Committee to Save the Bishop's House, Inc. v. Medical Center Hospital of Vermont, Inc.

• Decision Date: 03 April 1979
• Docket Number: No. 264-78,264-78
• Citation: 137 Vt. 142,400 A.2d 1015
• Court: Vermont Supreme Court
• Parties: COMMITTEE TO SAVE THE BISHOP'S HOUSE, INC., Committee to Save the Bishop's House, Sigma Nu Fraternity and Thomas Sachs, Vermont Environmental Board, Intervenor v. MEDICAL CENTER HOSPITAL OF VERMONT, INC.

Page 1015

400 A.2d 1015

137 Vt. 142

COMMITTEE TO SAVE THE BISHOP'S HOUSE, INC., Committee to

Save the Bishop's House, Sigma Nu Fraternity and

Thomas Sachs, Vermont Environmental

Board, Intervenor v. MEDICAL CENTER HOSPITAL OF VERMONT, INC.

No. 264-78.

Supreme Court of Vermont.

April 3, 1979.

H. Thomas Andersen of Hoff, Wilson, Jenkins & Powell, Burlington, for plaintiffs.

M. Jerome Diamond, Atty. Gen., and Benson D. Scotch, Asst. Atty. Gen., Montpelier, for intervenor.

Spencer R. Knapp, of Dinse, Allen & Erdmann, Burlington, for defendant.

Before BARNEY, C. J., and DALEY, LARROW, BILLINGS and HILL, JJ.

BILLINGS, Justice.

Medical Center Hospital of Vermont, Inc. (the Hospital) appeals from an order of the Chittenden Superior Court enjoining the demolition or dismantling of the building at 52 South Williams Street in the City of Burlington, known as the Bishop's House, and enjoining any related work directed toward the construction of a parking lot on the premises, until the Hospital obtains a permit authorizing such acts pursuant to 10 V.S.A. §§ 6001-6091, Vermont's Act 250. We conclude that the Hospital's proposal to raze the Bishop's House and construct a parking lot in its place does not fall within the terms of Act 250, and dissolve the injunction.

Act 250 is to be distinguished from the bulk of traditional zoning and subdivision legislation, which is merely state enabling legislation permitting regulation of land use on a local or regional level. See 24 V.S.A. §§ 4401-4493. Act 250 establishes a mechanism for review of certain land use activity at the state level. It supplements pre-existing legislation authorizing local zoning and subdivision control. Act 250 purports neither to reach all land use changes within the state, nor to supersede local land use control efforts. Thus, where local regulation is in effect, a person proposing to subdivide or develop might have to gain approval both at the local and the state levels, see 10 V.S.A. § 6082, or might need local approval only.

If a project is one that Act 250 subjects to state level review, it cannot go forward without a permit from a district environmental commission. 10 V.S.A. §§ 6026, 6081-6091. The district environmental commission must determine that a project will not result in undue or unreasonable adverse effects on a number of factors, set out in 10 V.S.A. § 6086, before it can issue a permit. These include water and air quality, soil stability, availability of educational services, availability of municipal or governmental services, and scenic and natural beauty. Significantly, the district commission must find that the project will not have an undue adverse effect on historic sites. 10 V.S.A. § 6086(a)(8).

Whether a district commission could or would make the findings required as a precondition to the issuance of a permit becomes irrelevant, however, if the project is one that Act 250 does not control. The preliminary point in each case, and the center of this controversy, is the determination of the district commission's jurisdiction to review the project.

The Hospital is the product of the merger, in 1967, of two previously independent hospitals, the Mary Fletcher Hospital and the DeGoesbriand Memorial Hospital, now called the Mary Fletcher Unit and the DeGoesbriand Unit. The Mary Fletcher Unit, consisting of hospital buildings, adjacent parking facilities, and lawns, occupies an area of 26.7 acres, all owned by the Hospital. The DeGoesbriand Unit, consisting of buildings, adjacent parking areas, lawns, and the Bishop's House lot, occupies an area of 5.9 acres. The two units occupy noncontiguous tracts, being separated by a distance of one-half mile at their nearest points. The Hospital acquired title to most of the presently existing parking area on the DeGoesbriand tract and to the Bishop's House lot only in March of 1977. The Bishop's House lot, comprising 1.44 acres, was bought so that the Hospital could expand its parking facilities. The Bishop's House is within a district included in the National Register of Historic Sites.

Subsequent to the purchase, the Hospital took preliminary steps to implement a plan to demolish the Bishop's House and construct a parking lot in its place by securing the necessary demolition permit from the City of Burlington, and the approvals of the City Planning Commission and the Historic Review Subcommittee of the Design Review Committee of the Burlington Planning Commission.

