                                         STATE OF VERMONT
                                       ENVIRONMENTAL COURT

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          NRB Land Use Panel v. David Dodge }                          Docket No. 48-3-08 Vtec
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                    Decision and Order on Motion for Judgment on the Pleadings
          The Land Use Panel of the Vermont Natural Resources Board (“NRB”) seeks in this
action to enforce against David Dodge (“Respondent”) its Administrative Order (“AO”), by
which the NRB gave notice of its conclusion that Respondent had violated the terms and
conditions of a previously issued Act 250 permit. Pursuant to 10 V.S.A. § 8012(a), Respondent
gave timely notice of his request for a hearing at which to contest the AO, thereby conferring
jurisdiction upon this Court to determine if a violation had occurred and, if so, what remedies or
penalties should be imposed against Respondent. 10 V.S.A. § 8012(b). Now before the Court is
NRB’s motion for judgment on the pleadings, to which Respondent has filed an opposition
memorandum.
          David Dodge is representing himself in this matter. The NRB is represented by John H.
Hasen, Esq.

                                             Factual Background
          For the sole purpose of putting the pending motions in context, we recite the following
material facts, which we understand to be undisputed, unless otherwise noted:
1.        On February 20, 1990, Respondent and his business partner filed an application for an
Act 250 permit to authorize the creation of a 10-lot subdivision of land along Hillside Avenue in
the Town of Danville (“Town”).                The District #7 Environmental Commission (“District
Commission”) conducted a hearing on Respondent’s application on April 19, 1990.
2.        On July 20, 1990, the District Commission issued its Findings of Fact and Land Use
Permit #7C0797. The NRB filed a copy of the Permit and Findings with the Court, both of
which are specifically referenced in the AO.
3.        In its Findings, the District Commission noted the following determinations that are
material to the NRB assertion of a violation now before the Court:1



1
    The following quotation includes the paragraph numbering from the Findings.
        3. Although Hillside Avenue (between Hill Street and Highland Avenue) is a
           Class III roadway, it is at most 1 ½ lanes wide.
        4. The sight distances at the intersection of the Class III roadway and Hill Street
           and the intersection of Highland Avenue and Route 2 are poor.
        5. The project roadway will be 20’ wide with 2’ shoulders. The applicant
           estimates that at most 84 trips per day will be generated by the project.
        6. The Danville Board of Selectmen has developed a plan to make Hillside
           Avenue one-way, so as to prevent traffic from making blind turns onto Hill
           Street.
        7. The [District] Commission will condition the permit to require the applicant to
           implement the Selectmen’s traffic control plan.2
In re David Dodge, Docket # 7C0797, Findings of Fact, at p.4 (Dist. 7 Envtl. Comm. July 20,
1990) (“Findings”) (citations omitted).

4.      Permit Condition #15 of Land Use Permit #7C0797 states that “applicants shall pay the
Town of Danville’s costs in converting Hillside Avenue to a one-way road at such time as the
Town makes the conversion but no later than before the last lot is sold.” (Emphasis in original.)
5.      In July 2003, Respondent sold the last lot in the approved subdivision.
6.      In the fall of 2007, the Town completed the conversion of Hillside Avenue to a one-way
road.    The Town reported total costs associated with this road conversion of $931.86.
Respondent does not dispute that the Town incurred these costs in connection with this road
conversion.
7.      On October 3, 2007, the District Commission Coordinator made request of Respondent
for reimbursement for the Town’s costs of converting Hillside Avenue.
8.      On December 3, 2007, the District Commission Coordinator repeated the request for
reimbursement.
9.      On January 31, 2008, NRB’s Permit Compliance Officer made request of Respondent for
reimbursement for the Town’s costs of converting Hillside Avenue.
10.     To date, Respondent has not reimbursed the Town for any of the expenses incurred in
converting Hillside Avenue.


2
    We note that neither the Findings nor the Permit reflect that the Danville Selectmen made any direct
representations to the District Commission; neither document reflects that the Board of Selectmen appeared or
participated in the 1990 District Commission proceedings. The Town Planning Commission did enter its
appearance in the 1990 proceedings, although the party participation statute regards a planning commission as a
separate entity from a town selectboard. See 10 V.S.A. § 6085(c)(1)(C).


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11.    On March 11, 2008, NRB issued its AO, asserting that Respondent was in violation of
Permit condition #15, that he remained obligated to reimburse the Town for $931.86 and should
now also pay NRB a penalty of $1,800.00, due to his failure and refusal to make timely
reimbursement to the Town. Respondent then filed his Request for Hearing with this Court, so
that he could contest the pending AO.

