Petition of St. George
| Decision Date | 01 February 1966 |
| Docket Number | No. 1949,1949 |
| Parties | Petition of Alma ST. GEORGE, Edmond J. and Laura M. Marcotte, Charles and Betty Barnes, Fred and Doris Richmond. |
| Court | Vermont Supreme Court |
Latham & Eastman, Burlington, for petitioners.
Francis R. Peisch, Burlington, for Town of Charlotte. Wick, Dinse & Allen, Burlington, for Town of Shelburne.
Before HOLDEN, C. J., and SHANGRAW, BARNEY and KEYSER, JJ.
The selectmen of the Town of Charlotte on April 5th, 1965, acting under the municipal corporation law, granted permission to the Town of Shelburne to operate 'a sanitary landfill' in East Charlotte. The petitioners alleged they are 'landowners in the East Charlotte area adjacent to the dump and state that this dump constitutes a nuisance.' They contend that permission was granted to the licensee by the selectmen of Charlotte without a hearing on the question of whether the operation would constitute a nuisance and without affording the petitioners an opportunity to be heard on that issue.
The complainants first applied to the court of chancery for Chittenden County for a writ of certiorari. That proceeding was dismissed. We affirmed the dismissal at the December Term, 1965. St. George et al. v. Larson et al., 125 Vt. ----, 215 A.2d 511. They now present a petition for a writ of certiorari invoking our original jurisdiction. The petition asserts the right to be heard on the issue of the license. They challenge the validity of the action taken by the board of selectmen of Charlotte. The prayer of the petition asks this Court to reverse the decision of the selectmen and order them to hold a hearing prior to the issuance of a permit to operate a dump at East Charlotte.
The minutes of the meeting of the selectmen presented to the Court set forth:
'A meeting of the Selectmen for the Town of Charlotte was held in the Town of Shelburne on April 4, 1965 at 4:00 P.M. in the afternoon. There were present Selectmen Larson and Poole from the Town of Charlotte and Selectmen Deming and Clark from the Town of Shelburne. Attorney Richard Thomas of Burlington, Vermont was also present.
After discussion, the Selectmen of the Town of Charlotts elected to grant a permit to the Town of Shelburne to operate a dump in East Charlotte.
There being no further business to come before the meeting, it was voted to adjourn.
/s/ Walter Larson
/s/ Archibald J. Poole
Selectmen of Town of Charlotte'
It appears from this record that the meeting was held outside the limits of the town where the dump was to be located. Although only two selectmen were present at the meeting, the permit which issued was signed by all three members of the board. These irregularities, however, were not advanced in oral or written argument.
In any event, the defendants do not dispute the facts alleged. They respond by saying no hearing was required under statute appertaining to this function. They contend further that the complainants could find adequate relief in chancery by way of an injunction.
The statute upon which the selectmen issued the license is 24 V.S.A. § 2202. The act provides:
'Garbage disposal; penalty
Except as otherwise specifically provided in these statutes, no person, persons, corporation or association shall establish or use a dump for any garbage, refuse, waste or rubbish in any town or incorporated village, where the use of such dump is for other than the private or personal disposal of garbage, refuse, waste or rubbish of said person, persons, corporation or association, unless a permit is first obtained from the zoning board of adjustment, selectmen, or other appropriate governing body in said town or incorporated village. Unless it shall find that the grant of such permit shall give rise to a nuisance or that the applicant has not complied with established regulations promulgated pursuant to the authority of this section, such permit shall be issued to the applicant by said zoning board of adjustment, selectmen or other appropriate governing body.
The provisions of the preceding paragraph shall not apply to an existing use of any parcel of land now serving the purposes prohibited thereunder.
A town or incorporated village shall have the power to make, establish, alter, amend or repeal regulations for garbage and refuse disposal, and to regulate the dumping of garbage and refuse, waste and rubbish within its limits, and to impose penalties for the breach thereof, not to exceed a fine of $100.00 for each separarate act of dumping. Justices of the peace and district courts shall have concurrent jurisdiction of offenses hereunder. Nothing in this section shall be construed to permit the existence of a nuisance.'
As first enacted this section contained only the substance of the last paragraph of the present statute. It conferred broad powers on towns and villages to regulate garbage and refusal disposal within the limits of the municipality, with authority to impose penalties for violations. Acts of 1949, No. 80.
The act was amended in 1963 by adding the first two paragraphs of the present section. While existing facilities were specifically exempted, no new disposal unit could be established, regardless of local municipal regulations, without a permit first obtained. The grant of the permit is made contingent upon compliance with existing regulations and upon finding that the permit would not give rise to a nuisance. This provision, of course, is of first concern to the surrounding community.
In design and effect, the present statute is akin to the statutory provisions regulating municipal zoning set forth in Chapter 67 of the same title. As with the regulation of trailer parks in the succeeding subchapter, the regulation of refuse disposal is in pari materia with the zoning statutes. City of Rutland v. Keiffer, 124 Vt. 357, 364, 205 A.2d 400. This is at once apparent from the exclusion provided as to existing uses and the reference to the zoning board of adjustment. In this instance the board of selectmen is the appropriate tribunal since it is conceded that the Town of Charlotte has no zoning board of adjustment. In any event, the Legislature in granting the power to determine the facts and decide whether the grant of a permit will give rise to a nuisance, created a judicial function in the appropriate governmental agency. And the selectmen, acting in lieu of the zoning board of adjustment, were exercising quasi-judicial duties. Thompson v. Smith, 119 Vt. 488, 508, 129 A.2d 638.
In granting a permit under this section more than the interest of the applicant is involved. The interests of neighboring inhabitants and property owners are at stake, hence the requirement that the operation will not...
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Roy v. Woodstock Cmty. Trust, Inc.
...diner in part because plaintiff “makes no claim that the operation of the diner will be a nuisance per se ”); In re St. George, 125 Vt. 408, 412, 217 A.2d 45, 47 (1966) (“While a depository for receiving garbage and refuse, such as a landfill operation, may not be a nuisance in itself, it m......
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Roy v. Woodstock Cmty. Trust, Inc.
...against diner in part because plaintiff "makes no claim that the operation of the diner will be a nuisance per se"); In re St. George, 125 Vt. 408, 412, 217 A.2d 45, 47 (1966) ("While a depository for receiving garbage and refuse, such as a landfill operation, may not be a nuisance in itsel......
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Webb v. Town of Rye
...City of Portsmouth, 98 N.H. 22, 27, 94 A.2d 902: City of Chicago v. Fritz, 36 Ill.App.2d 457, 467, 184 N.E.2d 713; In re Petition of St. George, 125 Vt. 408, 412, 217 A.2d 45; Annot. 52 A.L.R.2d 1134, It follows, therefore, that even though the defendant was exercising a public right in per......
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In re New Cingular Wireless PCS, LLC, 11–328.
...inhabitants and property owners—we concluded that neighbors had a due process right to be heard on the matter. In re St. George, 125 Vt. 408, 412–13, 217 A.2d 45, 47–48 (1966). On the other hand, where a permitting statute, Act 250, allowed for participation by adjoining landowners upon req......