SOUTHVIEW ASSOCIATES, LTD., and Southview at Stratton
Partners, Plaintiffs-Appellants,
v.
Ferdinand BONGARTZ, Member, Vermont Environmental Board;
Lixi Fortna, Member, Vermont Environmental Board; Arthur
Gibb, Member, Vermont Environmental Board; Samuel Lloyd,
Member, Vermont Environmental Board; William Martinez,
Member, Vermont Environmental Board; Charles Storrow,
Member, Vermont Environmental Board; Steve Wright, Member,
Vermont Environmental Board; and Elizabeth Courtney,
Chairman, Vermont Environmental Board, Defendants-Appellees.
No. 1640, Docket 92-7209.
United States Court of Appeals,
Second Circuit.
Argued June 4, 1992.
Decided Oct. 30, 1992.
Oakes, Chief Judge, issued opinion on merits of takings and substantive due process claims.
A. Jay Kenlan, Rutland, Vt. (Abell, Kenlan, Schweibert & Hall, of counsel), for plaintiffs-appellants.
Jeffrey L. Amestoy, Atty. Gen., Montpelier, Vt. (John H. Hasen, Ronald L. Shems, Asst. Attys. Gen., Waterbury, Vt., of counsel), for defendants-appellees.
Before OAKES, Chief Judge,* McLAUGHLIN, Circuit Judge, and LAY, Senior Circuit Judge.**
OAKES, Chief Judge:
This appeal requires us to decide whether the denial, pursuant to Vermont's land use statute, Act 250, 10 V.S.A. § 6001 et seq. (1984 & Supp.1991) ("Act 250"), of a permit in respect to a vacation home development in the Green Mountains, gives rise to valid claims for relief under the Fifth and Fourteenth Amendments. Appellants Southview Associates, Ltd. and Southview at Stratton Partners ("Southview") sued the Appellees, the individual members of the Vermont Environmental Board ("the Board"), under 42 U.S.C. § 1983 (1988). Southview claimed that the Board's denial of its application for an Act 250 development permit (1) deprived it of due process of law, (2) denied it equal protection of law, and (3) constituted a taking without just compensation. The United States District Court for the District of Vermont, Franklin S. Billings, Jr., Judge, granted the Board's motion to dismiss Southview's complaint,
I.
A. Act 250
Act 250 has been a major feature of the Vermont legal landscape for over twenty years. Its enactment represented the culmination of an effort to create a process that would subject subdivisions and other large developments in Vermont to administrative review so as to ensure economic growth without environmental catastrophe. See Governor's Commission on Environmental Control, Reports to Governor 2 (January 1970; May 1970). A brief discussion of the backdrop to the statute's enactment underscores its purpose.
Beginning in the mid-1960s, Vermont experienced a massive increase in second-home construction and other recreational development, particularly in the southern portion of the state and around ski areas. Robert K. Reis, Vermont's Act 250: Reflections on the First Decade and Recommendations for the Second 9 (1980); David G. Heeter, Almost Getting it Together in Vermont, in Environmental and Land Controls Legislation 323, 326 (David R. Mandelker ed. 1976); Fred Bosselman & David Callies, The Quiet Revolution in Land Use Control 54 (1971) (prepared for the Executive Office of the President, Council on Environmental Quality); Erickson, The Vermont Environmental Protection Act of 1970, in Environmental Protection 678, 679 (Louis L. Jaffe & Laurence H. Tribe, eds. 1971). These developments shifted economic activity away from agriculture and forestry--the traditional mainstays of the region. Erickson, supra, at 679. The Town of Dover, located in Southern Vermont, provides an example. As one writer explained, in Dover, in 1969, developers were completing, building or planning 19 vacation home subdivisions. According to a regional planner, if all the planned lots had been improved and occupied, the town's population would have increased from 370 to 16,000 within a few years. Id.
This spate of development was fueled by several factors, including the construction of interstate highways, the increased popularity of skiing and other outdoor activities, and what might be termed America's fascination with "the country life." See Reis, supra, at 9. Although the development yielded considerable tax revenue and increased property values, at times it threatened to destroy the very base of its existence: Vermont's relatively unspoiled environment. Poorly planned vacation home subdivisions in mountainous areas--typified by steep slopes and thin soil cover--caused soil erosion, water pollution from sewage systems, and a decline in the aesthetic quality of the land. Erickson, supra, at 680; Bosselman & Callies, supra, at 54-55; Heeter, supra, at 327. Public concern over the side-effects of this new and rapid growth reached the high water mark when, in the summer of 1968, the International Paper Company proposed to construct a huge recreational and vacation home development on 20,000 acres of wilderness in the towns of Stratton and Winhall. Governor's Commission on Environmental Control, supra, at 3; Bosselman & Callies, supra, at 54; Heeter, supra, at 328.
In May of 1969, then Governor Dean C. Davis responded by creating the Governor's Commission on Environmental Control. Governor Davis charged the Commission with determining how economic growth could be attained without environmental destruction. Heeter, supra, at 329 (quoting opening remarks by Governor Deane C. Davis, Proceedings of the Governor's Conference on Natural Resources 1 (May 14, 1969)). The Commission's recommendations included the enactment of a land use law that would require large developments, including subdivisions, to undergo administrative review prior to construction. Governor's Commission on Environmental Control, supra, at 3-4. This proposal formed the basis of Act 250, enacted by the Legislature in 1970.
Not all development projects are subject to Act 250 review. Essentially, an Act 250 permit is required if a person wishes to construct (1) improvements on a parcel or parcels involving more than ten acres located within a radius of five miles; (2) housing projects with 10 or more units located on land owned or controlled by that person within a radius of 5 miles; (3) a subdivision partitioned for resale into ten or more lots within a radius of 5 miles; and (4) improvements above the elevation of 2500 feet. No permit is necessary for construction required for farming, logging or forestry purposes below the elevation of 2500 feet. 10 V.S.A. §§ 6001, 6081(a) (1984 & Supp.1991).
