City of St. Albans v. Northwest Regional Planning Commission

Annotate this Case
St. Albans v. Northwest Regional Planning Commission  (97-268); 
167 Vt. 466; 708 A.2d 194

[Filed 13-Mar-1998]

       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. 97-268

City of St. Albans                           Supreme Court

                                             On Appeal from
    v.                                       Franklin Superior Court

Northwest Regional Planning Commission       December Term, 1997

Linda Levitt, J.

       Robert E. Farrar, St. Albans, for Plaintiff-Appellant.

       Paul S. Gillies of Tarrant, Marks & Gillies, Montpelier, for

PRESENT:  Amestoy, C.J., Dooley, Morse, Johnson and Skoglund, JJ.

       SKOGLUND, J.  Plaintiff City of St. Albans appeals from a Franklin
  Superior Court order granting defendant Northwest Regional Planning
  Commission's (NWRPC) motion for summary judgment.  City of St. Albans
  contends the court erred in concluding that the method of selecting NWRPC's
  commissioners does not violate the equal protection clause of the United
  States Constitution and its "one person, one vote" principle.  We affirm.

       NWRPC was created to serve the 24 towns, villages, and city (St.
  Albans) of Grand Isle and Franklin counties.  See 24 V.S.A. § 4341 ("A
  regional planning commission may be created . . . by the act of the voters
  or the legislative body of each of a number of contiguous municipalities .
  . . .").  While a regional planning commission (RPC) is required to
  "contain at least one representative appointed from each member
  municipality," id. § 4342, individual RPCs may have more than one
  representative per member municipality if its charter and bylaw so permit. 
  See id. § 4343.  NWRPC's bylaws provide that each municipality, regardless
  of its population, must appoint two commissioners to represent them and
  each commissioner has one


  vote.  Thus, there are forty-eight NWRPC commissioners.  In addition,
  NWRPC's bylaws provide that each member municipality will be assessed a
  share of NWRPC's expenses based upon the member municipality's population
  compared to the total population of NWRPC.

       The general purpose of an RPC is to "encourage the appropriate
  development of all lands." Id. § 4302(a).  "Appropriate development"
  requires RPCs to consider the impact development has on a long list of
  delineated subject areas, including public health and safety, the general
  welfare, taxes, traffic, arts, architecture, and the environment.  See id.
  § 4302(a). Sections 4302(b) and (c) require an RPC to "engage in a
  continuing planning process" to further a number of specific goals,
  including developing "a coordinated, comprehensive planning process and
  policy framework to guide decisions by municipalities, [RPCs], and state
  agencies."  St. Albans (hereinafter `City') is the largest member
  municipality in NWRPC.(FN1)  Because each


  member municipality of NWRPC is represented by two votes regardless of that
  member municipality's population and because the expenses of NWRPC are
  shared on a per-capita basis, the City sought a declaratory judgment in
  Franklin Superior Court, pursuant to 12 V.S.A. § 4711.  The City claimed
  that the current NWRPC commissioner-selection scheme violates the
  Fourteenth Amendment to the United States Constitution (FN2) because NWRPC
  fails to provide apportionment on a "one person, one vote" basis and,
  thereby, denies the residents of the City equal protection under the law. 
  Both the City and the NWRPC subsequently filed motions for summary judgment
  claiming that there was no genuine issue of material fact -- the City
  claiming that NWRPC's apportionment scheme violated the equal protection
  clause and NWRPC claiming that the equal protection clause was inapplicable
  to NWRPC's apportionment scheme.  The court, concluding that the equal
  protection clause did not apply to NWRPC's apportionment scheme because
  NWRPC commissioners are appointed officials and NWRPC has a special and
  limited purpose, granted NWRPC's motion for summary judgment.  This appeal

       In 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).  Thus, summary judgment will be granted if there
  are no genuine issues of material fact and the moving party is entitled to
  judgment as a matter of law.  See Wesco, Inc. v. Hay-Now, Inc., 159 Vt. 23,
  26, 613 A.2d 207, 209 (1992).  When both parties move for summary judgment,
  "both parties are entitled to the benefit of all reasonable doubts and
  inferences when the opposing party's motion is being judged."  Tooley v.
  Robinson Springs Corp., 163 Vt. 627, 628, 660 A.2d 293, 294 (1995).

       It is clear that on a population basis, the City's representative
  strength in NWRPC is diluted in comparison with those of the other member
  municipalities  -- the City's population accounts for 16.2% of the total
  population of NWRPC member municipalities but it is represented by only
  4.2% of all NWRPC commissioners.  The question is whether this dilution


  violates constitutional standards.

       The United States Supreme Court has held that the equal protection
  clause mandates that seats in state legislatures be apportioned on the
  basis of population.  See Reynolds v. Sims, 377 U.S. 533 (1964). 
  Protection afforded by the equal protection clause has also been extended
  to apportionment schemes of local governmental units.  See Gray v. Sanders,
  372 U.S. 368 (1963). A state or local government, however, may select some
  government officials by appointment, and where appointment is permissible,
  the "one person, one vote" doctrine does not apply.  See Sailors v. Board
  of Educ. of the County of Kent, 387 U.S. 105, 111 (1967).

