In re JLD Properties of St. Albans, LLC
| Decision Date | 05 August 2011 |
| Docket Number | No. 2010-097,2010-097 |
| Court | Vermont Supreme Court |
| Parties | In re JLD Properties of St. Albans, LLC |
NOTICE: This opinion is subject to motions for reargument under V.R.A.P. 40 as well as formal revision before publication in the Vermont Reports. Readers are requested to notify the Reporter of Decisions, Vermont Supreme Court, 109 State Street, Montpelier, Vermont 05609-0801 of any errors in order that corrections may be made before this opinion goes to press.
Jon Groveman and Jared M. Margolis, Vermont Natural Resources Council, Montpelier, for Appellants.
Stewart McConaughy, Robert F. O'Neill and Ross A. Feldmann of Gravel and Shea, Burlington, for Appellee JLD Properties of St. Albans, LLC.
David A. Barra of Unsworth & Barra, PLC, Essex Junction, for Appellee Town of St. Albans.
PRESENT: Reiber, C.J., Dooley, Johnson, Skoglund and Burgess, JJ.
¶ 1. This is an appeal from an Environmental Court decision granting site plan, conditional use, subdivision, and Act 250 permits for the development of a large retail Wal-Mart store in the Town of St. Albans. Appellants are comprised of a number of interested individuals and groups opposed to the project. They contend the trial court erred in: (1) approving site plan and conditional use permits despite the alleged conflict of interest of several members of the Town's development review board; (2) finding that the subdivision is compatible with adjacent land uses; and (3) concluding that the developer may reapply for an Act 250 permit despite an earlier denial. We affirm.
¶ 2. This is the latest skirmish in a long-running dispute over plans to develop a Wal-Mart discount retail store on an undeveloped 100-acre parcel adjacent to Route 7 just north of the City of St. Albans and south of the boundary with the Town of Swanton. In September 1993, the St. Albans Group—the project's original developer—applied for an Act 250 permit to build a proposed 126,090 square-foot Wal-Mart store on the site. The District No. 6 Environmental Commission granted the permit but the Environmental Board reversed, concluding that the proposal failed to meet several review criteria. The Board authorized reconsideration of the application, however, if the developer provided "a credible study of secondary growth impacts." In re Wal*Mart Stores, Inc., 167 Vt. 75, 79, 702 A.22d 397, 400 (1997). Rather than apply for reconsideration, the developer chose to appeal. We affirmed, upholding the Board's finding that the proposed store would "accelerate and attract substantial secondary growth" under 10 V.S.A. § 6086(a)(9)(A) (Criterion 9(A))1 and thus required additional evidence of "expected secondary growth and its associated costs and benefits to determine whether the project would cause an undue burden on the financial capacity of the town and region." Id. at 83, 702 A.2d at 402. We also affirmed the Board's conclusion that the term "growth" under Criterion 9(A) includes not only population but also economic and commercial growth. Id. at 85, 702 A.2d at 404.
¶ 3. In December 2005, some eight years after our decision and twelve years after the initial application, the original developer's successor-in-interest, appellee JLD Properties, filed a new Act 250 permit application to build a larger Wal-Mart store (about 147,000 square feet) on the same site. At roughly the same time, JLD applied to the Town's development review board (DRB) for site plan, conditional use, and subdivision permits for the project. The DRB granted the zoning permits in April 2008. The District Commission approved the Act 250 application the following month. All of the permits were subsequently appealed to the Environmental Court and consolidated for review.
¶ 4. The Environmental Court issued a decision in March 2009, disposing of a several pre-trial motions. The court rejected appellants' claim that the doctrine of res judicata barred the new Act 250 application. The court ruled, instead, that the successive-application doctrine controlled, but deferred deciding the matter until disputed factual issues were resolved at trial. The court also addressed appellants' claim that conflicts of interest among several DRB members required that the case be remanded for a new hearing. The court found that appellants had "good reasons to be concerned that the DRB chair did not review the Wal-Mart application objectively." Nevertheless, it concluded that, "egregious as [his] statements were," the proper course was to "complete [the court's] de novo review of the pending applications." The court also rejected appellants' claim that five other DRB members were biased "simply because they [had] voted in favor of an earlier application."