A person whose project is subject to Act 250 jurisdiction must file an application with the regional three-person district commission. 10 V.S.A. §§ 6026, 6083 (1984 & Supp.1991). The district commission evaluates the project according to ten criteria relating to: (1) water and air pollution that will result; (2) availability of water to meet the project's needs; (3) the project's burden on the existing water supply; (4) soil erosion that will result; (5) the project's effect on congestion and safety of transportation routes; (6) the burden the project will place on municipal and local government provision of educational and other services; (7) whether the project will have an undue adverse effect on "the scenic or natural beauty of the area, aesthetics, historic sites or rare and irreplaceable natural areas"; and (8) whether the project conforms with various state, regional and local development plans. 10 V.S.A. § 6086 (1984 & Supp.1991). If the district commission grants the application for a permit, it may attach conditions to it to assure compliance with the criteria for permit issuance. 10 V.S.A. § 6086(c) (1984).
A permit applicant may appeal the decision of the district commission to the nine-member Vermont Environmental Board. 10 V.S.A. §§ 6021(a), 6089(a) (1984 & Supp.1991). The Board reviews challenged findings de novo. 10 V.S.A. § 6089(a) (Supp.1991). The permit applicant may, in turn, appeal the Board's decision to the Supreme Court of Vermont, 10 V.S.A. § 6089(b) (Supp.1991), which will uphold the Board's findings of fact "if supported by substantial evidence in the record as a whole." 10 V.S.A. § 6089(c) (Supp.1991); see In re Southview Associates,
The Vermont Legislature accompanied the enactment of Act 250 with a statement of legislative intent, which provides, in part:
[T]he unplanned, uncoordinated and uncontrolled use of the lands and the environment of the state of Vermont has resulted in usages of the lands and the environment which may be destructive to the environment and which are not suitable to the demands and needs of the people of the state of Vermont.....
....
... it is necessary to regulate and control the utilization and usages of lands and the environment to ensure that, hereafter, the only usages which will be permitted are not unduly detrimental to the environment, [and] will promote the general welfare through orderly growth and development...."
Findings and declaration of intent, 1969, No. 250 (Adj.Sess.), § 1, in 10 V.S.A. annotations following § 6001 (1984). Subsequently, in 1973, the legislature further clarified the purpose of the act by adopting a "Capability and Development Plan" to guide the implementation of Act 250. 1973 Capability and development plan; statement of intent and findings, 1973 No. 85, § 7, in 10 V.S.A. annotations following § 6042 (1984). See Norman Williams & Tammara Van Ryn-Lincoln, The Aesthetic Criterion in Vermont's Environmental Law, 3 Hofstra Prop.L.J. 89, 94-95 (1990). The plan states, in relevant part:
(2) Utilization of Natural Resources
[C]onservation of the recreational opportunity afforded by the state's hills, forests, streams and lakes ... are matters of public good. Uses which threaten or significantly inhibit these resources should be permitted only when the public interest is clearly benefited thereby.
....
(6) General Policies for Economic Development
In order to achieve a strong economy ... economic development should be pursued selectively so as to provide maximum economic development with minimal environmental impact.
....
(10) Recreational Resources
The use and development of land and waters should occur in such a way as not to significantly diminish the value and availability of outdoor recreational activities to the people of Vermont, including hunting....
....
(11) Special Areas
Lands that include or are adjacent to sites or areas of historical, cultural, scientific, architectural, or archeological value ... should only be developed in a manner that will not significantly reduce that value of the site or area.
Thus, the Legislature intended Act 250 to protect Vermont's environmental resources with an eye towards maintaining, among other things, existing recreational uses of the land--such as hunting, for example--and preserving lands, when possible, that have special values to the public. In recognition of the importance of economic growth, however, the focus of the Act is not on barring development but on molding it to minimize its environmental impact. And in practice, one commentator has stated that "[t]he statute has ... been administered not as a 'no-growth' law, but as a law designed to improve the quality of growth." Williams & Van Ryn-Lincoln, supra, at 94. We now turn to the dispute before us.
B. Southview's Act 250 Experience
As a threshold matter, for the purpose of this appeal we accept as true the factual allegations set forth in Southview's complaint. See LaBounty v. Adler,
In March 1982, twelve years after the enactment of Act 250, Southview entered into an agreement with Cersosimo Lumber Co., Inc. ("Cersosimo") to purchase a parcel of undeveloped land for $225,000. The parcel of land contains approximately 88 acres and is located in the towns of Stratton and Jamaica, Vermont, in an area that could be thought of as uplands, at an elevation of about 1600 to 1700 feet, near the world class ski area at Stratton Mountain. The transaction was consummated in June of 1982.
Southview purchased the land with the intent to build a 78-lot residential subdivision, replete with approximately 1,500 feet of roads and a community sewage collection, treatment and disposal system. Prior to executing the purchase and sale contract, Southview alleges that it evaluated the property to determine whether any of the land's characteristics would affect Southview's ability to obtain the necessary development permits, including the land use permit required under Act 250.
After entering into the $225,000 purchase and sale agreement, under which Southview apparently paid Cersosimo $10,000 down, Southview hired Southern Vermont Engineering Company ("Southern Vermont") to assist in a more rigorous evaluation of the development plan aimed at ensuring that the plan would comply with state and local land use laws, including the statutory criteria of Act 250. As part of its review of the project, Southern Vermont inspected deeryard maps--maps showing winter habitat for white-tailed deer--prepared by the Vermont Department of Fish and Wildlife ("Fish and Wildlife"). These maps did not indicate that any deeryards were located on the Southview property.1
As the project progressed towards the filing of an Act 250 permit application, Southview learned that a deeryard did in fact exist on the property and that Fish and Wildlife would accordingly oppose Southview's permit application. Southview also reduced the planned number of units to 33 because of limited sewage disposal capacity--a common problem in the formerly glaciated mountainous regions of Vermont. Southview's revised plan called for clustering the 33 units into five areas amounting to 12 acres, developing a total of 23 acres, and leaving the remaining acreage to the homeowner's association, to hold in common and maintain in a managed forested condition.
Southview filed an application for an Act 250 permit with the District III Environmental Commission ("the Commission") in March 1985. Several hearings were held from April to December of 1985. In April 1986, the Commission denied the application under Criterion 8(A), 10 V.S.A. § 6086(a)(8)(A) (1984) ("Criterion 8(A)"), because of the adverse effect the project would have on the deeryard.