On October 17, 1977, when the Hospital was prepared to execute its plan, an action was commenced in superior court by the appellees, Committee to Save the Bishop's House (the Committee) and Sigma Nu Fraternity, to block demolition of the Bishop's House until the Hospital had obtained or been denied an Act 250 permit. The Committee alleged its interest in preserving the Bishop's House for its cultural, historic, architectural, and aesthetic value. These plaintiffs and the Committee's successor, the Committee to Save the Bishop's House, Inc., have stressed that "to demolish the Bishop's House would be to create a gaping hole in the cohesive streetscape of South Williams Street and to cause irreversible damage to the historic aspects of the street, the Historic Site District and the historic aspects of the city of Burlington." These allegations would be of relevance in any proceeding for a permit before the district environmental commission, but are irrelevant to the determination of the commission's jurisdiction over the project.

The Vermont Environmental Board was granted leave to intervene on October 21, 1977, and a temporary restraining order was filed by the court on the same day. A preliminary injunction issued on October 24, 1977, to remain in effect by its terms until the Hospital obtained either an Act 250 permit or a declaratory ruling that none was required from the district environmental commission or from the Vermont Environmental Board.

The Environmental Board held a hearing on the matter, and ruled that the Hospital was required to secure an Act 250 permit before demolishing the Bishop's House. The Hospital thereupon sought and obtained permission from the superior court to take an interlocutory appeal from the preliminary injunction order, V.R.A.P. 5(b)(1), and prosecuted appeals to this Court from that order and from the Environmental Board's declaratory ruling. The appeals were consolidated pursuant to a stipulation of the parties.

We vacated the declaratory ruling of the Environmental Board for procedural reasons, and dissolved the preliminary injunction on the grounds that the superior court had erred in waiving security without a showing of legally sufficient cause, V.R.C.P. 65(c), and in failing to determine itself whether Act 250 applied to the proposed demolition before granting what amounted to final injunctive relief. We remanded the cause to the superior court for further proceedings. Committee to Save the Bishop's House v. Medical Center Hospital of Vermont, Inc., 136 Vt. 213, 388 A.2d 827 (1978).

Upon remand, the private plaintiffs and the Environmental Board, by separate motions, sought preliminary injunctions in the cause. Hearing was held, and the superior court granted preliminary injunctive relief to the Vermont Environmental Board, without requiring security. The Environmental Board, as an agency of the State, is exempted from the requirement of furnishing security. V.R.C.P. 65(c). The court's order was supported by findings of fact and conclusions of law, wherein the court concluded that Act 250 applied to the Hospital's project. The court enjoined the proposed demolition and related activity until such time as an Act 250 permit had been obtained. The private plaintiffs' motion for a preliminary injunction was subsequently dismissed for failure to furnish security in the amount of $80,000 within a time specified.

On July 31, 1978, all parties stipulated to the decision of the case on the merits and entry of final judgment without further hearing. On August 11, 1978, the superior court entered an order adopting the findings and conclusions set forth in the preliminary injunction order of July 7, 1978, in a final decree and granting permanent injunctive relief.

The determination of this controversy turns on the construction to be given 10 V.S.A. § 6001(3), defining "development" for purposes of Act 250. If what the Hospital plans to do is "development" within Act 250, then the district environmental commission has jurisdiction to review the Hospital's plan in the light of the criteria contained in 10 V.S.A. § 6086, and either grant or deny a land use permit. 10 V.S.A. § 6081(a). If razing the Bishop's House and replacing it with a parking lot is not "development" as defined, then construction can proceed without any review or assessment under Act 250. The definition provides in full:

When used in this chapter:

(3) "Development" means the construction of improvements on a tract or tracts of land, owned or controlled by a person, involving more than 10 acres of land within a radius of five miles of any point on any involved land, for commercial or industrial purposes. "Development" shall also mean the construction of improvements for commercial or industrial purposes on more than one acre of land within a municipality which has not adopted permanent zoning and subdivision bylaws.

The word "development" shall mean the construction of housing projects such as cooperatives, condominiums, or dwellings, or construction or maintenance of mobile homes or trailer parks, with 10 or more units, constructed or maintained on a tract or tracts of land, owned or controlled by a person, within a radius of five miles of any point on any involved land. The word "development" shall not include construction for farming, logging or forestry purposes below the elevation of 2500 feet. The word "development" also means the construction of improvements on a tract of land involving more than 10...