In re Costello Garage

                                 ENTRY ORDER

                       SUPREME COURT DOCKET NO. 91-379

                              APRIL TERM, 1992


 In re Gerald Costello Garage      }          APPEALED FROM:
                                   }
                                   }
                                   }          Environmental Board
                                   }
                                   }
                                   }
                                   }          DOCKET NO. Declaratory
                                                         Ruling 243


              In the above entitled cause the Clerk will enter:


      The owner of two contiguous parcels of land in the Town of Dover
 appeals from an Environmental Board order declaring that he should have
 applied for a permit before commencing construction of a garage on his
 property, and requiring him to obtain a permit.  We affirm.

      Appellant acquired one of the parcels, about three acres, in 1967 and
 the second, about an acre, in 1978.  In late 1990 or early 1991 he con-
 structed a garage for commercial purposes on the portion he acquired in
 1978.  At the time construction commenced, he had not applied for an Act 250
 permit, nor had he sought a ruling as to whether a permit was required.
 Based on the absence of permanent zoning and subdivision laws in the Town
 and the combined acreage in appellant's properties, the assistant coordi-
 nator of the District Environmental Commission issued an advisory opinion
 concluding that an Act 250 permit was required, because appellant had com-
 menced construction of improvements for commercial or industrial purposes on
 a tract or tracts of more than one acre, within the meaning of 10 V.S.A. {
 6001(3).

      Appellant petitioned the Environmental Board for a declaratory ruling
 on the issue, arguing that only the acreage of the 1978 lot on which the
 garage was constructed should be considered in determining jurisdiction, not
 the 1967 adjacent parcel, leaving the project in compliance with the
 statute.  The Board disagreed.  Citing the definition of "development" in
 Environmental Board Rule 2(A)(2), and relying on an earlier declaratory
 ruling, the Board concluded that a permit was required because appellant's
 land was a single tract for purposes of 10 V.S.A. { 6001(3).

      Appellant's first argument, that the Environmental Board exceeded its
 powers in promulgating Rule 2(A)(2), must be rejected in light of In re
 Spencer, 152 Vt. 330, 336, 566 A.2d 959, 962 (1989), where we held that the
 Legislature ratified and validated "all Board rules relating to the
 administration of Act 250 . . . "  The rule at issue in Spencer was Rule
 2(A)(6), but there is no dispute that Rule 2(A)(2) was subject to precisely
 the same ratification and is valid for the reasons set forth in that case.

      Next, appellant argues, in effect, that the Board misconstrued its own
 regulation in failing to consider whether his two parcels were "involved
 land" under Rule 2(A)(2), suggesting that if the larger parcel was not
 "involved" in the garage construction, its mere contiguity to the parcel on
 which the garage was located would not trigger Act 250 jurisdiction.
 Reading the Rule as a whole, the Board was reasonable in determining that
 two contiguous parcels were a "tract" within the meaning of the phrase
 "tract or tracts of land of more than one acre owned or controlled by a
 person."  We defer to the Board in its interpretation of Act 250 and the
 Board's rules.  See In re Quechee Lakes Corp., 154 Vt. 543, 549, 580 A.2d 957, 961 (1990).

      The only place the phrase "involved land" is found in Rule 2(A)(2) is
 in a clause relating to the measurement of the land area of the tract or
 tracts referred to earlier in the Rule.  There is no support in the text of
 the Rule for a requirement of "involvement" in the sense of a functional
 relationship between two contiguous parcels of land in common ownership,
 where commercial construction has commenced on one of the parcels.  Board
 Rule 2(F)(1), defining "involved land," omits the criterion of a functional
 relationship between contiguous parcels of land.

      Affirmed.

                                    BY THE COURT:



                                    _______________________________________
                                    Frederic W. Allen, Chief Justice

                                    _______________________________________
                                    Ernest W. Gibson III, Associate Justice

                                    _______________________________________
                                    John A. Dooley, Associate Justice

                                    _______________________________________
                                    James L. Morse, Associate Justice

                                    _______________________________________
                                    Denise R. Johnson, Associate Justice