       In Sailors, residents of school districts (qualified school electors)
  elected members to their local school district boards.  Each local school
  board then sent a delegate to a biennial meeting and those delegates
  elected members to the county board of education from candidates nominated
  by the qualified school electors.  Candidates did not need to be members of
  the local boards. Each local board could pick only one delegate regardless
  of the number of people within the local board's district.  A group of
  school electors brought suit claiming that the county board was
  unconstitutionally constituted.  The Court concluded that the county board
  performed "essentially administrative functions; and while they are
  important, they are not legislative in the classical sense."  Id. at 110
  (footnote omitted).  In addition, the Court concluded that the county board
  members were "basically" appointed rather than elected.  Id. at 109. 
  Therefore, the Court held that "[s]ince the choice of members of the county
  school board did not involve an election and since none was required for
  these nonlegislative offices, the principle of `one man, one vote' has no
  relevancy."  Id. at 111.(FN3)

       We next consider whether it is constitutionally permissible to appoint
  commissioners to


  NWRPC.  In Hadley v. Junior College Dist. of Metro. Kansas City, 397 U.S. 50 (1970), the Court was again required to decide whether the "one person,
  one vote" principle applied to a local governmental unit.  Missouri law
  authorized separate school districts to vote by referendum to create a
  consolidated junior college district and elect six trustees to manage the
  affairs of the district.  The junior college district was authorized to (1)
  levy and collect taxes, (2) issue bonds, (3) hire and fire teachers, (4)
  make contracts, (5) collect fees, and (6) acquire property by condemnation. 
  These trustees were apportioned among the member school districts based on
  "school enumeration," which was statutorily defined as the number of
  persons between the ages of six and twenty years, who resided in each
  district.  Under this apportionment scheme, the largest member school
  district, which contained 60% of the total "school enumeration," was only
  permitted to select three trustees, or 50% of the total number of trustees.

       The largest member school district brought suit claiming that their
  right to vote for the trustees of the district was unconstitutionally
  diluted.  Deciding that the "legislative-administrative" test as described
  in Sailors was unmanageable because governmental activities "cannot easily
  be classified in the neat categories favored by civics texts," id. at 56,
  the Court replaced it with the "governmental functions" test (FN4) and
  concluded that the trustees performed governmental functions.  Because the
  trustees were elected officials and performed governmental functions, the
  Court found the statutory scheme unconstitutional.  See id. ("[A]s a
  general rule, whenever a state or local government decides to select
  persons by popular election to perform governmental functions, the Equal
  Protection Clause of the Fourteenth Amendment requires that each qualified
  voter must be given an equal opportunity to participate in that election .
  . . ."); see also In re Reapportionment of Town of Hartland, 160 Vt. 9, 35,
  624 A.2d 323, 338 (1993) ("[E]qual representation applies to local
  governing bodies in situations where the members of


  the local body are elected officials, and the body exercises a wide range
  of local governmental functions.").(FN5)

       The Hadley Court, however, went on to state that "where a State
  chooses to select members of an official body by appointment rather than
  election, and that choice does not itself offend the Constitution, the fact
  that each official does not `represent' the same number of people does not
  deny those people equal protection of the laws."  See Hadley, 397 U.S.  at
  58. Thus, it is clear that in certain circumstances, governments may
  authorize appointment of members to governmental bodies without regard to
  issues of representational equality.  See id.; Sailors, 387 U.S.  at 111
  ("At least as respects non-legislative officers, a State can appoint local
  officials or elect them or combine the elective and appointive systems as
  was done here.").  The United States Supreme Court, however, has provided
  no clear guidance to the states to assist them in determining under what
  circumstances may a state authorize appointments to local governmental
  units.  Therefore, lacking such a test, we will determine whether the
  duties and tasks of NWRPC are similar in scope and scale to those
  constitutionally permitted to be performed by the appointed county school
  board in Sailors.  See Van Zanen v. Keydel, 280 N.W.2d 535, 539 (Mich. Ct.
  App. 1979) ("The most that can be said is that the more a local unit's
  functions and powers parallel those of the board of education considered in
  Sailors, the more likely it is that a state may constitutionally provide
  for appointment of government officials to that unit.").

       The required duties of NWRPC, set forth in 24 V.S.A. § 4345a, include:
  (1) promoting mutual cooperation between its member municipalities; (2)
  assisting and advising its member municipalities regarding economic
  development; (3) advising municipal governing bodies regarding public
  financing; (4) providing technical and legal assistance to municipalities;


  cooperating with neighboring states, regions, counties, and municipalities;
  (6) preparing a detailed regional plan and implementation guidelines; (7)
  reviewing municipality plans and state capital expenditures; (8) appearing
  before district environmental commissions and public service boards; and
  (9) holding public hearings.  In addition, NWRPC's optional powers and
  duties, set forth in 24 V.S.A. § 4345, include: (1) conducting studies,
  undertaking comprehensive planning, and making recommendations regarding
  land development, urban renewal, transportation, economic, industrial,
  commercial, and social development; (2) collecting relevant information
  from member municipalities and all state agencies; (3) examining and
  surveying land; (4) retaining staff and consultants; and (5) managing
  economic development programs.