Criterion 8, which addresses the project's impact on the beauty of the area, historic sites and unique natural areas, provides in subdivision (A) that:
A permit will not be granted if it is demonstrated by any party opposing the applicant that a development or subdivision will destroy or significantly imperil necessary wildlife habitat or any endangered species, and
(i) the economic, social, cultural, recreational, or other benefit to the public from the development or subdivision will not outweigh the economic, environmental, or recreational loss to the public from the destruction or imperilment of the habitat or species, or
(ii) all feasible and reasonable means of preventing or lessening the destruction, diminution, or imperilment of the habitat or species have not been or will not continue to be applied, or
(iii) a reasonably acceptable alternative site is owned or controlled by the applicant which would allow the development or subdivision to fulfill its intended purpose. (Emphasis added.)
The key phrase "necessary wildlife habitat" is defined as "concentrated habitat which is identifiable and is demonstrated as being decisive to the survival of a species of wildlife at any period in its life including breeding and migratory periods." 10 V.S.A. § 6001(12) (1984).
The Commission determined that the development would significantly imperil necessary wildlife habitat and that the resultant loss to the public would not be outweighed by the economic, social, cultural, recreational and other benefits to the public that the project would create. This conclusion was based on several findings of fact.
The Commission found, and all parties agreed, that the proposed development was situated within a 280 acre deeryard. As the Commission, and subsequently the Board, explained, a deeryard serves as winter habitat for white-tailed deer and plays a central role in the deer's ability to survive the winter--providing the necessary browse and other, more important, requirements for winter survival.
Deer endure harsh winter conditions in large part by drawing energy from fat reserves accumulated in late summer and early fall. Browse provides only a secondary source of energy. The deer's capacity to conserve use of its energy reserves is the most critical factor in whether it will survive the winter. The Commission and the Board found that the shelter afforded by an ideal deeryard, like the one on the Southview property, enables deer to minimize the drain on their energy reserves. Protected concentrations of softwood cover provide the best shelter, by (1) blocking cold winds; (2) retaining solar heat and reducing nighttime heat radiation; (3) reducing snow depth (because snow remains on the boughs), thereby reducing the energy deer must use to move around within the deer yard; and (4) shielding deer from human and canine activity, which, if nearby, will cause the deer to stand or move and thereby expend energy. If human activity in close proximity to the deeryard reaches a certain level, deer will abandon the deeryard. See also Leonard Lee Rue, III, The World of the White-tailed Deer 91-118 (John K. Terres ed. 1962) (describing how deer survive the winter).
The Commission found that the entire deeryard in question, consisting of 280 acres, is the sole remaining, active deeryard within a 10.7 square mile area.2 Forty-four acres of the Southview parcel represented one of two of the best "cover areas" within the entire deeryard. The proposed development, located in this 44-acre section of prime habitat, would destroy 10 acres of concentrated softwood cover. The Commission found that Southview's habitat manipulation plan, which included seeding 13 acres to create softwood shelter, would not compensate for the lost softwood because it would take between twenty and forty years for the seedlings to reach the maturity necessary to afford the deer the required shelter.
Southview appealed to the Vermont Environmental Board, which denied the permit application in June 1987. The Board first concluded that, as applied to Southview, the "necessary wildlife habitat" language of Criterion 8(A) required it to determine whether the deeryard on the property was decisive to the deer that used it. In so finding, the Board rejected Southview's interpretation, which would have allowed for the destruction of deer habitat provided that some deer survive.
The Board, like the Commission, found that the Southview property was within the sole remaining deeryard in a 10.7 square mile watershed. Three hundred acres of deeryard had previously been destroyed in the Stratton area, and what has survived now contains only two primary areas of softwood cover. One of these areas--44 acres of critical softwood cover--is within the Southview parcel, and the proposed residential subdivision, the Board determined, would destroy 10 acres of this critical softwood, while secondary effects from people living in the proposed homes would imperil the remaining 34 acres. The impact on the habitat would result in a loss of deer.
The Board concluded that the proposed development would "destroy and significantly imperil necessary wildlife habitat." See 10 V.S.A. § 6086(a)(8)(A) (1984). The Board also held that:[T]he environmental and recreational loss to the public from the destruction and imperilment of the habitat is not outweighed by the economic, social, cultural, recreational, or other benefit to the public from the project.
....
... the loss to the public from the destruction and imperilment of the deer habitat [that this project will cause] is significant.... The existence of the deer in this area provides an opportunity to the public to hunt and to observe deer and provides the more intangible benefit of knowing that the deer exist. The loss of the deer in this area would be significant to the public who benefit from their existence.
See 10 V.S.A. § 6086(a)(8)(A)(i) (1984).
The Board also found that the development would have far less impact on the deer if Southview situated it on other areas of its 88.5 acre property. In fact, Fish and Wildlife proposed alternative plans for development in other areas of the site. The Board noted that it did not believe that Southview had thoroughly investigated the possibility of less intensive development in other areas of property. The Board concluded that Southview had not "applied all feasible and reasonable means of preventing or lessening the destruction and imperilment of the deer habitat." See 10 V.S.A. § 6086(a)(8)(A)(ii) (1984).
Southview next appealed to the Vermont Supreme Court, which affirmed the Board's decision. In re Southview Associates,
The district court dismissed Southview's claims, apparently pursuant to Fed.R.Civ.P. 12(b)(1) and 12(b)(6). The court held that Southview had not sufficiently pled either a substantive due process or an equal protection claim. Nor, it held, did Southview's allegations state a claim for a permanent physical occupation. Finally, the court dismissed Southview's claim of a regulatory taking because it was not ripe.
II.
We decide Southview's claims as follows. First, we address its claim that it has suffered a permanent physical occupation of its property. Second, we determine whether Southview's regulatory taking and substantive due process claims are ripe for review and hold that they are not. This ends the opinion for my colleagues. I proceed, however, to discuss the merits of Southview's substantive due process claim and whether the Board's actions have effected a regulatory taking, matters as to which I am stating only my own views.
We do agree that the district court's dismissal of Southview's action is a ruling of law which we review de novo. See Austern v. Chicago Bd. Options Exch., Inc.,
A. Permanent Physical Occupation
Southview first argues that the district court erred because it has alleged facts which, if proved, would establish that it has been compelled to submit to a physical occupation of its property. Southview contends that the Board caused this injury by denying its application for an Act 250 permit, and by prohibiting Southview from developing its property in any way that would exclude the deer from the deeryard. These actions allegedly deprive Southview of its right to exclude the deer from its property, which amounts to a physical occupation of the property. Furthermore, Southview contends that this occupation is permanent because the Board has permanently designated portions of its property as a deeryard.