                                            Discussion
       By its pending motion, NRB requests that this Court enter judgment in its favor as a
matter of law under V.R.C.P. 12(c). In ruling on the NRB motion for judgment on the pleadings,
as with summary judgment motions, we must construe all facts in a light most favorable to
Respondent. See, e.g., Jordan v. State Agency of Transp., 166 Vt. 509, 511 (1997).
       Respondent does not contest that his Act 250 Permit contains a condition that requires
him to “‘pay the Town of Danville’s costs in converting Hillside Avenue to a one-way road at
such time as the Town makes the conversion but no later than before the last lot is sold.’” See
AO at ¶ 4 (citing Permit Condition #15) (emphasis in original). We are presented here with the
issue of how to interpret this permit condition, particularly since the Town road work was not
completed until well after Respondent sold his last lot. For the reasons detailed below, we
conclude that Respondent remained liable to reimburse the road conversion costs, even though
the road work was completed years after he sold the last of his lots authorized by Permit
#7C0797.
       Reading both the Permit and Findings in context, it now appears that at the time that this
permit condition was drafted, the District Commission and Respondent understood that the Town
would complete the work necessary to convert Hillside Avenue to a one-way street well in
advance of the sale of the last lot. As it turned out, it took many years for the road conversion
work to be commenced and completed; the record before us indicates that the road work was not
even begun for more than four years after Respondent sold the last lot in his development and
over seventeen years after the District Commission relied upon the road conversion work
proposal when rendering Permit #7C0797.
       After the Town finally converted Hillside Avenue to one-way traffic, Respondent refused
to reimburse the road conversion costs, arguing that he “believes that he is not in violation of the
Permit because he was never requested to make any payment before the last lot was sold.”
Dodge Mem. (Apr. 24, 2008). We understand that Respondent’s argument relies upon an


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interpretation of the phrase “no later than before the last lot is sold” as a limitation on when the
Town could charge Respondent for the fees associated with the road conversion work.
       When called upon to interpret land use permits conditions, we are directed to “rely upon
normal rules of statutory construction.” Agency of Natural Res. v. Weston, 2003 VT 58, ¶ 16,
175 Vt. 573. In particular, although ambiguities are construed in favor of the landowner, our
“principal concern” must be to implement the intent of the drafters of the permit. Id. In this
regard, we seek to interpret Permit Condition #15 within the context of the Commission’s
Findings and the plain meaning of the words and grammatical structure the Commission chose to
use.
       Even when construing the facts in a light most favorable to Respondent, we cannot agree
that the Town’s delay in converting Hillside Avenue discharged Respondent’s duty to pay for the
costs of this conversion. The interpretation of the legal effect of a permit condition is a question
of law, and we hold that this permit condition unambiguously required Respondent to pay the
costs of converting Hillside Avenue: “‘The applicants shall pay the Town of Danville’s costs in
converting Hillside Avenue to a one-way road . . . .’” AO at ¶ 4 (citing Permit Condition #15)
(emphasis added). The provision that states “but no later than before the last lot is sold” only
modifies the time at which Respondent should pay and does not establish a deadline for the
completion of the road conversion work.
       It is quite common for permit conditions to require an applicant to pay for something at a
particular time and upon the occurrence of a particular event. Here, Respondent received the
benefit of having his permit application granted because the District Commission determined
that, with the future road conversion work, Respondent’s proposed subdivision “[w]ill not cause
unreasonable congestion or unsafe conditions with respect to use of the [area] highways.” 10
V.S.A. § 6086(a)(5). Because of the emphasis in the District Commission’s Findings upon the
“poor” condition of area roadways, and the lack of any reference in the Findings or Permit to a
time limitation upon when the Town should complete the road conversion work, we conclude
that Respondent’s obligation to reimburse the Town did not expire when he sold his last lot.
Although these costs accrued at a later time than the parties originally contemplated (thereby
conferring a benefit on Respondent, who was able to delay his payment for many more years
than was originally anticipated), this delay does not excuse Respondent from his duty to pay.




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       The permit condition is clear on its face; we therefore GRANT NRB’s motion for
judgment on the pleadings, to the extent that Respondent must reimburse the Town for the
$931.86 in costs it incurred for converting Hillside Avenue to a one-way street. We decline,
however, to summarily assess penalties against Respondent, as we conclude that a merits hearing
is necessary so that we may determine what facts are material to the assessment of penalties.
Unless the parties can reach an agreement on this last legal issue within the next 30 days, a
merits hearing will be scheduled to receive evidence on the appropriate penalty (if any) to be
imposed, and whether this penalty should include NRB’s attorneys’ fees that have accrued to
date and that could continue to accrue between now and the end of these proceedings.

       Done at Berlin, Vermont this 30th day of September 2008.



                                            ___________________________________
                                             Thomas S. Durkin, Environmental Judge




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