In re Chittenden Solid Waste District

IN_RE_CHITTENDEN_SOLID_WASTE_DIST.94-223; 163 Vt 185; 657 A.2d 197

[Filed 20-Jan-1995]


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. 


                                 No. 94-223


In re Chittenden Solid Waste                      Supreme Court
District
                                                  On Appeal from
                                                   Chittenden Superior Court

                                                  November Term, 1994


Merideth Wright, J.

Michael L. Burak, Brian J. Sullivan and Robert I. Goetz of Burak & Anderson
and Joseph E. Frank of Paul, Frank & Collins, Inc., Burlington, for
plaintiff-appellant 

Dennis R. Pearson, Charles T. Shea and Robert F. O'Neill of Gravel and Shea,
for defendant-appellee 


PRESENT:  Allen, C.J., Gibson, Dooley, Morse and Johnson, JJ.


     ALLEN, C.J.   Chittenden Solid Waste District (CSWD) appeals from a
decision of the Chittenden Superior Court dismissing a petition for
condemnation of land owned by the appellee, Hinesburg Sand & Gravel Company
(HS&G).  We reverse. 

     CSWD is a union municipal district organized in 1987 under 24 V.S.A.
 4861-4868. It sought to condemn property in Williston owned by HS&G and
used to supply sand for its sand blending and supply business in Hinesburg. 
CSWD filed its superior court petition pursuant to 24 V.S.A. chapter 61,
subchapter 13 in August 1992, detailing facts supporting necessity for a
landfill site and reviewing numerous factors underlying its decision to seek
condemnation of HS&G's property.  The petition recited that: 

       On June 30, 1992, CSWD held a public hearing pursuant to 24
       V.S.A.  2299c(b), for the purpose of receiving suggestions and
       recommendations from the public regarding the acquisition of the
       Subject Property and the Related Interests by eminent domain.
       CSWD's Board of Commissioners considered these suggestions
       and recommendations at a special meeting held pursuant to 24
       V.S.A.  2299c(a).  At this meeting, CSWD's Board of

 

       Commissioners adopted a resolution setting forth the necessity for
       the taking and the compensation to be paid.

HS&G filed an objection to the petition, and after extensive discovery, CSWD
moved for partial summary judgment, arguing that it had complied with all of
the eminent domain prerequisites. The court did not rule on the motion but
instead conducted a nine-day evidentiary hearing to determine whether the
CSWD Board had considered the statutory factors, particularly the "least
inconvenience and expense" to the landowner, within the meaning of 24 V.S.A.
 2299b(1), which sets forth the elements of necessity.  The court did not
address the merits of CSWD's necessity case. 

     At the completion of these hearings, the court concluded that CSWD's
resolution "did not address the valuation criterion of  2299b(2) of
business losses to the landowner," did not determine whether and to what
extent HS&G's business yield would be proximately lessened by the
condemnation, and "failed to set forth the compensation to be paid in the
resolution adopted on June 30, 1992, as required in  2299c(a) when read
together with  2299b(2) and 2299f." The court dismissed CSWD's petition,
and the present appeal followed. 

     The central issue on appeal is whether the court was authorized to
consider substantive compliance by the CSWD Board with pre-condemnation
requirements under the Landfill Condemnation Statute, 24 V.S.A. 
2299c-2299d.  Except for determining that a condemnor has in fact met the
procedural requirements for filing a condemnation petition (such as whether
the meeting was conducted in accordance with the public notice and other
requirements of  2299c(b)), the court lacked authority to dismiss the
petition based on whether the petitioner had adequately considered the
statutory factors in seeking condemnation or in setting forth the
compensation to be paid, within the meaning of  2299c(a).  Hence, the scope
of the court's proceeding was beyond its statutory authority, and its
resultant order was invalid. 

     A Vermont solid waste district begins the condemnation process by
holding a public hearing to consider both necessity and compensation.  24
V.S.A.  2299c(b).  Section 2299c(b) 

 

is clear on its face that the purpose of the hearing is limited and does not
reach the merits of necessity or damages, which the superior court determines
at a full evidentiary hearing. 24 V.S.A.  2299d-k.  The  2299c(b)
hearing is conducted by the solid waste district's board of commissioners,
which has no judicial or quasi-judicial functions but acts in an executive
capacity, to "hear and consider all objections, suggestions for changes and
recommendations made by any person interested."  Id.  2299c(b). 