If a government has committed or authorized a permanent physical occupation of property, "the Takings Clause generally requires compensation." Yee v. City of Escondido, --- U.S. ----,
Loretto helps define what constitutes a physical taking. In Loretto, the Court reviewed a New York law that required a landlord to permit a cable company to install cable equipment on his building. Loretto,
Two subsequent cases, Yee and FCC v. Florida Power Corp.,
Government compulsion was also absent in Yee. The Court ruled that an Escondido, California municipal rent control ordinance applicable to mobile home park owners did "not authorize an unwanted physical occupation." Yee, --- U.S. at ----,
Application of the principles set forth in Loretto, Florida Power Corp., and Yee demonstrate that Southview has not suffered a physical taking. Initially, we note that Southview has satisfied the permanency aspect of a physical taking for the purposes of a Fed.R.Civ.P. Rule 12(b)(6) motion, because it alleges that the Board will continue, permanently, to deny Southview an Act 250 permit that would impair the deeryard. However, Southview has failed adequately to allege the remaining elements of a physical taking.
Consider the three components of property rights discussed in Loretto. See Loretto,
Put differently, no absolute, exclusive physical occupation exists. See id. at 435 n. 12,
Application of the government compulsion requirement--central to the results in Florida Power Corp. and Yee--yields a similar result. In Yee, there was no government compulsion because the mobile home park owners voluntarily rented their land to mobile home owners, and they were not compelled to continue to do so. Yee, --- U.S. at ----,
Here, even if the Board's action were a permanent physical occupation, there was no government compulsion. Just as the mobile home park owners voluntarily rented their land in Yee and, in so doing, engaged in activity that subjected them to the effects of the rent control ordinance, id., Southview voluntarily proposed to construct a residential subdivision development project, and, in so doing, engaged in activity that subjected it to the Act 250 review process. Moreover, at the time Southview purchased the land it knew that the project would be subjected to Act 250 scrutiny. Denial of the Act 250 permit--foreclosing one configuration of a development plan--represents a regulation of the use of Southview's property, rather than a per se physical taking. See id., --- U.S. at ---- - ----,
B. Ripeness
We next must determine whether Southview's substantive due process and regulatory takings claims are ripe for review. As the district court explained, Williamson County Regional Planning Comm'n v. Hamilton Bank,
1) Applicability of Ripeness Inquiry
Here we examine whether each of the two prongs of the Williamson ripeness inquiry apply to Southview's (1) taking claim; (2) substantive due process claim premised on the theory that regulation has gone "too far"; and (3) substantive due process claim premised on arbitrary and capricious government conduct.
Southview first argues that because it has properly alleged a physical taking, and the Williamson ripeness test does not apply to physical takings, see Hall v. City of Santa Barbara,
Southview also argues that its substantive due process claim is immune from ripeness scrutiny. Before addressing the ripeness of this claim, we note that Southview is apparently advancing two distinct substantive due process theories. Under the first, it is well established that a government land use decision may give rise to a substantive due process violation if the decisionmaking process is arbitrary and capricious. Under a second, less developed approach, one to which the Supreme Court has yet to give its imprimatur, "regulation that goes so far that it has the same effect as a taking by eminent domain is an invalid exercise of the police power, violative of the Due Process Clause." Williamson,
Contrary to Southview's assertion, a substantive due process claim premised on the theory that a regulation has gone too far is subject to both prongs of the Williamson ripeness test. Such a claim remains premature "until a final decision is made as to how the regulations will be applied" to a landowner's property. Williamson,
Southview's substantive due process claim premised on arbitrary and capricious government conduct, however, is subject to only the final decision prong of the Williamson ripeness test. Unless a court has a final decision before it, it cannot determine whether a claimant was deprived of property and whether the government conduct was arbitrary or capricious. Landmark Land Co. v. Buchanan,
However, the second Williamson requirement, that the plaintiff seek an available state remedy, is not applicable to this type of substantive due process claim. Sinaloa Lake Owners Ass'n v. City of Simi Valley,
In sum, both prongs of the Williamson test apply to Southview's taking claim, as well as to both substantive due process theories, except the compensation requirement is inapplicable to Southview's substantive due process claim premised on arbitrary and capricious government conduct.
2) Final Decision Requirement
Southview next argues that the Board's application of Criterion 8(A) of Act 250 constituted a final decision under Williamson, because given the Vermont Supreme Court's affirmance of the Board's decision, there exists no other avenue for Southview to contest the denial of an Act 250 permit for its proposed development. Southview also contends that once the Department determined that its property was part of a deeryard, the Board decided to bar Southview from using its property in a way that would exclude deer from it. Despite these allegations, Southview cannot show that it has obtained a final decision.
In Williamson, a developer claimed that the county zoning commission's denial of approval of his plans for a residential subdivision constituted a regulatory taking. Williamson,
Our reluctance to examine taking claims until such a final decision has been made is compelled by the very nature of the inquiry required by the Just Compensation Clause.... this Court consistently has indicated that among the factors of particular significance in the inquiry are the economic impact of the challenged action and the extent to which it interferes with reasonable investment-backed expectations. Those factors simply cannot be evaluated until the administrative agency has arrived at a final, definitive position regarding how it will apply the regulations at issue to the particular land in question.
Id. at 190-91,
In addition to Williamson, several other Supreme Court decisions help define the contours of a "final decision." As the WilliamsonCourt explained, in Penn Central Transp. Co. v. New York City,
We do not believe that the Supreme Court's recent holding in Lucas undermines the authority of either Williamson, Penn Central, or MacDonald, nor has it any bearing on whether Southview has obtained a final decision.
