This Opinion is subject to motion for reargument or formal revision before publication. See V.R.A.P. 40
On Appeal from Superior Court, Environmental Division. Thomas S. Durkin, J.
William H. Sorrell, Attorney General, and Gavin J. Boyles and Scot L. Kline, Assistant Attorneys General, Montpelier, for Petitioner-Appellee.
Nathan H. Stearns of Hershenson, Carter, Scott & McGee, P.C., Norwich, for Respondents-Appellants.
Present: Reiber, C.J., Dooley, Skoglund and Robinson, JJ., and Morse, J. (Ret.), Specially Assigned
Morse, J. (Ret.),
[¶1] This is an appeal from a judgment of the Superior Court, Environmental Division affirming an administrative finding of the Natural Resources Board (NRB) that respondents' gravel-extraction activities violated an Act 250 residential-subdivision permit. Respondents contend the ruling was in error because the permit had expired. We affirm.
[¶2] The material facts are largely undisputed, and may be summarized as follows. The subject property consists of two large parcels of land off of Route 7 in the Town of Manchester. Sand, rock, and gravel have been extracted from a portion of one or both parcels for decades. In September 1990, respondents' predecessor-in-interest received an Act 250 permit authorizing a nineteen-lot residential subdivision on the northern parcel (the " residential project tract" ). Among other conditions, the Act 250 permit provided that it would expire one year from the date of issuance if the permittee had not demonstrated an intention to proceed with the project in accordance with 10 V.S.A. § 6091(b) (providing for the expiration of a permit if not " used" within three years), and otherwise would expire on October 1, 2020 unless extended by the District Environmental Commission. Other permit conditions prohibited any " changes ... in the design or use" of the project without written approval of the district coordinator or commission, and specified that the permit and all conditions therein would " run with the land and ... be binding upon and enforceable against ... all assigns and successors in interest."
[¶3] In September 1992, the district commission issued an amendment to the permit extending the time for construction of the project to October 1994. In June 1994, respondent Dorr Oil Company purchased the residential project tract. The warranty deed expressly referenced the Act 250 permit " and any and all amendments thereto." Shortly thereafter, respondent Donald Dorr -- on behalf of Dorr Oil -- applied for and received a further permit amendment extending the time for construction to October 1995.
[¶4] During this period, another company operated by Dorr, respondent MGC, Inc., purchased the southerly parcel (the
" adjacent tract" ), and continued to operate a gravel pit " most or all" of which the trial court found was located on the adjacent tract. Dorr took no steps thereafter to begin the actual subdivision of the project tract or ...