     In State Highway Bd. v. Coburn, 125 Vt. 513, 219 A.2d 582 (1966), the
condemnee argued that the Vermont State Highway Board (now the State
Transportation Board) had failed to properly consider necessity at the
highway board's public hearing pursuant to 19 V.S.A.  222(c) (now 
502(c)). Id. at 518-19, 219 A.2d  at 586-87.  In response to an argument that
the highway board's public hearing and findings were subject to judicial
review, we stated: 

           When the appellants complain of the alleged inadequacy of the
           investigation and the failure of the highway board to make
           findings, they mistake the nature of the proceedings called for by
           section 222 [now 19 V.S.A. 502]. They are exploratory and
           informative, but not judicial.  The highway board is not conducting
           a trial or hearing as a court or judicial body.

Id. at 519, 219 A.2d  at 587.

     In like manner, CSWD's determination to seek to obtain property by
eminent domain under  2299c is not judicial or quasi-judicial, and is not
subject to judicial review.  Cf. State Highway Bd. v. Hazen, 126 Vt. 46,
48-49, 221 A.2d 579, 580-81 (1966) (pre-petition public hearing is
informational for highway board, and is not a judicial trial; thus, defect in
notice not fatal where no prejudice demonstrated). 

     Significantly and somewhat curiously, the court itself relied on Hazen
in stating in its December 8, 1993 order that the district's hearing under 
2299c(b) was "informational rather than adjudicatory."  The court
nevertheless concluded that it could review the district's actions and
procedures leading up to its condemnation resolution for arbitrariness or
capriciousness, and whether the district complied with the statutory
procedures, or otherwise acted improperly, just 

 

as it reviews any other municipal action. 

     An acknowledgment of the holding in Hazen would preclude a determination
that the court had the power to review the district's actions under 
2299c(b) as it reviews any other municipal action.  Review of municipal
action, as with action under 24 V.S.A.  2299c, varies with the terms of
particular authorizing statutes.  See, e.g., 24 V.S.A.  4471 (appeal from
board of adjustment to superior court); 24 V.S.A.  5006 (appeal from
housing board to superior court); 32 V.S.A. Chapter 131 (appeals from
municipal tax assessments).  V.R.C.P. 75 provides for review of "[a]ny action
or failure or refusal to act by an agency of the state or a political
subdivision thereof, including any department, board, commission, or officer,
that is not [a contested case] . . . if such review is otherwise available by
law." (Emphasis added.)  There is no reference by the court or the parties to
any law authorizing judicial review of the pre- litigation stages of a solid
waste management district condemnation action, and  2299d makes clear that
court proceedings should commence "[a]fter completion of the survey." 

     Under the Landfill Condemnation Statute, there are two distinct judicial
condemnation stages -- first, the judicial determination of necessity (at
both the trial and appellate levels); and second, the judicial determination
of damages (also at both the trial and appellate levels).  See 24 V.S.A. 
2299e (necessity trial held by superior court);  2299f (damages trial held
by superior court).  Each stage is a single, unified proceeding. 

     The statute clearly mandates that necessity be tried and appealed first,
while damages are tried and appealed thereafter, consistently with the
judicial condemnation process in place in many other states.  As we explained
in State Highway Bd. v. Loomis, 122 Vt. 125, 130, 165 A.2d 572, 576 (1960),
the highway condemnation statute (19 V.S.A.  504-513): 

            separates the question of determining the necessity for taking
            particular land from the question of compensation for the land
            taken, by providing for separate hearings.  The necessity for the
            proposed taking is at issue first and is determined prior to actual
            condemnation and award of damages.

     HS&G argues that Hazen and Fiske v. State Highway Bd., 125 Vt. 17, 209 A.2d 482 

 

(1965) create a narrow window of judicial review for consideration of the
regularity of the district's consideration and determination of necessity and
the compensation to be paid.  While use of the word regularity might suggest
some procedural failure or miscue, HS&G's extraordinary facts justifying
suspension of what it concedes is a process that does not include such
judicial review, amount to strong substantive differences with CSWD over
necessity and compensation.  Apart from the difficulty, if not impossibility,
of discerning when jurisdiction to review a district's  2299c(b)
determination might exist, based on whether the district was wrong or
extraordinarily wrong, HS&G's reliance on Hazen and Fiske is simply mistaken.
Neither case supports the court's ruling, and Hazen strongly undermines it.
As this Court stated in language applicable in toto to the present matter: 

      The intent of the statute is to provide the opportunity to
      municipalities and interested persons, after notice, to air their
      views and express their suggestions at a public hearing concerning
      a proposed highway project. This is an exploratory and informative
      action and aids the board to determine the feeling and sentiment of
      the public and landowners. Also, this section is designed to afford
      the public and landowners the privilege to participate in the
      administrative decision of the board. The public hearing is not held
      to determine the right of the board to condemn property or decide
      the question of necessity for the highway but rather its location.