In Lucas, the Court addressed a regulatory taking claim asserted by Lucas against the South Carolina Coastal Council. The Court found Lucas' temporary taking claim ripe despite his failure to use a discretionary "special permit" procedure which may have enabled him to develop his land. The temporary taking claim covered a two-year period. Lucas, --- U.S. at ---- - ----,
The "special permit" procedure, however, did not exist when the taking occurred, nor did it exist when the state trial court found a regulatory taking for which compensation was due. The procedure was implemented only after appeal was taken to the South Carolina Supreme Court. That court found that no taking had occurred and reversed the trial court's ruling on the merits. The Supreme Court of the United States apparently relied on three factors in finding Lucas' claim ripe: (1) the "special permit" procedure was unavailable to Lucas during the period of his alleged temporary taking; (2) the South Carolina Coastal Council stipulated that, during this period, any other efforts to obtain approval for development would have been futile; and (3) the South Carolina Supreme Court's decision rejecting Lucas' taking claim on the merits barred him from seeking relief, in state court, for the temporary taking. Id. --- U.S. at ---- - ---- & n. 3,
Given these factors--particularly the fact that the "special permit" procedure was nonexistent during the relevant period as well as the futility exception to the final decision requirement, see, e.g., Kinzli v. City of Santa Cruz,
Accordingly, we apply Williamson, Penn Central, and MacDonald to the facts at hand and hold that Southview has not yet obtained a final decision. Like the plaintiffs in Penn Central and MacDonald, Southview has submitted, and the Board has denied, only one application for an Act 250 permit. The Board's rejection of Southview's 33-unit subdivision proposal in no way precludes Southview from submitting another proposal, and it is "not clear whether the [Board will] deny approval for all uses that would enable the plaintiffs to derive economic benefit from the property." Williamson,
Although Southview argues that submission of another application would be futile on account of the Department's designation of a deeryard on the property, this argument is fatally undercut by the decision of the Board. We can infer from the Board's decision that it would be receptive to a subdivision proposal that placed lots in a different segment of the 88.5 acre property so as to minimize impact on the critical areas of the deeryard. The Board found that "[t]he development would have far less impact on the deer if it were located on other areas of the property." The Board also concluded that Southview had not undertaken all feasible and reasonable means of reducing the development's effect on the deeryard, and it was "not persuaded that the Applicant has thoroughly investigated the possibility of less intensive development in other areas of the site." As in Williamson, where it "appear[ed] that variances could have been granted" to resolve the majority of the Planning Commission's objections to the subdivision plan, Williamson,
3) State Court Compensation Requirement
Southview next argues that the district court erred in holding that it failed to meet the compensation prong of the Williamson test. As the district court stated, Williamson requires an owner to seek compensation from the state, prior to asserting a regulatory taking claim, if the state has a "reasonable, certain and adequate provision for obtaining compensation." Williamson,
The Williamson Court found that Tennessee state courts had interpreted state statutory law to allow recovery when restrictive development regulations give rise to a taking. Id. at 196,
Subsequent decisions establish that a state compensation procedure will be deemed available and adequate within the meaning of Williamson even when that procedure remains unsure and undeveloped. Austin v. City and County of Honolulu,
Southview contends, however, that Preseault v. ICC,
Our search of the Vermont Reports has revealed nothing--neither judicial recognition nor rejection of inverse condemnation actions. Nor has Vermont legislated a cause of action for inverse condemnation. Yet Vermont provides a route whereby Southview may seek compensation in its courts.
The Vermont Constitution has always provided--and was the first state constitution to do so--that "whenever any person's property is taken for the use of the public, the owner ought to receive an equivalent in money." Vt. Const. ch. 1, art. 2. The Supreme Court of Vermont has relied on this provision to rule favorably on a cause of action for compensation where government has taken private property through physical damage rather than an eminent domain proceeding. See, e.g., Timms v. State,
Accordingly, we affirm the dismissal of Southview's regulatory taking and due process claims for lack of ripeness, and for my colleagues this ends the opinion so that anything that follows represents only my own views and not the opinion of the panel.
Were we to reach the substantive due process and regulatory claims on the merits--i.e., if our determination on the ripeness issue was in some way erroneous--I would dismiss them on their merits. Thus, I address Southview's next argument, namely, that the district court improperly dismissed its claim that the Board violated its right to substantive due process because the Board's action--denial of an Act 250 permit--deprived it of "fundamental [property] rights without any compelling state interest narrowly tailored to accomplish the purported public purpose." Southview also contends that it alleged sufficient facts to support its claim that the Board acted arbitrarily and capriciously in denying the Act 250 permit. I disagree.
1) Arbitrary and Capricious Government Conduct
In evaluating a landowner's claim that a denial of a permit for a regulated use of land offends the landowner's right to substantive due process under the "arbitrary and capricious" government conduct theory, a court first asks whether "an entitlement exists in what has been applied for ... instead of simply recognizing the owner's indisputable property interest in the land he owns and asking whether ... government has exceeded the limits of substantive due process in regulating the plaintiff's use of his property by denying the application arbitrarily and capriciously." RRI Realty Corp. v. Incorporated Village of Southhampton,
Moreover, RRI Realty Corp. teaches that this test does not turn on the probability that the government authority will approve the use that the landowner seeks. RRI Realty Corp.,
The central issue before the Board was whether Southview had met the requirements of Criterion 8(A). Thus, the Board first had to determine whether any party opposing Southview's application had demonstrated that the subdivision would "destroy or significantly imperil necessary wildlife habitat." See 10 V.S.A. § 6086(a)(8)(A) (1984). If the Board answered this question in the affirmative, it also had to decide (1) whether "the economic, environmental or recreational loss to the public from the destruction or imperilment of the habitat" is outweighed by the "economic, social, cultural, recreational or other benefit to the public" that the subdivision would yield, id.; (2) whether "all feasible and reasonable means of preventing or lessening the destruction, diminution or imperilment of the habitat" have been or will continue to be applied, id.; and (3) whether the applicant owns no "reasonably acceptable alternative site" which would "allow the ... subdivision to fulfill its intended purpose." Id. As demonstrated by its decision in this case, the Board may deny a permit if it determines that the applicant's project fails to meet one of these three "subcriteria."
