Bryant v. Town of Essex, 87-030

• Decision Date: 23 June 1989
• Docket Number: No. 87-030,87-030
• Citation: 564 A.2d 1052,152 Vt. 29
• Parties: Thomas W. BRYANT and John P. Skinner v. TOWN OF ESSEX.
• Court: Vermont Supreme Court

Page 1052

564 A.2d 1052

152 Vt. 29

Thomas W. BRYANT and John P. Skinner v. TOWN OF ESSEX.

No. 87-030.

Supreme Court of Vermont.

June 23, 1989.

Robert P. Davison, Jr., P.C., Stowe, for plaintiffs-appellants.

Perry & Schmucker, South Burlington, for defendant-appellee.

Before ALLEN, C.J., PECK, GIBSON and MAHADY, JJ., and KEYSER, J. (Ret.), Specially Assigned.

ALLEN, Chief Justice.

Plaintiffs brought this action to compel the Town of Essex and its manager to allocate 144 sewer units to their planned single-family subdivision, "Essex Meadows," to enjoin the Town from allocating sewer units to two competing residential projects, and to declare the Town's Sewer Allocation Policy to be void. The case was heard on an agreed set of facts, plaintiffs were denied relief, and they appeal from the trial court's order. We affirm the denial of the requested relief.

The trial court found that rapid development in Essex and the surrounding area in recent years had severely strained the capacity of then-existing sewage disposal facilities. To alleviate the situation, Essex and two of its neighboring municipalities obtained federal funding for a new sewage disposal and treatment system, the additional capacity of which was divided among the three municipalities. Essex acquired a treatment capacity of 1,000,000 gallons per day (g.p.d.).

The Agency of Environmental Conservation determined that, with full utilization of the new system by all three towns, the Winooski River, at the place of discharge, would be at its "assimilative capacity." A costly tertiary treatment system would have to be added to further increase sewage disposal capacity. Without such an additional system, the facility as now constructed would define the limits of available sewage removal for Essex for the foreseeable future.

As a prerequisite to receiving federal funds, Essex was required to analyze the project's effects on population density, on patterns of land use and on increased growth at a faster rate than that planned by the existing community, and to identify techniques for mitigating adverse effects through phasing of sewer use. After conducting the required analysis, Essex incorporated its findings into a Sewer Allocation Policy ("the Policy"), directed at allocating use of the new resource over a twenty-year period, which was adopted by the Board of Selectmen on March 1, 1985.

The stated purposes of the Policy are to provide an orderly, planned rate of demand increase during the twenty-year life of the system providing for future needs and modifications, to preclude acquiring or hoarding of sewer allocations to enhance property values, and to preclude tangential spurs of development away from the primary sewer core area resulting in unusual demands on the sewer system, pumps, storage wells and other mechanisms. The parties agreed at trial that the Policy is, and is intended to be, an instrument for the control of growth and population densities in the sewer core area of Essex.

The Policy first estimates existing initial use at 240,000 g.p.d., and sets aside an additional 235,000 g.p.d. to serve existing structures located in the sewer core area but not initially connected to the sewer system. The remaining capacity (525,000 g.p.d.) is preserved for future development within the sewer core area, as the Policy precludes extensions of the sewer system beyond the sewer core area. The Policy divides the capacity reserved for future development into twenty equal parts to be phased into use at a rate of one part per year over the twenty-year period after its enactment. The Policy contemplates that the town administration will provide sewer allocations through the usual permit process, and will advise the Planning Commission of sewer availability so that it may perform its function of phasing in new construction.

The Policy requires that sixty percent of the capacity reserved for future growth be used only for commercial/industrial projects or housing for senior citizens. The remaining forty percent is reserved for residential growth and is further allocated by geographic area. The Policy provides that allocations will be withdrawn, for reallocation, from projects which are not commenced within two years of receiving their initial allocation.

The dispute reflected in this case arose due to the way in which sewer capacity was allocated to three competing residential projects within the sewer core area of the Town of Essex, one of which was plaintiffs' proposed 144-lot single-family residential subdivision known as "Essex Meadows." The other two projects were a multi-family condominium project developed by Ann Harroun and Daniel Close known as "Old Stage Village" and a single-family residential subdivision project developed by Forestdale Heights, Inc. and North Country Builders known as "Forestdale Heights."

