In re Interim Bylaw, Waitsfield, VT

In re Interim Bylaw, Waitsfield, VT (98-453); 170 Vt. 541; 742 A.2d 742

[Filed 06-Oct-1999]


                                 ENTRY ORDER

                       SUPREME COURT DOCKET NO. 98-453

                            SEPTEMBER TERM, 1999


In re: Interim Bylaw, Waitsfield, Vermont      }      APPEALED FROM:
	                                       }
	                                       }
     	                                       }      Washington Superior Court
	                                       }
Edmund W.E. and Deborah Stein, Appellants      }	
                         	               }      DOCKET NO. 159-3-97WnCv

             In the above-entitled cause, the Clerk will enter:

	
       Plaintiffs Edmund and Deborah Stein appeal a final order dismissing
  their complaint for  declaratory judgment and holding that an interim bylaw
  adopted by the Town of Waitsfield does  not constitute an unconstitutional
  taking of their property.  We affirm.
	
       Plaintiffs own 195 acres of land in Waitsfield, of which 130 acres are
  located above 1,700 feet in  a forest reserve zoning district.  In February
  1997, the Town's Selectboard, pursuant to 24  V.S.A. § 4410, adopted an
  interim bylaw imposing limitations on land development.  Plaintiffs 
  challenge that portion of the interim bylaw that prohibits one and
  two-family dwelling units in  the district at or above an elevation of
  1,700 feet.  Plaintiffs neither applied for nor sought any  approvals under
  the bylaw or relief from its application prior to bringing this declaratory 
  judgment action.
	
       In March 1997, plaintiffs served their complaint on the Town agent. 
  In May 1997, the Town  answered plaintiffs' complaint and moved for summary
  judgment, arguing that plaintiffs had  failed to demonstrate that the
  Town's interim bylaw constituted an unconstitutional taking of  plaintiffs'
  land.  On September 9, 1997, the trial court issued an order granting
  summary  judgment in the Town's favor.  Both sides stipulated that the
  court's order constituted a final  judgment, and this appeal followed.
	
       When reviewing a grant of summary judgment, we apply the same standard
  as the trial court.   See Madden v. Omega Optical, Inc., 165 Vt. 306, 309,
  683 A.2d 386, 389 (1996).  We will  affirm a grant of summary judgment if,
  after taking all allegations made by the nonmoving party  as true, there
  are no genuine issues of material fact and the moving party is entitled to
  judgment  as a matter of law.  See Town of Hinesburg v. Dunkling, 167 Vt.
  514, 521, 711 A.2d 1163,  1167 (1998).  
	
       In their appeal, plaintiffs challenge the Town's interim bylaw on its
  face rather than as applied to  them.  See, e.g., Keystone Bituminous Coal
  Ass'n v. DeBenedictis, 480 U.S. 470, 494-95  (1987) (explaining that zoning
  regulations can be challenged as a taking either on their face or as 
  applied to an owner's property).  A facial takings challenge alleges that
  the mere adoption of  land use regulations constitutes a taking of the
  property.  See Killington, Ltd. v. State, 164 Vt.  253, 261, 668 A.2d 1278,
  1283 (1995).  A facial challenge is ripe for judicial review upon the 
  adoption of the regulation.  See id.  To prevail under such a challenge,
  plaintiffs must show  either that the ordinance in question does not
  substantially advance a legitimate state interest or  that it denies the
  owner an economically viable use of his land.  See Chioffi v. City of
  Winooski,  165 Vt. 37, 41, 676 A.2d 786, 789 (1996) (quoting Agins v. City
  of Tiburon, 447 U.S. 225,  260 (1980)).  In this case, plaintiffs fail
  under both tests.  

 

       Plaintiffs present no argument that the interim bylaw does not
  substantially advance a legitimate  state interest.  Nevertheless, we find
  that the Town has a legitimate interest in resource  protection and
  preservation.  See, e.g., Keystone Bituminous Coal, 480 U.S.  at 486
  (stating that  a statute with a broad range of governmental purposes and
  regulations will satisfy the "legitimate  state interest" requirement). 
  Moreover, the reasons advanced in the "purpose" section of the  interim
  bylaw present a sufficient nexus between the Town's goal of resource
  protection and  preservation and the regulatory mechanisms employed to
  advance the goal.(FN1)  Therefore,  plaintiffs cannot prevail under the
  first test.  

       To prevail under the second test, plaintiffs must show a denial of all
  economically beneficial use  of their land.  See Chioffi, 165 Vt. at 42,
  676 A.2d  at 790.  Plaintiffs have made no such  showing.  On its face, the
  interim bylaw allows for several uses above 1,700 feet, including,  among
  other things, using the land for agricultural and forestry purposes.  In
  their response to  the Town's motion for summary judgment, plaintiffs
  provided no evidence that the uses allowed  under the interim bylaw are not
  economically viable.  As we have previously stated, "[a] court  cannot
  determine whether a regulation has gone too far unless it knows how far the
  regulation  goes."  See Killington, Ltd. v. State of Vermont and Town of
  Mendon, 164 Vt. 253, 262, 668 A.2d 1278, 1284 (1995).   
	
       In addition, plaintiffs have failed to present any evidence regarding
  the productive potential of  their land that was abolished by the interim
  bylaw.  Their argument that the prohibition against  using the property for
  residential purposes constitutes a taking per se is without merit.  They 
  have not lost all economically beneficial use of the property and "the
  destruction of one strand of  the [owner's bundle of rights] is not a
  taking because the aggregate [of these rights] must be  viewed in its
  entirety."  Keystone Bituminous Coal Ass'n, 480 U.S.  at 497.  Therefore,
  their  argument under the second test also fails.       

 


        Affirmed.




	                               BY THE COURT:

	                               _______________________________________
	                               Jeffrey L. Amestoy, Chief Justice

	                               _______________________________________
	                               John A. Dooley, Associate Justice

	                               _______________________________________
	                               James L. Morse, Associate Justice

	                               _______________________________________
	                               Denise R. Johnson, Associate Justice
	
	                               _______________________________________
	                               Marilyn S. Skoglund, Associate Justice



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                                  Footnotes

FN1.  That section states:
       The purpose of the Forest Reserve District is to protect significant
  forest resources, water supply,  watersheds, forest ecosystems, and
  wildlife habitat at higher elevations; to assure continued present and 
  future outdoor recreational opportunities along the ridge; to keep the
  visual character of the ridge natural  and undisturbed; and to exclude
  development and areas with steep slopes, shallow soils, unique or fragile 
  resources, wildlife habitat, and poor access to town roads and community
  facilities and services.

       The purpose of this interim zoning by-law is to provide the Town time
  to review the results of recently  completed studies and expert analysis of
  portions of this area, determine whether additional studies are  needed to
  plan for development in this area and prepare specific proposals for
  implementation of the  development recommendations regarding this area.