These standards conferred considerable discretion on the Board in its determination of whether Southview had met the relevant Act 250 criteria. All parties agreed that the proposed development was in a deeryard. The Board had to decide how the subdivision would affect the deer's habitat, and whether that habitat was "necessary" within the meaning of the statute. Given its finding on these issues, the Board also had to examine the "subcriteria." Application of any one of them--requiring the Board to weigh the public benefit and loss, or make "reasonableness" determinations--would call for the exercise of a large measure of discretion. I would hold that, as in Yale Auto Parts and Dean Tarry, this discretion prevented Southview's "expectation of success from rising to the level of certainty required to give rise to a ... property right" cognizable under the Fifth and Fourteenth Amendments. Dean Tarry,
Even if Southview's expectation of receiving an Act 250 permit were sufficiently certain to give rise to a cognizable property right, Southview has still failed adequately to allege a substantive due process violation. On a general level, substantive due process protects against arbitrary government conduct. United States v. Certain Real Property,
In support of its claim that the Board acted arbitrarily and irrationally, Southview's complaint alleges that "similar residential subdivisions ... on lands essentially identical in character" to its property "were approved by the District II Environmental Commission," and those developments "destroyed or imperiled Deer Yards identified by the Department." Southview's complaint also alleges that the white-tailed deer "are neither endangered nor threatened species in the State of Vermont" and "in fact, the State, each Fall, encourages the slaughter of an unlimited number of ... deer." These alleged facts, even if proved, would not in my opinion establish that the Board acted irrationally or arbitrarily in denying the permit application.
Southview's assertions regarding the treatment of other similar developments are more relevant to a claim of a denial of equal protection,10 rather than a violation of substantive due process. Nevertheless, if identically situated developments were granted permits, perhaps an inference of arbitrary or irrational conduct might arise. Southview, however, alleged only that "similar residential developments" on "essentially identical" properties were granted permits (emphasis added).
Moreover, had Southview amended its complaint to allege that identically situated developments were granted permits, dismissal would still be required. If the Board had " 'at least debatable' " grounds, Shelton,
In so doing, the Board did underscore, however, that the property was situated within the only active deeryard remaining in a 10.7 square mile area, and the development contemplated destruction of 10 acres of the most important habitat in this deeryard. These facts indicate that the Southview project was configured in a way that would inflict very serious damage to a deeryard unique to the area. Thus, these special factors underlying the denial of Southview's permit undermine any inference that the Board lacked "at least debatable grounds" to distinguish the Southview plan from other developments to which permits were allegedly granted. Under these circumstances, I believe it is Southview's burden to allege some facts tending to prove that the Board had no grounds to distinguish the complained of government action from the government treatment of identically situated applicants.
Southview's complaint is devoid of any such facts. Southview's bare allegation regarding other developments, without more, hardly precludes the existence of "at least debatable grounds" for distinguishing the Board's denial of Southview's application from the other unnamed residential developments. Therefore, Southview's allegations regarding other developments are, I think, insufficient to enable it to establish a denial of substantive due process. See Shelton,
Southview's allegations regarding the incongruity of protecting deer habitat in light of the health of the Vermont white-tailed deer population and the State's hunting policy are also insufficient in my opinion. To the extent Southview questions the policy implicit in the protection of deer habitat, Southview's dispute is with Act 250 and the Vermont Supreme Court's interpretation of it, not with the rationality of, or justifications motivating, the Board's denial of its application. It was the Vermont Supreme Court, not the Board, that finally determined that "a 'necessary wildlife habitat' under Act 250 is one that is decisive to the survival" of those members of the species that depend on it. Southview,
Furthermore, neither the Board's alleged treatment of other developments nor the alleged hypocrisy of protecting deer habitat negate the conclusion that the Board "articulate[d] a rational basis that was indisputably related to the general welfare, [and] there was no question but that the articulated basis was a basis for [the] decision." Shelton,
Southview does not dispute that the Board denied the permit because (1) the proposed subdivision was located in the last remaining deeryard in the 10.7 mile watershed; (2) the proposed subdivision would destroy 10 acres of critical softwood cover within the property and imperil the remaining 34; and (3) Southview failed to situate the subdivision on other areas of its property where the development would have had far less impact on the deer. Nowhere does Southview claim that the Board did not rely on these findings in reaching its decision, nor does it dispute the veracity of these findings. Indeed, it agreed that the development was within a deeryard. Nor does Southview allege that the Board acted contrary to the dictates of Act 250 or contrary to any other state law.
By contrast, when our Court, as well as other Courts of Appeal, have found an allegation of a deprivation of substantive due process sufficient to warrant an adverse judgment against a governmental body, the plaintiffs have pleaded or presented evidence indicating that the body acted beyond its authority, without justification, or committed other egregious misconduct. See, e.g., Brady,
Were the regulatory claim ripe, I would dismiss it anyway on the ground that Southview's allegations are insufficient to state a claim that the Board has committed a regulatory taking.
In determining what constitutes a taking, I would begin with the classic, if vague, formulation provided by Mr. Justice Holmes: "[W]hile property may be regulated to a certain extent, if regulation goes too far it will be recognized as a taking." Pennsylvania Coal Co. v. Mahon,
The shortcomings of the Mahon approach--shortcomings that still fuel seemingly inconsistent applications of the Takings Clause--were perhaps revealed in Miller v. Schoene,
Unsurprisingly, in the wake of Mahon, Miller and other cases, the Court has proved unable to arrive at a "set formula to determine where [land use] regulation ends and taking begins." Goldblatt v. Town of Hempstead,
1) Economic Impact
In deciding whether Southview retains any economically viable use of its land (as opposed to none, the dictionary opposite of "all"), I note that a regulation that forbids a landowner from putting his property to its most economically beneficial use does not, in and of itself, give rise to a taking. See Goldblatt,
Southview purchased the property at issue for $225,000. Had a permit been granted, it alleges that it would have incurred expenses for construction of roads, sewers and utilities and the like, as well as marketing expenses, totalling $1,155,000.14 Southview contends that it would have reaped profits of between $2,100,000 and $3,125,000 from the sale of 33 lots--an approximate return on investment of between % 150 and % 225.
Moreover, Southview claims that because 44 acres of its land has been designated a deeryard, it is unable to develop its property. It alleges that the Board "deprived [it] of all economically viable uses of that [p]roperty in relation to Southview's reasonable expectations that the [p]roperty would be developed as a planned residential subdivision, and ... further prevented Southview from earning a reasonable return on its investment commensurate with its reasonable investment-backed expectations." Southview also asserts that it made an "extensive effort to reduce the scale of the [p]roposed [d]evelopment to satisfy the concerns" the Board had regarding the deeryard.