¶ 5. An evidentiary hearing was conducted over several days in June 2009. Following the submission of additional briefing, the court issued its decision in January 2010, approving the project with conditions. In response to appellants' motion to alter, the court issued a revised judgment in May 2010, amending several of its earlier findings but not its decision granting approval. This appeal followed.
¶ 6. We begin with the conflict-of-interest claim. It is beyond dispute that "[a] fair trial before an impartial decisionmaker is a basic requirement of due process, applicable to administrative agencies as well as to the courts." Sec'y, Agency of Natural Res. v. Upper Valley Reg'l Landfill Corp., 167 Vt. 228, 234-35, 705 A.2d 1001, 1005 (1997). Municipal zoning hearings, "like any quasi-judicial administrative proceedings, must faithfully observe the rudiments of fair play." In re Bassette, 147 Vt. 359, 362, 518 A.2d 15, 16 (1986) (quotation omitted). Thus, it is settled that "due process demands impartiality on the part of those who function in judicial or quasi-judicial capacities." Schweiker v. McClure, 456 U.S. 188, 195 (1982); see, e.g., Rissler v. Jefferson Cnty. Bd. of Zoning Appeals, 693 S.E.2d 321, 329 (W.Va. 2010) ().
¶ 7. It is equally settled that "[a]ll questions" regarding a decisionmaker's impartiality do not necessarily "involve [issues of] constitutional validity." Tumey v. Ohio, 273 U.S. 510, 523 (1927); see also Fed. Trade Comm'n v. Cement Inst., 333 U.S. 683, 702 (1948) (). Indeed, as the United States Supreme Court has observed, opinions formed by a decisionmaker "on the basis of facts introduced or events occurring in the course . . . of prior proceedings . . . do not constitute a basis" for disqualification "unless they display a deep-seated favoritism or antagonism that would make fair judgment impossible." Liteky v. United States, 510 U.S. 540, 555 (1994); see also Hortonville Joint Sch. Dist. No. 1 v. Hortonville Educ. Ass'n, 426 U.S. 482, 493 (1976) (). Nor is an administrative decisionmaker necessarily disqualified as a matter of law even where he or she "has taken a position . . . in public, on a policy issue related to the dispute, in the absence of a showing that he [or she] is not capable of judging a particular controversy fairly on the basis of its own circumstances." Hortonville, 426 U.S. at 493 (quotation omitted).
¶ 8. Although the disqualification standards are thus generous, and the decisionmaker enjoys a presumption of impartiality, Ball v. Melsur Corp., 161 Vt. 35, 39, 633 A.2d 705, 709 (1993), the conclusion is unavoidable here that—at a minimum—the appearance of fairness was compromised by the participation of the DRB chair. At the time of the original Wal-Mart application, the chair was a member of the Town's selectboard, vigorously supported the project, and spoke on behalf of himself and the board at the DRB hearings. As noted, such public support would not be a conflict of interest per se. The chair's remarks, however, ventured beyond the merits of the issue into an ad hominem attack on appellant Vermont Natural Resources Council (VNRC), one of the interested parties that then, as now, opposed the project. He referred to the VNRC as the "sister agency of the infamous Conservation Law Foundation" and denigrated the group as intermeddling outsiders, asserting that it "needs a map to find Northwestern Vermont" and was comprised of "a bunch of elitists with nothing invested in the community." Later, in criticizing a report of the Northwest Regional Planning Commission (NRPC) that raised concerns about the project, he was quoted as stating that it was "a sad day when NRPC now qualifies to be lumped together with the VNRC . . . and CLF . . . as an organization devoted to their personal ideals rather than to the realities of growth."
¶ 9. As noted, only in "the most extreme of cases" is disqualification for bias constitutionally required, Aetna Life Ins. Co. v. Lavoie, 475 U.S. 813, 821 (1986), but this was such a case. The chair's remarks about the VNRC evinced "a deep seated . . . antagonism that would make fair judgment impossible." Litecky, 510 U.S. at 555. He expressed open contempt for the group as outsiders and elitists, implying that they were illegitimate participants in the proceedings before the board. Under the circumstances, appellant VNRC could hardly expect a fair and impartial hearing from the DRB chair. We conclude that his participation violated due process.
¶ 10. The separate question of a remedy remains. The trial court concluded that a de novo hearing would cure any harm resulting from the DRB chair's participation, and we agree. Although the United States Supreme Court has recognized that there may be circumstances where de novo review is...
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