Southview Associates, Ltd. v. Bongartz
| Decision Date | 30 October 1992 |
| Docket Number | No. 1640,D,1640 |
| Parties | , 23 Envtl. L. Rep. 20,132 SOUTHVIEW ASSOCIATES, LTD., and Southview at Stratton Partners, Plaintiffs-Appellants, v. Ferdinand BONGARTZ, Member, Vermont Environmental Board; Lixi Fortna, Member, Vermont Environmental Board; Arthur Gibb, Member, Vermont Environmental Board; Samuel Lloyd, Member, Vermont Environmental Board; William Martinez, Member, Vermont Environmental Board; Charles Storrow, Member, Vermont Environmental Board; Steve Wright, Member, Vermont Environmental Board; and Elizabeth Courtney, Chairman, Vermont Environmental Board, Defendants-Appellees. ocket 92-7209. |
| Court | U.S. Court of Appeals — Second Circuit |
Oakes, Chief Judge, issued opinion on merits of takings and substantive due process claims.
A. Jay Kenlan, Rutland, Vt. (Abell, Kenlan, Schweibert & Hall, of counsel), for plaintiffs-appellants.
Jeffrey L. Amestoy, Atty. Gen., Montpelier, Vt. , for defendants-appellees.
Before OAKES, Chief Judge, * McLAUGHLIN, Circuit Judge, and LAY, Senior Circuit Judge. **
This appeal requires us to decide whether the denial, pursuant to Vermont's land use statute, Act 250, 10 V.S.A. § 6001 et seq. (1984 & Supp.1991) ("Act 250"), of a permit in respect to a vacation home development in the Green Mountains, gives rise to valid claims for relief under the Fifth and Fourteenth Amendments. Appellants Southview Associates, Ltd. and Southview at Stratton Partners ("Southview") sued the Appellees, the individual members of the Vermont Environmental Board ("the Board"), under 42 U.S.C. § 1983 (1988). Southview claimed that the Board's denial of its application for an Act 250 development permit (1) deprived it of due process of law, (2) denied it equal protection of law, and (3) constituted a taking without just compensation. The United States District Court for the District of Vermont, Franklin S. Billings, Jr., Judge, granted the Board's motion to dismiss Southview's complaint, 782 F.Supp. 279, apparently pursuant to Fed.R.Civ.P. 12(b)(1) and 12(b)(6), and Southview now appeals. For the reasons set forth below, we affirm.
Act 250 has been a major feature of the Vermont legal landscape for over twenty years. Its enactment represented the culmination of an effort to create a process that would subject subdivisions and other large developments in Vermont to administrative review so as to ensure economic growth without environmental catastrophe. See Governor's Commission on Environmental Control, Reports to Governor 2 (January 1970; May 1970). A brief discussion of the backdrop to the statute's enactment underscores its purpose.
Beginning in the mid-1960s, Vermont experienced a massive increase in second-home construction and other recreational development, particularly in the southern portion of the state and around ski areas. Robert K. Reis, Vermont's Act 250: Reflections on the First Decade and Recommendations for the Second 9 (1980); David G. Heeter, Almost Getting it Together in Vermont, in Environmental and Land Controls Legislation 323, 326 (David R. Mandelker ed. 1976); Fred Bosselman & David Callies, The Quiet Revolution in Land Use Control 54 (1971) (prepared for the Executive Office of the President, Council on Environmental Quality); Erickson, The Vermont Environmental Protection Act of 1970, in Environmental Protection 678, 679 . These developments shifted economic activity away from agriculture and forestry--the traditional mainstays of the region. Erickson, supra, at 679. The Town of Dover, located in Southern Vermont, provides an example. As one writer explained, in Dover, in 1969, developers were completing, building or planning 19 vacation home subdivisions. According to a regional planner, if all the planned lots had been improved and occupied, the town's population would have increased from 370 to 16,000 within a few years. Id.
This spate of development was fueled by several factors, including the construction of interstate highways, the increased popularity of skiing and other outdoor activities, and what might be termed America's fascination with "the country life." See Reis, supra, at 9. Although the development yielded considerable tax revenue and increased property values, at times it threatened to destroy the very base of its existence: Vermont's relatively unspoiled environment. Poorly planned vacation home subdivisions in mountainous areas--typified by steep slopes and thin soil cover--caused soil erosion, water pollution from sewage systems, and a decline in the aesthetic quality of the land. Erickson, supra, at 680; Bosselman & Callies, supra, at 54-55; Heeter, supra, at 327. Public concern over the side-effects of this new and rapid growth reached the high water mark when, in the summer of 1968, the International Paper Company proposed to construct a huge recreational and vacation home development on 20,000 acres of wilderness in the towns of Stratton and Winhall. Governor's Commission on Environmental Control, supra, at 3; Bosselman & Callies, supra, at 54; Heeter, supra, at 328.