In assessing whether Southview retains an economically viable use of its land, I would first reject Southview's assertion regarding its "extensive effort" to reduce the scale of its development to satisfy the Board since no facts support this assertion. Indeed the Board found, and Southview does not dispute, that limited sewage capacity required it to scale down its project from 78 to 33 lots.
Despite the Board's decision with respect to its application, and the alleged permanent designation of 44 acres of its property as deeryard, the Board's actions have no effect on Southview's ability to use the parcel in a way that does not require Act 250 review. The Board's decision leaves intact Southview's existing ability to 1) construct improvements for farming, logging or forestry, 10 V.S.A § 6001(3) (Supp.1991) (an orchard or a christmas tree farm may be possible); 2) construct residential or commercial improvements "involving" less than ten acres of the property,15 id., (an inn or private wooded estate, both common usages in the region, may be possible); 3) construct and sell up to nine homes, id., (provided such activity involves less than ten acres); 4) subdivide and sell up to nine lots, 10 V.S.A. § 6001(19); see 10 V.S.A. § 6081 (1984). Finally, Southview can make considerable recreational use of the land. For example, its owners can walk, camp, cross-country ski, snow-mobile, observe wildlife, and even hunt deer on this land.
What Southview cannot do, of course, is build the exact residential subdivision for which it sought an Act 250 permit. But neither the Board's rejection of the permit in question nor the alleged designation of the deeryard on its land preclude development of a modified vacation home subdivision subject to Act 250 review. The Board's decision shows that its concern centers on the 44-acre area forested with critical softwood cover. The Board's decision also indicates that it would be receptive to a subdivision proposal that situated the lots away from the critical softwood cover area, or one that reduced the magnitude of the development generally.
Eighty-eight acres is a considerable amount of land for the construction of a thirty-three vacation home subdivision, especially one designed like the Southview plan. As we explained, Southview's project contemplated clustering the 33 units into 12 acres, and directly developing only a total of 23 acres. Both Southview's allegations and the Board's findings indicate that Southview could situate a subdivision on its property--similar to the one described in its Act 250 permit application--without directly destroying any of, and minimizing the secondary impact on, the critical 44-acre cover area. Indeed, Southview's original plan left a large portion of the land undeveloped anyway. The Board's decision appears to reflect a favorable disposition towards such a modified proposal.
Furthermore, to the extent Southview's reasonable investment-backed expectations have been affected by the Board's actions, Southview could not have reasonably expected that its plans would have been permitted to proceed willy-nilly. Rigorous Act 250 review seems the norm, not the exception. The fact that Southview must now modify the configuration of its subdivision proposal if it wishes to obtain Act 250 approval does not, in my view, unduly interfere with its reasonable investment-backed expectations.
Southview's ability to develop its land has indeed been limited. Perhaps the subdivision proposal rejected by the Board was the most profitable configuration possible. However, based on Southview's allegations and the undisputed findings of the Board, I believe that Southview cannot establish that it has been deprived of economically viable use of its land. See Agins,
2) Substantial Advancement of a Legitimate State Interest
The inquiry would next focus on whether the Board's actions "substantially advance[ ] legitimate state interests." Nollan,
Here, on a general level, the Vermont Legislature found that regulation was necessary to control uses of the land that did not serve the needs of the people of Vermont. Findings and declaration of intent, 1969, No. 250 (Adj. Sess.), § 1, in 10 V.S.A. annotations following § 6001 (1984). Accordingly, the legislature sought to permit land uses that were not unduly destructive to the environment and that promoted the general welfare. Id. On a more specific level, the legislature subsequently stated that "conservation of the recreational opportunity afforded by the state's ... forests ... are matters of public good. Uses which threaten or significantly inhibit these resources should be permitted only when the public interest is clearly benefited thereby." 1973 Capability and development plan; statement of intent and findings, 1973 No. 85, § 7, in 10 V.S.A. annotations following § 6042 (1984). The legislature also determined that "[t]he use and development of land and waters should occur in such a way as not to significantly diminish the value and availability of outdoor recreational activities to the people of Vermont, including hunting." Id.
Indeed, the government of Vermont has long valued and protected hunting. Since the adoption of the Vermont Constitution by the Republic of Vermont in 1777, Vermonters have had a constitutional right to hunt. Vt. Const. ch. II, § 67. And the tens of thousands of people who hunt in Vermont, both Vermonters and visitors from other states, would likely identify white-tailed deer as the most prized big game animal in the State. In order to preserve the deer herd for future generations, the State has enacted laws and promulgated regulations regarding hunting of white-tailed deer. See, e.g., 10 V.S.A. § 4741 et seq. (1984 & Supp.1991) (specifying, among other things, when, how, and what type of deer may be hunted); see generally Vermont Department of Fish and Wildlife, Deer Management Plan for the State of Vermont, 1990-95 2-6 (June 1990).
Preservation of a healthy white-tailed deer herd, through habitat protection and hunting regulation, serves more than just the interests of hunters. Hunting is important to the economic health of the state, bringing in visitors whose spending boosts local businesses and yields tax revenues. The fees charged for hunting licenses--between $12 (resident) and $75 (nonresident), Vermont Fish and Wildlife Department, Vermont Digest of Fish and Wildlife Laws 13 (1992)--add to the state's revenues as well.
Preservation of the white-tailed deer also enables people to observe the deer, and as the Board found, "provides the more intangible benefit of knowing that the deer exist." Put simply, white-tailed deer are part of Vermont's heritage.16 I believe that the government's goal of protecting deer and their habitat under Criterion 8(A) of Act 250 is for the benefit of the public and undeniably represents a legitimate state interest. See Agins,
I also believe that a sufficient nexus exists between the Board's actions--denial of Southview's application and alleged permanent designation of Southview's property as within a deeryard--and the state's goal of protecting deer and their habitat. Southview agrees that the deeryard is on its property. Southview does not dispute the Board's findings that (1) destruction of deeryard has occurred in the Stratton area; (2) the Southview property is within the last deeryard in a 10.7 square mile area; (3) the Southview project, as proposed, would destroy 10 acres and imperil 34 acres of the best habitat remaining in the deeryard; (4) the development, as proposed, would likely cause the 20 deer that use the habitat to abandon it and reduce their ability to survive in wintertime; and (5) the "cumulative effect of development in the state is a threat to the entire deer herd."