126 Vt. at 49, 221 A.2d  at 581. (Emphasis supplied.)  In neither Hazen nor
Fiske did this Court authorize the superior court to conduct a substantive
review of a condemnor's decision-making process prior to commencement of a
necessity proceeding.  Nor did we order a remand to the condemnor in either
case, or in any other case cited by HS&G. 

     To the extent that HS&G contends CSWD acted in bad faith, the superior
court proceeding under  2299d is an ample forum for these issues.(FN1) Cf.
Loomis, 122 Vt. at 132, 165 A.2d  at 577 (court may review necessity of taking
during condemnation hearing for new 

 

highway).  If the court finds a bad faith undertaking by a condemnor, the
result will be either failure of the necessity case or compensation in a just
and fair amount, as the case may be. 

     HS&G contends that what the superior court did was "simply . . . isolate
particular issues and advance those aspects of the proceedings to the
beginning of the scheduled merits hearings." This contention does not square
with HS&G's own trial memoranda or the court's orders directing the parties
to file their positions on the hearings sequencing to address arguments
regarding whether the district failed to comply with the statute in
developing and adopting its condemnation resolution, prior to beginning the
evidentiary hearing on the question of necessity. The court made abundantly
clear at all stages of its proceedings that it was reviewing the validity of
CSWD's initiation of eminent domain proceedings based on its alleged failures
to comply with  2299c(b).  The court's ruling reflected the position in
HS&G's principal trial memorandum of law that "[t]he [d]istrict failed to
take into account and consider all `critical information' relating to the
statutory elements and definitions of `necessity' and `damages,' and wholly
failed to make a `rational determination' of the issues and `set forth' the
same in its Resolution and Findings of Fact."  It is ingenuous to contend on
appeal that what the court did was to conduct a merits hearing in which
issues of good faith were advanced.  The record is clear and overwhelming
that the court was reviewing CSWD's compliance with  2299c(b) -- a stage in
the process that preceded consideration of the merits of necessity or
damages. 

     The court's reliance on cases from states where the initial
determination by the condemning authority has some juridical significance is
misplaced.  See, e.g., Ship Creek Hydraulic Syndicate v. State of Alaska, 685 P.2d 715, 716, 718-20 (Alaska 1984) (court may divest condemnor of title to
condemned property if it finds condemnor's statement justifying taking
untrue); San Bernadino County Flood Control Dist. v. Grabowski, 252 Cal. Rptr. 676, 682 (Cal. Ct. App. 1988).  The Grabowski court explained the
initial hearing process under California law ensures that in arriving at its
decision to take, the agency engage in a good faith and judicious
consideration of the pros and cons of the issue and that the decision to take
be 

 

buttressed by substantial evidence. Id.  The court also noted that the
statutory requirement that a public entity adopt a resolution of necessity
before initiating a condemnation action ensures that public entities "verify
and confirm the validity of their intended use of the power of eminent domain
prior to the application, of that power in any one particular instance." Id. 

     In contrast, under the subject statute, the necessity trial in Vermont
is conducted de novo, and not in review of whether the condemnor had
presented substantial evidence in support of its decision to act and without
evidentiary presumptions in favor of the condemnor, which acts not as a
quasi-judicial body, but rather as a litigant in the process.  Coburn, 125
Vt. at 519, 219 A.2d  at 587; Takabuki v. Housing Fin. & Dev. Corp., 822 P.2d 955, 956 (Haw. 1991) (condemnation resolution not appealable because owners
had right to de novo trial on question of public purpose in eminent domain
proceeding). 

     In sum, the Landfill Condemnation Statute comprehensively covers each
and every issue that HS&G could properly raise, including every aspect of
compensation, such as the proper valuation of the property to be condemned. 
On the other hand, the court could point to no authority to consider the
district's action under  2299c(b), such as failure to comply with the
public notice requirements of the statute.  Consequently, we agree with CSWD
that the court essentially conducted an appellate review of CSWD's
decision-making process -- clearly not countenanced by the governing statute.

     The decision of the superior court is reversed and the matter remanded
for trial on the merits of necessity. 

     Reversed and remanded.

                              FOR THE COURT:



                              _______________________________________
                              Chief Justice


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                              Footnotes

FN1.     There is no indication that the court based its decision in whole or in
part on a finding of bad faith by CSWD.  HS&G's contention that the court
effectively found that CSWD acted arbitrarily, and perhaps even in bad faith
underscores that what is at stake in this case is not a narrow window but
rather a broad review of the condemnor's substantive compliance with 
2299c(b) as a precondition to the filing of a petition to take by eminent
domain.