In re Estate of Swinington

In re Estate of Swinington (98-098); 169 Vt. 583; 733 A.2d 62

[Filed 18-May-1999]

                                 ENTRY ORDER

                       SUPREME COURT DOCKET NO. 98-098

                             JANUARY TERM, 1999


In re Estate of John A. Swinington	       }	APPEALED FROM:
                                               }
                                               }
    	                                       }	Environmental Board
                                               }	
                                               }
                                               }	DOCKET NO. 9A0192-4-EB	


             In the above-entitled cause, the Clerk will enter:


       Talon Hill Gun Club, Inc., a co-permittee under a 1990 Act 250 permit,
  appeals from an  Environmental Board order denying it party status in a
  permit proceeding subsequent to Talon  Hill's bankruptcy and the death of
  the other co-permittee, John A. Swinington.  We affirm.

       In September 1990, the District 9 Environmental Commission issued a
  land use permit to Talon  Hill and John Swinington as co-permittees.  The
  permit applied to land in Leicester owned in fee  simple by Swinington,
  subject to a lease held by Talon Hill.  The permit authorized Swinington 
  and Talon Hill to construct, operate and maintain a skeet and trap shooting
  facility, with an  attendant access road. 

       Between 1990 and 1996, the initial permit was amended several times to
  allow changes in the  operation of the shooting range and to extend
  construction deadline dates.  In January 1996, the  Commission granted an
  extension of the construction completion date to November 1, 1997. 

       In February 1997, John Swinington died.  Then in September 1997, the
  United States Bankruptcy  Court in Vermont terminated the lease between
  Swinington's estate and Talon Hill, granting  immediate possession of the
  subject property to the estate.  On October 6, 1997, the estate advised 
  the Commission of the bankruptcy court's order terminating Talon Hill's
  lease and asked the  Commission to grant a further extension of the
  construction completion deadline for the project.
  
       On October 9, 1997, the Commission notified Talon Hill that it was
  granting the estate's request,  and on October 28, 1997, Talon Hill filed
  written comments with the Commission objecting to  the extension and
  requesting a hearing.  Talon Hill's primary assertion in the comment was
  that  corporate entity Talon Hill, not the landowner, had the right to
  construct and 

 

  operate the subject gun club.  Talon Hill stated that it was seeking an
  alternative location to  operate a gun club, and argued that it had a
  property interest in the name and the concept of Talon  Hill Gun Club, Inc. 
  The Commission reviewed the comments submitted but declined to conduct  a
  hearing with respect to the extension request because substantive issues
  had not been raised. 
 
       On November 19, 1997, the Commission issued a land use permit to the
  Swinington estate,  authorizing the extension of the construction
  completion date of the access road to November 1,  1999.  Talon Hill was
  not included as a co-permittee on this permit.  Talon Hill then appealed to 
  the Board pursuant to 10 V.S.A. § 6089(a), alleging that the Commission had
  not considered  substantive issues raised by Talon Hill and had failed to
  hold the requested hearing.(FN1)   

       The chair of the Environmental Board convened a pre-hearing conference
  and indicated that she  would decide the preliminary issue of Talon Hill's
  standing to bring the appeal based on certain  noticed documents and Talon
  Hill's pleadings.  Talon Hill articulated its position on this question  as
  follows: it was the principal co-permittee for the skeet and trap facility
  authorized in the land  use permit and all succeeding amendments and
  therefore possessed all rights under those permits,  even though it no
  longer held a lease in the Swinington real property and even though permits
  are  not transferrable to another tract of land.  The Swinington estate's
  representative argued that  Talon Hill did not have party status to bring
  an appeal as the permit at issue "runs with the land"  and Talon Hill's
  leasehold interest in the Swinington land was terminated with the
  bankruptcy  court order.  

       On February 9, 1998, the Chair ruled preliminarily that Talon Hill
  lacked standing under  Environmental Board Rule 14(A)(1) or (2) and
  conditionally dismissed the appeal.  A provision  of the preliminary ruling
  stated that, if the parties did not submit written objections to the 
  preliminary ruling by February 24 and seek review by the full Board
  pursuant to Environmental  Board Rule 16(B), then the appeal would be
  dismissed and jurisdiction would return to the District  Commission. 
  Neither Talon Hill nor Swinington filed objections by the February 24
  deadline.  Talon Hill appeals from the preliminary ruling.

       Talon Hill asserts that the Environmental Board chair erred in
  deciding Talon Hill lacked  standing, in denying its request for a full
  Board hearing on the issue of standing, and in failing  to reach the
  merits.  The chair framed the issue of standing as follows.

 

     The question then is whether, once having received a land use permit, 
     [Talon Hill] continues to have the requisite property interest to bring
     an appeal to the Board under Environmental Board Rule 14(A)(1) or (2), 
     even though its leasehold interest in the land has been terminated.