Southview argues that the deer are neither an endangered nor threatened species in Vermont. Historical experience teaches, however, that today's plentiful species may become tomorrow's endangered or even extinct species--witness the fates suffered by the American Bison and the Passenger Pigeon. It is my view that the white-tailed deer population in Vermont need not deteriorate to such a level before the protection of their winter habitat--especially in an area where little such habitat remains--can be said to "substantially advance" Vermont's interest in preserving a healthy and populous deer herd. In fact, it is difficult to imagine a decision rooted in sound game-management principles that would fail substantially to advance legitimate state interests. See generally Christy v. Hodel,
I conclude that Southview may suffer some economic loss because it can no longer put its property to the precise use for which it sought an Act 250 permit, but that in no way does this potential loss effect a compensable taking.
The restrictions imposed on Southview by the Act 250 process redound to the benefit of the public, both Vermonters and non-residents alike. These limits apply to all who seek to place a development--large enough to invoke Act 250 jurisdiction--within the State of Vermont. That all such landowners are subject to these limits enhances the fairness of the statute's permit review process. Moreover, the widespread applicability of the restrictions preserves the natural, unspoiled qualities of Vermont--including the presence of the deer. It is qualities like these that render Vermont an economically viable place for Southview to situate a vacation home development. Like any property owner, Southview can exploit these qualities for profit; but it cannot avoid its responsibility to refrain from destroying them in the process.
Having stated these views on the merits of the substantive due process and regulatory taking claims as my own, I nevertheless unqualifiedly join my colleagues in believing that affirmance of the dismissal of these claims for lack of ripeness as above stated is required.
Judgment affirmed.
Notes
After argument but before decision, Chief Judge Oakes became a Senior Circuit Judge
Honorable Donald P. Lay, Senior Circuit Judge for the United States Court of Appeals for the Eighth Circuit, sitting by designation
There is no suggestion, however, that the Board is estopped from denying the Act 250 permit by virtue of Fish and Wildlife's apparent error. Cf. Schweiker v. Hansen,
The availability of winter habitat has long limited the abundance and physical condition of deer in Vermont. Indeed, in the mid-1800s, when only about 30% of Vermont's land area was covered with forests, the deer population in Southern and Central Vermont was so decimated that a deer sighting could merit a newspaper story. Despite the existence of a constitutional right to hunt, fowl and fish, see Vt.Const. ch. II, § 67, deer hunting was barred from 1865 to 1896. This regulation, in conjunction with the reforestation of abandoned farmland, enabled the deer population to recover. Vermont Department of Fish and Wildlife, Deer Management Plan for the State of Vermont, 1990-95 2-3 (June 1990)
Essentially, a regulatory taking--also known as inverse condemnation--occurs when the purpose of government regulation and its economic effect on the property owner render the regulation substantively equivalent to an eminent domain proceeding and, therefore, require the government to pay compensation to the property owner. See Yee, --- U.S. at ----,
This may seem inconsistent with the rest of the Act, especially where deeryards are involved. But courts cannot expect legislatures to be omniscient or not subject to compromise
And, unlike the physical occupation at issue in Loretto, deemed especially offensive because the occupier was a "stranger," Loretto,
Although Southview maintains that Nollan v. California Coastal Comm'n,
We digress to make a point relevant to the merits of Southview's substantive due process claim. Under the facts of this case, we discern no difference between the test for a determination of the validity of Southview's regulatory taking claim, and that for Southview's substantive due process claim under the theory that the Board has gone "too far." By its terms, a due process violation under this theory--a theory the Supreme Court flirted with, but did not approve, in Williamson--can only occur if the regulation has the same effect as a taking by eminent domain. Accordingly, we view this test as co-extensive with the inquiry we face under a claim for a regulatory taking. See also Stoebuck, supra, at 1098
Although a taking claim will not be ripe without a final decision, "[a] property owner is of course not required to resort to piecemeal litigation or otherwise unfair procedures in order to obtain this determination." MacDonald,
We previously have applied the Roth test to substantive due process claims arising from government land use decisions such as a local authority's denial of a building or zoning permit. I see no relevant distinction, however, between local zoning and building regulations and the state-wide land use scheme embodied in Act 250. Both may diminish the value of property by barring a potential use, but the loss of value is likely offset in part "by an increase in value which flows from similar restrictions as to use on neighboring properties." Penn Central Transp. Co. v. New York City,
On appeal, Southview has advanced no claim of error with respect to the district court's dismissal of its equal protection claim
Pennsylvania common law, at the time, recognized three distinct estates in mining property: the surface, the right of support, and the right to mine below the surface. See Carol M. Rose, Mahon Reconstructed: Why the Takings Issue is Still a Muddle, 57 S.Cal.L.Rev. 561, 563-64 (1984)
Moreover, many believe Mahon was substantially overruled in Keystone Bituminous Coal Ass'n v. DeBenedictis,
However, Mahon was heavily relied upon by the majority in Lucas. And the Keystone majority, as well as Mr. Justice Stevens, dissenting in Lucas, distinguished Mahon from Keystone on the basis that "the regulatory function of the [Subsistence Act]" was substantially broader." Id. --- U.S. ----,
The economic effect of a taking has also been characterized as "undue interference with ... investment-backed expectations." Keystone,
In its Act 250 application, however, certified as true and accurate by its general partner, it indicated a construction cost of $250,000 for a 32 lot residential development
With respect to the meaning of "involving," section 6001(3) explains: "In computing the amount of land involved, land shall be included which is incident to the use such as lawns, parking areas, roadways, leaching fields and accessory buildings." 10 V.S.A. § 6001(3) (Supp.1991)
In Conservation Society of Southern Vermont, Inc. v. Volpe,
Green Mountain Mary, Green Mountain Mary,
What does your garden grow?
Violets, moss, ground pine, goldenrod, briars,
Strawberries, hardhack, wintergreen, ferns,
And a little bit of grass, alas.
Will you sell me your meadow?
Oh, no.
Who crops it?
Deer.
See here, Green Mountain Mary, you people are very,--
Excuse me--
Queer.
G. Taggard, "The Nursery Rhyme and the Summer Visitor," A Part of Vermont (1945), quoted in Time in New England 231 (1950).