans for municipal approval for a larger
house than the current camp building.  Although convoluted, neighbor appears to
argue that by stating that they intended to reconstruct rather than build anew,
applicants actively misled ANR into issuing the permit on the basis that the
house would be on the same footprint and not increase design flow.
¶
15.        
We disagree.  Under the Wastewater Rules, construction of a new building
requires a permit, unless it qualifies as “reconstruction,” which there is exempt
from the permit requirement if the building is reconstructed in approximately the
same location and there are no changes to the operational requirements or increases
in design flow.  Wastewater Rules §§ 1-303, 1-304(21).  In its decision,
ANR stated that its interpretation of “approximately the same location” is
within fifty feet of the original building footprint.  Neighbor has offered no
evidence that applicants are rebuilding outside a fifty-foot boundary of the
original camp, or that there is compelling error in ANR’s interpretation of
what “approximately the same location” means.  See Conservation Law Found.,
162 Vt. at 121, 645 A.2d at 499 (requiring compelling error to overturn
agency’s interpretation of its own rules).  
¶
16.        
The simple fact that applicants have proposed a larger building plan to obtain
the municipal permit does not automatically prove, as neighbor asserts, that
they intended to mislead the permitting authorities into believing they were
reconstructing instead of constructing so that they qualified for a variance.  Neighbor
points to nothing in the Wastewater Rules that prohibits reconstructing a
taller building on approximately the same footprint.  Furthermore, as we have
held that applicants did not submit false or misleading information on the
number of bedrooms in the camp, applicants did not submit false information that
there was no increase in design flow.  As for neighbor’s argument that any
variance must be strictly construed against the party claiming it, it is not a variance
application that is before us.  Rather, it is the permit application and the
question on appeal is limited to whether applicants submitted false or
misleading information that required revocation.  To the extent that there may
be conflicts between the municipal and wastewater permits, that is not at issue
here.  
¶
17.        
As to whether revocation of the permit is required, neighbor fails to show
how applicants intentionally misled the permit authority by characterizing
their project as “reconstruction” for the purpose of qualifying for a variance when
applicants’ rebuilding plans do not appear to directly conflict with ANR’s
interpretation of reconstruction under the Wastewater Rules.  The environmental
court’s denial of permit revocation is therefore affirmed on both of neighbor’s
claims of error.
¶
18.        
As we affirm the environmental court’s holdings in applicants’ favor, we
do not address applicants’ cross-appeal that neighbor lacked standing to pursue
both her appeals.
Affirmed.

 


 


FOR THE COURT:


 


 


 


 


 


 


 


 


 


 


 


Marilyn
  S. Skoglund, Associate Justice

 


[1]
 Justice Crawford was present for oral argument, but did not participate in
this decision.


[2] 
Although neighbor’s brief proposed six separate questions related to the direct
appeal in her statement of the issues presented, the content of the brief
addressed only this question: whether the environmental court erred in not
finding that the thirty-day appeal window began when neighbor was “actually
capable of discovering” the basis for her appeal.  As a result, we address only
this single issue as well.
 


[3] 
Neighbor argues that Cingular Wireless does not apply to her situation
because that case involved adjoining landowners who did not have a possessory
interest in the land.  Neighbor claims that because a portion of the isolation
zone surrounding applicants’ proposed wastewater system extends onto her
property, she has possessory interests in the permitted property. However, in
her notice of appeal for the permit, neighbor identified herself as an “adjoining
property owner,” and as neither ANR nor the trial court made findings as to
whether neighbor has a possessory interest in the land, we do not proceed on
the assumption that she does.  
 


[4] 
Although 10 V.S.A. § 1973(j)(1) now provides that where an isolation zone
extends onto the property of a neighbor, as it does here, the permit applicant
must send the neighbor a notice of intent to file a permit application and a
site plan, this was not the rule in place at the time the permit was issued.
 On the date of issuance, neighbor had no right to notice under the
applicable statutory framework.  