       The Sailors county board's main functions included: (1) appointing a
  county school supervisor; (2) preparing an annual budget; (3) levying
  taxes; (4) distributing delinquent taxes; (5) furnishing consulting or
  supervisory services to the member districts upon request; (6) conducting
  cooperative educational programs; (7) employing special-education teachers;
  (8) at the direction of the Board of Supervisors, establishing a school at
  the juvenile home; and (9) transferring areas from one school district to
  another.  See Sailors, 387 U.S.  at 110 n.7.

       By comparing NWRPC's mandatory and optional duties with those of the
  Sailors county board, it is clear that NWRPC has been authorized to perform
  far fewer functions that could reasonably be considered governmental in
  nature than the county board in Sailors, i.e., NWRPC can not levy taxes nor
  can it alter boundary lines of its member municipalities.  Because NWRPC
  performs fewer governmental functions than the Sailors county board, we
  conclude that it is constitutionally permissible for the State to provide
  for appointment of NWRPC commissioners.  Compare Van Zanen, 280 N.W.2d  at
  539 (concluding that even though Huron-Clinton Metropolitan Authority
  (HCMA) is authorized to perform more governmental functions than the
  Sailors board, the appointment of HCMA members was constitutionally
  permissible). In addition, we note that numerous "two-tier" appointment
  processes, similar to NWRPC's procedures, have been found to be
  constitutional by other courts.  See e.g., Burton v. Whittier Reg'l
  Vocational Technical Sch. Dist., 587 F.2d 66, 70 (1st Cir. 1978); Rosenthal


  v. Board of Educ. of Cent. High Sch. Dist. No. 3, 385 F. Supp. 223, 226
  (E.D.N.Y. 1974). Finally, we note that the residents of the City knew when
  they ratified NWRPC's by-laws that their representation in NWRPC would not
  be in proportion to their population and that NWRPC commissioners would be
  appointed by their respective municipal officials and not elected. See
  Burton, 587 F.2d  at 70; Van Zanen, 280 N.W.2d  at 539 (noting that "each
  member county voted to join the [metropolitan authority] with full
  knowledge of the representation they would be afforded").  No voting rights
  were denied the residents of the City of St. Albans, nor was there any
  violation of the "one person, one vote" constitutional standard.


                              FOR THE COURT:

                              Associate Justice



FN1.    According to the U.S. Department of Commerce, 1990 Census of
  Population and Housing:  Summary Population and Housing Characteristics: 
  Vermont, at 2, the populations of NWRPC's member municipalities are as

           Franklin County            Grand Isle County

  Bakersfield town         977    Alburg town               1,362
  Berkshire town         1,190     *Alburg village            436
  Enosburg town          2,535    Grand Isle town           1,642
   *Enosburg Falls vill. 1,350    Isle La Motte town          408
  Fairfax town           2,486    North Hero town             502
  Fairfield town         1,680    South Hero town           1,404
  Fletcher town            941
  Franklin town          1,068    TOTAL POPULATION          5,318
  Georgia town           3,753
  Highgate town          3,020    *  The populations of the villages are 
  Montgomery town          823    also included in their respective town's 
  Richford town          2,178    population and,therefore, are not used 
   *Richford village     1,425    to calculate the totalpopulations 
  St. Albans city        7,339    of the counties.
  St. Albans town        4,606
  Sheldon town           1,748
  Swanton town           5,636
   *Swanton village      2,360

  TOTAL POPULATION      39,980

FN2.  "No State shall . . . deny any person within its jurisdiction
  the equal protection of the laws."  U.S. Const. amend. XIV, § 1.

FN3.  Although the City suggests that the definition of "appointive
  office" found in Sailors may preclude a holding that NWRPC commissioners
  are "appointed," we reject this argument. Section 4343 of title 24 states
  that "Representatives to a regional planning commission representing each
  participating municipality shall be appointed for a term."  Because the
  City's contention "comes at the expense of the plain meaning of" § 4343, we
  conclude that commissioners are "appointed officials."  Agency of Natural
  Resources v. Henry, 161 Vt. 556, 559, 641 A.2d 1345, 1347 (1994).

FN4.  In fact, two years prior to Hadley, the Court had formulated an
  alternative test to the Sailors "legislative-administrative" test, which
  instead determined whether local governmental bodies exercised "general
  governmental powers over an entire geographic area."  Avery v. Midland
  County, 390 U.S. 474, 485-86 (1968).

FN5.    We note that the United States Supreme Court again addressed
  the "one person, one vote" principle in Board of Estimate of City of New
  York v. Morris, 489 U.S. 688 (1989).  Because the Court found that the
  members of the Board of Estimate were elected "as a matter of law," see id.
  at 694, we conclude that Board of Estimate is not dispositive of the issues
  in the present case.