In May of 1969, then Governor Dean C. Davis responded by creating the Governor's Commission on Environmental Control. Governor Davis charged the Commission with determining how economic growth could be attained without environmental destruction. Heeter, supra, at 329 (). The Commission's recommendations included the enactment of a land use law that would require large developments, including subdivisions, to undergo administrative review prior to construction. Governor's Commission on Environmental Control, supra, at 3-4. This proposal formed the basis of Act 250, enacted by the Legislature in 1970.
Not all development projects are subject to Act 250 review. Essentially, an Act 250 permit is required if a person wishes to construct (1) improvements on a parcel or parcels involving more than ten acres located within a radius of five miles; (2) housing projects with 10 or more units located on land owned or controlled by that person within a radius of 5 miles; (3) a subdivision partitioned for resale into ten or more lots within a radius of 5 miles; and (4) improvements above the elevation of 2500 feet. No permit is necessary for construction required for farming, logging or forestry purposes below the elevation of 2500 feet. 10 V.S.A. §§ 6001, 6081(a) (1984 & Supp.1991).
A person whose project is subject to Act 250 jurisdiction must file an application with the regional three-person district commission. 10 V.S.A. §§ 6026, 6083 (1984 & Supp.1991). The district commission evaluates the project according to ten criteria relating to: (1) water and air pollution that will result; (2) availability of water to meet the project's needs; (3) the project's burden on the existing water supply; (4) soil erosion that will result; (5) the project's effect on congestion and safety of transportation routes; (6) the burden the project will place on municipal and local government provision of educational and other services; (7) whether the project will have an undue adverse effect on "the scenic or natural beauty of the area, aesthetics, historic sites or rare and irreplaceable natural areas"; and (8) whether the project conforms with various state, regional and local development plans. 10 V.S.A. § 6086 (1984 & Supp.1991). If the district commission grants the application for a permit, it may attach conditions to it to assure compliance with the criteria for permit issuance. 10 V.S.A. § 6086(c) (1984).
A permit applicant may appeal the decision of the district commission to the nine-member Vermont Environmental Board. 10 V.S.A. §§ 6021(a), 6089(a) (1984 & Supp.1991). The Board reviews challenged findings de novo. 10 V.S.A. § 6089(a) (Supp.1991). The permit applicant may, in turn, appeal the Board's decision to the Supreme Court of Vermont, 10 V.S.A. § 6089(b) (Supp.1991), which will uphold the Board's findings of fact "if supported by substantial evidence in the record as a whole." 10 V.S.A. § 6089(c) (Supp.1991); see In re Southview Associates, 153 Vt. 171, 177, 569 A.2d 501, 504 (1989).
The Vermont Legislature accompanied the enactment of Act 250 with a statement of legislative intent, which provides, in part:
[T]he unplanned, uncoordinated and uncontrolled use of the lands and the environment of the state of Vermont has resulted in usages of the lands and the environment which may be destructive to the environment and which are not suitable to the demands and needs of the people of the state of Vermont.....
....
... it is necessary to regulate and control the utilization and usages of lands and the environment to ensure that, hereafter, the only usages which will be permitted are not unduly detrimental to the environment, [and] will promote the general welfare through orderly growth and development...."
Findings and declaration of intent, 1969, No. 250 (Adj.Sess.), § 1, in 10 V.S.A. annotations following § 6001 (1984). Subsequently, in 1973, the legislature further clarified the purpose of the act by adopting a "Capability and Development Plan" to guide the implementation of Act 250. 1973 Capability and development plan; statement of intent and findings, 1973 No. 85, § 7, in 10 V.S.A. annotations following § 6042 (1984). See Norman Williams & Tammara Van Ryn-Lincoln, The Aesthetic Criterion in Vermont's Environmental Law, 3 Hofstra Prop.L.J. 89, 94-95 (1990). The plan states, in relevant part:
(2) Utilization of Natural Resources
[C]onservation of the recreational opportunity afforded by the state's hills, forests, streams and lakes ... are matters of public good. Uses which threaten or significantly inhibit these resources...
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