       The chair of the Board ruled that, "a permittee or co-permittee's
  interest in a land use permit is  divested at the time it voluntarily or
  involuntarily transfers its interests in the real property that  is the
  subject of the permit." On appeal, Talon Hill offers no rationale for
  overturning the chair's  determination on the underlying question of its
  standing.

       The chair of the Board followed sound practice in first determining
  the issue of Talon Hill's  standing to bring the matter before expending
  the full Board's time and resources on a hearing.  See, e.g., Whitaker v.
  Frito-Lay, 88 F.3d 952, 959 n.13 ("[b]ecause the standing question goes  to
  the court's jurisdiction, it is a threshold question that must normally be
  reviewed prior to the  consideration of substantive questions") (11th Cir.
  1996) (citing Linda R.S. v. Richard D., 410 U.S. 614, 616, (1973)).  Talon
  Hill's interest in the permit was at all times contingent upon its  rights
  in the land subject to the permit, and that interest was defeasible upon
  loss of those rights,  which occurred in this case upon the judgment of the
  bankruptcy court.  When Talon Hill lost its  lease on the Swinington
  property through the bankruptcy proceedings, it lost the only interest that 
  it had in the land and in the related land use permit.  Talon Hill thus had
  no standing to appeal  the Commission's grant of the permit amendment to
  the Swinington estate.  See Hinesburg Sand  & Gravel Co., Inc., v. State,
  166 Vt. 337, 341, 693 A.2d 1045, 1048 (1997); In re Great E.  Bldg. Co.,
  Inc., 132 Vt. 610, 613, 326 A.2d 152, 154 (1974) (Environmental Board
  correctly  ruled that party failing to assert "palpable legal injury"
  lacked standing).  Further, the chair's  ruling is consistent with the
  statutory scheme, see, e.g.10 V.S.A. § 6090 (requiring recording of  permit
  in land records and analogizing permittee to grantor), and rules governing
  Act 250, which  provide that land use permits "run with the land" rather
  than exist as licenses personal to the  licensees, see Environmental Board
  Rules 32(B), 33(C)(3), 6 Code of Vermont Rules 12003001,  at 27, 29 (1996). 
  The ruling is without error.   

       On appeal, Talon Hill focuses on the Board's failure to hold a merits
  hearing regarding the issues  it raised.  Finding that Talon Hill lacked
  standing, the chair then had no cause to evaluate the  claims that Talon
  Hill articulated in its comment to the District Commission and in its
  arguments  at the pre-hearing conference concerning its alleged property
  interest in the name and concept of  Talon Hill Gun Club, Inc.  "As a
  public administrative body, the Board has only that adjudicatory  authority
  conferred on it by statute."  In re Boocock, 150 Vt. 422, 424, 553 A.2d 572, 574  (1988).  As the chair noted, the Board's jurisdiction is limited
  to construction and application of  Act 250 and Environmental Board Rules. 
  Adjudication of property rights arising from contract  or secured by
  trademark or corporate law is not within the purview of the Board.  See
  Trybulski  v. Bellows Falls Hydro-Elec. Corp., 112 Vt. 1, 9, 20 A.2d 117,
  121 (1941).    

       The question in this appeal is not what rights the estate may have in
  the permit; the


 

  question is whether the loss of the lease deprives Talon Hill of a
  cognizable interest in the permit.  The chair held that it does.  We agree.

       Talon Hill also complains that the hearing question was not
  subsequently heard on appeal by the  Board after the preliminary decision
  by its chair.  Talon Hill could have perfected an appeal on  the hearing
  question had it taken advantage of Environmental Board Rule 16(B) and filed
  timely  objections to the chair's preliminary order.  It did not do so.

       Affirmed.




                                       BY THE COURT:



                                       _______________________________________
                                       Jeffrey L. Amestoy, Chief Justice

                                       _______________________________________
                                       John A. Dooley, Associate Justice

                                       _______________________________________
                                       James L. Morse, Associate Justice
  
                                       _______________________________________
                                       Denise R. Johnson, Associate Justice

                                       _______________________________________
                                       Marilyn S. Skoglund, Associate Justice


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                                  Footnotes

FN1.  Although Talon Hill asserts that the District Commission erred in
  refusing to grant its  request for a hearing on Swinington's application
  for the permit amendment, Talon Hill does not  brief the issue.  We will
  not search the record for error, see Cliche v. Fair, 145 Vt. 258, 260 n.*, 
  487 A.2d 145, 147 n.* (1984), and we therefore do not address the issue in
  our decision.  We  note that Environmental Board Rule 51(D) gives the
  District Commission the authority to issue  a minor permit without a
  hearing, despite a request for one, if the Commission determines 
  substantive issues have not been raised.