The Forestdale Heights project had been granted permission to carry-over some unused but already allocated sewer units in 1985. In April, 1986, the Policy was revised to preclude this sort of carryover or stockpiling of allocated units, but the amendment was not applied retroactively to the Forestdale Heights project.

On May 19, 1986, the Board of Selectmen sitting as a Zoning Board of Adjustment gave the Harroun/Close project "conditional use approval" as a planned residential development. The Harroun/Close project applied for allocation of ninety multi-family sewer units on May 28, 1986. At the May 29, 1986 meeting of the Town of Essex Planning Commission, plaintiffs were granted "sketch plan approval," which is a prerequisite under the terms of the Policy for applying for sewer unit allocations. A project such as the Harroun/Close project, which does not involve the subdivision of land into separate lots, does not, under the zoning and subdivision regulations, ever require so-called "sketch plan approval." Plaintiffs applied for 144 single-family sewer units on May 30, 1986.

The Town Manager, pursuant to the Policy, addressed the Harroun/Close application first, because it had come in first, and treated the conditional use approval that project had received from the Zoning Board of Adjustment as the functional equivalent of the "sketch plan approval" required by the Policy. The Town Manager granted the Harroun/Close project conditional sewer allocation for ninety multi-family sewer units.

On August 14, 1986, the Town Manager wrote to plaintiffs stating that he had "previously advised" them that based on the Policy he did not "anticipate sewer allocations being available for their project prior to July 1, 1989." His report of the same date to the Board of Selectmen, the Planning Commission and interested parties showed plaintiffs' project to be allocated nine sewer units a year for five successive years beginning in 1989. The record is silent as to any formal or other official action on the part of the Town Manager regarding plaintiffs' application for sewer allocations.

On September 11, 1986, plaintiffs commenced the action which is the subject of this appeal, naming as defendants the Town, the Town Manager, and the developers of the two competing projects. The complaint sought an order that the Town and the Town Manager allocate 144 sewer units to plaintiffs' project over a seven-year period, a declaration that the Sewer Allocation Policy is void, an order that defendants be enjoined from allocating the disputed units to the Harroun/Close or the Forestdale projects, and included a request that the deadline for preliminary approval of plaintiffs' project be extended during the pendency of the action. In October, 1986, based on the agreement of the parties, the trial court dismissed with prejudice the developers of the two other projects.

The trial court rejected plaintiffs' assertion that municipalities in Vermont may use only zoning ordinances to control future growth and density of population, and concluded that the statutory authority of 24 V.S.A. § 4401(b) to regulate density of population and intensity of use did not restrict towns to exercising such control only through zoning. The trial court found the Policy to be within the values and goals of the Vermont Planning and Development Act (VPDA), 24 V.S.A. §§ 4301-4495, and concluded that nothing in the statutory provisions governing the operation of sewers, 24 V.S.A. §§ 3401-3615, invalidates the use of the Policy to control growth. The trial court also concluded that the Policy constitutes neither an impermissible taking of plaintiffs' property nor a denial of plaintiffs' equal protection rights under the state or federal constitutions, and found that the Town's implementation of it did not amount to discriminatory enforcement.

On appeal, plaintiffs make a variety of arguments in challenging the validity of the sewer allocations at issue in this case. First, plaintiffs argue that the Policy, because it controls "the growth of population densities," is an exercise of zoning power unlawfully bypassing the procedures mandated by 24 V.S.A. ch. 117. They argue that the Policy as applied to them is unconstitutional, first as a "taking" and second as violating the principles of equal protection and due process. They argue that the allocations to the two competing projects were improperly made by the Town Manager rather than by the Board of Selectmen. And finally, they argue that § 416 of the Town of Essex Subdivision Regulations, requiring subdividers to connect to the public sewer system in certain instances, obligates the Town to provide sewage disposal capacity.

I.

Plaintiffs first argue that the Sewer Allocation Policy is void as an unlawful exercise of zoning power by the Town of Essex. They rely on the stipulated fact that the Policy "is, and is intended to be, an instrument for the control of growth and population densities in the sewer core area of Essex," and point to five characteristics of the Policy which, they argue, amount to the regulation and control...