323 A.3d 911
Vt.2024Background
- DJK, LLC applied for a wastewater system and potable water supply permit for its property in Manchester, VT, intending to add an extra bedroom and a detached unit.
- Vermont regulations create “presumptive isolation zones” around septic and water supply systems to prevent groundwater contamination; these zones can extend onto neighboring properties.
- DJK's proposed isolation zone covered about 10% of the Crowleys’ neighboring property, which was undeveloped and had no existing potable water supply in the impacted area.
- The Crowleys received proper legal notice of the permit application, per statute; they did not object substantively or apply for a permit adjustment.
- The permit was granted, and the Crowleys appealed, arguing it constituted a taking (through an "easement") of their property and violated procedural due process.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether permit's isolation zone imposed an unconstitutional taking/easement on Crowleys' property | The permit created a physical appropriation—a per se taking—by imposing an easement-like restriction under Cedar Point Nursery | No physical invasion occurred; the permit did not authorize entry or occupation, merely regulated future use | No per se taking; the isolation zone is a regulatory restriction, not a physical occupation |
| Whether Environmental Division had jurisdiction to consider existence of an easement/taking | The court had jurisdiction to decide if the permit condition appropriated a Crowleys' property right | Environmental Division is limited to environmental permitting appeals, not private property disputes | No jurisdiction to determine existence/scope of private property rights; only permissible as-applied constitutional review |
| Whether the presumptive isolation zones deprived Crowleys of a cognizable property interest in groundwater | The permit deprived them of access to groundwater beneath their property, amounting to a taking | VT law abolished absolute ownership of groundwater; only unreasonable interference with beneficial use is actionable | No property interest in groundwater sufficient to support a per se takings claim |
| Whether Crowleys' procedural due process rights were violated by permit issuance | They were denied a meaningful opportunity to be heard before permit issuance | Crowleys received proper statutory notice and a de novo hearing on appeal | No due process violation; notice and opportunity to be heard were provided |
Key Cases Cited
- Penn Central Transp. Co. v. City of New York, 438 U.S. 104 (regulatory taking analysis using balancing test)
- Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419 (permanent physical occupations by government constitute a per se taking)
- Lucas v. S.C. Coastal Council, 505 U.S. 1003 (total deprivation of economic use is a per se taking)
- Dolan v. City of Tigard, 512 U.S. 374 (permit condition as a taking requires "rough proportionality" and nexus)
- Nollan v. California Coastal Comm’n, 483 U.S. 825 (permit conditions must have an "essential nexus" to a legitimate public purpose)
- Cedar Point Nursery v. Hassid, 594 U.S. 139 (government-authorized physical invasions constitute per se takings)
- Tahoe-Sierra Pres. Council, Inc. v. Tahoe Reg’l Plan. Agency, 535 U.S. 302 (distinction between regulatory and physical takings)